[Cite as State v. Stevens, 2020-Ohio-825.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 28474
                                                   :
 v.                                                :   Trial Court Case No. 1996-CR-395/1
                                                   :
 JEFFREY E. STEVENS                                :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                              Rendered on the 6th day of March, 2020.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

JEFFREY E. STEVENS, #A339-120, P.O. Box 57, Marion, Ohio 43302
     Defendant-Appellant, Pro Se

                                             .............




DONOVAN, J.
                                                                                        -2-


      {¶ 1} Defendant-appellant Jeffrey E. Stevens appeals from an order of the

Montgomery County Court of Common Pleas overruling his “Motion to Void/Vacate

Sentencing Judgment.” Stevens filed a timely notice of appeal with this Court on July

19, 2019.

      {¶ 2} In 1996, Stevens was convicted of three counts of aggravated robbery, one

count of attempted aggravated murder, one count of aggravated murder, and one count

of having weapons under disability, with multiple firearm and prior-offense-of-violence

specifications. The trial court sentenced Stevens to an aggregate term of life in prison

plus an indefinite prison term of 36 to 58 years. Stevens filed a direct appeal from his

conviction raising several assignments of error, none of which challenged the validity of

his sentence or the trial court’s failure to merge any of his sentences. On April 3, 1998,

this court affirmed Stevens’s conviction. State v. Stevens, 2d Dist. Montgomery No.

16509, 1998 WL 151107 (Apr. 3, 1998) (hereinafter “Stevens I ”).

      {¶ 3} In 2014, Stevens filed two successive motions for resentencing, in which he

argued, in part, that his sentence for aggravated murder was void because the judgment

entry did not state that he would be eligible for parole after 20 years. The trial court

overruled both of Stevens's motions for resentencing in separate entries. Thereafter,

Stevens filed a motion requesting a re-entry of judgment asking the trial court to re-issue

one of its entries overruling his motion for resentencing on grounds that he was not served

a copy of the entry. The trial court overruled the motion for re-entry of judgment.

      {¶ 4} Stevens appealed, again arguing that the life sentence he received for

aggravated murder was void because the sentencing entry failed to comply with R.C.

2929.03(A)(1) in that the entry imposed a life sentence without stating that he would be
                                                                                            -3-


eligible for parole after 20 years. Upon review, we affirmed the trial court's judgment

overruling Stevens's motion for re-entry of judgment. State v. Stevens, 2d Dist.

Montgomery No. 26328, 2015-Ohio-2971 (hereinafter “Stevens II ”). We held that this

Court lacked jurisdiction to address Stevens’s argument since it related to the trial court's

judgment overruling Stevens's motion for resentencing, which was not the judgment

designated in Stevens’s notice of appeal. Id. at ¶ 8-9. Additionally, we held that even if

we had jurisdiction to address Stevens’s argument on appeal, the argument was barred

by res judicata. Id. at ¶ 10. Specifically, we found that the trial court's failure to state in

its judgment entry that Stevens would become eligible for parole after 20 years only

rendered Stevens’s sentence voidable, and that voidable sentences may only be

challenged on direct appeal. Id. at ¶ 11, citing State v. Johnston, 2d Dist. Montgomery

No. 25652, 2013-Ohio-4401, ¶ 15. Since Stevens did not raise this argument in his direct

appeal, we found that res judicata barred him from raising it in his subsequent appeal. Id.

We also held that because Stevens failed to raise an allied offense issue in his direct

appeal, res judicata barred him from raising it as well. Id. at ¶ 12.

       {¶ 5} On December 13, 2017, Stevens filed another motion for resentencing,

wherein he argued that his life sentence for aggravated murder was contrary to law and

void because the version of R.C. 2929.03(A) in effect at the time of his sentencing did not

authorize a definite term of life in prison. The trial court overruled Stevens's motion for

resentencing.    Stevens appealed, arguing that the trial court erred in overruling the

motion for resentencing he filed in 2017 because it incorrectly determined that the version

of R.C. 2929.03(A) in effect at the time he was sentenced authorized a definite term of

life in prison for aggravated murder. In support of his argument, Stevens relied upon the
                                                                                             -4-


language of R.C. 2929.03(A), which states: “the trial court shall impose a sentence of life

imprisonment with parole eligibility after serving twenty years of imprisonment on the

offender.” R.C. 2929.03(A).

       {¶ 6} In State v. Stevens, 2d Dist. Montgomery No. 27872, 2018-Ohio-4439

(hereinafter “Stevens III”), we affirmed the judgment of the trial court, stating the following:

       In essence, Stevens is arguing exactly what he argued in Stevens II, namely

       that his life sentence for aggravated murder was void because the trial court

       sentenced him to life in prison without specifying that he was eligible for

       parole after serving 20 years. We find that this argument fails for the same

       reasons discussed in Stevens II, as the argument should have been raised

       on direct appeal and is barred by res judicata. Stevens II, 2d Dist.

