[Cite as State v. Steele, 2018-Ohio-3950.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                    No. 18AP-187
v.                                                 :            (C.P.C. No. 12CR-402)

Brandon R. Steele,                                 :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                   Rendered on September 27, 2018


                 On brief: Ron O'Brien, Prosecuting             Attorney,   and
                 Kimberly M. Bond, for appellee.

                 On brief: Brandon R. Steele, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Brandon R. Steele, appeals a February 2018 decision
and entry of the Franklin County Court of Common Pleas wherein the trial court declined
to vacate as void a judgment previously entered sentencing Steele to serve 12 years in prison
for Steele's guilty plea to 2 counts of aggravated robbery (both with firearm specifications)
and 1 count of aggravated burglary. Steele specifically challenged the trial court's authority
to require him to serve the two firearm specifications consecutively. Because Steele's
aggravated robbery charges concerned separate victims, because R.C. 2929.14(B)(1)(g)
requires consecutive imposition of the two firearm specifications in this case, and because
the remainder of the arguments Steele raises on appeal were or could have been litigated in
prior proceedings, we overrule all his assignments of error. We therefore affirm.
No. 18AP-187                                                                               2


I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} On January 26, 2012, a Franklin County Grand Jury indicted Steele for
aggravated burglary, two counts of aggravated robbery, and one count of improperly
discharging a firearm into a habitation, each with an accompanying firearm specification.
(Jan. 26, 2012 Indictment.) The two aggravated robbery charges each concerned a different
victim. Id. at 2-3. After having pled not guilty in March 2012, he changed his plea in
September 2012 and pled guilty to the aggravated burglary charge (without a specification)
and the two counts of aggravated robbery (with specifications). (Mar. 26 and Sept. 18, 2012
Plea Forms.) The specification to the aggravated burglary charge and the charge for
improper discharge of a firearm (and accompanying specification) were dismissed. Id. at
2.
       {¶ 3} By judgment entered on October 24, 2012, the trial court sentenced Steele to
serve six years for each of the aggravated robbery charges and the aggravated burglary
charge, each to be served concurrently with the others. (Oct. 24, 2012 Jgmt. Entry at 2.) It
also sentenced Steele to serve 3 years for each of the 2 gun specifications, each to be served
consecutively to the other and to the underlying offenses.          Id.   The total term of
imprisonment imposed was 12 years. Id.
       {¶ 4} Steele never sought a direct appeal.
       {¶ 5} Approximately two years later, on November 25, 2014, Steele filed a motion
to vacate a void sentence alleging that the imposition of consecutive sentences for the two
firearm specifications rendered his sentence contrary to law and void. (Nov. 25, 2014 Mot.
to Vacate Void Sentence.) The State opposed Steele's motion. (Dec. 8, 2014 Memo.
Contra.) On January 21, 2015, the trial court denied Steele's motion noting that R.C.
2929.14(B)(1)(g) required the court to impose a prison term for each of "the two most
serious specifications" of which Steele was convicted. (Jan. 21, 2015 Decision & Entry at 2-
3.)
       {¶ 6} Steele never sought to appeal that decision.
       {¶ 7} More than two years later, on September 29, 2017, Steele filed a second
motion seeking to vacate a void sentence alleging essentially the same argument (but this
time framed in terms of merger) that the trial court had erred in sentencing him
consecutively on the two firearm specifications. (Sept. 29, 2017 Mot. to Vacate Void
No. 18AP-187                                                                              3


Sentence.) The State again opposed Steele's motion. (Oct. 12, 2017 Memo. Contra.) The
trial court also denied this motion, noting that the motion essentially repeated the
arguments from the first motion and that it was essentially a motion for reconsideration.
(Feb. 14, 2018 Decision & Entry at 2-3.)
        {¶ 8} Steele now appeals.
II. ASSIGNMENTS OF ERROR
        {¶ 9} Steele assigns three errors for review:
                [1.] THE TRIAL COURT IMPUGNED THE INTEGRITY OF
                THE JUDICIAL PROCESS WHEN IT SENTENCED STEELE
                TO CONSECUTIVE SENTENCES THEREBY IMPOSING A
                SENTENCE R.C. § 2929.14(D)(1)

                [2.] THE TRIAL COURT ERRED TO THE PREJUDICE OF MR
                STEELE BY IMPOSING A SENTENCE NOT SUPPORTED BY
                THE RECORD.

                [3.] TRIAL COUNSEL RENDERED INEFFECTIVE
                ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH
                AMENDMENT TO THE U.S. CONSTITUTION. AND
                ARTICLE 1, SECTIONS 10, 16 OF THE OHIO
                CONSTITUTION, AND THE APPLICATION OF THE PLAIN
                ERROR DOCTRINE, AS DEFINED IN Crim.R. 52(B).

(Sic passim.)
III. DISCUSSION
   A. First Assignment of Error – Whether the Court Erred in Imposing
      Consecutive Firearm Specifications and Res Judicata Application
        {¶ 10} In criminal cases, res judicata generally bars a defendant from litigating
claims in a proceeding subsequent to the direct appeal "if he or she raised or could have
raised the issue at the trial that resulted in that judgment of conviction or on an appeal
from that judgment." (Emphasis sic.) State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-
3707, ¶ 92; see also State v. Szefcyk, 77 Ohio St.3d 93, 95-96 (1996). " 'Stated differently,
in criminal cases res judicata may preclude issues, arguments, or positions that could have
been (even if they were not actually) litigated.' " State v. Long, 10th Dist. No. 17AP-845,
2018-Ohio-2372, ¶ 15, quoting State v. Barber, 10th Dist. No. 16AP-172, 2017-Ohio-9257,
¶ 19.
        {¶ 11} As the question of whether Steele was appropriately required to serve the
firearm specification sentences consecutively could have been (and was) litigated
No. 18AP-187                                                                                                 4


previously, at first blush it would appear that res judicata should forestall further argument
on that point. However, the Supreme Court of Ohio has carved out an exception in this
instance.
                 A court only has authority to impose a sentence that conforms
                 to law, and R.C. 2941.25 prohibits the imposition of multiple
                 sentences for allied offenses of similar import. Thus, when a
                 sentencing court concludes that an offender has been found
                 guilty of two or more offenses that are allied offenses of similar
                 import, in conformity with State v. Whitfield, 124 Ohio St.3d
                 319, 2010-Ohio-2, 922 N.E.2d 182, it should permit the state to
                 select the allied offense to proceed on for purposes of imposing
                 sentence and it should impose sentence for only that offense.
                 Accordingly, imposing separate sentences for allied offenses of
                 similar import is contrary to law and such sentences are void.
                 Therefore, res judicata does not preclude a court from
                 correcting those sentences after a direct appeal.

(Emphasis added.) State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 2.1 Thus,
neither the trial court nor we need address res judicata in rejecting Steele's argument that
his sentence in void.
        {¶ 12} Even though Steele's argument is not foreclosed by res judicata, it fails on the
merits. Steele argues that R.C. 2929.14(B)(1)(b) states that "a court shall not impose more
than one prison term on an offender" for firearm specifications in connection with "felonies
committed as part of the same act or transaction." (Steele Brief at 8-9, quoting R.C.
2929.14(B)(1)(b), (B)(1)(c)(iii).) However, this argument ignores the fact that this rule only
applies "[e]xcept as provided in division (B)(1)(g)." R.C. 2929.14(B)(1)(b). Division
(B)(1)(g) of R.C. 2929.14 provides as follows:
                 If an offender is convicted of or pleads guilty to two or more
                 felonies, if one or more of those felonies are * * * aggravated
                 robbery, * * * and if the offender is convicted of or pleads guilty

1 The Supreme Court previously recognized that "a void judgment is one that has been imposed by a court that

lacks subject-matter jurisdiction over the case or the authority to act" while a "voidable judgment is one
rendered by a court that has both jurisdiction and authority to act, but the court's judgment is invalid,
irregular, or erroneous." State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 12. The high court has
also recognized that "we commonly hold that sentencing errors are not jurisdictional and do not necessarily
render a judgment void." Id. at ¶ 13. Yet, in cases such as Williams, the Supreme Court has embraced
exceptions that threaten to swallow the rule and lead to a situation where virtually any allegedly serious error
in sentencing can be revived time and time again without being foreclosed by res judicata. This Court and
others have expressed concerns about the legal basis and limits of the "voidness" doctrine that the Supreme
Court has created in this context. State v. Banks, 10th Dist. No. 15AP-653, 2015-Ohio-5372, ¶ 16, fn. 1; see
also State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 34-39 (DeWine, J., concurring in judgment only);
State v. Fischer, 128 Ohio St 3d 92, 2010-Ohio-6238, ¶ 41-57 (Lanzinger, J., dissenting).
No. 18AP-187                                                                               5


               to a specification of the type described under division (B)(1)(a)
               of this section in connection with two or more of the felonies,
               the sentencing court shall impose on the offender the prison
               term specified under division (B)(1)(a) of this section for each
               of the two most serious specifications of which the offender is
               convicted or to which the offender pleads guilty and, in its
               discretion, also may impose on the offender the prison term
               specified under that division for any or all of the remaining
               specifications.

Multiple courts have recognized that this obligates sentencing courts to sentence
consecutively on at least the two most serious specifications where an offender otherwise
meets the qualifications set forth by division (B)(1)(g). See, e.g., State v. Kendrick, 10th
Dist. No. 15AP-835, 2016-Ohio-4770, ¶ 7-8; State v. Rouse, 9th Dist. No. 28301, 2018-
Ohio-3266, ¶ 11; State v. Nelson, 8th Dist. No. 104336, 2017-Ohio-5568, ¶ 84-85. Steele
pled guilty to two counts of aggravated robbery, each with a firearm specification. (Sept. 18,
2012 Plea Form.) His situation fits squarely within the exception requiring consecutive
specification sentencing set forth in R.C. 2929.14(B)(1)(g).
       {¶ 13} And each of the aggravated robbery charges and specifications Steele pled
guilty to related to different victims. (Jan 26, 2012 Indictment at 2-3.) Thus, neither the
underlying offenses nor the specifications would have been appropriate candidates for
merger, even if R.C. 2929.14(B)(1)(g) did not apply. State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, paragraph two of the syllabus (holding that "[t]wo 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").
       {¶ 14} We overrule Steele's first assignment of error.
   B. Third Assignment of Error – Whether Trial Counsel was Ineffective in
      Failing to Raise the Merger Issue with Regard to the Sentences for the
      Firearm Specifications
       {¶ 15} As we have concluded that merger would not have been appropriate and that
the trial court was statutorily obligated by R.C. 2929.14(B)(1)(g) to impose consecutive
sentences on Steele's two firearm specifications, trial counsel was not ineffective in failing
to object. We therefore overrule Steele's third assignment of error.
   C. Second Assignment of Error – Res Judicata as to Sentence Length
       {¶ 16} In his second assignment of error, Steele argues that 12 years was an
unjustifiably harsh sentence given the facts of the case and the statutory considerations
No. 18AP-187                                                                             6


related to sentencing under R.C. 2929.11 and 2929.12. (Steele Brief at 13-24.) These issues
could have been argued on direct appeal but are prevented from being raised at this late
juncture by res judicata. Jackson at ¶ 92; Long at ¶ 15. We overrule Steele's second
assignment of error.
IV. CONCLUSION
       {¶ 17} Though res judicata does not bar Steele's argument that improper imposition
of consecutive sentences rendered his sentence void, that argument is without merit.
Steele's aggravated robbery convictions involved two different victims and each conviction
included admitted guilt to a related firearm specification. Under R.C. 2929.14(B)(1)(g), the
trial court correctly imposed the specifications consecutively, being required by law to do
this. Steele's counsel was not ineffective in failing to do what the law required. Steele's
remaining argument, that his sentence was too harsh given the circumstances of his case,
does not suggest that his sentence was void, could have been raised on direct appeal, and is
barred by res judicata. We overrule all three of his assignments of error and affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                      Judgment affirmed.

                              KLATT, J., concurs.
                   LUPER SCHUSTER, J., concurs in judgment only.
