[Cite as State v. Jefferson, 2014-Ohio-2555.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                             :

        Plaintiff-Appellee                                :       C.A. CASE NO.     26022

v.                                                        :       T.C. NO.     10CR812/2

LLOYD JEFFERSON                                           :        (Criminal appeal from
                                                                   Common Pleas Court)
        Defendant-Appellant                               :

                                                          :

                                                ..........

                                                OPINION

                          Rendered on the          13th       day of         June    , 2014.

                                                ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MICHAEL HALLOCK JR., Atty. Reg. No. 0084630, P. O. Box 292017, Dayton, Ohio
45429    Attorney for Defendant-Appellant

                                                ..........

FROELICH, P.J.

                 {¶ 1} Lloyd Jefferson appeals from the trial court’s judgment overruling his

motions for resentencing and to withdraw his guilty plea. For the following reasons, the
trial court’s judgment will be affirmed.

       {¶ 2}     In November 2011, Jefferson was convicted on his guilty pleas to one count

of aggravated burglary, two counts of aggravated robbery, three counts of kidnapping, and

two counts of felonious assault. The charges related to his conduct against four adults and

one child. In exchange for the pleas, an additional aggravated burglary count, three counts

of aggravated robbery, two counts of kidnapping, three counts of felonious assault, and

several firearm specifications were dismissed. The trial court sentenced Jefferson to an

agreed sentence of a mandatory seven years in prison on each count, to be served

concurrently with each other, but consecutive to prison terms imposed in another county and

in federal court. Jefferson did not appeal his conviction.

       {¶ 3}    In September 2013, Jefferson filed a “motion for resentencing based on void

judgment and motion to withdraw guilty plea guilty [sic] pursuant to Crim.R. 32.1 under

State v. Bowell standard of presentencing review based on void judgment.” Jefferson raised

four issues in the motion for resentencing based on a void judgment: (1) the trial court failed

to inform him that he could be required to perform community service should he fail to pay

court costs, (2) the trial court failed to include a finding of guilt in its judgment entry, as

required by Crim.R. 32(C), (3) the trial court failed to include (presumably in the judgment

entry) a statement that Jefferson and his counsel were afforded an opportunity to speak in

mitigation of punishment, and (4) the trial court failed to merge allied offenses of similar

import. Jefferson’s motion to withdraw his guilty plea was based on the trial court’s failure

to explain allied offenses of similar import to him before accepting his guilty pleas.

       {¶ 4}    On November 13, 2013, the trial court overruled Jefferson’s motions. The

court concluded that Jefferson’s judgment entry was not void, but it scheduled a limited
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resentencing hearing on the issue of court costs. With respect to Jefferson’s claim that the

trial court failed to merge allied offenses of similar import, the trial court ruled that the issue

was barred by res judicata. The court also denied the motion to withdraw Jefferson’s plea.

The court stated that it had complied with Crim.R.11, that Jefferson had failed to provide an

affidavit to support his claim that his offenses should have been merged, and that “nothing in

the law requires the court to discuss during the plea whether the offenses are allied.”

         {¶ 5}   Jefferson appeals from the denial of his motions, raising two assignments of

error.

         {¶ 6}   Jefferson’s first assignment of error states: “The trial court failed to merge

defendant-appellant’s * * * offenses prior to accepting his guilty plea.” Jefferson argues

that several of his offenses were allied offenses of similar import, and that the trial court

should have determined whether these offenses merged prior to accepting his pleas.

Jefferson further claims that res judicata does not bar this issue because the trial court’s

failure to merge his offenses constituted plain error.

         {¶ 7}   “Pursuant to the doctrine of res judicata, a valid final judgment on the merits

bars all subsequent actions based on any claim arising out of the transaction or occurrence

that was the subject matter of the previous action.” State v. Collins, 2d Dist. Montgomery

No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653

N.E.2d 226 (1995). Res judicata applies to any defense that was raised or could have been

raised in a criminal defendant’s prior direct appeal from his conviction. Id., citing State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).

