[Cite as State v. Wilson, 2019-Ohio-4337.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.      29375

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
TRAMMEL WILSON                                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2012-02-0332

                                 DECISION AND JOURNAL ENTRY

Dated: October 23, 2019



        SCHAFER, Judge.

        {¶1}     Appellant-Defendant, Tramell Wilson, appeals the judgment the Summit County

Court of Common Pleas denying his postconviction motion to delete void sentencing

specification on the basis of res judicata. This Court affirms.

                                                 I.

        {¶2}     This is Wilson’s fourth appeal. We previously set for the substantive facts and

procedural history of this case as follows:

        In June 2011, Wilson instigated a confrontation with two men outside of a
        nightclub in Akron. During the course of the confrontation, Wilson pulled out a
        gun, shot at one of the men, and actually shot the second man multiple times. A
        grand jury indicted Wilson on two counts of felonious assault and one count of
        having a weapon while under disability. Each felonious assault count also
        contained a repeat violent offender specification, pursuant to R.C. 2941.149, and a
        firearm specification, pursuant to R.C. 2941.145. A jury found Wilson guilty on
        both of his felonious assault counts, the firearm specifications linked to those
        counts, and his weapon under disability count. Thereafter, Wilson stipulated that
        he had a prior felonious assault conviction and, due to his prior conviction,
        qualified as a repeat violent offender.
                                                2


       The court merged Wilson’s repeat violent offender specifications for purposes of
       sentencing, but sentenced him on all of his remaining counts. Specifically, the
       court sentenced Wilson to (1) three years on his repeat violent offender
       specification; (2) six years on each of his felonious assault counts; (3) three years
       on each of his firearm specifications; and (4) 36 months on his weapon under
       disability count. The court ordered each of Wilson’s prison terms to run
       consecutively with the exception of the weapon under disability count. Thus, the
       court sentenced Wilson to a total of 21 years in prison.

       On appeal from his convictions, Wilson argued that the trial court erred by failing
       to merge his convictions for felonious assault and having a weapon under
       disability. See State v. Wilson, 9th Dist. Summit No. 26683, 2014-Ohio-376, ¶ 41
       [(Wilson I)]. Because there was no evidence that the trial court had analyzed the
       merger issue under State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, we
       determined that the trial court had to apply Johnson in the first instance.
       Consequently, we remanded the matter to the trial court “for it to apply Johnson
       and to determine whether the felonious assault and having weapons under
       disability offenses should merge.” Id.

       On remand, the trial court conducted a new sentencing hearing and ultimately
       concluded that Wilson’s counts for felonious assault and having a weapon under
       disability should not merge. In keeping with its original decision, the court once
       again merged Wilson’s repeat violent offender specifications and sentenced him
       to a total of 21 years in prison. Nevertheless, the court changed the individual
       prison terms that it had originally ordered Wilson to serve. The court sentenced
       Wilson to (1) ten years on his repeat violent offender specification; (2) eight years
       on each of his felonious assault counts; (3) three years on each of his firearm
       specifications; and (4) 36 months on his weapon under disability count. The court
       then ordered the ten-year repeat violent offender specification, one of the eight-
       year felonious assault counts, and one of the three-year firearm specifications to
       be served consecutively to reach the 21-year total. The court ordered the
       remaining counts to run concurrently.

State v. Wilson, 9th Dist. Summit No. 27361, 2015-Ohio-2023, ¶ 2-5 (“Wilson II”). Wilson

subsequently appealed the trial court’s second sentencing entry, arguing that the trial court had

erred when it increased his prison terms on his repeat violent offender specifications and his

felonious assault.

       In Wilson II, this Court concluded that the trial court had exceeded the scope of
       the remand and lacked the authority to conduct a de novo sentencing hearing and
       to increase [ ]Wilson’s sentence on his repeat violent offender specifications.
        Id. at ¶ 13. It determined, however, that since [ ]Wilson’s sentences for felonious
       assault were reversed on appeal in [Wilson I ], those sentences were properly
                                                3


       before the trial court and the trial court had the authority to resentence him on
       those counts. Id. at ¶ 15. Accordingly, this Court remanded the matter to the trial
       court for further proceedings consistent with Wilson II.

       On remand, the trial court held a third sentencing hearing and re-imposed [
       ]Wilson’s original sentence in a subsequent journal entry. Specifically, the trial
       court again merged [ ]Wilson’s repeat violent offender specifications for purposes
       of sentencing, and then sentenced Wilson to: (1) three years on the merged repeat
       violent offender specification; (2) six years on each of the felonious assault
       counts; (3) three years on each of the firearm specifications; and (4) 36 months on
       the weapon under disability count. The trial court ordered each of the prison
       sentences to run consecutively with the exception of the weapon under disability
       count, which was to run concurrently. In total, the trial court sentenced Mr.
       Wilson to 21 years.

