[Cite as State v. Smith, 2020-Ohio-1026.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                            No. 108499
                 v.                               :

MARCELLUS SMITH,                                  :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 19, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-13-576912-C


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Christopher D. Schroeder, Assistant
                 Prosecuting Attorney, for appellee.

                 Michael B. Telep, for appellant.


EILEEN T. GALLAGHER, A.J.:

                   Defendant-appellant, Marcellus Smith (“Smith”), appeals the denial

of a motion to correct his sentence and claims the following two errors:

        1. The trial court erred when it failed to determine whether the facts
        surrounding defendant’s convictions arose from the same conduct and,
        therefore, were subject to merger for sentencing purposes.
      2. The trial court erred when it imposed a sentence contrary to law by
      imposing consecutive sentences without making specific findings
      required by R.C. 2929.14(C).

              We find no merit to the appeal and affirm the trial court’s judgment.

                       I. Facts and Procedural History

              In 2013, Smith was charged with two counts of aggravated murder,

two counts of aggravated burglary, and one count each of murder, felonious assault,

kidnapping, and having weapons while under disability. All the charges except the

having weapons while under disability charge included one- and three-year firearm

specifications. Smith pleaded guilty to one count of involuntary manslaughter, with

a three-year firearm specification, and one count of aggravated burglary as alleged

in Counts 1 and 5 of the amended indictment. The remaining charges were nolled.

              The plea agreement included an agreed sentencing range of between

13 and 20 years in prison. (Tr. 9, 18, 60, 83.) The parties also agreed that the

involuntary manslaughter charge as amended in Count 1 and aggravated burglary

as alleged in Count 5 were not allied offenses of similar import. (Tr. 76.) In

accordance with the parties’ agreed sentencing range, the court sentenced Smith to

11 years on the involuntary manslaughter conviction, to be served consecutive to the

three years on the attendant firearm specification, and six years on the aggravated

burglary conviction, to be served consecutive to the other prison terms, for an

aggregate 20-year sentence. Smith did not appeal his sentence.

              Four and one-half years later, in March 2019, Smith filed a pro se

“request for merger of Counts 1 and 5,” arguing that his involuntary manslaughter
and aggravated burglary convictions were allied offenses that should have merged

at sentencing. The trial court denied the motion. Smith now appeals the trial court’s

judgment.

                              II. Law and Analysis

                               A. Allied Offenses

              In the first assignment of error, Smith argues the trial court erred in

failing to grant his motion to merge allied offenses. He contends his involuntary

manslaughter and aggravated burglary convictions involved the same conduct and,

therefore, should have merged for sentencing purposes.

              As previously stated, Smith did not file a direct appeal of his sentence;

he appeals the denial of a postconviction motion requesting merger of allied

offenses. The doctrine of res judicata bars a convicted defendant from raising a

defense or claiming a lack of due process that was or could have been raised at trial

or on direct appeal. State v. Samuels, 8th Dist. Cuyahoga No. 106520, 2018-Ohio-

3675, ¶ 8, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).

Nevertheless, “[v]oid sentences are not precluded from appellate review by

principles of res judicata and may be reviewed at any time, on direct appeal or by

collateral attack.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332, ¶ 40. Therefore, we must determine whether Smith’s sentence is void.

              A “void” sentence is one imposed by a court without subject matter

jurisdiction or the authority to act. State v. Straley, Slip Opinion No. 2019-Ohio-
5206, ¶ 25. A “voidable” sentence is one imposed by court having jurisdiction, but

was imposed irregularly or erroneously. Id.

               In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d

234, the Ohio Supreme Court revisited its jurisprudence on void sentences and held

that “if the sentencing court had jurisdiction to act, sentencing errors do not render

the sentence void and the sentence can be set aside only if successfully challenged

on direct appeal.” Id. at ¶ 23. The court recognized that “the trial court’s failure to

find that the offender has been convicted of allied offenses of similar import, even if

erroneous, does not render the sentence void.” Id. at ¶ 24. The court further

explained that its void sentence jurisprudence “does not apply to ‘challenges to a

sentencing court’s determination whether offenses are allied.’”1 Id., quoting State

v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8 (emphasis

added in Williams). Thus, the court concluded that

       when a trial court finds that convictions are not allied offenses of
       similar import, or when it fails to make any finding regarding whether
       the offenses are allied, imposing a separate sentence for each offense is
       not contrary to law and any error must be asserted in a timely appeal
       or it will be barred by principles of res judicata.

Id. at ¶ 26, citing Holdcroft at ¶ 8-9.




       1 By contrast, the Williams court held that when a trial court finds that a defendant
has been found guilty of allied offenses of similar import, it is not authorized to impose a
separate sentence on each offense because the court has a mandatory duty to merge allied
offenses. Williams at ¶ 28. Thus, the imposition of separate sentences on allied offenses
is contrary to law because it violates the mandate of R.C. 2941.25(A), even if the sentences
are imposed concurrently. Id. Therefore, separate sentences on allied offenses are void.
               The trial court in this case never determined whether Smith’s

convictions were allied offenses subject to merger because the parties agreed they

were not allied offenses. (Tr. 76.) Therefore, Smith’s sentences are not void and any

challenge to the validity of the sentences had to be made on direct appeal. Smith

never filed an appeal and his allied offense claim is now barred by res judicata.

               Therefore, the first assignment of error is overruled.

                            B. Consecutive Sentences

               In the second assignment of error, Smith argues his consecutive

sentence is contrary to law because the trial court failed to make the findings

required by R.C. 2929.14(C) for the imposition of consecutive sentences.

               However, Smith failed to make this argument in his motion to request

merger of Counts 1 and 5 in the trial court. A party cannot raise new issues or

arguments for the first time on appeal; failure to raise an issue before the trial court

results in a waiver of that issue for appellate purposes. Lycan v. Cleveland, 8th Dist.

Cuyahoga Nos. 107700 and 107737, 2019-Ohio-3510, ¶ 32-33 (“It is well-established

that arguments raised for the first time on appeal are generally barred and a

reviewing court will not consider issues that the appellant failed to raise in the trial

court.”); In re Estate of O’Toole, 8th Dist. Cuyahoga No. 108122, 2019-Ohio-4165, ¶

46 (“Issues that were not raised at the trial-court level cannot be raised for the first

time on appeal, and thus, we do not need to address them now.”).

               Any issues regarding Smith’s consecutive sentence are not properly

before this court because Smith failed to raise them in the trial court. Moreover,
errors in law, including the erroneous imposition of consecutive sentences, that

were raised or could have been raised on a direct appeal, are barred by res judicata.

See State v. Shie, 8th Dist. Cuyahoga No. 92632, 2009-Ohio-5828, ¶ 7, citing State

v. Frazier, 8th Dist. Cuyahoga No. 91617, 2009-Ohio-1091, ¶ 9. Therefore, Smith’s

claim that his consecutive sentence is contrary to law is not properly before the court

and is barred by res judicata.

               The second assignment of error is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from 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

common pleas court to carry this judgment into execution.            The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.




      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE OPINION


SEAN C. GALLAGHER, J., CONCURRING:

               I agree with the majority that Smith’s sentence is not void and that his

claims regarding allied offenses and consecutive sentences are barred by res

judicata. However, because the trial court sentenced appellant to consecutive prison

terms within an agreed sentencing range and the parties had agreed that the offenses

were not subject to merger, I also do not believe that the sentence is reviewable

pursuant to R.C. 2953.08. See State v. Grant, 2018-Ohio-1759, 111 N.E.3d 791, ¶ 19

(8th Dist.).