       Montgomery No. 26328, 2015-Ohio-2971 at ¶ 11, citing Johnston, 2d Dist.

       Montgomery No. 25652, 2013-Ohio-4401, at ¶ 13-16.

Id. at ¶ 10.

       {¶ 7} We also held that even if Stevens's argument were not barred by res judicata,

pursuant to the plain language of Ohio Adm.Code 5120-2-10(B), Stevens's parole

eligibility on the aggravated murder charge is presumed under the law. Id. at ¶ 12.

“Therefore, even though the trial court did not indicate at sentencing that Stevens would

become eligible for parole on his aggravated murder conviction after serving 20 years in

prison, such eligibility is presumed since the sentencing entry did not indicate otherwise.”

Id.

       {¶ 8} On April 8, 2019, Stevens filed a “Motion to Void/Vacate Sentencing

Judgment.” Just as he argued unsuccessfully in Stevens II and Stevens III, Stevens
                                                                                           -5-


again asserted that his life sentence for aggravated murder was void because the trial

court sentenced him to life in prison without specifying that he was eligible for parole after

serving 20 years. Additionally, as he did in Stevens II, Stevens argued that the trial court

erred when it failed to merge his three aggravated robbery offenses for the purpose of

sentencing. In a decision issued on June 19, 2019, the trial court overruled Stevens’s

motion, holding that both of the arguments advanced by Stevens in his motion were

barred by res judicata.

       {¶ 9} It is from this judgment that Stevens now appeals.

       {¶ 10} Because they are interrelated, Stevens’s first and second assignments of

error will be discussed together as follows:

              WHERE NO STATUTORY AUTHORITY EXISTS [PURSUANT TO

       R.C. 2929.03] FOR A SENTENCE OF ‘A LIFE TERM,’ SUCH A

       SENTENCE IS CONTRARY TO LAW; AND NON-COMPLIANCE WITH

       STATUTORY          (SENTENCING)       REQUIREMENTS          RENDERS       THE

       JUDGMENT VOID, FOR LACK OF AUTHORITY TO ACT *** [sic].

              THE AGGRAVATED ROBBERY SENTENCES [HEREIN] ARE

       CONTRARY TO LAW, AS THEY ARE ALLIED OFFENSES *** [sic] AND

       MUST      BE       MERGED      PURSUANT        TO     NONDISCRETIONARY

       STATUTORY REQUIREMENTS /AUTHORITY.

       {¶ 11} In his first assignment, Stevens contends that that his life sentence for

aggravated murder was void because the trial court sentenced him to life in prison without

specifying that he was eligible for parole after serving 20 years.            In his second

assignment, Stevens argues that the trial court erred when it failed to merge the
                                                                                           -6-


aggravated robberies for sentencing.

       {¶ 12} In his first assignment, Stevens is arguing exactly what he argued in

Stevens II and Stevens III: his life sentence for aggravated murder was void because the

trial court sentenced him to life in prison without specifying that he was eligible for parole

after serving 20 years. Again, we find that this argument fails for the same reasons

discussed in Stevens II, as the argument should have been raised on direct appeal and

is barred by res judicata. Stevens II, 2d Dist. Montgomery No. 26328, 2015-Ohio-2971,

at ¶ 11, citing State v. Johnston, 2d Dist. Montgomery No. 25652, 2013-Ohio-4401, at

¶ 13-16; see also Stevens III, 2d Dist. Montgomery No. 27872, 2018-Ohio-4439, at ¶ 10.

       {¶ 13} Stevens’s second assignment, that the trial court failed to consider whether

the aggravated robberies merged as allied offenses, is also barred by res judicata. It is

well-established that “ ‘[t]he issue of merger of allied offenses of similar import must be

raised in an appellant's direct appeal or it is barred by res judicata.’ ” State v. Bowman,

2d Dist. Montgomery No. 26162, 2015-Ohio-1162, ¶ 11, quoting State v. Martin, 7th Dist.

Mahoning No. 13 MA 178, 2014-Ohio-5723, ¶ 20; see also State v. Johnson, 2d Dist.

Montgomery No. 25711, 2013-Ohio-4946, ¶ 7. Therefore, because Stevens failed to

raise the allied offenses issue in his direct appeal, res judicata bars him from raising it

here. See Stevens II at ¶ 12.

       {¶ 14} Stevens’s First and Second Assignments of Error are overruled.

       {¶ 15} Both of Stevens’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                      .............

TUCKER, P.J. and WELBAUM, J., concur.
                            -7-




Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Jeffrey E. Stevens
Hon. Michael W. Krumholtz