State v. Wilson, 9th Dist. Summit No. 28187, 2017-Ohio-8152, ¶ 3-4 (“Wilson III”). Wilson

again appealed, arguing that the trial court failed to comply with this Court’s remand in Wilson

II. The lead opinion of this Court ultimately overruled Wilson’s assignment of error, concluding

that “Wilson [had] not demonstrated by clear and convincing evidence that the trial court acted

contrary to law when it re-imposed his original sentence.” Id. at ¶ 10.

       {¶3}    Wilson subsequently filed a motion to delete void sentencing specification,

arguing that his three-year term of imprisonment on his merged repeat violent offender

specifications was void because he had not been sentenced to the maximum term of

imprisonment for the underlying offense of felonious assault. The State filed a memorandum in

opposition to Wilson’s motion. The trial court thereafter denied Wilson’s motion without a

hearing, determining that the arguments presented were barred by res judicata.

       {¶4}    Wilson filed this timely appeal, raising two assignments of error for our review.

For ease of analysis, We elect to consider the assignments of error together.
                                                4


                                                II.

                                     Assignment of Error I

       [Wilson]’s three-year sentencing enhancement pursuant to [R.C. 2941.149] is
       void because he was not sentenced to the maximum sentence for the
       underlying conviction of [f]elonious [a]ssault.

                                     Assignment of Error II

       The trial court erred by finding that review of the void [r]epeat [v]iolent
       [o]ffender sentence enhancement challenge was barred by res judicata.

       {¶5}     In his first assignment of error, Wilson argues that his three-year repeat violent

offender sentencing enhancement is void because he was not sentenced to the maximum

sentence for his underlying offense of felonious assault. In his second assignment of error,

Wilson argues that the trial court erred in applying res judicata to his motion to delete void

sentencing specification.

       {¶6}     We review a trial court’s determination that res judicata bars an action de novo.

State v. Wooden, 9th Dist. Summit No. 28108, 2016-Ohio-7465, ¶ 8. “The doctrine of res

judicata ‘bars the assertion of claims against a valid, final judgment of conviction that have been

raised or could have been raised on appeal.’” State v. Boware, 9th Dist. Summit No. 27466,

2014-Ohio-5779, ¶ 6, quoting State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59.

Consequently, “[m]ost sentencing challenges must be brought by a timely direct appeal.” State

v. Ibn-Ford, 9th Dist. Summit No. 27380, 2015-Ohio-753, ¶ 7. However, “res judicata does not

preclude review of a void sentence[.]” State v. Allshouse, 9th Dist. Summit No. 27901, 2016-

Ohio-5210, ¶ 9, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph three of

the syllabus.

       {¶7}     On appeal, Wilson argues that his three-year repeat violent offender sentence

enhancement is void because he was not sentenced to the maximum sentence for felonious
                                                 5


assault. In response, the State argues that Wilson’s repeat violent offender sentence was not

void, but merely voidable. “A void sentence is one that a court imposes despite lacking subject-

matter jurisdiction or the authority to act. Conversely, a voidable sentence is one that a court has

jurisdiction to impose, but was imposed irregularly or erroneously.” (Internal citation omitted.)

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 27. The Supreme Court has stated that

“[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders

the attempted sentence a nullity or void.” State v. Beasley, 14 Ohio St.3d 74, 75 (1984).

       {¶8}    Nonetheless, this Court has consistently recognized that “‘the Ohio Supreme

Court has applied its void-sentence analysis in limited circumstances[ ] [and] [t]his Court will

not extend its reach without clear direction from the Supreme Court.’” State v. Occhipinti, 9th

Dist. Lorain No. 15CA010787, 2016-Ohio-1286, ¶ 5, quoting State v. Culgan, 9th Dist. Medina

No. 09CA0060-M, 2010-Ohio-2992, ¶ 20; see State v. Slaughter, 9th Dist. Lorain No.

18CA011293, 2019-Ohio-2154, ¶ 9. Wilson has not cited, and we are unable to find, any

authority holding that a sentencing error regarding the failure to impose a maximum sentence in

an underlying offense renders the imposition of a sentence enhancement on a repeat violent

offender specification void and, therefore, exempt from the preclusive effect of res judicata. See

App.R. 16(A)(7). “Consistent with our precedent, we will not reach that result in this case.”

Occhipinti at ¶ 5.

       {¶9}    Because Wilson could have raised his argument pertaining to his sentence in a

prior appeal, he is now barred from asserting this argument under the doctrine of res judicata.

Id.i at ¶ 6, quoting State v. Williams, 9th Dist. Summit No. 27482, 2015-Ohio-2632, ¶ 7.

Therefore, we conclude that the trial court did not err by determining that Wilson’s motion was

barred. Wilson’s assignments of error are overruled.
                                                 6


                                                III.

       {¶10} Wilson’s first and second assignments of error are overruled. The judgment of

the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT



TEODOSIO, P. J.
CARR, J.
CONCUR.
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APPEARANCES:

DAVID L. DOUGHTEN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
