[Cite as State v. Dupler, 2019-Ohio-1662.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                               :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
TROY A. DUPLER,                              :       Case No. CT2018-0068
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court of Common Pleas, Case No.
                                                     CR2018-0110




JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    April 30, 2019



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    TROY A. DUPLER, pro se.
Prosecuting Attorney                                 Inst. No. A743-982
                                                     Noble Correctional Inst.
By: TAYLOR P. BENNINGTON                             15708 McConnesville Road
Assistant Prosecuting Attorney                       Caldwell, Ohio 43724-9678
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2018-0068                                                2




Baldwin, J.


       {¶1}   Troy Dupler appeals the decision of the Muskingum County Court of

Common Pleas denying his R.C. 2953.21 petition for post-conviction relief. Appellant is

the State of Ohio.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   The facts leading to appellant’s conviction are not relevant to the resolution

of this appeal and are omitted.

       {¶3}   On April 26, 2018, Appellant entered a guilty plea to Possession of Drugs

(Methamphetamine) with a Forfeiture Specification and a Firearm Specification, a felony

of the second degree, in violation of R.C. 2925.11(A), 2941.1417 and 2941.145;

Trafficking in Drugs (Methamphetamine) with a Forfeiture Specification and a Firearm

Specification, a felony of the second degree, in violation of R.C. 2925.03(A)(2) and

2941.1417 and Having Weapon While Under Disability, a felony of the third degree, in

violation of R.C. 2923.13(A)(3) and Possession of Drug Paraphernalia, a misdemeanor

of the fourth degree, in violation of R.C. 2925.14(C)(1).

       {¶4}   The parties executed a joint sentencing recommendation agreeing that

appellant should be sentenced to five years and forfeit the $2,505.00 seized in this matter.

The trial court accepted the guilty plea, imposed the recommended sentence, ordered

that a weapon be forfeit and waived all mandatory fines. The sentencing entry reveals

the trial court was silent as to any finding regarding allied offenses. Appellant did not file

an appeal of his conviction or sentence.
Muskingum County, Case No. CT2018-0068                                                3


         {¶5}   On August 31, 2018 appellant filed a petition for post-conviction relief

asserting two grounds in support of the petition. First, that the sentences for violation of

R.C. 2925.11(A) and R.C. 2925.03(A)(2) are void because the statutes describe allied

offenses of similar import and that imposing a punishment for both is a violation of the

double jeopardy clause. He also claimed his sentence for having a weapon under

disability was void because the court imposed a sentence in terms of months rather than

years.

         {¶6}   Appellee replied that appellant’s arguments were undermined by the fact

that he participated and received a jointly recommended sentence, that there is no legal

distinction between 24 months and 2 years with regard to the sentence for having weapon

under disability and the argument regarding allied offenses of similar import should fail

because there was no objection filed nor was there an appeal filed asserting error.

         {¶7}   On September 27, 2018 the trial court denied the motion without a hearing

finding:

                The defendant was sentenced pursuant to a joint recommendation

         by the state and the defendant, and his sentence is authorized by law.

         Further he failed to file a direct appeal, nor is his sentence void; therefore

         the doctrine of res judicata bars his claims. Finally the defendant fails to

         provide anything beyond the record in this case to support his claims.

         Therefore after due consideration of the same, the defendant’s motion is

         Denied and his request for an evidentiary hearing is also Denied.




Entry, Sept. 27, 2018, Docket # 33, (sic)
Muskingum County, Case No. CT2018-0068                                                   4




         {¶8}   Appellant filed a timely notice of appeal and asserted 3 assignments of

error:

         {¶9}   “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

DENIED POSTCONVICTION RELIEF.”

         {¶10} “II. GIVEN THE ISSUE OF R.C. §2925.11 (A) & §2925.03 (A) (2)’S

ALLIED NATURE IS WELL SETTLED, FAILURE TO MERGE CONVICTIONS AT

SENTENCING HEARING RESULTS IN A DOUBLE JEOPARDY VIOLATION.”

