[Cite as State v. Simmons, 2014-Ohio-1014.]
                          STATE OF OHIO, JEFFERSON COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO                                 )   CASE NO. 13 JE 15
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )   OPINION
                                              )
MICHAEL SIMMONS                               )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from the Court of
                                                  Common Pleas of Jefferson County,
                                                  Ohio
                                                  Case No. 05 CR 130

JUDGMENT:                                         Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                           Atty. Jane M. Hanlin
                                                  Prosecuting Attorney
                                                  Jefferson County Justice Center
                                                  16001 State Route 7
                                                  Steubenville, Ohio 43952

For Defendant-Appellant:                          Michael Simmons, Pro se
                                                  #491-890
                                                  Warren Correctional Institution
                                                  5787 State Route 63
                                                  P.O. Box 120
                                                  Lebanon, Ohio 45036

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                  Dated: March 13, 2014
[Cite as State v. Simmons, 2014-Ohio-1014.]
WAITE, J.


        {¶1}    Appellant Michael Simmons appeals the judgment of the Jefferson

County Court of Common Pleas overruling a motion to vacate his sentence.

Appellant argues that three of his four convictions were allied offenses of similar

import and should have merged, and that his sentence is therefore void. Appellant

bases his argument on State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061. Appellant’s arguments are not persuasive. First, errors in determining

allied offenses do not result in a void sentence. State v. Gessner, 7th Dist. No. 12

MA 182, 2013-Ohio-3999, ¶25.                  Second, any errors Appellant may have raised

regarding allied offenses are now res judicata due to Appellant's many prior appeals

in this case. Appellant appealed his original sentence in 2006, and did not raise this

issue. Nor did Appellant raise the issue in his second appeal in 2007, a prior motion

to vacate his sentence, or in a prior postconviction relief petition. This present appeal

is based on yet another motion to vacate filed on May 17, 2013, which again raised

sentencing errors and which was also denied. It is in this last motion that Appellant

raised for the first time the issue of alleged allied offenses errors. Based on the

principles of res judicata his assignment of error is overruled and the judgment of the

trial court is affirmed.

                                     Brief History of the Case

        {¶2}    The facts of this case were set out at length in State v. Simmons, 7th

Dist. No. 06-JE-4, 2007-Ohio-1570 (Simmons 1), ¶2-3.                 On August 11, 2005,

Appellant sold crack cocaine to a confidential informant. The sale took place less

than 500 feet from Steubenville High School, and there was a juvenile in the
                                                                                      -2-

passenger seat of Appellant's vehicle at the time of the sale.           Appellant was

subsequently convicted by the jury on one count of corrupting a minor, a first-degree

felony in violation of R.C. 2925.02(A)(4)(c)(C)(1), with a specification that the offense

was committed in the vicinity of a school; one count of trafficking in crack cocaine in

an amount that equals or exceeds one gram but is less than five grams, a third-

degree felony in violation of R.C. 2925.03(A)(1)(C)(4)(c), with a specification that the

offense was committed in the vicinity of a school or a juvenile; one count of tampering

with evidence, a third-degree felony in violation of R.C. 2921.12(A)(1); and one count

of possession of crack cocaine in an amount that equals or exceeds one gram but is

less than five grams, a fourth-degree felony in violation of R.C. 2925.11(A)(C)(4)(b).

       {¶3}   In a judgment entry filed January 13, 2006, the trial court sentenced

Appellant to a total of 15 years in prison (eight years for corrupting a minor, three

years for trafficking in crack cocaine, three years for tampering with evidence, and 12

months for possession of crack cocaine). Appellant appealed, and we affirmed his

conviction but vacated his sentence and remanded the matter for resentencing based

on State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Simmons 1 at

¶174. On remand, the trial court held a resentencing hearing. On April 19, 2007, the

court imposed the same 15-year sentence.          Appellant filed an appeal from this

resentencing judgment, and the sentence was affirmed. State v. Simmons, 7th Dist.

No. 07-JE-22, 2008-Ohio-3337 (Simmons 2).

       {¶4}   On October 26, 2006, Appellant filed a petition for postconviction relief.

The trial court overruled the petition on May 8, 2007 and the judgment was not

appealed.
                                                                                    -3-

      {¶5}   On December 11, 2009, Appellant filed a motion to vacate his sentence

due to errors in the imposition of postrelease control. On January 27, 2010, the court

reissued the conviction and sentence to correct any errors regarding postrelease

control language. Appellant filed another appeal, and the sentence was affirmed.

