[Cite as State v. Hayden, 2014-Ohio-5107.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :

v.                                                  :                   No. 14AP-361
                                                                   (C.P.C. No. 92CR-08-4336)
Samuel R. Hayden, Jr.,                              :
                                                                  (REGULAR CALENDAR)
                 Defendant-Appellant.               :


                                             D E C I S I O N

                                  Rendered on November 18, 2014


                 Ron O'Brien, Prosecuting Attorney, and Laura M. Swisher,
                 for appellee.

                 Samuel R. Hayden, Jr., pro se.

                  APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
        {¶ 1} Samuel R. Hayden, Jr., is appealing from the refusal of the Franklin County
Court of Common Pleas to set aside his judgment and sentence journalized years ago. He
assigns two errors for our consideration:
                 [I.] Whether the "recharacterization" or "reclassification" of a
                 proceeding which challenges a sentence that is void (wherein
                 the trial court did patently exceed its jurisdiction as defined in
                 and under: O.R.C. § 2945.06) rendering the judgment void (as
                 a matter of law) excuses a trial court from correcting its error
                 when apparent on the record.

                 [II.] Whether the doctrine of res judicata is applicable to a
                 judgment which facially void.

        {¶ 2} Hayden was indicted over 20 years ago. He was charged with two counts of
aggravated murder with death penalty specifications and one count of aggravated
No. 14AP-361                                                                               2


robbery. He and his counsel worked out a plea bargain under the terms of which he pled
guilty to one count of aggravated murder with death penalty specifications and a firearm
specification. He also pled guilty to robbery.
        {¶ 3} Hayden was sentenced to 20 years to life on the death penalty charge and 3
years as a result of the firearm specification.      He also was sentenced to a term of
incarceration of 3-to-15 years as a result of the robbery conviction. All the sentences were
ordered to run consecutively. The practical result was that he was to serve a term of 26
years to life.
        {¶ 4} The entry of guilty plea form makes it clear the parties had agreed to remove
the possibility of a death sentence from consideration as a part of the plea bargain. The
part of the guilty plea form which informed Hayden of his potential sentences did not list
death as a possible sentence, but terms of incarceration as the only possible sentences.
        {¶ 5} The trial judge who accepted the plea and later sentenced Hayden, gave
Hayden the lesser of the two sentences possible for aggravated murder with a death
penalty specification. The sentencing possibilities were 20 years to life of incarceration or
30 years to life of incarceration. As noted earlier, Hayden received additional terms of
incarceration for the use of a firearm and for being guilty of robbery.
        {¶ 6} Over 20 years after the plea and sentencing, Hayden filed a motion pointing
out the problems resulting from the parties and trial judge not following the technical
aspects of the law at the time the pleas were entered. Specifically, Hayden asserts the trial
court erred in failing to convene a three-judge panel to accept his guilty plea and
pronounce his sentence. Hayden titled his motion as a "Motion for Issuance of a Final
Appealable Order."     The trial court treated Hayden's motion as a petition for post-
conviction relief. Because so much time had elapsed, the court denied relief on the
grounds the petition for post-conviction relief was not filed in a timely fashion and that
res judicata barred claims that should have been raised on direct appeal.
        {¶ 7} We will address appellant's assignments of error together for ease of
discussion. Appellant first contends the court improperly construed his motion as a post-
conviction petition. Appellant argues he was improperly sentenced by a single judge
instead of a three-judge panel, as required by R.C. 2945.06 and Crim.R. 11(C)(3). Because
his sentence is allegedly void, appellant asserts he can raise this issue at any time.
No. 14AP-361                                                                              3


Appellant also contends some of his charges were allied offenses that should merge for
sentencing purposes. We disagree.
       {¶ 8} We recently affirmed a trial court's decision to construe a motion claiming a
violation of R.C. 2945.06 and Crim.R. 11(C)(3) as a petition for post-conviction relief.
State v. Mack, 10th Dist. No. 13AP-884, 2014-Ohio-1648. Regardless of how the petition
is characterized, the court correctly denied the motion on res judicata grounds. "Under
the doctrine of res judicata, a final judgment of conviction precludes a defendant from
raising and litigating any defense or claimed lack of due process that he could have raised
on direct appeal from a judgment." State v. Smith, 10th Dist. No. 13AP-129, 2013-Ohio-
4674, ¶ 8, citing State v. Slager, 10th Dist. No. 11AP-794, 2012-Ohio-3584, ¶ 11,
citing State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus; State v. Jama, 10th Dist. No.
11AP-210, 2012-Ohio-2466, ¶ 44 ("In Ohio, res judicata bars consideration of issues that
could have been raised on direct appeal."). "Although res judicata does not preclude
review of a 'void' sentence, the doctrine 'still applies to other aspects of the merits of a
conviction, including the determination of guilt and the lawful elements of the ensuing
sentence.' " State v. Ragland, 10th Dist. No. 13AP-451, 2014-Ohio-798, ¶ 14,
quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph three of the
syllabus. Thus, the doctrine bars attacks on voidable judgments but not void judgments.
       {¶ 9} Appellant did not raise his sentencing arguments in a direct appeal.
Therefore, even if the court erred in the manner appellant claimed, this error would
render his judgment voidable, not void. In Pratts v. Hurley, 102 Ohio St.3d 81 (2002),
the Supreme Court of Ohio determined the failure to convene a three-judge panel must be
raised on direct appeal and "does not constitute a lack of subject matter jurisdiction that
renders the court's judgment void ab initio and subject to collateral attack." State v.
Tucker, 10th Dist. No. 12AP-158, 2012-Ohio-3477, ¶ 7, 13 (judgment that does not comply
with R.C. 2945.06 and Crim.R. 11(C) is voidable, not void); State Greenberg, 10th Dist.
No. 12AP-11, 2012-Ohio-3975, ¶ 12, citing State v. Timmons, 10th Dist. No. 11AP-895,
2012-Ohio-2079, ¶ 11 (allied offenses error renders sentence voidable, not void). Because
appellant's sentence was not void, the trial court properly found his arguments should
have been raised on direct appeal.
No. 14AP-361                                                                  4


      {¶ 10} We therefore overrule the two assignments of error, and affirm the
judgment of the Franklin County Court of Common Pleas.
                                                              Judgment affirmed.

                   O'GRADY and LUPER SCHUSTER, JJ., concur.