         {¶11} “III. A SENTENCE IMPOSED IN TERMS NOT PROVIDED BY

STATUTE IS VOID AB INITIO.”

                                   STANDARD OF REVIEW

                A trial court's decision to grant or deny a postconviction petition filed

         pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion;

         a reviewing court should not overrule the trial court's finding on a petition for

         postconviction relief if it is supported by competent and credible evidence.

         State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶

         58. However, as the Fourth District Court of Appeals has discussed, the

         question of the standard of review to apply when the petition is dismissed

         without a hearing was not addressed by Gondor:

                       As we noted in State v. Harrington, 172 Ohio App.3d 595,

                2007-Ohio-3796, 876 N.E.2d 626, at ¶ 9, there is some uncertainty

                concerning the appropriate standard of review used by an appellate

                court when reviewing a trial court's decision to dismiss a petition for
Muskingum County, Case No. CT2018-0068                                                5

           postconviction relief without an evidentiary hearing. See also State

           v. Hoffner, Lucas App. No. L-01-1281, 2002-Ohio-5201 [2002 WL

           31162813], at ¶ 6. Appellate courts, including this one, have applied

           varying standards, including de novo, see State v. Gibson,

           Washington App. No. 05CA20, 2005-Ohio-5353 [2005 WL 2472063],

           abuse of discretion, see State v. McKnight, Vinton App. No.

           07CA665, 2008-Ohio-2435 [2008 WL 2124076], and a mixed

           question of fact and law, see Harrington, supra. While the Supreme

           Court of Ohio held in State v. Gondor, 112 Ohio St.3d 377, 2006-

           Ohio-6679, 860 N.E.2d 77, that courts of appeals are to apply an

           abuse of discretion standard in the context of reviewing a trial court's

           decision on a petition after it conducts an evidentiary hearing, it did

           not address the appropriate standard on this type of proceeding, i.e.,

           where the trial court summarily dismisses a petition without a

           hearing. Because decisions denying such petitions involve both

           factual and legal questions, we apply a mixed question of law and

           fact standard of review to determine whether the petition states

           substantive grounds for relief. See Harrington, supra. Thus, we

           review the trial court's decision on factual issues using a manifest

           weight standard of review, and we review the trial court's decision on

           legal issues on a de novo basis. See Hoffner, supra.
Muskingum County, Case No. CT2018-0068                                              6

State v. Weaver, 5th Dist. No. CT2017-0075, 2018-Ohio-2509, 114 N.E.3d 766, ¶ 18,

appeal not allowed, 153 Ohio St.3d 1504, 2018-Ohio-4285, 109 N.E.3d 1260, ¶ 18.

                                       ANALYSIS

      {¶12} Because the first and second assignments of error are so closely related,

we will address them simultaneously.

      {¶13} Appellant’s first assignment of error states that “the trial court abused its

discretion when it denied postconviction relief” and the argument adds a contention that

an evidentiary hearing was required. In his second assignment of error appellant asserts

that the court erred by sentencing him on allied offenses, specifically possession and

trafficking of drugs based on the same evidence. Appellant relies upon State v. Cabrales,

118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181 and State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923 (2010). Both cases have been superseded by

a more recent Supreme Court of Ohio decision which we applied to a case with facts

analogous to the case before us today.

             The Ohio Supreme Court, in State v. Williams, 148 Ohio St.3d 403,

      2016-Ohio-7658, 71 N.E.3d 234, subsequently extended Fischer somewhat

      by holding that the imposition of separate sentences for allied offenses of

      similar import is contrary to law and such sentences are void. As such, res

      judicata does not preclude a court from correcting those sentences after a

      direct appeal. Id. at ¶ 2. Nonetheless, the Court reiterated that void

      sentence jurisprudence does not apply to challenges to a sentencing court's

      basic determination as to “whether offenses are allied.” Id. at ¶ 24. The

      Court thus stated that “* * * when a trial court finds that convictions are not
Muskingum County, Case No. CT2018-0068                                              7

      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 must be asserted in a

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

      emphasis added.

