[Cite as State v. Baker, 2016-Ohio-5669.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-16-07

        v.

JOSHUA Z. BAKER,                                          OPINION

        DEFENDANT-APPLELLANT.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2013-CR-156

                                      Judgment Affirmed

                           Date of Decision: September 6, 2016




APPEARANCES:

        Joshua Z. Baker, Appellant

        Benjamin R. Elder for Appellee
Case No. 2-16-07


SHAW, P.J.

       {¶1} Defendant-appellant, Joshua Z. Baker, appeals the April 27, 2016

judgment of the Auglaize County Court of Common Pleas overruling his “Motion

to Correct an Illegal Sentence.”

       {¶2} On October 21, 2013, the Auglaize County Grand Jury returned a three-

count indictment against Baker for one count of Burglary, in violation of R.C.

2911.12(A)(2), a felony of second degree; one count of Theft of a firearm, in

violation of R.C. 2913.02(A)(1), a felony of the third degree; and one count of Theft

of property valued greater than $1,000.00 but less than $7,500.00, in violation of

R.C. 2913.02(A)(1), a felony of the fifth degree.

       {¶3} On January 14, 2014, pursuant to a negotiated plea agreement, Baker

entered a plea of guilty to an amended count of Burglary in violation of R.C.

2911.12(A)(3), a felony of the third degree, and to one count of Theft of a firearm

as charged in the indictment. The trial court accepted Baker’s guilty pleas and

entered a nolle prosequi on the remaining Theft count.

       {¶4} On February 28, 2014, Baker appeared for sentencing. The trial court

imposed a thirty-month prison term for the Burglary conviction and a twenty-four

month prison term for the Theft conviction. The trial court ordered the prison terms

to be served consecutively for a total prison term of fifty-four months. Baker was




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advised of his appellate rights, but declined to file an appeal of the judgment entry

of his conviction and sentence.

       {¶5} Baker filed multiple motions for judicial release, which were overruled

by the trial court.

       {¶6} On April 13, 2016, Baker, pro se, filed a petition for post-conviction

relief entitled “Motion to Correct an Illegal Sentence” pursuant to R.C. 2941.25. In

this petition, Baker claimed that his sentence is “void” because his convictions for

Burglary and Theft were allied offenses of similar import that should have been

merged at sentencing. The State filed a response arguing that the issue of merger

raised by Baker is subject to the doctrine of res judicata.

       {¶7} On April 27, 2016, the trial court issued a judgment entry overruling

Baker’s motion. Specifically, the trial court stated that “[f]ailure to merge sentences

does not render a sentence void, but merely voidable. As the issue was not raised

timely, but is raised only after his Motion for Judicial Release was denied and more

than two years after his conviction, the matter is res judicata.” (Doc. No. 140).

       {¶8} Baker filed this appeal, asserting the following assignments of error.

                        ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
       IMPOSED TWO CONVICTIONS AND SEPARATE
       CONSECUTIVE SENTENCES FOR THE THEFT AND
       BURGLARY CHARGES IN CASE NO. 2013-CR-156 AS
       THOSE CHARGES AROSE FROM A SINGLE COURSE OF
       CONDUCT COMMITTED WITH A SINGLE ANIMUS

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       WHICH RENDERED THE SENTENCE ILLEGAL FOR
       FAILURE TO MERGE ALLIED OFFENSES OF SIMILAR
       IMPORT.   CRIM.R. 52(B); R.C. 2941.25(A); STATE v.
       JOHNSON, 128 OHIO ST.3d 153; FIFTH AND FOURTEENTH
       AMENDMENTS TO THE UNITED STATES CONSTITUTION.

                         ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED WHEN IT MISAPPLIED THE
       DOCTRINE OF RES JUDICATA TO DENY DEFENDANT’S
       MOTION TO VACATE AN ILLEGAL SENTENCE
       CONDEMNING DEFENDANT TO SERVE A SENTENCE
       CLEARLY CONTRARY TO LAW. SUPREME COURT OF
       OHIO, STATE v. UNDERWOOD, 124 OHIO ST. 3d 365; 922
       N.E.2d 923; STATE v. FISCHER, 128 OHIO ST. 3d 92; 942
       N.E.2d 332; SUPREME COURT OF OHIO STATE v. MOORE,
       135 OHIO ST.3d 151; 985 N.E.2d 432; ET AL.

