[Cite as State v. Literal, 2012-Ohio-6298.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                SCIOTO COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 12CA3479
                               :
     vs.                       :     RELEASED 12/26/12
                               :
TIMOTHY LITERAL,               : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Timothy Literal, Lima, Ohio, Appellant, pro se.

Mark E. Kuhn, Scioto County Prosecuting Attorney, Matthew A. Wisecup,
Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, Timothy Literal, appeals the trial court’s denial of his

“Petition to Vacate Judgment of Conviction or Sentence.” In 2007, a jury

found Appellant guilty of robbery, aggravated robbery, possession of drugs

and trafficking in drugs. Appellant filed a direct appeal of his convictions

and sentences, which we determined in State v. Literal, 4th Dist. No.

07CA3207, 2009-Ohio-199. In his current appeal, Appellant contends that

the trial court erred by overruling his petition to correct his illegal sentence,

in which he claimed that the offenses of aggravated robbery and possession
Scioto App. No. 12CA3479                                                        2


of drugs were allied offenses of similar import, which should have merged

pursuant to R.C. 2941.25, as well under State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061.

      {¶2} However, because Appellant could have, but failed to raise this

argument as part of his original direct appeal, his argument is barred by the

doctrine of res judicata. Further, although a void sentence is subject to

challenge at any time, even if Appellant’s argument was meritorious, his

convictions would simply be rendered voidable, not void. Accordingly, the

decision of the trial court is affirmed.

                                     FACTS

      {¶3} In 2007, a jury found Appellant guilty of robbery, aggravated

robbery, possession of drugs and trafficking in drugs. As part of his direct

appeal, this Court vacated his conviction for trafficking in drugs, but

affirmed all other aspects of his convictions and sentences. Since that time,

Appellant has filed a series of post conviction motions, his most recent being

his February 21, 2012, Petition to Vacate Judgment of Conviction and

Sentence. Appellant raised only one claim in his petition, the claim being

that aggravated robbery and possession of drugs are allied offenses of

similar import and that his convictions should have been merged for

purposes of sentencing. Appellant cited the recent holding of the Supreme
Scioto App. No. 12CA3479                                                         3


Court of Ohio in State v. Johnson, supra, in support of his argument. The

trial court denied the petition as untimely on March 9, 2012. It is from this

judgment entry that Appellant now brings his current appeal, setting forth a

single assignment of error for our review.

                           ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED BY OVERRULING THE
      APPELLANT’S PETITION TO CORRECT ILLEGAL SENTENCE
      THAT IS BEING MAINTAINED IN VIOLATION OF HIS FIFTH,
      SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS
      UNDER THE CONSTITUTION OF THE UNITED STATES, AND
      SIMILAR PROVISIONS OF THE OHIO CONSTITUTIONS.”

                             LEGAL ANALYSIS

      {¶4} In his sole assignment of error, Appellant contends that the trial

court erred in overruling his petition to correct illegal sentence. As set forth

above, Appellant contends that aggravated robbery and possession of drugs

are allied offenses of similar import which should have been merged, and

that the trial court erred in denying his petition to vacate his judgment of

conviction or sentence. As such, Appellant claims that his sentence is void,

can be challenged at any time, and is not barred by the principles of res

judicata.

      {¶5} “ ‘In general, a void judgment is one that has been imposed by a

court that lacks subject-matter jurisdiction over the case or the authority to

act. Unlike a void judgment, a voidable judgment is one rendered by a court
Scioto App. No. 12CA3479                                                        4


that has both jurisdiction and authority to act, but the court's judgment is

invalid, irregular, or erroneous.’ ” (Internal citation omitted.) State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6, quoting

State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶

12. Typically, “sentencing errors are not jurisdictional and do not render a

judgment void.” Id. at ¶ 7. However, “a sentence that is not in accordance

with statutorily mandated terms is void.” Id. at ¶ 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.

      {¶6} In contrast, arguments challenging the imposition of a voidable

sentence are barred by the doctrine of res judicata if not raised on a direct

appeal. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873

N.E.2d 306, ¶ 30. The doctrine of res judicata bars claims that the defendant

raised or could have raised on direct appeal. In re B.C.S., 4th Dist. No.

07CA60, 2008-Ohio-5771, ¶ 14. “[T]he doctrine serves to preclude a

defendant who has had his day in court from seeking a second on that same

issue. In so doing, res judicata promotes the principles of finality and

judicial economy by preventing endless relitigation of an issue on which a
Scioto App. No. 12CA3479                                                                                   5


defendant has already received a full and fair opportunity to be heard.” State

v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.

         {¶7} Here, Appellant’s argument that the trial court should have

merged his convictions under R.C. 2941.25, even if meritorious,1 would only

render the judgment voidable, not void. State v. Miller, 4th Dist. No.

11CA14, 2012-Ohio-1922, ¶ 6; citing State v. Cioffi, 11th Dist. Nos. 2011-T-

0072 & 2011-T-0073, 2012-Ohio-299, ¶¶ 13–14; State v. Britta, 11th Dist.

No. 2011-L-041, 2011-Ohio-6096, ¶ 17; See State ex rel. Martin v. Russo,

130 Ohio St.3d 269, 2011-Ohio-5516, 957 N.E.2d 769 (holding that

defendant's claims of sentencing error via writ of mandamus, including

allied-offense claim, barred by res judicata). As in Miller, because

Appellant failed to raise his allied offenses argument on direct appeal, that

issue has become res judicata and he cannot challenge his sentence on that

basis collaterally through a petition to vacate his judgment of conviction or

sentence. Miller at ¶ 6.

         {¶8} Thus, we cannot conclude that the trial court erred in denying

Appellant’s petition. This is true despite the fact that the trial court’s denial

1
  We take this opportunity to note that even if we were to address Appellant’s allied offenses argument on
the merits, the reasoning of the Supreme Court of Ohio in State v. Johnson, supra, would not impact our
analysis. “A new judicial ruling may be applied only to cases that are pending on the announcement date.
State v. Evans (1972), 32 Ohio St.2d 185, 186, 61 O.O.2d 422, 291 N.E.2d 466. 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. Id.” State v. Layne, 4th Dist. No. 11CA17, 2012-Ohio-1627, ¶ 10
(internal citations omitted). Appellant’s case was not pending on direct review at the time State v. Johnson
was released. As such, it has no applicability to Appellant’s convictions or sentences.
Scioto App. No. 12CA3479                                                        6


of the petition was based upon the reasoning that it was untimely filed, as

opposed to being barred by res judicata principles. Id. at ¶ 6; citing Captain

v. United Ohio Ins. Co., 4th Dist. No. 09CA14, 2010-Ohio-2691, ¶ 33;

quoting State v. Sebastian, 4th Dist. No. 08CA19, 2009-Ohio-3117, at ¶ 25

(“ ‘[W]hen a trial court has stated an erroneous basis for its judgment, an

appellate court must affirm the judgment if it is legally correct on other

grounds, that is, it achieves the right result for the wrong reason, because

such an error is not prejudicial.’ ”). Accordingly, the decision of the trial

court is affirmed.

                                               JUDGMENT AFFIRMED.

Kline, J., concurring.

      {¶9} I respectfully concur in judgment only because I conclude that

the Appellant’s petition was not timely filed. See R.C. 2953.21(A)(2) and

R.C. 2953.23(A).
Scioto App. No. 12CA3479                                                        7


                    JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment Only with Opinion.

                           For the Court,

                           BY: _________________________
                               Matthew W. McFarland, Judge
Scioto App. No. 12CA3479                                             8




                           NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
