[Cite as State v. Parson, 2012-Ohio-730.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

                                                 :
STATE OF OHIO
     Plaintiff-Appellee                           :   C.A. CASE NO. 24641

vs.                                              :    T.C. CASE NO. 01 CR 546

                                                 :    (Criminal Appeal from
JAMES T. PARSON                                       Common Pleas Court)
     Defendant-Appellant                          :

                                       . . . . . . . . .

                                            O P I N I O N

                 Rendered on the 24th day of February, 2012.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Prosecuting Attorney, Carley J. Ingram, Atty.
Reg. No. 0020084, Assistant Prosecuting Attorney, Montgomery
County Courts Building, P.O. Box 972, 301 West Third Street, Dayton,
OH 45422
     Attorneys for Plaintiff-Appellee

James T. Parson, #445-040, London Correctional Institution, P.O.
Box 69, London, OH 43140
     Defendant-Appellant, Pro Se

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, James T. Parson, appeals from a final order denying his “Motion to

Correct Void Judgment or Sentence.”

        {¶ 2} On March 9, 2005, Defendant pled guilty to three counts of felonious assault
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and one count of kidnapping. Defendant was sentenced to four years imprisonment on each

of the felonious assault counts, to be served concurrently, and to eight years imprisonment on

the kidnapping count, to be served consecutive to the felonious assault charges, for a total of

twelve years. Defendant did not file a direct appeal from this judgment.

       {¶ 3} On August 5, 2009, Defendant filed a motion to modify sentencing, arguing

that his kidnapping sentence should run concurrently with, rather than consecutive to, his

felonious assault sentences, and that his felonious assault and kidnapping charges should have

been merged for purposes of sentencing. After considering Defendant’s motion as a motion

for judicial release, motion for post conviction relief, and a motion to vacate plea, the trial

court denied the motion. Defendant did not file a direct appeal from this order.

       {¶ 4} On March 8, 2011, Defendant filed his “Motion to Correct Void Judgment or

Sentence.” In his motion, Defendant argued that the trial court erred by not merging his

kidnapping charge with the felonious assault charges because they were allied offenses of

similar import, relying on the Supreme Court’s recent decision in State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. On April 18, 2011, the trial court denied

Defendant’s motion, finding that the arguments raised are barred by the doctrine of res

judicata. Defendant filed a notice of appeal from that order.

       FIRST ASSIGNMENT OF ERROR

       {¶ 5} “SHOULD KIDNAPPING AND FELONIOUS ASSAULT BE MERGED AS

ALLIED OFFENSES WHEN THERE IS NOT A SEPARATE ANIMUS FOR EACH

CRIME, AS THE KIDNAPPING CHARGE WAS INHERENT WITHIN THE FELONIOUS

ASSAULT CHARGE IN THIS INSTANT CASE.”
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       SECOND ASSIGNMENT OF ERROR

       {¶ 6} “CONSTITUTIONAL VIOLATIONS CAN NOT BE BARRED FROM

REVIEW OR REVERSAL BASED ON THE DOCTRINE OF RES JUDICATA WHEN THE

STANDARD OF LAW DURING THE FIRST PRESENTMENT OF THE CLAIM BY THE

DEFENDANT DID NOT SUPPORT A REVERSAL IN HIS CASE, AND UNTIL THE

EXTRAORDINARY CIRCUMSTANCES WITH THE RULING OF LAW IN ANOTHER

CASE CHANGED THE STANDARD OF LAW THAT UPHELD THE ORIGINAL

CONVICTION OF THE DEFENDANT.”

       {¶ 7} “Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial, which resulted

in that judgment of conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio

St.3d 93, 671 N.E.2d 233, syllabus. As the trial court explained, the doctrine of res judicata,

if applicable, bars the arguments raised in Defendant’s motion.

       {¶ 8} Defendant argues that the trial court’s judgment and his resulting sentence are

void. Under Ohio law, “a sentence that is not in accordance with statutorily mandated terms

is void.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 233, ¶ 8. A

void sentence “is not precluded from appellate review by principles of res judicata, and may

be reviewed at any time, on direct appeal or by collateral attack.” Id. at paragraph one of the

syllabus. “Unlike a void judgment, a voidable judgment is one rendered by a court that has

both jurisdiction and authority to act, but the court’s judgment is invalid, irregular, or
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erroneous.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12.

Moreover, “defendants with a voidable sentence are entitled to resentencing only upon a

successful challenge on direct appeal.”          State v. Payne, 114 Ohio           St.3d 502,

2007-Ohio-4642, 873 N.E.2d 306, ¶ 30.

       {¶ 9} The claims raised in Defendant’s motion to correct void judgment or sentence

demonstrate that, at most, his claim is that his sentence is voidable. Defendant does not

claim that his sentence is not in conformity with statutorily mandated terms, or is not

provided for by law, or even that the sentence fails to comply with the formal requirements of

R.C. 2941.25. To the extent that the trial court may have erred at the time of sentencing in

finding that the felonious assault and kidnapping charges were not allied offenses of similar

import, Defendant’s sentence would be voidable, but in no way is the sentence illegal so as to

render it void.

       {¶ 10} Arguments challenging the imposition of a sentence that is voidable are barred

by the doctrine of res judicata if not raised on direct appeal. Simpkins, at ¶ 30. Since

Defendant’s sentence, assuming his allied offense argument had merit, would be voidable, he

is barred by the doctrine of res judicata from challenging his sentence on those grounds

collaterally through his “Motion to Correct Void Judgment or Sentence.” Smith v. Voorhies,

119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10-11 (“allied-offense claims are

nonjurisdictional,” and, thus, barred by the doctrine of res judicata where they were raised, or

could have been raised, on direct appeal).

       {¶ 11} Further, as the State argues in its brief, Defendant cannot rely on the Supreme

Court’s recent decision in Johnson because “[a] new judicial ruling may be applied only to
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cases that are pending on the announcement date. * * * The new judicial ruling may not be

applied retroactively to a conviction that has become final, i.e., where the accused has

exhausted all of his appellate remedies.” (Citations omitted.) Ali v. State, 104 Ohio St.3d 328,

2004-Ohio-6592, 819 N.E.2d 687, ¶ 6.

       {¶ 12} The assignments of error are overruled. The judgment of the trial court will be

affirmed.



FROELICH, J., And HALL, J., concur.



Copies mailed to:

Carley J. Ingram, Esq.
James T. Parson
Hon. Mary Wiseman
