[Cite as State v. Franklin, 2018-Ohio-2904.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. 2017 CA 00170
DONALD ALBERT FRANKLIN, JR.

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2003 CR 01311


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         July 23, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                WAYNE E. GRAHAM
PROSECUTING ATTORNEY                           4450 Belden Village Street, NW
RONALD MARK CALDWELL                           Suite 703
ASSISTANT PROSECUTOR                           Canton, Ohio 44718
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017 CA 00170                                                     2

Wise, John, P. J.

       {¶1}   Defendant-Appellant Donald A. Franklin, Jr., appeals from the decision of

the Court of Common Pleas, Stark County, which resentenced him, pursuant to R.C.

2929.191, on his 2003 felony convictions. Appellee is the State of Ohio. The relevant facts

leading to this appeal are as follows.

       {¶2}   On November 26, 2003, appellant was sentenced by the Stark County Court

of Common Pleas to a total of twenty years in prison for one count of aggravated burglary,

a felony of the first degree (R.C. 2911.11(A)(1)), and one count of attempt to commit

murder, a felony of the first degree (R.C. 2923.02(A)). On direct appeal, appellant raised

issues of manifest weight of the evidence and sufficiency of the evidence, and he

challenged the imposition of consecutive maximum sentences. This Court affirmed on

October 4, 2004. See State v. Franklin, 5th Dist. Stark No. 2003CA00442, 2004–Ohio–

5398. Appellant was thereafter unsuccessful in obtaining review in the Ohio Supreme

Court via a delayed appeal.

       {¶3}   On February 1, 2016, appellant filed a “Motion to Vacate Void Judgment,”

arguing (1) his post-release control (“PRC”) was improperly imposed and (2) his two

aforesaid offenses should have been merged pursuant to R. C. 2941.25. The State of

Ohio filed a response to appellant’s motion on February 25, 2016. Appellant filed a reply

on March 9, 2016.

       {¶4}   The trial court conducted a video-conference resentencing on April 1, 2016

for purposes of PRC notification.
Stark County, Case No. 2017 CA 00170                                                         3


       {¶5}   Via a judgment entry issued April 19, 2016, the trial court noted it had

conducted the aforesaid video-conference resentencing hearing, and further ruled that

appellant’s remaining claim as to allied offenses was not well-taken.

       {¶6}   On April 21, 2016, the trial court issued a resentencing entry, pursuant to

R.C. 2929.191, stating inter alia that appellant had been advised of a five-year mandatory

period of PRC on each charge.

       {¶7}   Appellant subsequently filed pro se notices of appeal, indicating his intent

to challenge both the resentencing and the denial of his allied offenses claim. On June

10, 2016, the trial court appointed appellate counsel for appellant, but only as to his

challenge to resentencing.

       {¶8}   Appellant thereafter presented this Court with two assigned errors. First,

appellant argued that the trial court had erred as a matter of law in failing to appoint

counsel for the resentencing hearing. Secondly, appellant maintained that the trial court

had erred as a matter of law in failing to appoint appellate counsel for an appeal of the

trial court's denial of appellant's motion to vacate his sentence, as it pertained to the issue

of allied offenses.

       {¶9}   Upon review, we found merit in appellant’s contention that his right to

counsel had been violated during the video conference resentencing hearing of April, 1,

2016. We noted that the State at that time conceded the validity of appellant's argument.

We then found appellant’s remaining assigned error to be premature. Therefore, in an

opinion issued June 12, 2017, we vacated the portion of the resentencing entered by the

trial court regarding post-release control contained in the April 21, 2016 judgment entry,
Stark County, Case No. 2017 CA 00170                                                      4

and we remanded the case to the trial court for further proceedings. See State v. Franklin,

5th Dist. Stark No. 2016CA00083, 2017-Ohio-5551.

       {¶10} On August 11, 2017, the trial court conducted another resentencing hearing,

pursuant to this Court's aforesaid remand. Appellant was accompanied by his appointed

counsel. Via a judgment entry issued August 31, 2017, the trial court maintained

appellant’s twenty-year aggregate prison term. The trial court also again stated that

appellant had been advised of a five-year mandatory period of PRC on each charge. The

court also rejected appellant’s allied-offense argument, finding that the offenses of

aggravated burglary and attempted murder were not allied offenses of similar import per

R.C. 2941.25.

       {¶11} On September 11, 2017, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:

       {¶12} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT

APPELLANT’S CONVICTIONS FOR AGGRAVATED BURGLARY AND ATTEMPTED

MURDER WERE NOT ALLIED OFFENSES.”

