[Cite as State v. Jones, 2013-Ohio-3710.]


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

STATE OF OHIO                                        C.A. No.      26854

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ROBERT C. JONES                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 03 09 2736

                                  DECISION AND JOURNAL ENTRY

Dated: August 28, 2013



        HENSAL, Judge.

        {¶1}     Robert C. Jones appeals from a judgment of the Summit County common pleas

court that denied his motion to correct illegal sentence. For the following reasons, this Court

affirms.

                                                I.

        {¶2}     In April 2004, a jury found Mr. Jones guilty of attempted aggravated murder and

aggravated arson.       The trial court sentenced him to ten years imprisonment for attempted

aggravated murder and five years imprisonment for aggravated arson. It ordered him to serve the

sentences consecutively. Mr. Jones appealed, but this Court upheld his convictions. State v.

Jones, 9th Dist. Summit No. 22112, 2005-Ohio-265.

        {¶3}     In February 2005, Mr. Jones petitioned for post-conviction relief, alleging

ineffective assistance of trial counsel. The trial court denied his petition. In October 2005, Mr.

Jones filed a second petition for post-conviction relief, alleging that he had discovered new
                                               2


evidence. The trial court denied his petition, concluding that his arguments were barred by res

judicata.

       {¶4}   In February 2013, Mr. Jones filed a “Motion to Correct Illegal Sentence and for a

De Novo Resentencing.” According to Mr. Jones, in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, the Ohio Supreme Court clarified the test for determining whether two offenses

should be merged as allied offenses under Revised Code Section 2941.25. He argued that

Johnson applies retroactively; therefore, he is entitled to a new sentencing hearing. The trial

court, however, denied his motion. Mr. Jones has appealed, assigning three errors.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED PLAIN ERROR AND WAS WITHOUT
       STATUTORY    JURISDICTION    TO SENTENCE   MR.    JONES
       CONSECUTIVELY FOR ATTEMPTED AGGRAVATED MURDER AND
       AGGRAVATED ARSON, THAT OCCURRED AT THE SAME TIME BY THE
       SAME CONDUCT AND ARE ALLIED OFFENSES OF SIMILAR IMPORT,
       RENDERING THE SENTENCE VOID.

                                ASSIGNMENT OF ERROR II

       THE OHIO SUPREME COURT DECISION OF STATE V. JOHNSON, 128
       OHIO ST.3D 153, 942 N.E.2D 1061, IS AN “INTERVENING”
       “RETROACTIVE STATUTORY INTERPRETATION OF WHAT R.C. §
       2941.25, HAS ALWAYS MEANT,” THE GENERAL RULE IS THAT A
       DECISION OF A COURT OF SUPERIOR JURISDICTION OVERRULING A
       FORMER DECISION IS RETROSPECTIVE IN ITS OPERATION, AND THE
       EFFECT IS NOT THAT THE FORMER WAS BAD LAW, BUT THAT IT
       NEVER WAS THE LAW.

                                ASSIGNMENT OF ERROR III

       WHEN A COURT IMPOSES A SENTENCE EITHER CONSECUTIVE OR
       CONCURRENT IN VIOLATION OF THE ALLIED OFFENSE OF SIMILAR
       IMPORT STATUTE R.C. § 2941.25, THE COURT IS VIOLATING THE OHIO
       AND UNITED STATES CONSTITUTIONS PROHIBITION AGAINST
       DOUBLE     JEOPARDY          RENDERING       THE     SENTENCE
       UNCONSTITUTIONAL AND VOID.
                                                 3



       {¶5}    Mr. Jones argues that the trial court committed plain error at sentencing when it

imposed a prison term for both offenses and ordered him to serve the terms consecutively. He

argues that, under Johnson, he may only be sentenced for one of the offenses. He also argues

that, because his sentence does not comply with Johnson, it is void, and he is entitled to a

completely new sentencing hearing. He further argues that the fact that his sentence is void

means that his motion did not have to meet the requirements for a successive petition for post-

conviction relief and that his arguments are not barred under the doctrine of res judicata.

       {¶6}    “A sentence may be void or voidable.” State v. Horton, 9th Dist. Lorain No.

12CA010271, 2013-Ohio-848, ¶ 9.        In general, “[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 citations omitted.) State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,

¶ 27. But see State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, ¶ 15 (explaining that a

sentence that does not include a statutorily-mandated term is void in part). “A voidable sentence

may only be set aside if successfully challenged on direct appeal.” Horton at ¶ 10. On the other

hand, “[a] defendant may challenge a void judgment at any time.” State v. Dawson, 9th Dist.

Summit 26500, 2013-Ohio-1767, ¶ 6.          “The determination of whether a judgment is void

presents a question of law.” Blaine v. Blaine, 4th Dist. Jackson No. 10CA15, 2011-Ohio-1654, ¶

19.

       {¶7}    This Court has held that a trial court’s failure to merge allied offenses does not

result in a void sentence. State v. Abuhilwa, 9th Dist. Summit No. 25300, 2010-Ohio-5997, ¶ 8.

Accordingly, Mr. Jones has not presented an issue that may be raised for the first time eight

years after his conviction and notwithstanding his failure to raise the issue on direct appeal or in
                                                 4


his previous post-trial motions. State v. Johnson, 9th Dist. Summit No. 26167, 2012-Ohio-4251,

¶ 7. 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 [direct] appeal.” State v. Ketterer,

126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59.

       {¶8}    Mr. Jones could have raised his allied offenses argument on direct appeal.

Accordingly, we conclude that it is barred by the doctrine of res judicata. State v. Romanda, 9th

Dist. Summit No. 26450, 2013-Ohio-1771, ¶ 11; Horton, 2013-Ohio-848, at ¶ 12; State v. Heina,

9th Dist. Medina No. 11CA0100-M, 2012-Ohio-4200, ¶ 6. Mr. Jones’s assignments of error are

overruled.

                                                III.

       {¶9}    The trial court correctly denied Mr. Jones’s motion to correct illegal sentence and

for a de novo resentencing. The judgment of the Summit County common pleas court 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
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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.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

ROBERT C. JONES, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