State v. Simmons, 7th Dist. No. 10-JE-4, 2011-Ohio-2625 (Simmons 3).

      {¶6}   On May 17, 2013, Appellant filed yet another motion to vacate his

sentence, this time on the theory that the trial court failed to merge allied offenses

pursuant to R.C. 2941.25 as interpreted by Johnson.        The trial court denied the

motion on May 22, 2013. This timely appeal followed.

                             ASSIGNMENT OF ERROR

      The court of common pleas committed plain error and exposed

      Defendant-Appellant to multiple punishments for the same offense in

      violation of his rights under the Double Jeopardy Clauses of the Fifth

      and Fourteenth Amendments to the United States Constitution and

      Article I, § 10 of the Ohio Constitution when it failed to merge the guilty

      verdicts on the counts of corrupting another w/ drugs, trafficking in

      crack cocaine, and possession of crack cocaine pursuant to

      R.C.2941.25     and,   instead,   entered   separate    convictions    and

      consecutive prison terms thereon.

      {¶7}   Appellant argues that the trial court exposed him to multiple

punishments for the same offense by not merging his convictions as allied offenses

pursuant to R.C. 2941.25 and State v. Johnson, supra. “Allied offenses” are defined

by R.C. 2941.25, which provides: “Where the same conduct by defendant can be
                                                                                     -4-

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.” R.C. 2941.25(A). Determining whether offenses are allied

within the meaning of the statute is a two-step process. A court must first determine

whether, when the elements of the two crimes are compared, the elements

“correspond to such a degree that the commission of one crime will result in the

commission of the other.” State v. Rance, 85 Ohio St.3d 632, 638, 710 N.E.2d 699

(1999) (reversed on other grounds). When conducting this analysis a court must

consider both the elements of the offenses and the conduct of the accused.

Johnson, supra, at paragraph one of the syllabus.        If the two crimes are allied

offenses, then the court must consider whether the offenses were committed

separately, or if the defendant has separate animus for each offense.

      {¶8}   An argument raising the merger of allied offenses is essentially a

double jeopardy argument. “R.C. 2941.25 is a prophylactic statute that protects a

criminal defendant's rights under the Double Jeopardy Clauses of the United States

and Ohio Constitutions.” Johnson at ¶45. A motion to vacate on double jeopardy

grounds subsequent to a direct appeal is typically treated as a petition for

postconviction relief. State v. Sturdivant, 8th Dist. No. 98747, 2013-Ohio-584, ¶7.

When the issue is framed as an assertion that the sentence is void due to lack of

subject matter jurisdiction, even if the specific issue at hand is a failure to merge

allied offenses, the rules governing postconviction relief are sidestepped and the

voidness question is immediately addressed. This is presumably due to the fact that

a void judgment may be challenged at any time. State v. Billiter, 134 Ohio St.3d 103,
                                                                                       -5-

2012-Ohio-5144, 980 N.E.2d 960, ¶7. Appellant has alleged that his sentence is void

under R.C. 2941.25. Appellant is mistaken.

       {¶9}   We have held that “errors in merging charges are not jurisdictional and

do not result in void convictions or sentences.” State v. Gessner, 7th Dist. No. 12 MA

182, 2013-Ohio-3999, ¶23. That said, failure to properly merge allied offenses could

result in a sentence that is potentially voidable rather than void ab initio, but voidable

errors must be raised on direct appeal or else they are waived. Id. at ¶23-24; see

also, State v. Norris, 7th Dist. No. 11 MO 4, 2013-Ohio-866. Allied offense claims are

barred by the doctrine of res judicata where they could have been raised on direct

appeal and were not. Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894

N.E.2d 44, ¶10-11; see also, Billiter v. Banks, 7th Dist. No. 12NO397, 2012-Ohio-

4556, ¶6-7. A defendant has an adequate remedy for any errors relating to allied

offenses by way of direct appeal. Id. This record reflects that Appellant could have

raised his allied offense argument on direct appeal, in his prior motions to vacate, or

in his prior petition for postconviction relief. Therefore, the error he raises is res

judicata. His assignment of error is overruled and the judgment of the trial court is

affirmed.


Donofrio, J., concurs.

DeGenaro, P.J., concurs.
