State v. Connally

[Cite as State v. Connally, 2019-Ohio-4441.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-411
v. : (C.P.C. No. 15CR-1241)
Jahmez L. Connally, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 29, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee.
On brief: Jahmez L. Connally, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Jahmez L. Connally, appeals the June 7, 2019
judgment of the Franklin County Court of Common Pleas denying his postconviction
motion to vacate void judgment. For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} The facts of this case are summarized in appellant's direct appeal and will not
be repeated here. State v. Connally, 10th Dist. No. 16AP-53, 2016-Ohio-7573. Relevant to
this appeal, however, appellant was a co-defendant in a home invasion involving two
victims, a brother and sister. He was convicted, pursuant to jury verdict, of one count of
aggravated burglary (Count 1), two counts of aggravated robbery (Counts 2 and 5), four
counts of robbery (Counts 3, 4, 6, and 7), and two counts of kidnapping (Counts 8 and 9),
No. 19AP-411 2
all with specifications. He was sentenced on January 8, 2016. The court imposed the
following prison time:
Doctrine of merger applied in this case. Counts Three, Four
and Eight merged with Count Two with Gun Specification,
Counts Six, Seven and Nine merged with Count Five with
Gun Specification, leaving three counts for sentencing:
THREE (3) YEARS on Counts One, Two, and Five to be served
CONCURRENT with each other and CONSECUTIVE to
Mandatory Gun Specifications of THREE (3) YEARS each for
Counts One and Two. Gun Specification on Count Five is
waived per Court's discretion. Total sentence is NINE (9)
YEARS at the Ohio DEPARTMENT OF REHABILITATION
AND CORRECTION[]. (Six years are mandatory).
(Emphasis sic.) (Jan. 11, 2016 Jgmt. Entry at 2.) The indictment named D.W. and L.G. as
the victims in Count 1; D.W. as the victim in Counts 2, 3, 4, and 8; and L.G. as the victim in
Counts 5, 6, 7, and 9.
{¶ 3} Appellant timely appealed and raised two assignments of error: (1) the trial
court erred by admitting photographs M1 through M10 into evidence, and (2) the guilty
verdict was against the manifest weight of the evidence and not supported by sufficient
evidence. This court affirmed the trial court's judgment. Connally. Appellant subsequently
filed with this court an application to reopen his appeal claiming ineffective assistance of
appellate counsel for failure to consult with him before submitting the appellate brief and
failure to argue allegedly exculpatory evidence would have warranted reversal of his
convictions. This court found appellant had failed to establish a colorable claim of
ineffective assistance of appellate counsel and, on February 9, 2017, denied the application
to reopen his appeal.
{¶ 4} On August 22, 2018, appellant filed a motion to vacate void judgment. In his
motion, appellant argued the judgment was void for failure to merge pursuant to R.C.
2941.25. Plaintiff-appellee, State of Ohio, filed a memorandum contra. On June 7, 2019,
the trial court denied the motion finding it did not implicate a void sentence and the claims
are barred by the doctrine of res judicata because appellant did not raise the issue during
trial or on direct appeal. Appellant timely appealed.
No. 19AP-411 3
II. Assignment of Error
{¶ 5} Appellant appeals and assigns the following sole assignment of error for our
review:
The trial court committed plain, reversible error in denying
vacation of void judgment, because the[] parties could not vest
it with authority to contradict R.C. §2941.25.
III. Analysis
{¶ 6} Appellant argues the trial court committed plain error in not granting his
motion because the sentence is void as the aggravated burglary (Count 1) was not merged
with the other offenses.
{¶ 7} The Supreme Court of Ohio has held that allied-offense claims are non-
jurisdictional. Smith v. Voorhies, 119 Ohio St. 3d 345, 2008-Ohio-4479, ¶ 10, citing Mosely
v. Echols, 62 Ohio St. 3d 75 (1991). This court has held that purported merger errors under
R.C. 2941.25 do not result in a void sentence and are thus barred by res judicata if not raised
on direct appeal. State v. Greenberg, 10th Dist. No. 12AP-11, 2012-Ohio-3975, ¶ 12; State
v. Myers, 10th Dist. No. 11AP-909, 2012-Ohio-2733, ¶ 5-7. But see State v. Williams, 148
Ohio St. 3d 403, 2016-Ohio-7658, ¶ 29 (sentences are void "when the trial court concludes
that the accused has in fact been found guilty of allied offenses of similar import, [and]
impos[es] separate sentences for those offenses").1
{¶ 8} Because the judgment entry is not void as appellant alleges, appellant's
motion is properly construed as a petition for postconviction relief. It is well-settled that
"[w]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking
vacation or correction of his or her sentence on the basis that his or her constitutional rights
have been violated, such a motion is a petition for postconviction relief as defined in R.C.
2953.21." State v. Reynolds, 79 Ohio St. 3d 158 (1997), paragraph one of the syllabus. See
also State v. Smotherman, 10th Dist. No. 16AP-471, 2016-Ohio-8133, ¶ 6. Furthermore,
R.C. 2953.21(K) specifies that R.C. 2953.21 "is the exclusive remedy by which a person may
bring a collateral challenge to the validity of a conviction or sentence in a criminal case."
1Appellant does not argue that Williams applies here. Likewise, our review of the judgment entry reveals
application of Williams is not warranted here.
No. 19AP-411 4
{¶ 9} As such, appellant's August 22, 2018 motion is a petition for postconviction
relief. We review a trial court's decision on a petition for postconviction relief for abuse of
discretion. State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, ¶ 58, State v. Sidibeh,
10th Dist. No. 12AP-498, 2013-Ohio-2309, ¶ 7.
{¶ 10} "Res judicata is applicable in all postconviction relief proceedings." State v.
Szefcyk, 77 Ohio St. 3d 93, 95 (1996). As stated by the Supreme Court:
Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented
by counsel from raising and litigating in any proceeding
except an appeal from that judgment, any defense or any
claimed lack of due process that was raised or could have been
raised by the defendant at the trial, which resulted in that
judgment of conviction, or on an appeal from that judgment.
(Emphasis sic.) State v. Perry, 10 Ohio St. 2d 175 (1967), paragraph nine of the syllabus.
We have held that merger issues are subject to res judicata and, thus, must be raised on
direct appeal. State v. Adams, 10th Dist. No. 14AP-623, 2015-Ohio-868, ¶ 7-8; State v.
Strickland, 10th Dist. No. 14AP-307, 2014-Ohio-5105, ¶ 13-14.
{¶ 11} Appellant had the opportunity to raise his merger arguments at sentencing
or thereafter in a direct appeal. Appellant failed to do so and, as a result, his claims are
barred by res judicata. See State v. Garnett, 10th Dist. No. 12AP-594, 2013-Ohio-1210, ¶ 9
(finding a postconviction merger argument was barred by res judicata). As his claim is
barred, appellant's assignment of error is overruled.
IV. CONCLUSION
{¶ 12} Having overruled appellant's sole assignment of error, the judgment of the
Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER and NELSON, JJ., concur.