[Cite as State v. Robinson, 2014-Ohio-397.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100077



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                KENNETH ROBINSON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-446184

         BEFORE: E.A. Gallagher, J., Jones, P.J., and Stewart, J.

         RELEASED AND JOURNALIZED:                     February 6, 2014
ATTORNEY FOR APPELLANT

Walter T. Madison
The Malone Bldg., Suite 201
209 S. Main Street
Akron, OH 44308


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary H. McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Kenneth Robinson appeals the trial court’s denial of his motion to vacate a

void sentence. Robinson challenges the constitutionality of Ohio’s postconviction relief

statute, arguing that R.C. 2953.23 is unconstitutional and his convictions are for allied

offenses thus entitling him to be resentenced. Finding no merit to the instant appeal, we

affirm the decision of the trial court.

       {¶2} In May 2004, Robinson entered into a plea agreement with the state of

Ohio whereby he pleaded guilty to felonious assault, as a lesser included offense of

aggravated murder, involuntary manslaughter as a lesser included offense of aggravated

murder, and kidnapping.      In exchange, the state deleted all the attached specifications

and dismissed the remaining count of the indictment. As part of the plea negotiations,

the parties stipulated that all counts were to run consecutively, and the trial court

sentenced Robinson to a total prison term of 28 years.

       {¶3} In May 2013, Robinson petitioned the court to vacate and correct his void

sentence.   The trial court denied Robinson’s petition and he appealed raising the

following assignments of error:

       The trial court erred and abused its judicial discretion when not applying
       the Johnson and Williams decisions retroactively via the collateral-attack
       doctrine and in accord with principles set forth in Fiore, Bunkley, and
       Agee, violating the Due Process and Equal Protection Clauses of the
       United States and Ohio Constitutions.

       The trial court erred and abused judicial discretion when refusing to
       adjudicate that an application of Ali v. State of Ohio would be in direct
       violation of the Supremacy, Due Process and Equal Protection Clauses of
       the United States and Ohio Constitutions.

       The trial court erred and abused judicial discretion when refusing to
       adjudicate that the double jeopardy claim and challenge to the
       constitutionality of Ohio Rev. Code 2953.23(A)(1)(a) were not barred
       under the doctrine of res judicata, and that its application violates the Due
       Process and Equal Protection Clauses of the United States and Ohio
       Constitutions.

       The trial court erred and abused judicial discretion when refusing to
       adjudicate that Ohio Rev. Code section 2953.23(A)(1)(a) is
       unconstitutional upon its face and in its operation because such provides no
       provision to bring a claim under the principles set forth in Fiore, Bunkley,
       and Agee, violating the Due Process and Equal Protection Clauses of the
       United States and Ohio Constitutions.

       The trial court erred and abused judicial discretion when refusing to
       adjudicate the fact Appellant’s convictions and sentences are in violation
       of the Double Jeopardy Clauses of the United States and Ohio
       Constitutions, including Ohio Rev. Code section 2941.25(A) according to
       Johnson and Williams.

       {¶4} Robinson’s five assignments of error consist of one claim and, as such they

will be addressed together.

       {¶5} In State v. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, this

court stated the following: “[c]laims that offenses are allied invoke the protections of the

Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution.” State v. Underwood, 124 Ohio St.3d

365,   2010-Ohio-1,    922    N.E.2d    923.       Ohio’s   postconviction   statute,   R.C.

2953.21(A)(1)(a), specifically applies to any person who has been convicted of a

criminal offense and claims a denial or infringement of his rights “as to render the

judgment void or voidable under the Ohio Constitution or the Constitution of the United

States.” Kelly.
       A motion to correct an illegal sentence is “an appropriate vehicle for
       raising the claim that a sentence is facially illegal at any time.” [State v.]
       Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509. “Where a
       criminal defendant, subsequent to his or her direct appeal, files a motion
       seeking vacation or correction of his or her sentence on the basis that his or
       her constitutional rights have been violated, such a motion is a petition for
       postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79
       Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131.

Kelly, supra.

       {¶6}     Although not captioned a petition for postconviction relief, Robinson’s

petition to the trial court was such a petition. Accordingly, he must comply with the

jurisdictional time limits on a postconviction petition for relief. State v. Johns, 8th Dist.

Cuyahoga No. 93226, 2010-Ohio-162. A petition for postconviction relief that claims a

violation of a constitutional right must be filed no later than 180 days after the expiration

of the time for filing the appeal. R.C. 2953.21(A)(2). An exception to the time limit

exists if it can be shown that (1) petitioner was unavoidably prevented from discovering

the facts relied on in the claim for relief or that the United States Supreme Court

recognized a new federal or state right that applies retroactively to persons in the

petitioner’s situation, and the petition asserts a claim based on that right; and (2) there is

clear and convincing evidence that but for the constitutional error at trial no reasonable

trier of fact would have found the petitioner guilty of the offense. R.C. 2953.23(A)(1).

       {¶7} In the present case, Robinson filed his motion to correct an illegal sentence,

treated by this court as a petition for postconviction relief, in 2013 —    nearly nine years

after the expiration of the time for filing the appeal.   More than 180 days elapsed so his

petition for postconviction relief was facially untimely. Kelly.
       {¶8} Further, none of the exceptions of R.C. 2953.23(A)(1) apply to extend the

time requirement.     Although Robinson argues that he had been unavoidably prevented

from raising the issue of allied offenses in his direct appeal because State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, had not yet been decided, he could

not establish the second exception to the time limit because an alleged sentencing error

would have no effect on his guilt or innocence on the charged offenses. State v. Rivers,

12th Dist. Warren No. CA2006-OH-092, 2007-Ohio-2442; Kelly.

       {¶9} In Kelly, this court dealt with the same issue raised by Robinson in this

present appeal: that his convictions were allied offenses based upon the Ohio Supreme

Court’s decision in State v. Johnson, which established the test as “whether it is possible

to commit one offense and commit the other with the same conduct[.]” Id.        However, as

stated in Kelly, Robinson’s conviction predated Johnson — the test in place at the time of

Robinson’s conviction was that set forth in State v. Rance, 95 Ohio St.3d 632,

1999-Ohio-291, 710 N.E.2d 699. “Rance required the courts to compare the elements

of each offense in the abstract, with no reference to the particular facts of the case, to

determine whether the commission of one offense would necessarily result in the

commission of the other offense.” Kelly.        In Kelly, this court determined that Kelly

cannot rely on Johnson as support for his argument when it was the Rance test in place at

the time of his conviction.   Id.   The same rationale applies in the instant case.

       {¶10}   As such, we find no merit to Robinson’s argument.

       {¶11} Lastly, we overrule Robinson’s argument that R.C. 2953.23 is

unconstitutional. This court, as well as other Ohio appellate courts have consistently
held that R.C. 2953.23 is constitutional.

       Courts throughout this State have repeatedly found that R.C. 2953.23(A)(2)
       is constitutional and does not violate the Supremacy Clause, the Doctrine
       of Separation of Powers, the “due course of law” or “open courts”
       provisions of the Ohio Constitution.

       {¶12} Accordingly, Robinson’s first, second, third, fourth and fifth assignments of

error are overruled.

       {¶13}   The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR
