[Cite as State v. Tisdale, 2019-Ohio-73.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                       TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                   :        OPINION

                   Plaintiff-Appellee,            :
                                                           CASE NO. 2017-T-0022
          - vs -                                  :

 SHANE TISDALE,                                   :

                   Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 07 CR
 147.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
 Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
 44481-0192 (For Plaintiff-Appellee).

 Shane Tisdale, pro se, PID: A523-979, London Correctional Institution, 1580 State
 Route 56, S.W., Landon, OH 43140 (Defendant-Appellant).



THOMAS R. WRIGHT, P.J.



        {¶1}       Appellant, Shane Tisdale, appeals the trial court’s denial of his post-

sentence motion to vacate his sentence. We affirm.

        {¶2}       In March of 2007, Tisdale pleaded guilty to one count of robbery, eleven

counts of aggravated robbery, and ten counts of kidnapping. The trial court imposed the

parties’ jointly recommended sentence, eight years on count one and ten years on each
remaining count to run concurrent with one another, but consecutive to the eight-year

sentence for robbery, for an aggregate prison term of 18 years.

       {¶3}   In December of 2007, we permitted Tisdale to file a delayed appeal, and he

raised two assignments of error, ineffective assistance of counsel and that the court

imposed an excessive sentence. He did not raise a merger argument. We subsequently

dismissed the appeal for lack of jurisdiction to review an imposed, jointly recommended

sentence pursuant to R.C. 2953.08(D)(1). State v. Tisdale, 11th Dist. Trumbull No. 2007-

T-0122, 2008-Ohio-5452, ¶12, 14 (“Tisdale I”).

       {¶4}   In February of 2017, Tisdale moved to vacate his sentence as void because

the court imposed sentence for multiple offenses of similar import that should have

merged. The trial court overruled his motion.

       {¶5}   Tisdale raises one assignment of error:

       {¶6}   “The trial court erred when it did not find that multiple offenses were allied

offenses of similar import.”

       {¶7}   He argues that his sentence is void because the court had a mandatory duty

to merge his convictions as a matter of law pursuant to R.C. 2941.25(A).

       {¶8}   Contrary to Tisdale’s argument, any error regarding merger renders the

original sentencing judgment voidable, not void. State v. Simmons, 11th Dist. Lake No.

2012-L-025, 2012-Ohio-4470, ¶20.

       {¶9}   “‘In general, 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. State v. Payne, 114

Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. Unlike a void judgment, a

voidable judgment is one rendered by a court that has both jurisdiction and authority to




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act, but the court's judgment is invalid, irregular, or erroneous.’ State v. Simpkins, 117

Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at ¶12.” State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶6.

      {¶10} A void judgment renders the judgment a nullity, “and the parties are in the

same position as if there had been no judgment.” Id. at ¶12.

      {¶11} “[I]f a judgment is void, the doctrine of res judicata has no application, and

the propriety of the decision can only be challenged on direct appeal or by collateral

attack. * * * If a judgment in question is merely voidable, though, the doctrine of res

judicata does apply, and any argument regarding the merits of the decision is considered

waived for all purposes unless it is asserted as part of the direct appeal. State v.

Parson, 2nd Dist. No. 24641, 2012-Ohio-730, ¶10.” State ex rel. Porterfield v. McKay,

11th Dist. Trumbull No. 2012-T-0012, 2012-Ohio-5027, ¶13, cause dismissed, 134 Ohio

St.3d 1443, 2013-Ohio-310, 982 N.E.2d 723; accord State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, ¶30.

      {¶12} Here, Tisdale was required to raise merger in his direct appeal because any

error regarding merger of his charges would render the original sentencing judgment

voidable. Since he did not advance a merger argument in his direct appeal, res judicata

bars Tisdale from raising the issue in a post-sentence motion. State v. Simmons, 11th

Dist. Lake No. 2012-L-025, 2012-Ohio-4470; State v. Britta, 11th Dist. Lake No. 2011-L-

041, 2011-Ohio-6096; State v. Stalnaker, 11th Dist. Lake No. 2013-L-006, 2013-Ohio-

3479, ¶12.

      {¶13} Since our decision in Tisdale I, the Ohio Supreme Court has held that

“[w]hen a sentence is imposed for multiple convictions on offenses that are allied offenses




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of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar

appellate review of that sentence even though it was jointly recommended by the parties

and imposed by the court.” (Emphasis added.) State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923, paragraph one of the syllabus. However, a defendant only

has the right to raise merger in a direct appeal and must demonstrate plain error. Id. at

¶29-31.

