[Cite as State v. Horton, 2013-Ohio-848.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. No.    12CA010271

        Appellee
                                                       APPEAL FROM JUDGMENT
        v.                                             ENTERED IN THE
                                                       COURT OF COMMON PLEAS
ANTHONY G. HORTON                                      COUNTY OF LORAIN, OHIO
                                                       CASE Nos. 04CR065388
        Appellant                                                 04CR065403
                                                                  04CR065599

                                 DECISION AND JOURNAL ENTRY

Dated: March 11, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Anthony Horton, appeals from the judgment of the Lorain

County Court of Common Pleas. This Court affirms.

                                                 I

        {¶2}     In July 2004, Horton was indicted on a total of 25 counts, stemming from three

separate cases. In February 2006, Horton pleaded guilty to all counts and was sentenced to a

total of 15 years in prison. After sentencing, Horton filed a direct appeal, which was dismissed

by this Court in June 2006 because he failed to respond to a show cause order. Subsequently,

Horton filed a delayed appeal, which was also dismissed.

        {¶3}     Over the next several years, Horton filed numerous motions with the trial court

seeking to withdraw his guilty plea and requesting judicial release. The trial court denied all of

his motions. In 2010, Horton appealed from the court’s denial of judicial release. The appeal

was dismissed for lack of a final, appealable order.
                                                  2


          {¶4}   On August 8, 2012, Horton filed a “Motion to Correct Illegal Sentence,” which

was denied by the trial court. Horton now appeals and raises two assignments of error for our

review.

                                                  II

                                  Assignment of Error Number One

          WHERE A TRIAL COURT ERRONEOUSLY INFORMS A DEFENDANT
          DURING THE PLEA COLLOQUY THAT HE COULD BE CONVICTED OF
          AND SENTENCED TO OFFENSES THAT ARE ALLIED OFFENSES OF
          SIMILAR IMPORT THE TRIAL COURT FAILS TO INFORM OF THE
          MAXIMUM-PENALTY COMPONENT OF CRIM.R. 11(C)(2)(A).

          {¶5}   In his first assignment of error, Horton argues that the trial court erred when it

failed to properly inform him of the maximum penalty as required by Crim.R. 11(C)(2)(A).

          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 * * * on an appeal from
          that judgment.

State v. Perry, 10 Ohio St.3d 175 (1967), paragraph nine of the syllabus. The doctrine of res

judicata applies even if the defendant does not perfect a direct appeal from his or her conviction.

State v. Rhoten, 9th Dist. No. 24487, 2009-Ohio-3362, ¶ 6.

          {¶6}   Horton argues that his sentence is invalid because the trial court failed to comply

with Crim.R. 11. Even assuming this were true, Horton could have raised this argument in his

direct appeal in 2006.       It is well established law in Ohio that res judicata prohibits the

consideration of issues that could have been raised on direct appeal. State v. Saxon, 109 Ohio

St.3d 176, 2006-Ohio-1245, ¶ 16-17, citing State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-

5607, ¶ 37; State v. D’Ambrosio, 73 Ohio St.3d 141, 143 (1995). Because Horton’s argument

could have been raised in his direct appeal, it is now barred by the doctrine of res judicata.
                                                 3


        {¶7}   Horton’s first assignment of error is overruled.

                               Assignment of Error Number Two

        THE TRIAL COURT VIOLATED APPELLANT’S SIXTH AMENDMENT
        RIGHT TO A JURY, BY ENGAGING IN IMPROPER FACT-FINDING AND,
        CONSEQUENTLY,     SENTENCED     HIM     TO     FIFTEEN YEARS
        INCARCERATION RATHER THAN THE STATUTORY MINIMUM PRISON
        TERM FOR AN INDIVIDUAL WHO HAS NOT PREVIOUSLY SERVED A
        PRISON TERM, AS PRESCRIBED BY O.R.C. §2929.14(B)(1).

        {¶8}   In his second assignment of error, Horton argues that the trial court erred by (1)

not sentencing him, as a first time offender, to a minimum term of incarceration, and (2) by

engaging in unconstitutional fact-finding.

        {¶9}   A sentence may be void or voidable. “A void sentence is one that a court imposes

despite lacking subject-matter jurisdiction or the authority to act.    Conversely, a voidable

sentence is one that a court has jurisdiction to impose, but was imposed irregularly or

erroneously.” (Internal citations omitted.) State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,

¶ 27.

Voidable

        {¶10} A voidable sentence may only be set aside if successfully challenged on direct

appeal. Id. at ¶ 28. Prior to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, courts were

required to engage in judicial fact-finding when sentencing defendants to a term greater than the

statutory presumptive terms. Payne at ¶ 29; Foster at syllabus. The Foster Court held that this

mandatory judicial fact-finding was a constitutional violation and severed the offending portions

of the sentencing statute. Foster at syllabus. Because courts prior to Foster had jurisdiction to

impose a sentence within the statutory range after conducting the judicial fact-finding as

previously required by the statute, the sentences were an erroneous exercise of the trial court’s
                                                  4


jurisdiction. Therefore, pre-Foster sentences imposed after judicial fact-finding are voidable, not

void, sentences. Payne at ¶ 29.

