[Cite as State v. Stalnaker, 2013-Ohio-3479.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2013-L-006
        - vs -                                    :

MICHAEL A. STALNAKER,                             :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 03 CR
000650.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).

Michael A. Stalnaker, pro se, PID: A464813, Grafton Correctional Institution, 2500
South Avon Belden Road, Grafton, OH 44044 (Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from a final judgment in a criminal case before the Lake

County Court of Common Pleas. Appellant, Michael A. Stalnaker, seeks reversal of the

trial court’s denial of his motion to “correct” an unlawful sentence.    Specifically, he

maintains that the trial court should have declared his present sentence void because,

at the time of his sentencing, the trial court failed to merge certain offenses as allied

offenses of similar import under R.C. 2941.25.
       {¶2}   In December 2003, the county grand jury indicted appellant on 5 counts of

rape, 6 counts of gross sexual imposition, and 6 counts of furnishing alcohol to a minor.

In the ensuing trial, the jury found appellant guilty on all 17 counts. The trial court then

sentenced him to an aggregate prison term of 33 years.

       {¶3}   Appellant pursued a direct appeal of his convictions to this court. In State

v. Stalnaker, 11th Dist. Lake No. 2004-L-100, 2005-Ohio-7042, we affirmed the

convictions and the imposed sentence in all respects.         In regard to his sentence,

although appellant contended that the trial court failed to follow the correct procedure for

imposing prison terms longer than the statutory minimum, he never asserted any

arguments concerning the “merger” issue.

       {¶4}   After the issuance of our opinion, this court certified a conflict to the Ohio

Supreme Court as to the constitutionality of judicial fact-finding during the imposition of

sentence. Appellant also submitted a separate notice of appeal to the Supreme Court.

However, after ruling on the issue of judicial fact-finding in State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, the Supreme Court dismissed both the certified question and

appellant’s separate appeal. State v. Stalnaker, 109 Ohio St.3d 1420, 2006-Ohio-1967;

State v. Stalnaker, 109 Ohio St.3d 1427, 2006-Ohio-1967.

       {¶5}   One year after the end of the Supreme Court proceedings, appellant filed

a federal habeas corpus action. In Stalnaker v. Bobby, 589 F.Supp.2d 905 (N.D.Ohio

2008), the district court held that appellant’s constitutional rights were violated when the

trial court engaged in improper judicial fact-finding as part of its determination to impose

prison terms longer than the statutory minimum. In light of this holding, appellant’s case

was remanded to the trial court for resentencing. Upon conducting a new sentencing




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hearing, the trial court rendered a new final judgment sentencing appellant again to an

aggregate prison term of 33 years.

       {¶6}   Appellant pursued a second appeal to this court, raising five assignments

as to the propriety of his new sentence. Again, none of them addressed the question of

whether the trial court committed plain error when it did not merge any of the 17 crimes

as allied offenses of similar import.    Upon due consideration, this court upheld the

sentence in all respects. State v. Stalnaker, 11th Dist. Lake No. 2009-L-039, 2009-

Ohio-5215.

       {¶7}   Over the next three years, appellant submitted a series of post-judgment

motions, all of which were denied by the trial court. In the last of these motions, filed in

November 2012, he moved the court to “correct” his sentence on the grounds that it was

unlawful under R.C. 2941.25. Specifically, appellant argued that his sentence must be

declared void because, prior to imposing the separate prison terms, the trial court failed

to merge the multiple offenses of rape and gross sexual imposition. According to him,

the crimes of rape and gross sexual imposition were allied offenses of similar import.

       {¶8}   After the state filed its response, the trial court rendered its final judgment

denying the motion to correct the illegal sentence. As the primary basis for its decision,

the trial court concluded that appellant was barred under res judicata from asserting the

“merger” issue in a post-judgment motion because such an issue could have been, but

was not, raised on direct appeal.

       {¶9}   In appealing the denial of his post-judgment motion, appellant raises one

assignment of error for review:

       {¶10} “The trial court erred by denying the defendant’s sentence is unauthorized




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by law, voidable, prohibited by law, and the sentence must be vacated.”

       {¶11} In challenging the trial court’s “res judicata” analysis, appellant maintains

that when a trial court fails to follow R.C. 2941.25 and merge allied offenses of similar

import, the judge has acted beyond the scope of his inherent power, thereby rendering

the imposed sentence void. Based upon this, he argues that the doctrine of res judicata

is inapplicable to the trial court’s sentencing judgment, and that he was free to contest

the legality of his sentence at any time after its issuance.        Accordingly, appellant

submits that the merits of his “merger” argument were properly before the trial court in

his post-judgment motion to correct the sentence.