                      First and Second Assignments of Error

       {¶9} We elect to address the assignments of error together due to the fact that

the arguments and considerations raised therein are intertwined.

       {¶10} On appeal, Baker argues the trial court abused its discretion in denying

his “Motion to Correct an Illegal Sentence,” which is in essence a petition for

postconviction relief.     “ ‘[A] trial court’s decision granting or denying a

postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an

abuse of discretion; a reviewing court should not overrule the trial court’s finding

on a petition for postconviction relief that is supported by competent and credible

evidence.’ ” State v. Sidibeh, 10th Dist. Franklin No. 12AP-498, 2013-Ohio-2309,

¶ 7, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58.


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         {¶11} A petition for postconviction relief must meet strict timeliness

requirements.          Pursuant to the current version of R.C. 2953.21(A)(2), a

postconviction petition must be filed “no later than three hundred sixty-five days

after the date on which the trial transcript is filed in the court of appeals in the direct

appeal of the judgment of conviction or adjudication * * *. If no appeal is taken *

* * the petition shall be filed no later than three hundred sixty-five days after the

expiration of the time for filing the appeal.” Here, Baker failed to file a direct appeal

of the trial court’s February 28, 2014 judgment entry of sentence. Baker’s deadline

to file a petition for postconviction relief expired in September of 2014.1

         {¶12} A trial court may not entertain an untimely postconviction petition

unless the petitioner initially demonstrates either (1) he was unavoidably prevented

from discovering the facts necessary for the claim for relief, or (2) the United States

Supreme Court recognized a new federal or state right that applies retroactively to

persons in the petitioner’s situation. R.C. 2953.23(A)(1)(a). If the petitioner can

satisfy one of those two conditions, he must also demonstrate that but for the

constitutional error at trial, no reasonable finder of fact would have found him

guilty. R.C. 2953.23(A)(1)(b).



1
  The current version of R.C. 2953.21 sets forth a deadline for filing a petition for post-conviction relief “no
later than three hundred sixty-five days after the expiration of the time for filing the appeal.” However, this
version took effect on March 23, 2015, and is not the version applicable to Baker’s case. The prior version
of R.C. 2953.21, which is applicable to Baker’s case, provided that “the petition shall be filed no later than
one hundred eighty days after the expiration of the time for filing the appeal.” Baker’s petition is nevertheless
untimely under either version.

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       {¶13} The doctrine of res judicata places another significant restriction on

the availability of postconviction relief. Sidibeh at ¶ 12. “ ‘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.’ ” (Emphasis deleted.)

State v. Cole, 2 Ohio St.3d 112, 113 (1982), quoting State v. Perry, 10 Ohio St.2d

175 (1967) at paragraph nine of the syllabus. “Res judicata also implicitly bars a

petitioner from ‘re-packaging’ evidence or issues which either were, or could have

been, raised in the context of the petitioner’s trial or direct appeal.” State v. Hessler,

10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321, ¶ 37.

       {¶14} Moreover, with respect to Baker’s specific contention on appeal, a

claim of error and failing to merge counts for sentencing purposes is not a “void

sentence” issue. See State v. Jackson, 8th Dist. Cuyahoga No. 99929, 2014-Ohio-

927, ¶ 23; see also State v. Timmons, 10th Dist. Franklin No. 11AP-895, 2012–

Ohio–2079, ¶ 12 (“Arguments challenging the imposition of a sentence that is

voidable are barred by the doctrine of res judicata if not raised on direct appeal.”).

       {¶15} Because Baker’s petition for postconviction relief is untimely, he must

establish that he falls within one of the exceptions specified in R.C. 2953.21(A) that


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would permit him a longer time period to file his petition. Baker has failed to

establish that either exception is applicable to this case. Even assuming arguendo

that Baker’s petition is timely, Baker has failed to identify any issue as grounds for

his petition that could not have been raised in his direct appeal. Therefore, we do

not find that the trial court erred in overruling Baker’s “Motion to Correct an Illegal

Sentence” because (1) Baker’s petition is untimely and (2) the claim he asserted in

the petition are barred by res judicata.2

         {¶16} Based upon the foregoing, Baker’s assignments of error are overruled,

and the judgment is hereby affirmed.

                                                                                  Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




2
  We note that the trial court could have also dismissed Baker’s petition for lack of jurisdiction based upon
the petition being untimely.

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