                                                I.

       {¶13} In his sole Assignment of Error, appellant challenges the trial court’s finding

that his convictions for attempted murder and aggravated burglary were not allied

offenses of similar import.

       {¶14} As indicated in our recitation of the procedural history of this case, supra,

appellant sought review of the issue of merger of his 2003 offenses (along with the issue

of imposition of post-release control) via his “motion to vacate void judgment” filed with

the trial court on February 1, 2016, more than twelve years after he was sentenced.
Stark County, Case No. 2017 CA 00170                                                          5


       {¶15} In its development of the “void sentence” doctrine, the Ohio Supreme Court

has recognized: “* * * [I]n the normal course, sentencing errors are not jurisdictional and

do not render a judgment void. * * * But in the modern era, Ohio law has consistently

recognized a narrow, and imperative, exception to that general rule: a sentence that is

not in accordance with statutorily mandated terms is void.” State v. Fischer, 128 Ohio

St.3d 92, 94, 2010–Ohio–6238, ¶ 7–¶ 8. But the rule of Fischer was supposed to be

limited to “a discrete vein of cases: those in which a court does not properly impose a

statutorily mandated period of postrelease control.” See Fischer at ¶ 31.

       {¶16} The Ohio Supreme Court, in State v. Williams, 148 Ohio St.3d 403, 2016-

Ohio-7658, 71 N.E.3d 234, subsequently extended Fischer somewhat by holding that the

imposition of separate sentences for allied offenses of similar import is contrary to law

and such sentences are void. As such, res judicata does not preclude a court from

correcting those sentences after a direct appeal. Id. at ¶ 2. Nonetheless, the Court

reiterated that void sentence jurisprudence does not apply to challenges to a sentencing

court's basic determination as to “whether offenses are allied.” Id. at ¶ 24. The Court thus

stated that “*** 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,

imposing a separate sentence for each offense is not contrary to law and any error must

be asserted in a timely appeal or it will be barred by principles of res judicata.” Id. at ¶ 26,

emphasis added.

       {¶17} Recently, in State ex rel. Cowan v. Gallagher, --- N.E.3d ---, 2018-Ohio-

1463, the Ohio Supreme Court clarified its Williams holding as follows: “*** [A] judgment

of sentence is void in one particular circumstance: when the trial court determines that
Stark County, Case No. 2017 CA 00170                                                        6


multiple counts should be merged but then proceeds to impose separate sentences in

disregard of its own ruling.” Id. at ¶ 20, citing Williams at ¶¶ 28–29.

       {¶18} In the case sub judice, our present review of the 2003 sentencing entry

reveals the trial court was silent as to any finding regarding allied offenses. As such, we

are compelled to apply the above rationale of the Ohio Supreme Court set forth in Williams

and Cowan. Accordingly, we hold appellant’s 2016 challenge to his sentencing based on

an allied offense theory could have been raised as part of his direct appeal, and his

present claim is therefore barred by res judicata.

       {¶19} We do not wish to ignore that the trial court, upon appellant’s renewed

request to consider merger at the August 11, 2017 hearing, did render a ruling in the

August 31, 2017 judgment entry under appeal that appellant’s offenses of aggravated

burglary and attempted murder were not allied offenses of similar import per R.C.

2941.25. However, while we do not seek to fault the trial court for doing so, “[a] limited

resentencing must cover only the imposition of post-release control and the remainder of

the sentence is valid under the principles of res judicata.” State v. Valentine, 5th Dist.

Ashland No. 15-COA-020, 2015-Ohio-5396, ¶ 14. Similarly, “[b]ecause resentencing [to

correct a PRC error] is limited to the imposition of post-release control, any additional

action taken by the trial court with respect to the sentence is a nullity.” State v. Stiggers,

9th Dist. Summit No. 25486, 2011-Ohio-4225, ¶ 6, citing State v. Cool, 9th Dist. Summit

Nos. 25135 & 25214, 2011–Ohio–1560, ¶¶ 4–6.

       {¶20} Accordingly, under the circumstances of the case sub judice, the trial court,

following our remand, was not obligated to address the merits of merger of offenses at
Stark County, Case No. 2017 CA 00170                                                      7


all, and appellant therefore cannot show prejudicial error in the court’s decision to reject

same.

        {¶21} Appellant’s sole Assignment of Error is therefore overruled.

        {¶22} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.


By: Wise, John, P. J.

Gwin, J., and

Wise, Earle, J., concur.



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