[Cite as State v. Hipsher, 2016-Ohio-5877.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




STATE OF OHIO,
                                                          CASE NO. 6-16-01
       PLAINTIFF-APPELLEE,

      v.

CRAIG W. HIPSHER,                                         OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Hardin County Common Pleas Court

                               Trial Court No. 20122303 CRI

                                      Judgment Affirmed

                          Date of Decision: September 19, 2016



APPEARANCES:

        Howard A. Elliott for Appellant

        Jason M. Miller for Appellee
Case No. 6-16-01


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Craig W. Hipsher (“Hipsher”) brings this appeal

from the judgment of the Court of Common Pleas of Hardin County denying

Hipsher’s motion to vacate his sentence. Hipsher claims that the offenses were

allied offenses of similar import. For the reasons set forth below, the judgment is

affirmed.

       {¶2} On December 26, 2012, the Hardin County Grand Jury indicted Hipsher

on 29 Counts. Doc. 1. Hipsher was arraigned on January 7, 2013, and entered pleas

of not guilty to all counts. Doc. 7. On July 23, 2013, Hipsher withdrew his pleas

of not guilty as to Count 2, Burglary in violation of R.C. 2911.12(A)(2), a felony of

the second degree; Count 4 with a firearm specification, Grand Theft in violation of

R.C. 2913.02(A)(1),(B)(4), a felony of the third degree; and Count 6 with a firearm

specification, Grand Theft in violation of R.C. 2913.02(A)(1),(B)(4), a felony of the

third degree. Doc. 29. Hipsher then entered pleas of guilty to these counts and

specifications. Id. The trial court accepted the guilty pleas. Doc. 30. A sentencing

hearing was held on September 10, 2013. Doc. 34. The trial court then sentenced

Hipsher to an aggregate prison term of nine years with two years mandatory. Id.

The remaining charges in the indictment were then dismissed. Id. No timely appeal

was taken from this judgment.

       {¶3} On August 1, 2014, Hipsher filed a notice of appeal. Doc. 40. The

request for a delayed appeal was denied. Doc. 46. On November 6, 2014, Hipsher

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filed a motion to withdraw his guilty plea. Doc. 48. The basis for the motion was

that the convictions for burglary and grand theft were allied offenses of similar

import. Id. The State filed a response to the motion on November 17, 2014. Doc.

49. On January 2, 2015, the trial court denied the motion on the grounds that the

offenses were two separate offenses as the burglary occurred on December 7, 2012,

and the grand theft charges occurred on November 19, 2012. Id. Since the offenses

occurred at two separate times, they were not allied offenses of similar import. Id.

Hipsher then appealed from that judgment. Doc. 52. The appeal was dismissed as

being untimely. Doc. 57.

       {¶4} On December 21, 2015, Hipsher filed a motion to vacate a void

sentence. Doc. 62. Hipsher alleges in this motion that he was sentenced on allied

offenses of similar import for the two grand theft convictions. Id. The State filed

its response on December 28, 2015. Doc. 63. On January 6, 2016, the trial court

overruled Hipsher’s motion. Doc. 64. Hipsher then filed a timely notice of appeal

from that judgment. Doc. 66. On appeal, Hipsher raises the following assignment

of error.

       The trial court committed reversible error in failing to grant
       [Hipsher’s] motion to vacate sentence as to counts four and six of
       the indictment, both theft charges arising out of the same act of
       burglary. They were allied offenses of similar import and as such,
       the court failed to merge them in imposing sentence and this
       created a void sentence.




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Case No. 6-16-01


        {¶5} Hipsher’s argument is that his sentence was void because he was

sentenced on two counts which were allied offenses of similar import. The Ohio

Supreme Court has held that merger of allied offenses of similar import is not of

such fundamental importance that it cannot be waived or forfeited by a defendant.

See State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990). The failure to

merge allied offenses of similar import at sentencing merely makes the sentence

“voidable”, not “void”. State v. Guevara, 6th Dist. Lucas No. L-12-1218, 2013-

Ohio-728, ¶ 8. While a court has continuing jurisdiction to address a void sentence,

the doctrine of res judicata applies to sentencing errors that are merely voidable.

State v. Currie, 5th Dist. Stark No. 2013 CA 00155, 2013-Ohio-5223. The doctrine

of res judicata bars consideration of issues that could have been raised on direct

appeal. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶

16-17. This court has previously held that allied offenses of similar import are non-

jurisdictional and may be barred by the doctrine of res judicata. State v. Nava, 3d

Dist. Wyandot No. 16-15-07, 2015-Ohio-5053, ¶14. See also, State v. Townsend,

8th Dist. Cuyahoga No. 97214, 2012-Ohio-496; State v. Williams, 2d Dist. Greene

No. 2012-CA-43, 2014-Ohio-725; State v. Pemberton, 4th Dist. Gallia No. 13CA8,

2014-Ohio-1204; and State v. Pearson, 5th Dist. Licking No. 13-CA-59, 2013-Ohio-

5690.

        {¶6} In this case, Hipsher did not challenge the issue of allied offenses on

direct appeal. He could have done so as all of the necessary information was before

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Case No. 6-16-01


him at the time of sentencing. Thus, the issue is barred from consideration by the

doctrine of res judicata. The assignment of error is overruled.

       {¶7} Having found no prejudicial errors in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Hardin County is affirmed.

                                                                  Judgment Affirmed

SHAW, P.J. and ROGERS, J., concur.

/hls




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