         {¶ 8}   The failure to merge allied offenses does not render a judgment void, but
                                                                                               4

voidable. See State v. Pound, 2d Dist. Montgomery No. 24980, 2012-Ohio-3392, ¶ 14,

citing State v. Parson, 2d Dist. Montgomery No. 24641, 2012-Ohio-730, ¶ 10.

Consequently, challenges to the trial court’s failure to merge allied offenses are barred by the

doctrine of res judicata if they could have been, but were not, raised on direct appeal. Id.

       {¶ 9}    In 2011, Jefferson pled guilty to one count of aggravated burglary, two

counts of aggravated robbery, three counts of kidnapping, and two counts of felonious

assault, and the trial court issued a judgment entry sentencing him to an agreed seven years

in prison on each count, to be served concurrently with each other and consecutively to

sentences in other cases. Jefferson did not appeal that judgment, and it became final.

       {¶ 10} Jefferson did not include an affidavit or any other evidence from outside the

record to support his claim that the trial court should have merged his offenses. Rather, he

appears to rely on the record before the court. Because Jefferson does not rely on evidence

outside the record and he failed to raise the merger issue in a direct appeal, res judicata bars

his claim that the trial court erred in failing to merge his offenses. See State v. Johnson, 2d

Dist. Montgomery No. 25711, 2013-Ohio-4946, ¶ 7.

       {¶ 11} Jefferson argues that res judicata should not apply because the trial court’s

failure to merge his offenses constitutes plain error. In order to constitute plain error, the

error must be an obvious defect in the trial proceedings, and the error must have affected

substantial rights. State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240.

Under the plain error doctrine, errors or defects affecting substantial rights may be noticed

on appeal although they were not brought to the attention of the trial court. Crim.R. 52(B).

The plain error doctrine does not extend the period during which a defendant may appeal
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from the trial court’s judgment. In fact, the “obvious” nature of such an error conflicts with

Jefferson’s assertion that an extension is or should be provided in such a circumstance.

        {¶ 12} Even if we were to address the issue of merger, we would not find that

Jefferson’s arguments have merit.       R.C. 2941.25, the allied offense statute, prohibits

multiple punishments for the same offense. The Supreme Court of Ohio has stated that “for

purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the imposition of a

sentence.” State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12. “In

cases in which the imposition of multiple punishments is at issue, R.C. 2941.25(A)’s

mandate that a defendant may be ‘convicted’ of only one allied offense is a protection

against multiple sentences rather than multiple convictions.” (Emphasis added.) Id. at

¶ 28.   Thus, “a trial court is required to merge allied offenses of similar import at

sentencing,” not when the defendant is found guilty or enters a plea. (Emphasis added.)

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 27. Assuming

arguendo that Jefferson’s offenses were subject to merger, the trial court did not err in failing

to merge his offenses prior to accepting his guilty pleas.

        {¶ 13} In addition, based on the record before us, we cannot conclude that

Jefferson’s offenses should have been merged.          The State represents that Jefferson’s

criminal behavior involved four adults and one child, and the record does not detail the facts

underlying each offense. Jefferson acknowledges in his brief that “the record in this case

lacks sufficient detail regarding merger of Jefferson’s offenses.”        Accordingly, on this

record, we cannot conclude that Jefferson’s offenses should have been merged as allied

offenses of similar import.
                                                                                           6

       {¶ 14}    Jefferson’s first assignment of error is overruled.

       {¶ 15} Jefferson’s second assignment of error states: “The trial court failed to allow

Jefferson to withdraw his plea upon failing to merge his offenses.”

       {¶ 16}    Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.” Because the trial court’s 2011 judgment entry was final and

potentially voidable, not void, we review Jefferson’s motion to withdraw his plea as a

post-sentence motion.

       {¶ 17}    Withdrawal of a guilty plea after sentencing is permitted only in the most

extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). A

defendant who files a post-sentence motion to withdraw his guilty plea bears the burden of

establishing manifest injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No.

