[Cite as State v. Alexander, 2017-Ohio-8506.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


State of Ohio                                       Court of Appeals No. WD-17-015

        Appellee                                    Trial Court No. 01-CR-257

v.

Joseph Edward Alexander                             DECISION AND JUDGMENT

        Appellant                                   Decided: November 9, 2017

                                                *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Joseph Edward Alexander, pro se.

                                                *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Joseph Alexander, pro se, appeals from the February 28, 2017

judgment of the Wood County Court of Common Pleas denying his motion for an allied

offense determination and resentencing. For the reasons which follow, we affirm the trial

court’s decision.
       {¶ 2} Appellant was convicted of felonious assault, kidnapping, and tampering with

evidence and sentenced in 2002 to the maximum sentence for each offense, which were

ordered to be served consecutively. This court affirmed the judgment of conviction and

sentencing. State v. Alexander, 6th Dist. No. WD-02-047, 2003-Ohio-6969, and appeal to

the Supreme Court of Ohio was not allowed, 130 Ohio St.3d 1495, 2011-Ohio-6556, 958

N.E.2d 957.

       {¶ 3} In 2016, appellant moved for resentencing and a determination of whether the

offenses of kidnapping (R.C. 2905.01(B)) and felonious assault (R.C. 2903.11(A)) were

allied offenses of similar import, which would require a merger of the convictions for

sentencing purposes. The trial court determined that the sentencing court had not addressed

this issue and it was not raised on appeal. Addressing the motion as a postconviction relief

proceeding, the court proceeded to consider the issue and determined that the two offenses

were separate offenses of dissimilar import and committed with separate animus.

Therefore, the trial court determined that appellant was properly sentenced to serve

consecutive terms of imprisonment. Appellant filed an appeal from the judgment and

asserts the following single assignment of error:

              APPELLANT JOSEPH EDWARD ALEXANDER WAS DENIED

       DUE PROCESS OF LAW, IN VIOLATION OF BOTH THE UNITED

       STATES      AND     OHIO      CONSTITUTIONS,         WHERE       HE     WAS

       CONVICTED AND SENTENCED TO ALLIED OFFENSES OF SIMILAR

       IMPORT IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE.




2.
       {¶ 4} In his sole assignment of error, appellant argues that the sentence imposed in

this case was void because his Count 4 conviction for kidnapping and his Count 1

conviction for felonious assault were allied offenses pursuant to R.C. 2941.25(A) and his

sentences should have been merged.

       {¶ 5} The state argues appellant’s postconviction relief petition is untimely. We

agree. The conviction occurred in 2002 and appellant has not shown good cause for filing

an untimely petition. R.C. 2953.21(A)(2).

       {¶ 6} The state also argues that the issue of merger is res judicata because the trial

court never addressed the issue of merger and appellant did assert the merger issue on direct

appeal from his conviction. We agree. The trial court merged the two kidnapping

convictions but never addressed the issue of merger as to the felonious assault and

kidnapping convictions. As a result, the sentence is voidable, not void. State v. Williams,

148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 26. Because appellant could have

raised the issue on appeal, but did not, the matter is now barred from review on grounds of

the doctrine of res judicata. Id.

       {¶ 7} Furthermore, the state argues appellant waived this issue at the time of

sentencing. We agree. At the 2002 sentencing hearing, appellant’s attorney argued that,

based on the test for allied offenses of similar import applicable at the time (which required

an abstract comparison of the elements of kidnapping and felonious assault), he did not

believe these crimes were allied offenses of similar import. See State v. Rance, 85 Ohio

St.3d 632, 638, 710 N.E.2d 699 (1999), overruled in State v. Johnson, 128 Ohio St.3d 153,




3.
2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44, which was abrogated in State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 1. However, appellant’s attorney argued the

kidnapping convictions should be merged and sought concurrent sentences. Therefore, we

find that appellant expressly waived the issue of merger as to the felonious assault and

kidnapping convictions. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923, ¶ 32.

       {¶ 8} Accordingly, we find appellant’s sole assignment not well-taken. Although

the trial court addressed the issue of merger and rejected appellant’s arguments, we affirm

the trial court’s denial of the motion on different grounds.

       {¶ 9} Having found that the trial court did not commit error prejudicial to appellant

and that substantial justice has been done, the judgment of the Wood County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




4.
                                                              State v. Alexander
                                                              C.A. No. WD-17-015




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
Thomas J. Osowik, J.                                      JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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