 [Cite as State v. Reid, 2014-Ohio-1282.]

                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 ANTWAN J. REID

         Defendant-Appellant


 Appellate Case No.        25790

 Trial Court Case Nos. 2000-CR-2151
                       2001-CR-243/1


 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                                 Rendered on the 28th day of March, 2014.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery
County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ANTWAN J. REID, Inmate No. 426-983, Lebanon Correctional Institution, P.O. Box 56, Lebanon,
Ohio 45036
       Defendant-Appellant-Pro Se

                                              .............

WELBAUM, J.
                                                                                           2


                 {¶ 1}   Defendant-appellant, Antwan J. Reid, appeals pro se from the decision of the

Montgomery County Court of Common Pleas overruling his motion to correct void sentence in

which he argued that his aggravated murder and aggravated robbery convictions were allied

offenses of similar import. For the reasons outlined below, we affirm the judgment of the trial

court.



                                 Facts and Course of Proceedings

         {¶ 2}     In April 2002, Antwan J. Reid was convicted of aggravated murder in violation

of R.C. 2903.01(B), aggravated robbery in violation of R.C. 2911.01(A)(1), and two firearm

specifications. Reid later appealed his conviction and raised seven assignments of error, one of

which claimed that the trial court erred in failing to merge his firearm specifications. Reid,

however, did not argue that the trial court erred in failing to merge his aggravated murder and

aggravated robbery offenses. This court affirmed Reid’s conviction, but remanded the matter to

the trial court for purposes of merging the firearm specifications.        State v. Reid, 2d Dist.

Montgomery No. 19352, 2003-Ohio-4087.

         {¶ 3}     On May 2, 2013, Reid filed a motion to correct void sentence in which he argued

that his aggravated murder and aggravated robbery offenses were allied offenses of similar import

subject to merger pursuant to the Supreme Court of Ohio’s ruling in State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The trial court overruled Reid’s motion on

grounds that: (1) the doctrine of res judicata bars his allied offense claim; (2) the Supreme

Court’s ruling in Johnson may not be applied retroactively; and (3) aggravated murder and

aggravated robbery are not allied offenses of similar import.
                                                                                            3


       {¶ 4}    Reid now appeals from the trial court’s decision overruling his motion to correct

void sentence, raising one assignment of error.



                                      Assignment of Error

       {¶ 5}    Reid’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED BY NOT IMPOSING THE MANDATORY

       MERGER HEARING FOR ALLIED OFFENSES OF SIMILAR IMPORT.

       {¶ 6}    Under his sole assignment of error, Reid argues that the trial court erred in failing

to merge his aggravated murder and aggravated robbery offenses as allied offenses of similar

import. He contends that he was precluded from raising this argument in his direct appeal due to

the state of the law at that time, but claims that he is now entitled to have the offenses merged

pursuant to the Supreme Court of Ohio’s ruling in Johnson, 128 Ohio St.3d 153,

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

       {¶ 7}    “Pursuant to the doctrine of res judicata, a valid final judgment on the merits bars

all subsequent actions based on any claim arising out of the transaction or occurrence that was the

subject matter of the previous action.” State v. Collins, 2d Dist. Montgomery No. 25612,

2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226

(1995). Moreover, “[a]rguments challenging the imposition of a sentence that is voidable are

barred by the doctrine of res judicata if not raised on direct appeal.” State v. Simons, 2d Dist.

Champaign No. 2013 CA 5, 2013-Ohio-3654, ¶ 42, citing State v. Simpkins, 117 Ohio St.3d 420,

2008-Ohio-1197, 884 N.E.2d 568, ¶ 30. (Other citation omitted.) In other words, “ ‘defendants

with a voidable sentence are entitled to re-sentencing only upon a successful challenge on direct
                                                                                          4


appeal.’ ” Id. at ¶ 40, quoting State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873

N.E.2d 306, ¶ 30.

       {¶ 8}    “ ‘[A] voidable judgment is one rendered by a court that has both jurisdiction and

authority to act, but the court’s judgment is invalid, irregular, or erroneous.’ ” Id., quoting

Simpkins at ¶ 12. A trial court’s failure to merge allied offenses of similar import renders a

defendant’s sentence merely voidable. Id. at ¶ 41; State v. Parson, 2d Dist. Montgomery No.

24641, 2012-Ohio-730, ¶ 9.

       {¶ 9}    Based on the foregoing principles, even if the trial court had erred in failing to

merge Reid’s aggravated murder and aggravated burglary offenses, the error would merely render

his sentence voidable. As a result, in order to challenge his sentence on such grounds, Reid was

required to raise the allied offense argument during his direct appeal, which he did not do.

Therefore, Reid is now barred by res judicata from collaterally challenging his sentence through

his motion to correct void sentence. See Id. at ¶ 42; see also Parson at ¶ 10 (finding that if

defendant’s allied offense argument had merit, his sentence would be voidable and he would,

therefore, be “barred by the doctrine of res judicata from challenging his sentence on those

grounds collaterally through his ‘Motion to Correct Void Judgment or Sentence’ ”).

Accordingly, we conclude that the trial court correctly determined that Reid’s allied offense

argument is barred by the doctrine of res judicata.

       {¶ 10} In addition, the trial court correctly concluded that Reid’s reliance on Johnson,

128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, was misplaced due to its prospective

application. Johnson was decided on December 29, 2010, and “a new judicial ruling may be

applied only to cases that are pending on the announcement date. * * * The new judicial ruling
                                                                                              5


may not be applied retroactively to a conviction that has become final, i.e. where the accused has

exhausted all of his appellate remedies. (Citations omitted.)” Parson at ¶ 11, quoting Ali v.