             Recently, in State ex rel. Cowan v. Gallagher, ––– N.E.3d ––––,

      2018-Ohio-1463, the Ohio Supreme Court clarified its Williams holding as

      follows: “* * * [A] judgment of sentence is void in one particular

      circumstance: when the trial court determines that multiple counts should

      be merged but then proceeds to impose separate sentences in disregard of

      its own ruling.” Id. at ¶ 20, citing Williams at ¶¶ 28–29.

             In the case sub judice, our present review of the 2003 sentencing

      entry reveals the trial court was silent as to any finding regarding allied

      offenses. As such, we are compelled to apply the above rationale of the

      Ohio Supreme Court set forth in Williams and Cowan. Accordingly, we hold

      appellant's 2016 challenge to his sentencing based on an allied offense

      theory could have been raised as part of his direct appeal, and his present

      claim is therefore barred by res judicata.



State v. Franklin, 5th Dist. Stark No. 2017 CA 00170, 2018-Ohio-2904, ¶¶ 16-18, appeal

not allowed, 154 Ohio St.3d 1423, 2018-Ohio-4496, 111 N.E.3d 21, ¶¶ 16-18.
Muskingum County, Case No. CT2018-0068                                                8


       {¶14} In the case at bar, the trial court did not make any finding with regard to

allied sentences of similar import. The record before this Court is silent on that issue.

Therefore, as noted above, we are compelled to apply the rationale of the Supreme Court

of Ohio set forth in Williams and Cowan and hold that appellant’s 2018 challenge to

sentencing based on an allied offense theory could have been raised as part of his direct

appeal and his present claim is therefore barred by res judicata.

       {¶15} Finally, because it can be determined from the record before the court that

there were no substantial grounds for relief, we find that the trial court was not obligated

to conduct a hearing. R.C. 2953.21(D) The trial court determined that the petition, the files

and records of the case showed the petitioner was not entitled to relief, so it appropriately

made and filed findings of fact and conclusions of law and entered enter judgment denying

relief on the petition. R.C. 2953.21(F), (H).

       {¶16} Appellant’s first and second assignments of error are overruled.

       {¶17} Appellee proposes, in his third assignment of error that the trial court was

not authorized to impose a sentence for two years and instead was required to impose a

sentence for 24 months. Appellant cites State v. Anderson, 143 Ohio St.3d 173, 2015-

Ohio-2089, 35 N.E.3d 512 in support of his contention, but that case did not address

imposing a sentence in years rather than months. Instead, in that case the Supreme Court

of Ohio found that “A trial court cannot impose a prison term and a no-contact order for

the same felony offense.” Id at ¶ 1. The holding supports the general contention that the

trial court cannot impose a sentence not authorized by law, but it does not address the

question in this case: whether the trial court is obligated to state its sentence for having a
Muskingum County, Case No. CT2018-0068                                                 9


weapon while under a disability in months rather than years when the time periods are

equivalent.

         {¶18} The same issue was addressed by the Eighth District Court of Appeals in

the context of an amendment to R.C. 2923.13. In that case “the trial court sentenced

Shepherd to three years for this offense, which equals 36 months, and is, therefore, not

contrary to law.” State v. Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415, ¶¶

84-85.     We hold that the same analysis applies to the case at bar; appellant was

sentenced to two years, which equals twenty-four months and is therefore not contrary to

law.

         {¶19} We further hold that this purported error is not prejudicial to appellant as the

time of incarceration is equivalent regardless of the time period used to measure the

sentence. Any error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded, Crim R. 52 (A) and the trial court committed no error

prejudicial to the appellant. App.R. 12(B).

         {¶20} Appellant’s third assignment of error is overruled.

         {¶21} The decision of the Muskingum County Court of Common Pleas is affirmed.



By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.
