[Cite as State v. Gibson, 2011-Ohio-3074.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96117


                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                      DANA GIBSON
                                                      DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-504831

        BEFORE:            Rocco, J., Blackmon, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                       June 23, 2011


                                                -i-
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FOR APPELLANT

Dana Gibson, Pro Se
Inmate No. 551-091
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:    Thorin O. Freeman
      Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant Dana Gibson, proceeding pro se, appeals

from the trial court order that converted his “motion for resentencing” into a

motion for postconviction relief, and denied it as both untimely and barred by

the doctrine of res judicata.

      {¶ 2} Gibson presents one assignment of error.      He claims the trial

court’s order was improper pursuant to this court’s disposition of his previous

appeal in State v. Gibson, Cuyahoga App. No. 91793, 2009-Ohio-3883
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(“Gibson I”) and the supreme court opinion in State v. Simpkins, 117 Ohio

St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568.

      {¶ 3} Upon a review of the record, this court finds his argument

unpersuasive. His assignment of error, therefore, is overruled, and the trial

court’s order is affirmed.

      {¶ 4} As relevant to the instant appeal, this court set forth the

underlying facts of this case in Gibson I as follows:

      {¶ 5} “ * * * On June 6, 2008, the jury returned a verdict of guilty on six

counts: murder under section 2903.02(A); murder under 2903.02(B); both

felonious assault counts; tampering with evidence, and arson. * * *         The

defendant was found not guilty of aggravated murder, under R.C. 2903.01,

but found guilty of the lesser included offense of murder under Count 1 * * * .

      {¶ 6} “On June 17, 2008, the lower court sentenced Gibson to

15-years-to-life on Counts 1 and 2, to run concurrent.        Gibson was also

sentenced to five years on Counts 3 and 4, to run concurrent with each other,

but consecutive to Counts 1 and 2. He also received five years on Count 5, to

run consecutive to the five-year term of incarceration on Counts 3 and 4,

which are consecutive to the fifteen-years-to-life sentence on Counts 1 and 2.

Finally, Gibson received six months on Count 6, the misdemeanor arson

charge, for a total sentence of 25-years-to-life.
                                        4

      {¶ 7} “ * * *

      {¶ 8} “ * * * Gibson told Cleveland Police Detective Henry Veverka that

he and his half-brother had gotten into a fight over the use of a car * * * , the

two of them continued to argue and [the victim] grabbed a butcher knife from

the kitchen drawer. * * * Gibson grabbed a nearby crowbar and hit [the

victim] with it. The fight continued into the hall and down the stairs with

Gibson continually hitting [the victim].

      {¶ 9} “Detective Veverka further testified that Gibson told him that he

got rid of the body first, then the car, by setting them on fire.

      {¶ 10} “ * * *

      {¶ 11} “ * * * [W]e find plain error regarding Gibson’s convictions. * * * .

      {¶ 12} “Gibson   is   currently    serving   two    concurrent    terms    of

incarceration for killing one victim: one term of incarceration for murder

pursuant to R.C. 2903.02(A), and the other for murder pursuant to R.C.

2903.02(B).

      {¶ 13} “Furthermore, Gibson is serving two concurrent terms of

incarceration for felonious assault against one victim: one term of

incarceration for felonious assault pursuant to R.C. 2903.11(A)(1) and the

other for felonious assault pursuant to R.C. 2903.11(A)(2).
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     {¶ 14} “ * * * As it pertains to Gibson’s murder convictions: ‘The Ohio

Supreme Court has held that the conviction and sentence on two counts of

murder for a single killing violated R.C. 2941.25 and the Double Jeopardy

Clauses of the Ohio and United States Constitutions.’ State v. Hudson, 9th

Dist. No. 24009, 2008-Ohio-4075; see State v. Huertas (1990), 51 Ohio St.3d

22, 553 N.E.2d 1058.    ‘[Where] a defendant who kills only one victim is

convicted of two aggravated murder counts, the trial court may sentence on

only one count.’ State v. Waddy (1992), 63 Ohio St.3d 424, 588 N.E.2d 819.

     {¶ 15} “In the instant case, felonious assault pursuant to R .C.

2903.11(A)(1) and R.C. 2903.11(A)(2) are allied offenses of similar import.

State v. Smith, 1st Dist. No. C-070216, 2008-Ohio-2469; see, also, State of

Ohio v. Goldsmith, Cuyahoga App. No. 90617, 2008-Ohio-5990. This is so

because Gibson struck Raymond with multiple blunt force strikes in rapid

succession and did not have a separate animus for each strike.