19013, 2002-Ohio-2278, ¶ 7, citing Smith at paragraph one of the syllabus. “A manifest

injustice has been defined by the Ohio Supreme Court as a ‘clear or openly unjust act.’”

State v. Moore, 2d Dist. Montgomery No. 24378, 2011-Ohio-4546, ¶ 9, quoting State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). Consideration of a

Crim.R. 32.1 motion is addressed to the sound discretion of the trial court, which assesses

the good faith, credibility and weight of the movant’s assertion in support of the motion.

State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992); Smith at paragraph two of the

syllabus. Thus, an appellate court reviews the trial court’s decision under an abuse of

discretion standard. State v. Barnett, 73 Ohio St.3d 244, 596 N.E.2d 1101 (1991).
                                                                                             7

       {¶ 18} Jefferson claims that his plea was not knowing, intelligent, and voluntary,

because he was informed of the maximum penalties for each of his offenses without regard

to whether any of those offenses might merge as allied offenses of similar import.

       {¶ 19} “A trial court may show that a guilty plea was made knowingly, intelligently

and voluntarily by complying with Crim. R. 11(C)(2).”              State v. Richie, 2d Dist.

Montgomery No. 25681, 2014-Ohio-1114, ¶ 5. Of relevancy, Crim R. 11(C)(2)(a) provides

that, in a felony case, the trial court shall not accept a plea of guilty or no contest without

first addressing the defendant personally and “[d]etermining that the defendant is making the

plea voluntarily, with understanding of the nature of the charges and the maximum penalty

involved, and if applicable, that the defendant is not eligible for probation or for the

imposition of community control sanctions at the sentencing hearing.”

       {¶ 20} In State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), the Ohio

Supreme Court addressed the requirement of Crim.R. 11(C) that a defendant be informed of

the “maximum penalty.” In that case, the defendant pled to multiple offenses and the trial

court informed him of the potential maximum sentence for each offense, but not that the

sentences could be imposed consecutively or the total sentence that he faced. The supreme

court found that the trial court’s notification complied with Crim.R. 11(C), stating:

       [T]he term “the maximum penalty” which is required to be explained is also

       to be understood as referring to a single penalty. In the context of “the plea”

       to “the charge,” the reasonable interpretation of the text is that “the maximum

       penalty” is for the single crime for which “the plea” is offered. It would

       seem to be beyond a reasonable interpretation to suggest that the rule refers
                                                                                             8

       cumulatively to the total of all sentences received for all charges which a

       criminal defendant may answer in a single proceeding.

Johnson at 133.

       {¶ 21} We find no obligation under Crim.R. 11(C)(2) for the trial court to

determine, at a plea hearing, whether the offenses at issue are allied offenses of similar

import and to notify the defendant of the cumulative maximum penalty after merger. As

discussed above, the merger of allied offenses of similar import occurs at sentencing, and the

defendant’s guilty pleas (or the court’s findings of guilt) remain intact.

       {¶ 22} Furthermore, Jefferson has not demonstrated that he has suffered a manifest

injustice as a result of the trial court’s alleged failure to inform him of the maximum penalty

upon merger of allied offenses (if any). At the beginning of the plea hearing, the parties

agreed that Jefferson would receive a mandatory seven-year sentence on eight counts, to be

served concurrently with each other, but consecutively to other cases for which Jefferson had

approximately three years left to serve.        The seven-year sentence was less than the

maximum penalty for each of the offenses. In addition, in exchange for the pleas, an

additional aggravated burglary count, three counts of aggravated robbery, two counts of

kidnapping, three counts of felonious assault, and several firearm specifications were

dismissed. Moreover, the offenses to which Jefferson pled involved multiple victims, and

he has not established that any of them should have merged.

       {¶ 23} Jefferson’s second assignment of error is overruled.

       {¶ 24} The trial court’s judgment will be affirmed.

                                          ..........
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DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Michele D. Phipps
Michael Hallock Jr.
Hon. Mary Katherine Huffman
