[Cite as State v. Woullard, 2017-Ohio-2614.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 27216
                                                     :
 v.                                                  :   Trial Court Case No. 2014-CR-356
                                                     :
 ERIC D. WOULLARD                                    :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                             Rendered on the 28th day of April, 2017.

                                                ...........

MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ERIC D. WOULLARD, Inmate No. 712-929, London Correctional Institution, P.O. Box 69,
London, Ohio 43140
     Defendant-Appellant-Pro Se

                                               .............




WELBAUM, J.
                                                                                        -2-




       {¶ 1} Defendant-appellant, Eric D. Woullard, appeals pro se from the decision of

the Montgomery County Court of Common Pleas overruling his petition for post-conviction

relief in which he argued the sentences he received for multiple counts of nonsupport of

dependents were void because the sentences should have been merged as allied

offenses of similar import. For the reasons outlined below, the judgment of the trial court

will be affirmed.



                          Facts and Course of Proceedings

       {¶ 2} On May 13, 2014, Woullard pled guilty in Case No. 2014-CR-356 to two

counts of nonsupport of dependents in violation of R.C. 2919.21(B). Woullard also pled

guilty to an additional count of nonsupport of dependents in Case No. 2014-CR-276. The

two counts in Case No. 2014-CR-356 arose from Woullard failing to pay child support for

his children, Z.D. and E.D., between January 1, 2009 and May 31, 2010. The single

count in Case No. 2014-CR-276 arose from Woullard failing to pay child support for

another one of his children, L.A.W., between June 1, 2008 and May 30, 2010. Because

Woullard had previously been convicted of a felony nonsupport violation under R.C.

2929.21, each of the counts in Case Nos. 2014-CR-356 and 2014-CR-276 were charged

as felonies of the fourth degree. See R.C. 2919.21(G)(1).

       {¶ 3} The same day Woullard entered his guilty pleas, the Montgomery County

Grand Jury returned an indictment in Case No. 2014-CR-01071 charging Woullard with

yet another fourth-degree-felony count of nonsupport of dependents in violation of R.C.

2919.21(B). This charge arose from Woullard failing to pay child support for a fourth
                                                                                        -3-


child, A.G., between the dates of January 1, 2012 and December 31, 2013.

      {¶ 4} After accepting Woullard’s guilty pleas in Case Nos. 2014-CR-356 and 2014-

CR-276, the trial court ordered Woullard to appear in court for sentencing on June 12,

2014. Woullard, however, failed to appear as ordered, and the trial court issued a capias

for his arrest. Woullard was apprehended seven months later on January 22, 2015.

      {¶ 5} On February 3, 2015, Woullard appeared in court and pled guilty to the

nonsupport charge in Case No. 2014-CR-01071.            Woullard was then immediately

sentenced for all three of his nonsupport cases. Specifically, the trial court sentenced

Woullard to 18 months in prison for each of the two nonsupport counts in Case No. 2014-

CR-356 to be served concurrently. In addition, for the single nonsupport count in Case

No. 2014-CR-276, the trial court imposed another 18-month prison term to be served

consecutively to the sentences in Case No. 2014-CR-356. The trial court also imposed

an 18-month prison term for the nonsupport count in Case No. 2014-CR-01071 and

ordered it to be served concurrently with the sentence in Case No. 2014-CR-276.

Therefore, Woullard’s total sentence for all three cases amounted to 36 months in prison.

      {¶ 6} Woullard did not file a direct appeal from the convictions in any of his cases.

Rather, on July 6, 2016, Woullard filed a “Motion to Vacate Void Sentence” in Case No.

2014-CR-356. Although he did not file the motion in the other two cases, Woullard

argued in his motion that the aggregate 36-month prison sentence he received for all

three cases was contrary to law and void because his nonsupport offenses were allied

offenses of similar import that should have been merged at sentencing. Accordingly,

Woullard claimed that the trial court should resentence him to a total prison term of 18

months.
                                                                                       -4-


      {¶ 7} In ruling on Woullard’s motion, the trial court construed the motion as a

petition for post-conviction relief. Although the motion was only filed in Case No. 2014-

CR-356, the trial court determined that the sentences Woullard received in all three cases

were not contrary to law. In so holding, the trial court found that Woullard’s offenses in

those cases were not allied offenses of similar import as defined under R.C. 2941.25 and

that his argument claiming otherwise was barred by the doctrine of res judicata. As a

result, the trial court entered a judgment overruling Woullard’s post-conviction motion, a

decision that Woullard now appeals.

      {¶ 8} In pursing his appeal, Woullard has raised two assignments of error for this

court’s review. Because his assignments of error are interrelated, we will address both

assignments of error together.



                       First and Second Assignments of Error

      {¶ 9} Woullard’s First and Second Assignments of error are as follows:

      I.     THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW

             WHEN IT CONVICTED AND SENTENCED DEFENDANT ON

             ALLIED OFFENSES OF SIMILAR IMPORT VIOLATING THE DUE

             PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF

             THE      UNITED      STATES       CONSTITUTION         AND      OHIO

             CONSTITUTION ART. I. SEC. 10.

      II.    THE TRIAL COURT ERRED IN ABUSING ITS DISCRETION

             OVERRULING THE APPELLANT’S MOTION DUE TO RES

             JUDICATA, VIOLATIONG THE DUE PROCESS CLAUSES OF THE
                                                                                            -5-


               FOURTEENTH         AMENDMENT         OF    THE     UNITED      STATES

               CONSTITUTION AND OHIO CONSTITUTION ART. I. SEC. 10.

