State v. Parson

[Cite as State v. Parson, 2012-Ohio-730.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
STATE OF OHIO
Plaintiff-Appellee : C.A. CASE NO. 24641
vs. : T.C. CASE NO. 01 CR 546
: (Criminal Appeal from
JAMES T. PARSON Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 24th day of February, 2012.
. . . . . . . . .
Mathias H. Heck, Jr., Prosecuting Attorney, Carley J. Ingram, Atty.
Reg. No. 0020084, Assistant Prosecuting Attorney, Montgomery
County Courts Building, P.O. Box 972, 301 West Third Street, Dayton,
OH 45422
Attorneys for Plaintiff-Appellee
James T. Parson, #445-040, London Correctional Institution, P.O.
Box 69, London, OH 43140
Defendant-Appellant, Pro Se
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, James T. Parson, appeals from a final order denying his “Motion to
Correct Void Judgment or Sentence.”
{¶ 2} On March 9, 2005, Defendant pled guilty to three counts of felonious assault
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and one count of kidnapping. Defendant was sentenced to four years imprisonment on each
of the felonious assault counts, to be served concurrently, and to eight years imprisonment on
the kidnapping count, to be served consecutive to the felonious assault charges, for a total of
twelve years. Defendant did not file a direct appeal from this judgment.
{¶ 3} On August 5, 2009, Defendant filed a motion to modify sentencing, arguing
that his kidnapping sentence should run concurrently with, rather than consecutive to, his
felonious assault sentences, and that his felonious assault and kidnapping charges should have
been merged for purposes of sentencing. After considering Defendant’s motion as a motion
for judicial release, motion for post conviction relief, and a motion to vacate plea, the trial
court denied the motion. Defendant did not file a direct appeal from this order.
{¶ 4} On March 8, 2011, Defendant filed his “Motion to Correct Void Judgment or
Sentence.” In his motion, Defendant argued that the trial court erred by not merging his
kidnapping charge with the felonious assault charges because they were allied offenses of
similar import, relying on the Supreme Court’s recent decision in State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. On April 18, 2011, the trial court denied
Defendant’s motion, finding that the arguments raised are barred by the doctrine of res
judicata. Defendant filed a notice of appeal from that order.
FIRST ASSIGNMENT OF ERROR
{¶ 5} “SHOULD KIDNAPPING AND FELONIOUS ASSAULT BE MERGED AS
ALLIED OFFENSES WHEN THERE IS NOT A SEPARATE ANIMUS FOR EACH
CRIME, AS THE KIDNAPPING CHARGE WAS INHERENT WITHIN THE FELONIOUS
ASSAULT CHARGE IN THIS INSTANT CASE.”
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SECOND ASSIGNMENT OF ERROR
{¶ 6} “CONSTITUTIONAL VIOLATIONS CAN NOT BE BARRED FROM
REVIEW OR REVERSAL BASED ON THE DOCTRINE OF RES JUDICATA WHEN THE
STANDARD OF LAW DURING THE FIRST PRESENTMENT OF THE CLAIM BY THE
DEFENDANT DID NOT SUPPORT A REVERSAL IN HIS CASE, AND UNTIL THE
EXTRAORDINARY CIRCUMSTANCES WITH THE RULING OF LAW IN ANOTHER
CASE CHANGED THE STANDARD OF LAW THAT UPHELD THE ORIGINAL
CONVICTION OF THE DEFENDANT.”
{¶ 7} “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.” State v. Szefcyk, 77 Ohio
St.3d 93, 671 N.E.2d 233, syllabus. As the trial court explained, the doctrine of res judicata,
if applicable, bars the arguments raised in Defendant’s motion.
{¶ 8} Defendant argues that the trial court’s judgment and his resulting sentence are
void. Under Ohio law, “a sentence that is not in accordance with statutorily mandated terms
is void.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 233, ¶ 8. A
void sentence “is not precluded from appellate review by principles of res judicata, and may
be reviewed at any time, on direct appeal or by collateral attack.” Id. at paragraph one of the
syllabus. “Unlike a void judgment, a voidable judgment is one rendered by a court that has
both jurisdiction and authority to act, but the court’s judgment is invalid, irregular, or
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erroneous.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12.
Moreover, “defendants with a voidable sentence are entitled to resentencing only upon a
successful challenge on direct appeal.” State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, 873 N.E.2d 306, ¶ 30.
{¶ 9} The claims raised in Defendant’s motion to correct void judgment or sentence
demonstrate that, at most, his claim is that his sentence is voidable. Defendant does not
claim that his sentence is not in conformity with statutorily mandated terms, or is not
provided for by law, or even that the sentence fails to comply with the formal requirements of
R.C. 2941.25. To the extent that the trial court may have erred at the time of sentencing in
finding that the felonious assault and kidnapping charges were not allied offenses of similar
import, Defendant’s sentence would be voidable, but in no way is the sentence illegal so as to
render it void.
{¶ 10} Arguments challenging the imposition of a sentence that is voidable are barred
by the doctrine of res judicata if not raised on direct appeal. Simpkins, at ¶ 30. Since
Defendant’s sentence, assuming his allied offense argument had merit, would be voidable, he
is barred by the doctrine of res judicata from challenging his sentence on those grounds
collaterally through his “Motion to Correct Void Judgment or Sentence.” Smith v. Voorhies,
119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10-11 (“allied-offense claims are
nonjurisdictional,” and, thus, barred by the doctrine of res judicata where they were raised, or
could have been raised, on direct appeal).
{¶ 11} Further, as the State argues in its brief, Defendant cannot rely on the Supreme
Court’s recent decision in Johnson because “[a] new judicial ruling may be applied only to
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cases that are pending on the announcement date. * * * The new judicial ruling may not be
applied retroactively to a conviction that has become final, i.e., where the accused has
exhausted all of his appellate remedies.” (Citations omitted.) Ali v. State, 104 Ohio St.3d 328,
2004-Ohio-6592, 819 N.E.2d 687, ¶ 6.
{¶ 12} The assignments of error are overruled. The judgment of the trial court will be
affirmed.
FROELICH, J., And HALL, J., concur.
Copies mailed to:
Carley J. Ingram, Esq.
James T. Parson
Hon. Mary Wiseman