       {¶14} Unlike the defendant in Underwood, Tisdale did not raise merger on direct

appeal, and as such, it is barred by res judicata.

       {¶15} Tisdale’s sole assignment of error lacks merit, and the trial court’s decision

is affirmed.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                                    ____________________




COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶16} Initially, I note that robbery and kidnapping may be allied offenses of similar

import when the restraint of the victim is merely incidental to the robbery. State v.

Taogaga, 165 Ohio App. 3d 775, 2006-Ohio-692, ¶21 (8th Dist.), citing State v. Logan,

60 Ohio St.2d 126, 130-131 (1979); State v. Jones, 8th Dist. Cuyahoga No. 61279, 1992

WL 369257 (Dec. 10., 1992); State v. Burks, 8th Dist. Cuyahoga No. 58975, 1991 WL

17493 (Aug. 29, 1991).

       {¶17} In the lead case of Underwood, supra, at ¶23-26, the court held:



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          {¶18} “R.C. 2941.25 codifies 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, which prohibits multiple punishments for the same offense. The statute

states:

          {¶19} “‘(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.

          {¶20} “‘(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.’

          {¶21} “R.C. 2941.25(A) clearly provides that there may be only one conviction for

allied offenses of similar import. Because a defendant may be convicted of only one

offense for such conduct, the defendant may be sentenced for only one offense. This

court has previously said that allied offenses of similar import are to be merged at

sentencing. See State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, * * *, ¶43; State

v. McGuire (1997), 80 Ohio St.3d 390, 399, * * *. Thus, a trial court is prohibited from

imposing individual sentences for counts that constitute allied offenses of similar import.

A defendant’s plea to multiple counts does not affect the court’s duty to merge those allied

counts at sentencing. This duty is mandatory, not discretionary. Therefore, we conclude

that when a sentence is imposed on multiple counts that are allied offenses of similar

import in violation of R.C. 2941.25(A), R.C. 2953.08(D) does not bar appellate review of




                                              5
that sentence even though it was jointly recommended by the parties and imposed by the

court.” (Emphasis sic.) (Parallel citations omitted.)

       {¶22} The Underwood court also held, at ¶10-16:

       {¶23} “A defendant’s right to appeal a sentence is based on specific grounds

stated in R.C. 2953.08(A):

       {¶24} “‘In addition to any other right to appeal and except as provided in division

(D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal

as a matter of right the sentence imposed upon the defendant on one of the following

grounds:

       {¶25} “‘ * * *

       {¶26} “‘(4) The sentence is contrary to law.’

       {¶27} “Subsection (D)(1) provides an exception to the defendant’s ability to

appeal:

       {¶28} “‘* * *

       {¶29} “‘A sentence imposed upon a defendant is not subject to review under this

section if the sentence is authorized by law, has been recommended jointly by the

defendant and the prosecution in the case, and is imposed by a sentencing judge.’

       {¶30} “In other words, a sentence that is ‘contrary to law’ is appealable by a

defendant; however, an agreed-upon sentence may not be if (1) both the defendant and

the state agree to the sentence, (2) the trial court imposes the agreed sentence, and (3)

the sentence is authorized by law. R.C. 2953.08(D)(1). If all three conditions are met, the

defendant may not appeal the sentence.”




                                             6
       {¶31} The Underwood court then analyzed decisions from various courts of

appeals, holding that agreed sentencing entries were only contrary to law when the

sentence imposed was outside the statutory parameters. Id. at ¶19. The court went on

to hold, at ¶20:

       {¶32} “We do not agree with such a narrow interpretation of ‘authorized by law.’

Adopting this reasoning would mean that jointly recommended sentences imposed within

the statutory range but missing mandatory provisions, such as postrelease control (R.C.

2929.19(B)(3)(c)) or consecutive sentences (R.C. 2929.14(D) and (E)), would be

unreviewable.      Our recent cases illustrate that sentences that do not comport with

mandatory provisions are subject to total resentencing. See, e.g., State v. Bezak, 114

Ohio St.3d 94, 2007-Ohio-3250, * * *, ¶11. Nor can agreement to such sentences insulate

them from appellate review, for they are not authorized by law. We hold that a sentence

is ‘authorized by law’ and is not appealable within the meaning of R.C. 2953.08(D)(1) only

if it comports with all mandatory sentencing provisions. A trial court does not have the

discretion to exercise its jurisdiction in a manner that ignores mandatory statutory

provisions. See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, * * *, ¶27 (‘Every

judge has a duty to impose lawful sentences’).” (Parallel citations omitted.”)