        {¶ 10} Under his two assignments of error, Woullard contends that the trial court

erred in overruling his petition for post-conviction relief. In support of this claim, Woullard

argues that the aggregate 36-month prison sentence he received for the nonsupport

offenses in all three of his cases is void because the offenses were allied offenses of

similar import that should have been merged at sentencing. Woullard also argues that

the trial court erred in finding that res judicata barred his allied offense claim. As a result

of these alleged errors, Woullard requests this court to reverse his sentence and remand

the matter for resentencing.

        {¶ 11} As a preliminary matter, we note that Woullard’s appeal is from the trial

court’s judgment overruling his petition for post-conviction relief entered in Case No.

2014-CR-356. Although in rendering that decision the trial court reviewed the sentences

in Woullard’s other cases, the fact remains that the present appeal is confined to Case

No. 2014-CR-356; therefore, we do not have jurisdiction to issue a decision affecting the

other two cases. This is true despite the fact that Woullard is appearing pro se, for he is

nevertheless “ ‘presumed to know the law and correct procedure, and [is] held to the same

standards as other litigants.’ ” State v. Banks, 2d Dist. Montgomery No. 25541, 2013-

Ohio-4394, ¶ 18, quoting Yocum v. Means, 2d Dist. Dark No. 1576, 2002-Ohio-3803,

¶ 20.

        {¶ 12} That said, after reviewing the record, we find that Woullard’s allied offense

argument is barred by res judicata because he could have, but did not, raise the argument

on direct appeal. “Under the doctrine of res judicata, a final judgment of conviction bars
                                                                                           -6-


a convicted defendant who was represented by counsel from raising and litigating * * *

any defense or any claimed lack of due process that was raised or could have been raised

by the defendant * * * on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. It is well settled that “any

issue that could have been raised on direct appeal and was not is res judicata and not

subject to review in subsequent proceedings.” State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.

       {¶ 13} Despite this, Woullard contends that res judicata did not bar him from raising

his allied offense claim in his petition for post-conviction relief because the alleged allied

offense error renders his sentence void and void sentences are not precluded from

appellate review by principles of res judicata.

       {¶ 14} However, in State v. Williams, Sup. Ct. Slip Opinion No. 2016-Ohio-7658,

(Nov. 10, 2016), the Supreme Court of Ohio recently made clear 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 [regarding the failure to merge] must be

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

citing State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8-9; State

v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3; See also State v.

Dominguez, 2d Dist. Montgomery No. 26853, 2016-Ohio-5051, ¶ 10 (finding res judicata

barred defendant’s allied offense argument because he could have raised it on direct

appeal, but filed no direct appeal).

       {¶ 15} On the other hand, the Supreme Court contrasted that situation from a
                                                                                          -7-


situation where the sentencing court concludes that an offender is guilty of allied offenses

of similar import and then imposes separate sentences instead of merging them. Under

those circumstances, the Supreme Court held that the sentences are contrary to law and

void and that res judicata would not preclude a court from correcting those sentences

after a direct appeal. Williams at ¶ 2, 26-29. That is not the case here.

       {¶ 16} In the present case, the trial court did not make any finding as to whether

Woullard’s sentences were allied offenses of similar import at the sentencing hearing and

Woullard did not appeal his convictions.        Accordingly, Woullard’s argument that his

nonsupport offenses should have merged is barred by res judicata. Williams at ¶ 26;

Dominguez at ¶ 10.

       {¶ 17} Regardless, even assuming res judicata was inapplicable to the case at bar,

it is clear that Woullard’s offenses are not allied offenses of similar import. Ohio’s allied

offense statute, R.C. 2941.25, provides that:

       (A) Where the same conduct by defendant can be construed to constitute

       two or more allied offenses of similar import, the indictment or information

       may contain counts for all such offenses, but the defendant may be

       convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of

       dissimilar import, or where his conduct results in two or more offenses of

       the same or similar kind committed separately or with a separate animus as

       to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.

       {¶ 18} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
                                                                                      -8-


Supreme Court of Ohio clarified the applicable standard when determining whether

offenses merge as allied offenses of similar import and provided as follows:

             Rather than compare the elements of two offenses to determine

      whether they are allied offenses of similar import, the analysis must focus

      on the defendant’s conduct to determine whether one or more convictions

      may result, because an offense may be committed in a variety of ways and

      the offenses committed may have different import. No bright-line rule can

      govern every situation.

             As a practical matter, when determining whether offenses are allied

      offenses of similar import within the meaning of R.C. 2941.25, courts must

      ask three questions when the defendant’s conduct supports multiple

      offenses: (1) Were the offenses dissimilar in import or significance? (2)

      Were they committed separately? and (3) Were they committed with

      separate animus or motivation? An affirmative answer to any of the above

      will permit separate convictions. The conduct, the animus, and the import

      must all be considered.

Ruff at ¶ 30-31.

      {¶ 19} As to the question of import and significance, “two or more offenses of

dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s

conduct constitutes offenses involving separate victims or if the harm that results from

each offense is separate and identifiable.” Id. at ¶ 23.

      {¶ 20} In this case, each of Woullard’s nonsupport offenses arose from separate

acts of him failing to pay child support. Furthermore, each child for whom Hudson failed
                                                                                              -9-


to pay said child support, i.e., Z.D., E.D., L.A.W., and A.G., constitute separate victims

who suffered separate harm by his conduct.             Accordingly, Woullard’s nonsupport

offenses do not meet the allied offense standard in R.C. 2941.25.

       {¶ 21} For the foregoing reasons, Woullard’s First and Second Assignments of

Error are overruled.



                                         Conclusion

       {¶ 22} Having overruled both assignments of error raised by Woullard, the

judgment of the trial court overruling his petition for post-conviction relief is affirmed.



                                       .............



FROELICH, J. and TUCKER, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Alice B. Peters
Eric D. Woullard
Hon. Mary Katherine Huffman
