[Cite as State v. Johnson, 2016-Ohio-8525.]




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


State of Ohio                                     Court of Appeals No. L-16-1170

        Appellee                                  Trial Court No. CR0200603545

v.

Tyrone Johnson                                    DECISION AND JUDGMENT

        Appellant                                 Decided: December 30, 2016

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Tyrone R. Johnson, pro se.

                                              *****

        SINGER, J.

        {¶ 1} Appellant, Tyrone Johnson, in this accelerated appeal, appeals the July 14,

2016 judgment of the Lucas County Court of Common Pleas which denied his motion for

resentencing. For the reasons that follow, we reverse the judgment of the trial court.
       {¶ 2} Appellant sets forth one assignment of error:

              I. Plain error for the trial court to improperly merge and run

       concurrent sentences contrary to law. The trial court was without statutory

       authority to do so, or to impose post release control to Johnson’s sentence

       because [R.C.] 2967.28 is not applicable.

       {¶ 3} In 2007, appellant was convicted by a jury of two counts of aggravated

murder, one count of aggravated robbery, and a firearm specification on each count.

Appellant was sentenced to 20 years to life in prison on each aggravated murder count,

ten years for aggravated robbery, and three years for the firearm specification. The court

ordered the sentences for the aggravated murder counts to run consecutively to each other

and concurrent to the aggravated robbery count; the firearm specification was mandatory

and consecutive to the other sentences. Appellant appealed. Appellant also filed a

petition to vacate or set aside judgment of conviction or sentence with the trial court. The

trial court denied the petition; appellant appealed. We affirmed the conviction and the

denial of the petition. State v. Johnson, 6th Dist. Lucas Nos. L-07-1193, L-08-1230,

2009-Ohio-45.

       {¶ 4} In 2012, appellant filed with the trial court a motion for access to the grand

jury transcript and minutes, and a motion for resentencing. The trial court denied the

motions and appellant appealed. We affirmed the denial of the motions. State v.

Johnson, 6th Dist. Lucas Nos. L-12-1178, L-12-1257, 2013-Ohio-1718.




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       {¶ 5} The current appeal arises from the trial court’s denial of appellant’s motion

entitled: “Motion for Resentence for Plain error on a merger issue. Plain error when the

Trial Court imposed Post-Release control for Appellants Convictions for Aggravated

Murder without Statutory Authority to do so Pursuant to R.C. 2967.28.” The trial court

construed the motion as a motion for postconviction relief, and denied the motion as

untimely.

       {¶ 6} Appellant argues, in support of his assignment of error, this is not a

postconviction issue, as he seeks to correct an illegal sentence. He notes a void sentence

can be attacked at any time and res judicata does not apply. Appellant claims he must be

resentenced because he was sentenced to postrelease control which does not apply.

       {¶ 7} The state counters the trial court properly construed appellant’s motion as a

postconviction petition. The state argues the trial court properly denied the petition as

untimely. The state also contends appellant’s third successive petition is barred by the

principles of res judicata.

       {¶ 8} We are presented here with an issue similar to the one decided by the

Supreme Court of Ohio on November 10, 2016, in State v. Williams, Slip Opinion No.

2016-Ohio-7658. In Williams, the court was asked whether separate sentences imposed

for convictions for allied offenses of similar import, which the trial court found to be

subject to merger pursuant to R.C. 2941.25(A), were void and subject to attack at any

time. Id. at ¶ 15. The court noted “when the trial court disregards statutory mandates,

‘[p]rinciples of res judicata, including the doctrine of the law of the case, do not preclude




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appellate review. The sentence may be reviewed at any time, on direct appeal or by

collateral attack.’” (Citation omitted.) Id. at ¶ 22. The court held:

       when a trial court concludes that an accused has in fact been found guilty of

       allied offenses of similar import, it cannot impose a separate sentence for

       each offense. Rather, the court has a mandatory duty to merge the allied

       offenses by imposing a single sentence, and the imposition of separate

       sentences for those offenses—even if imposed concurrently—is contrary to

       law because of the mandate of R.C. 2941.25(A). In the absence of a

       statutory remedy, those sentences are void. [State v.] Singleton, 124 Ohio

       St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, at ¶ 25.

              ***

              We have recognized that a resentencing hearing limited to correcting

       the void sentence is a proper remedy for a trial court’s failure to comply

       with mandatory sentencing laws. [State v.] Fischer, 128 Ohio St.3d 92,

       2010-Ohio-6238, 942 N.E.2d 332, at ¶ 29. Id. at ¶ 28, 30.

       {¶ 9} R.C. 2941.25(A) states “[w]here the same conduct by defendant can be

construed to constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may be convicted

of only one.” A conviction consists of a guilty verdict and the imposition of a sentence.

State v. McGuire, 80 Ohio St.3d 390, 399, 686 N.E.2d 1112 (1997). Thus, the “trial court




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is required to merge allied offenses of similar import at sentencing.” State v. Underwood,

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

       {¶ 10} In the case before us, appellant was charged with and convicted of two

counts of aggravated murder, a violation of R.C. 2903.01(B) and (F), and one count of

aggravated robbery, a violation of R.C. 2911.01(A)(1). R.C. 2903.01(B) states in

relevant part “[n]o person shall purposely cause the death of another * * * while

committing * * * aggravated robbery * * *.” R.C. 2911.01(A)(1) provides in relevant

part “[n]o person, in attempting or committing a theft offense * * * shall * * * [h]ave a

deadly weapon on or about the offender’s person or under the offender’s control and

* * * use it.”

       {¶ 11} At appellant’s sentencing hearing, he was sentenced to two consecutive

terms of life imprisonment with parole eligibility after 20 years on the aggravated murder

counts. The trial court properly found and counsel agreed that the aggravated robbery

count merged with the two aggravated murder counts because aggravated robbery was an

element of the aggravated murder counts. However, appellant was then sentenced to 10

years in prison on the aggravated robbery count, “[t]hat will run concurrent with the 2

consecutive counts of life imprisonment.”

       {¶ 12} Since the trial court found aggravated robbery was an element of and

should merge into the aggravated murder counts, the two offenses are allied offenses of

similar import. However, by imposing a concurrent sentence for the aggravated robbery

count, the trial court did not merge the aggravated robbery count with the aggravated




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murder counts. Rather, multiple sentences were imposed; R.C. 2941.25 prohibits this.

Therefore, appellant’s sentence is void and a resentencing hearing must be held.

       {¶ 13} On the authority of State v. Williams, Slip Opinion No. 2016-Ohio-7658,

appellant’s sole assignment of error is well-taken.

       {¶ 14} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is reversed, appellant’s sentence is vacated, and this cause is remanded

for the trial court to resentence appellant according to law. Costs of this appeal are

assessed to appellee pursuant to App.R. 24.


                                                                         Judgment reversed.



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




Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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