       {¶33} Of course, this narrow interpretation of “authorized by law,” disapproved by

Underwood, is exactly the one we applied in dismissing Mr. Tisdale’s direct, albeit delayed

appeal, in Tisdale I. Id. at ¶11-12.

       {¶34} The court further refined its analysis of merger doctrine in State v. Williams,

148 Ohio st.3d 403, 2016-Ohio-7658. It held that when a trial court recognizes that

offenses may be allied offenses of similar import, it must conduct merger, or the




                                             7
sentences are void. Id. at ¶28. However, when it finds the offenses in question are not

allied offenses of similar import, or makes no finding whatsoever on the issue, the matter

can only be assigned as error on direct appeal. Id. at ¶26.

       {¶35} In Mr. Tisdale’s case, the issue of whether various of his offenses were

allied offenses of similar import was never discussed by the trial court at sentencing.

Consequently, pursuant to Williams, he had to address this issue on direct appeal.

However, he was deprived of the chance to do so, since, pursuant to Underwood, our

reasons for dismissing his appeal were erroneous.

       {¶36} The issue is raised, therefore, of whether the holdings in Underwood have

a retroactive effect. In State v. Parker, the Eighth District recently undertook an extensive

review of when a decision of the Supreme Court of Ohio has retroactive effect. The Eighth

District wrote, at ¶18-21:

       {¶37} “Under the analysis set forth in Teague v. Lane, 489 U. S. 288, * * * (1989),

a new constitutional rule of criminal procedure applies to criminal cases still pending on

direct appeal, but generally does not apply to a conviction that was final when the new

rule was announced. Id. at 295, * * * . However, two categories of decisions fall outside

this general bar on retroactivity:

       {¶38} “First, ‘(n)ew substantive rules generally apply retroactively.’ Schriro v.

Summerlin, 542 U.S. 348, 351, * * * (2004) (* * *). Second, new ‘“watershed rules of

criminal procedure,”’ which are procedural rules ‘implicating the fundamental fairness and

accuracy of the criminal proceeding,’ will also have retroactive effect. Saffle v. Parks, 494

U.S. 484, 495, * * * (1990) (quoting Teague at 311-313, * * *). Welch v. United States,

578 U.S. ––––, 136 S.Ct. 1257, * * * (2016).




                                             8
        {¶39} “The court recently explained the distinction between retroactive

substantive rules and nonretroactive procedural rules as follows:

        {¶40} “Substantive rules, then, set forth categorical constitutional guarantees that

place certain criminal laws and punishments altogether beyond the State’s power to

impose. It follows that when a State enforces a proscription or penalty barred by the

Constitution, the resulting conviction or sentence is, by definition, unlawful. Procedural

rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by

regulating ‘the manner of determining the defendant’s culpability.’          Montgomery v.

Louisiana, 577 U.S. ––––, 136 S.Ct. 718, * * * (2016), quoting Schriro, 542 U.S. at 353, *

* *.

        {¶41} “In determining whether a rule is substantive or procedural, the Welch court

explained:

        {¶42} “‘A rule is substantive rather than procedural if it alters the range of conduct

or the class of persons that the law punishes (including) decisions that narrow the scope

of a criminal statute by interpreting its terms, as well as constitutional determinations that

place particular conduct or persons covered by the statute beyond the State’s power to

punish.’578 U.S. at ––––, 136 S.Ct. 1257, ¶8, quoting Schriro, 542 U.S. at 353, 124 S.Ct.

2519.

        {¶43} “In other words, substantive rules ‘either (a) prohibit criminal punishment for

certain types of primary conduct, or (b) forbid the imposition of certain categories of

punishment for particular classes of defendants.’ O’Dell v. Netherland, 521 U.S. 151,

157, * * * (1997). Conversely, procedural rules ‘regulate only the manner of determining

the defendant’s culpability.’ Schriro, 542 U.S. at 353.” (Parallel citations omitted.)




                                              9
       {¶44} Based on the foregoing, I conclude Underwood announced a new

substantive rule of law, since it increased the range of defendants permitted to appeal an

agreed judgment entry of sentence, beyond the narrow class of those whose sentences

were outside the statutory parameters for the offense committed.             Consequently,

Underwood applies to Mr. Tisdale’s case. Further, he may take advantage of it presently,

since we erroneously deprived him of his direct appeal. In effect, this is his direct appeal.

On remand, the trial court shall conduct a hearing to determine what, if any, of Mr.

Tisdale’s offenses are subject to merger.

       {¶45} I respectfully dissent.




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