         {¶11} Horton was sentenced on February 13, 2006, prior to the Foster decision on

February 27, 2006. Assuming Horton’s argument to be true, that the court engaged in judicial

fact-finding, this only makes his sentence voidable. Any challenge to a voidable sentence should

have been raised on direct appeal and is now barred by the doctrine of res judicata. Id. at ¶ 28.

         {¶12} To the extent that Horton argues the court erred by failing to merge allied

offenses, this argument could have been raised in his direct appeal and is also now barred by the

doctrine of res judicata. State v. Thomas, 9th Dist. No. 25590, 2011-Ohio-4226, ¶ 5.

Void

         {¶13} The doctrine of res judicata does not apply to appeals taken from a void judgment.

Therefore, a defendant may challenge a void judgment at any time. State v. Baker, 9th Dist. No.

25024, 2010-Ohio-4329, ¶ 9. “A void sentence is one that a court imposes despite lacking

subject-matter jurisdiction or the authority to act.” Payne at ¶ 27.

         {¶14} Horton makes no argument that the trial court lacked subject-matter jurisdiction,

nor do we find any evidence in the record to support such an argument. Thus, as long as

Horton’s sentences were within the statutory ranges, they are not void.

             Case/Count        Level of Offense       Sentence Imposed       Sentence
                                                                           Permitted by
                                                                              Statute1
           04CR065388 –                F1                 9 Years          3 to 10 Years
              Count 1
           04CR065388 –                F1                 9 Years          3 to 10 Years
              Count 2
           04CR065388 –                F1                 9 Years          3 to 10 Years
              Count 3


1
    Former R.C. 2929.14 and 2929.24.
                    5


04CR065388 –   F1        9 Years      3 to 10 Years
   Count 4
04CR065388 –   F2        8 Years       2 to 8 Years
   Count 5
04CR065388 –   F2        8 Years       2 to 8 Years
   Count 6
04CR065388 –   F2        8 Years       2 to 8 Years
   Count 7
04CR065388 –   F1        9 Years      3 to 10 Years
   Count 8
04CR065388 –   F1        9 Years      3 to 10 Years
   Count 9
04CR065388 –   F2        8 Years       2 to 8 Years
  Count 10
04CR065388 –   F2        8 Years       2 to 8 Years
  Count 11
04CR065388 –   F2        8 Years       2 to 8 Years
  Count 12
04CR065388 –   F4       18 Months    6 to 18 Months
  Count 13
04CR065388 –   F5       12 Months    6 to 12 Months
  Count 14
04CR065388 –   F2        8 Years       2 to 8 years
  Count 15
04CR065388 –   F2        8 Years       2 to 8 years
  Count 16
04CR065388 –   M1       6 Months    Not more than 180
  Count 17                                Days
04CR065388 –   M1       6 Months    Not more than 180
  Count 18                                Days
04CR065388 –   F4       18 Months    6 to 18 Months
  Count 19
04CR065388 –   M1       6 Months    Not more than 180
  Count 20                                Days
04CR065388 –   F5       12 Months    6 to 12 Months
  Count 21
04CR065403 –   M1       6 Months    Not more than 180
   Count 1                                Days
04CR065403 –   F5       11 Months    6 to 12 Months
   Count 2
04CR065599 –   F2        2 Years       2 to 8 Years
   Count 1
                                                6


         04CR065599 –                F3                 3 Years           1 to 5 Years
            Count 2


       {¶15} In case number 04CR065388, Horton was sentenced to a total of twelve years in

prison on 21 counts. He was sentenced to nine years on each of the six felonies of the first

degree; eight years on each of the eight felonies of the second degree; eighteen months on each

of the two felonies of the fourth degree; twelve months on each of the two felonies of the fifth

degree; and six months on each of the three misdemeanors of the first degree. The court ordered

the sentences to run concurrently. In addition, most counts had a three year firearm specification

attached. The court ordered the firearm specifications to be served concurrently, but consecutive

to the sentence of nine years on the underlying offenses.

       {¶16} In case number 04CR065403, Horton was sentenced to a prison term of eleven

months on two counts. He was sentenced to eleven months on a felony of the fifth degree and

six months on a misdemeanor of the first degree. The court ordered the sentences to be served

concurrently to each other and concurrent to the twelve years in case 04CR065388.

       {¶17} In case number 04CR065599, Horton was sentenced to a prison term of three

years on two counts. He was sentenced to two years on a felony of the second degree and three

years on a felony of the third degree. The court ordered the sentences to be served concurrently

to each other, but consecutive to the twelve years in case 04CR065388.

       {¶18} As the chart demonstrates, all of Horton’s sentences fall within the applicable

statutory range.   The trial court acted within its authority when it imposed his sentences.

Accordingly, Horton’s sentences are not void. Horton’s second assignment of error is overruled.
                                                 7


                                                III

       {¶19} Horton’s assignments of error are overruled, and the judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                      BETH WHITMORE
                                                      FOR THE COURT

CARR, P. J.
HENSAL, J.
CONCUR.

APPEARANCES:

ANTHONY G. HORTON, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
