State v. Williams

[Cite as State v. Williams, 2018-Ohio-688.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105873
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DONALD RAY WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-94-315917-ZA
BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: February 22, 2018
ATTORNEY FOR APPELLANT
Paul A. Mancino, Jr.
Mancino, Mancino & Mancino
75 Public Square Building, Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Donald Ray Williams appeals the trial court’s decision that denied his
“motion to vacate void judgment.” Upon review, we affirm the decision of the trial court.
{¶2} On October 26, 1995, appellant was convicted following a jury trial on one count of
murder (R.C. 2903.01) with a firearm specification and two counts of having a weapon while
under disability (R.C. 2923.13) with firearm and violence specifications. The trial court
sentenced appellant as follows:
ON COUNT 1; 3 YEARS ACTUAL FOR FIREARM SPECS., 15 YEARS TO
LIFE FOR MURDER, 3 YEARS ACTUAL TO BE SERVED BEFORE
COMMENCEMENT OF 15 YEARS TO LIFE SENTENCE. COUNT 2; 3
YEARS ACTUAL FOR GUN SPECS. 3 YEARS TO 5 YEARS SENTENCE ON
WEAPON DISABILITY CONSECUTIVE WITH COUNT 1; SENTENCE ON
COUNT 3 MERGED WITH COUNT 2; TO BE SERVED CONSECUTIVE
WITH SENTENCE IN FEDERAL COURT. PAY COSTS.
{¶3} Appellant’s convictions were affirmed on appeal in State v. Williams, 8th Dist.
Cuyahoga No. 69936, 1996 Ohio App. LEXIS 4796 (Oct. 31, 1996). Subsequent motions
brought by appellant were denied.
{¶4} On March 22, 2017, appellant filed a “motion to vacate void judgment.” Appellant
made a blanket argument that “the journal entry of sentencing does not appear to conform to
[Crim.R. 32(B)].” He further claimed that the trial court violated former R.C. 2929.71(B) when
it imposed consecutive sentences for the firearm specifications, which he asserted involved the
same firearm and arose out of the same transaction. In addition, he claimed he was sentenced
for allied offenses of similar import in violation of R.C. 2941.25.
{¶5} On May 10, 2017, the trial court denied appellant’s motion. In its journal entry, the
trial court stated as follows:
Defendant’s motion to vacate void judgment is denied. Defendant’s motion is, in
essence, [a] petition for post conviction relief under [R.C.] 2953.21 * * *.
Defendant’s petition for relief is untimely and otherwise barred by res judicata.
{¶6} Appellant filed this appeal from the trial court’s decision. He raises two
assignments of error for our review.
{¶7} Under his first assignment of error, appellant claims he was denied due process of
law because “the [trial] court failed to recognize that the sentencing entry did not conform to the
law.” Appellant makes a blanket assertion that the judgment of conviction did not conform with
Crim.R. 32(B). This argument may be disregarded because appellant failed to identify any
deficiency in the court’s journal entry. Furthermore, our review of the entry does not reflect any
failure to conform with Crim.R. 32(B). Appellant’s first assignment of error is overruled.
{¶8} Under his second assignment of error, appellant asserts he was denied due process of
law because the court “misnamed defendant’s motion as an untimely postconviction petition.”
Appellant contends that a challenge to a void judgment and sentence may be raised at any time,
yet he fails to raise a challenge that would render the sentence void.
{¶9} Where a sentence imposed on an individual is void, that individual may challenge
the void portions of the sentence at any time. State v. Williams, 148 Ohio St.3d 403,
2016-Ohio-7658, 71 N.E.3d 234, ¶ 22. Appellant claims the trial court violated former R.C.
2929.71(B) by imposing consecutive sentences on the firearm specifications, which he claims
involved the same firearm and arose out of the same transaction. Former R.C. 2929.71(B),
which was in effect at the time of appellant’s conviction, provided as follows:
If an offender is convicted of, or pleads guilty to, two or more felonies and two or
more specifications charging him with having a firearm on or about his person or
under his control while committing the felonies, each of the three-year terms of
actual incarceration imposed pursuant to this section shall be served consecutively
with, and prior to, the life sentences or indefinite terms of imprisonment imposed
pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code,
unless any of the felonies were committed as part of the same act or transaction. If
any of the felonies were committed as part of the same act or transaction, only
one three-year term of actual incarceration shall be imposed for those offenses,
which three-year term shall be served consecutively with, and prior to, the life
sentences or indefinite terms of imprisonment imposed pursuant to section
2907.02, 2907.12, 2929.11 of the Revised Code.
(Emphasis added.)
{¶10} “[A] violation of [former] R.C. 2929.71(B) does not result in a void sentence on a
firearm specification and any violation of this statute would render that part of the sentence
merely voidable and thus subject to res judicata principles and the time requirements for
post-conviction petitions.” State v. McCall, 7th Dist. Mahoning No. 12 MA 57,
2012-Ohio-5604, ¶ 23. Thus, this argument could have been raised on direct appeal and is
subject to res judicata. See State v. Stores, 7th Dist. Mahoning No. 12 MA 174,
2013-Ohio-4361, ¶ 13.
{¶11} Appellant also argues he was sentenced for allied offenses of similar import in
violation of R.C. 2941.25. However, “the trial court’s failure to find that the offender has been
convicted of allied offenses of similar import, even if erroneous, does not render the sentence
void.” Williams at ¶ 24. Further, “when a trial court finds that convictions are not allied
offenses of similar import, or when it fails to make any finding regarding whether the offenses
are allied * * *, any error must be asserted in a timely appeal or it will be barred by principles of
res judicata.” Id. at ¶ 26; see also State v. Evans, 8th Dist. Cuyahoga No. 102215,
2015-Ohio-3878, ¶ 8.
{¶12} Upon our review, we find the trial court correctly construed appellant’s motion as a
petition for postconviction relief under R.C. 2953.21 and found it was untimely and otherwise
barred by res judicata. Appellant’s second assignment of error is overruled.
{¶13} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed. The court
finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
TIM McCORMACK, P.J., and
MARY J. BOYLE, J., CONCUR