       {¶12} As the trial court aptly noted in the appealed judgment, the issue of when

a criminal defendant can assert an “allied offenses” argument has been before this court

on multiple occasions over the past few years. In each case, we have expressly held

that the doctrine of res judicata bars a defendant from asserting the “merger” issue in a

post-judgment motion for resentencing; i.e., the lack of merger must be contested in a

direct appeal from the final sentencing judgment. See, e.g., State v. Cline, 11th Dist.

Geauga No. 2012-G-3101, 2013-Ohio-1843; State v. Simmons, 11th Dist. Lake No.

2012-L-025, 2012-Ohio-4470; State v. Britta, 11th Dist. Lake No. 2011-L-041, 2011-

Ohio-6096.

       {¶13} Pursuant to the foregoing line of cases, a trial court does not exceed the

scope of its jurisdiction or inherent authority when it fails to properly apply R.C. 2941.25

in determining whether to merge allied offenses of similar import; instead, such an error

is only invalid or erroneous. Britta, supra, at ¶14-15. As a result, the existence of this

type of error only renders the final sentencing judgment voidable, not void. Simmons,




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supra, at ¶19. In turn, this means that when a defendant “does not raise the issue of

allied offenses of similar import in a timely direct appeal, the challenge is barred by the

doctrine of res judicata.” Cline, supra, at ¶15.

       {¶14} Although not cited in any of the foregoing precedent, one exception to the

“direct appeal” rule does exist. In most criminal cases in which multiple offenses could

be subject to merger under R.C. 2941.25, the record will contain a sufficient delineation

of the underlying facts to enable the appellate court to determine if any allied offenses

were committed separately or with a separate animus. This is especially true when the

defendant’s case has gone to trial. However, there are also some situations where the

trial record will not be adequate to enable the appellate court to properly review the

“merger” issue on direct appeal. This type of situation is most likely to occur when the

defendant’s conviction is based upon a guilty or no contest plea.

       {¶15} In the latter scenario, since the defendant’s “merger” argument is based

upon facts or information that is “outside” the record, he will only be able to prevail on

the issue if he has an opportunity to present evidence regarding the nature of the allied

offenses. Under such circumstances, the defendant’s sole proper remedy would be a

petition for postconviction relief pursuant to R.C. 2953.21, in which he could argue that

he was denied his constitutional right to effective assistance of trial counsel as a result

of the failure to raise the “merger” issue. See, generally, State v. Blankenburg, 12th

Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶11 (the doctrine of res judicata does

not apply when a claim for postconviction relief is predicated upon evidence outside the

trial record). Once the necessary evidentiary record has been made, the defendant

would be able to obtain proper appellate review of the “merger” issue if the trial court




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denies the petition for postconviction relief.

       {¶16} Even when this exception to the “direct appeal” rule is applicable, though,

the trial court’s final sentencing judgment would still not be void because the alleged

“merger” error would still be non-jurisdictional in nature. Furthermore, R.C. 2953.21(A)

provides that a postconviction petition must typically be filed in the trial court within 180

days of the filing of the trial transcript during the direct appeal from the conviction. As a

result, the “merger” issue must be asserted almost immediately after the issuance of the

sentencing judgment, either in a direct appeal or a timely postconviction petition.

       {¶17} In arguing that an error in the merger of allied offenses renders a sentence

void, appellant cites the decision of the Supreme Court of Ohio in State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238. However, although the Fischer opinion has a lengthy

discussion regarding the legal distinction between void and voidable, the Fischer court

only applied its analysis to the statutory notification requirements of post-release control

obligations. Appellant has failed to cite any decision in which the Ohio Supreme Court

has expressly held that an error as to the merger of allied offenses renders a sentencing

judgment void. Moreover, as this court specifically noted in Cline, supra, at ¶15, at least

four other Ohio appellate districts have similarly concluded that the “merger” issue must

typically be contested in a direct appeal from the final sentencing judgment.

       {¶18} In this case, despite the fact that appellant brought an immediate appeal

of his conviction in 2004, he never argued that any of the 17 counts should have been

merged for purposes of sentencing. Additionally, he never filed a timely petition for

postconviction relief. Therefore, the doctrine of res judicata bars his ability to litigate the

issue in any future proceeding. That is, since any error in the merger of offenses under




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R.C. 2941.25 would not have the legal effect of rendering his entire sentence void, he

could not raise the issue in a post-judgment motion to vacate or correct.

       {¶19} Given that the denial of appellant’s motion to correct his sentence was

justified under this court’s existing case law, his sole assignment lacks merit. It is the

judgment and order of this court that the judgment of the Lake County Court of Common

Pleas is affirmed.


TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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