     {¶ 16} “Thus, ‘although the aggregate sentence should remain the same,

by law, the convictions should be merged.’ State v. Crowley (2002), 151 Ohio

App.3d 249, 2002-Ohio-7366, 783 N.E.2d 970.

     {¶ 17} “ * * * [T]his matter is remanded to the trial court to merge

defendant’s two convictions for murder into one murder conviction and to

merge defendant’s two convictions for felonious assault into one felonious
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assault conviction, thereby imposing one single conviction for each of the two

allied offenses. In all other respects, the matter is affirmed. * * * ”

      {¶ 18} On remand, the trial court followed this court’s directive.   Gibson

was sentenced on January 2, 2010 to consecutive terms of “15 years to life on

Counts 1 and 2 (merge[d]), 5 years on Counts 3 and 4 (Merge[d]),” and “5

years on Count 5,” with a six-month concurrent sentence on Count 6. Gibson

thus received the same aggregate prison term of twenty-five years to life.

      {¶ 19} Gibson filed a notice of appeal from the trial court’s journal entry

of resentence, but this court subsequently dismissed that appeal in July 2010

for his failure to file an appellate brief.

      {¶ 20} On October 27, 2010, Gibson filed a “motion for resentencing.”

In his supporting brief, Gibson argued for the first time that his convictions

for murder and felonious assault were “allied offenses” pursuant to R.C.

2941.25(A). He asserted that his sentences for both murder and felonious

assault on the same victim thus violated both the statute and the Double

Jeopardy Clauses of the Ohio and United States Constitutions.

      {¶ 21} After the state filed a brief in opposition to Gibson’s motion, the

trial court issued a journal entry stating in pertinent part that Gibson’s

motion was “converted into a post-conviction petition.”          The trial court

further determined such a petition was both untimely and presented issues
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that could have been raised on his direct appeal, therefore, Gibson’s motion

was denied.

        {¶ 22} Gibson appeals from the trial court’s order with the following

assignment of error:

        {¶ 23} “I.   Whether the trial court committed reversible error

thereupon abusing its discretion by construing Appellant’s motion

for resentencing into a [sic] untimely post-conviction petition when

Appellant was sentenced to allied offenses of similar import in

violation of both R.C. 2941.25 and the Double Jeopardy Clause of the

Fifth Amendment to the U.S. Constitution and Article I, Section 10 of

the Ohio Constitution.”

        {¶ 24} Gibson argues his motion was neither properly denied nor

properly determined to be a petition for postconviction relief.        Citing

Simpkins, he contends that, since this court held in State v. Minifee,

Cuyahoga App. No. 91017, 2009-Ohio-3089, that murder and felonious

assault committed on a single victim are “allied offenses of similar import,”

and since this court also determined in Gibson I that he “did not have a

separate animus” in striking the victim repeatedly, his sentence remains

void.     Under such circumstances, he claims the trial court retained
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jurisdiction to impose a “proper” sentence and, thus, the trial court incorrectly

deemed his motion to be one seeking “postconviction” relief.

      {¶ 25} A similar argument previously has been addressed and rejected

by the Eleventh District in State v. Hobbs, Lake App. No. 2010-L-064,

2011-Ohio-1298, which analyzed the issue in the following manner:

      {¶ 26} “‘[A] convicted defendant is precluded under the doctrine of res

judicata from raising and litigating in any proceeding, except an appeal from

that judgment, any defense or any claimed lack of due process that was raised

or could have been raised by the defendant at the trial which resulted in that

judgment of conviction or on appeal from that judgment.’ State v. Szefcyk

(1996), 77 Ohio St.3d 93, 96 [, 1996-Ohio-337, 261 N.E.2d 233].

      {¶ 27} “ * * *

      {¶ 28} “ * * * [U]nlike a failure to impose postrelease control in

accordance with statutorily mandated terms, the sentencing error in this case

does not render the judgment void. Rather, the trial court’s imposition of a

separate prison term for the firearm specification — inappropriate when the

underlying offense was improperly handling a firearm in a motor vehicle —

was an error, and therefore, the judgment is voidable, to be corrected by the

trial court upon resentencing. In contrast to a void judgment, res judicata

applies to a voidable judgment.     See State v. Simpkins, [supra], ¶30 (‘res
                                       9

judicata applies to a voidable sentence and may operate to prevent

consideration of a collateral attack based on a claim that could have been

raised on direct appeal from the voidable sentence’).        Because Mr. Hobbs

failed to raise the allied offenses claim in his direct appeal, it is now barred by

res judicata.” (Emphasis added.)

      {¶ 29} In like manner, in State v. Poole, Cuyahoga App. No. 94759,

2011-Ohio-716, this court noted in pertinent part:

      {¶ 30} “During recent developments in the law surrounding postrelease

control issues, the argument has been raised that since a trial court’s failure

to inform a defendant of postrelease control at sentencing renders that

sentence void, the defendant should be allowed to collaterally attack his

conviction.   See, e.g., State v. Dillard, Jefferson App. No. 08 JE 35,

2010-Ohio-1407.

      {¶ 31} “In State v. Marshall, Cuyahoga App. No. 89409, 2007-Ohio-6830,

this court rejected a defendant’s argument that the trial court, at his

resentencing, erred when it failed to merge his robbery and kidnapping

convictions because they were allied offenses of similar import. This court

found that the trial court properly rejected the defendant’s argument because

he had already raised the issue, which this court rejected on direct appeal.

In State v. Martin, Montgomery App. No. 21697, 2007-Ohio-3585, the court
                                     10

found that the analysis of merger constituted a review of the defendant’s

underlying convictions, and thus was not within the scope of the trial court’s

limited review of sentencing issues on remand. See, also, State v. McCauley,

Cuyahoga App. No. 86671, 2006-Ohio-2875 (finding that the defendant’s

allied offenses argument was barred by res judicata because it was not raised

on direct appeal).

      {¶ 32} “Recently, the Ohio Supreme Court, in an attempt to wade

through the quagmire of law on postrelease control, held that ‘void sentences

are not precluded from appellate review by principles of res judicata and may

be reviewed at any time, on direct appeal or by collateral attack. [However,],

although the doctrine of res judicata does not preclude review of a void

sentence, res judicata still applies to other aspects of the merits of a

conviction, including the determination of guilt and the lawful elements of the

ensuing sentence. The scope of an appeal from a resentencing hearing in

which a mandatory term of postrelease control is imposed is limited to issues

arising at the resentencing hearing.’ State v. Fischer, [128 Ohio St.3d 92],

2010-Ohio-6238 [, 942 N.E.2d 332].

      {¶ 33} “Thus, when a court affirms the convictions in an appellant’s first

appeal, the propriety of those convictions becomes the law of the case, and

subsequent arguments seeking to overturn them are barred.              State v.
                                     11

Harrison, Cuyahoga App. No. 88957, 2008-Ohio-921, at ¶9. Therefore, in a

subsequent appeal, only arguments relating to the resentencing are proper.

State v. Riggenbach, Richland App. No. 09CA121, 2010-Ohio-3392, affirmed

by [128 Ohio St.3d 338,] 2010-Ohio-6336 [, 944 N.E.2d 221].

      {¶ 34} “In further clarification on this issue, we note that the Ohio

Supreme Court recently stated that ‘under R.C. 2941.25, the court must

determine prior to sentencing whether the offenses were committed by the

same conduct.’ State v. Johnson, [128 Ohio St.3d 153,] 2010-Ohio-6314, [942

N.E.2d 1061,] at the syllabus. (Emphasis added).” (Underscoring added.)

      {¶ 35} Thus, the trial court did not err in declining to address Gibson’s

claims.   As for the trial court’s decision to convert Gibson’s “motion for

resentencing” into a petition for postconviction relief, this also was

appropriate.    R.C. 2953.21(A)(1)(a) defines the criteria under which

postconviction relief may be sought as follows:

      {¶ 36} “Any person who has been convicted of a criminal offense * * *

and who claims that there was such a denial or infringement of the person’s

rights as to render the judgment void or voidable under the Ohio Constitution

or the Constitution of the United States * * * may file a petition in the court

that imposed the sentence, stating the grounds for relief relied upon, and
                                          12

asking the court to vacate or set aside the judgment or sentence * * *.”

(Emphasis added.)

          {¶ 37} Clearly, in light of the supreme court’s decision in State v.

Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131, Gibson’s

motion met the criteria for being characterized as a petition for postconviction

relief.     The time limitations for filing for such relief are set forth in R.C.

2953.21(A)(2) and R.C. 2953.23, but Gibson’s motion met none of them.

          {¶ 38} In light of the foregoing, the trial court correctly denied Gibson’s

motion.

          {¶ 39} Gibson’s assignment of error, accordingly, is overruled.

          {¶ 40} The trial court’s order is affirmed.

          It is ordered that appellee recover from appellant costs herein taxed.

          The court finds there were reasonable grounds for this appeal.

          It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.
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        A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



________________________________________
KENNETH A. ROCCO, JUDGE

PATRICIA ANN BLACKMON, P.J., and
SEAN C. GALLAGHER, J., CONCUR