State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6. Here, Reid’s convictions

were affirmed by this court and became final in 2003, which is long before the Supreme Court of

Ohio’s ruling in Johnson. Accordingly, the standard for reviewing allied offenses of similar

import set forth in Johnson does not apply to Reid’s conviction.

       {¶ 11}     Furthermore, even if we were to consider the merits of Reid’s allied offense

argument in light of Johnson, his argument would still fail. In Johnson, the Supreme Court

announced a new manner of applying R.C. 2941.25 to determine when offenses are allied

offenses of similar import that must be merged. In so holding, the Supreme Court abandoned

the previous test, set forth in State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), which

called for a comparison of the statutory elements solely in the abstract. Johnson held that,

“[w]hen determining whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25, the conduct of the accused must be considered.” Id. at ¶ 44. The Supreme

Court further explained that:

                In determining whether offenses are allied offenses of similar import under

       R.C. 2941.25(A), the question is whether it is possible to commit one offense and

       commit the other with the same conduct, not whether it is possible to commit one

       without committing the other. * * * If the offenses correspond to such a degree

       that the conduct of the defendant constituting commission of one offense

       constitutes commission of the other, then the offenses are of similar import.

                If the multiple offenses can be committed by the same conduct, then the
                                                                                          6


       court must determine whether the offenses were committed by the same conduct,

       i.e., “a single act, committed with a single state of mind.” * * *

              If the answer to both questions is yes, then the offenses are allied offenses

       of similar import and will be merged.

              Conversely, if the court determines that the commission of one offense

       will never result in the commission of the other, or if the offenses are committed

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

       according to R.C. 2941.25(B), the offenses will not merge. Johnson, 128 Ohio

       St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 at ¶ 48-51.

       {¶ 12} This court applied Johnson in State v. Jackson, 2d Dist. Montgomery No. 24460,

2012-Ohio-2335, a case in which the defendant argued, among other things, that the trial court

erred in failing to merge his murder and aggravated robbery offenses. In applying Johnson, we

concluded that “it is possible to commit murder and aggravated robbery with the same conduct.”

Id. at ¶ 140. Per Johnson, we then examined whether the defendant did in fact commit the two

offenses with the same conduct and the same animus. We noted that:

        Several courts have held that, where the force used to effectuate an aggravated

        robbery is far in excess of that required to complete the robbery, or where the

        circumstances suggest that a separate intent to kill existed, the offenses of

        aggravated robbery and murder do not merge. See [State v. Diggle, 3d Dist.

        Auglaize No. 2-11-19, 2012-Ohio-1583, ¶ 16] (evidence of prior conflict with

        victim and defendant’s use of force in excess of that required to complete robbery

        found to demonstrate separate animus for murder); State v. Ruby, 6th Dist.
                                                                                              7


        Sandusky No. S-10-028, 2011-Ohio-4864, ¶ 61 (beating of elderly, disabled

        victims demonstrated separate animus for aggravated robbery and attempted

        murder, because the beating far exceeded that necessary to effectuate the robbery);

        State v. Tibbs, 1st Dist. Hamilton No. C-100378, 2011-Ohio-6716, ¶ 48 (shooting

        victim in face and head from close range during course of aggravated robbery

        demonstrated a specific intent to kill). Jackson at ¶ 140.

       {¶ 13} In light of these cases, we concluded in Jackson that the trial court could have

reasonably determined that the defendant’s use of force exceeded that necessary to complete the

robbery or that the defendant had a separate intent to kill given that the victim was shot multiple

times, with one shot being directly in the victim’s head. Id. at ¶ 141. Similarly, in the case now

before us, the following facts were established during Reid’s direct appeal:

       On the afternoon of December 15, 2000, at approximately 4:00 p.m., the victim,

       Wilton Williams, pulled into an alley near the intersection of East Fifth Street and

       Henry Street in Dayton in his burgundy Cadillac. Shortly thereafter, a green

       Dodge Stratus also pulled into the alley, and [Reid and his co-defendant] stepped

       from the Stratus and opened fire on Williams at close range as he sat in his

       vehicle. Williams managed to drive his car out of the alley onto Keowee, and the

       two assailants jumped back into the green Stratus and followed him. Williams

       collided with another vehicle on Keowee, at which point the two assailants again

       jumped out of their car and reached into Williams’ car, grabbing some money.

       They then fled from the scene. Williams died a short time later from multiple

       gunshot wounds. Reid, 2d Dist. Montgomery No. 19352, 2003-Ohio-4087, ¶ 3.
                                                                                          8


       {¶ 14} The foregoing facts demonstrate that the force Reid used to effectuate the

robbery–shooting the victim multiple times at close range while the victim was sitting in a

car–far exceeded the force necessary to complete a robbery. Additionally, the shooting and

robbery were committed separately, as the robbery occurred after Reid shot and followed the

victim in his car. Therefore, even when applying the allied offense analysis set forth in Johnson,

merging Reid’s aggravated murder and aggravated robbery offenses is inappropriate due to the

excessive force used during the robbery and the shooting and robbery being committed

separately.

       {¶ 15} For the foregoing reasons, Reid’s sole assignment of error is overruled.



                                            Conclusion

       {¶ 16} Having overruled Appellant Antwan J. Reid’s sole assignment of error, the

judgment of the trial court is affirmed.

                                           .............




FAIN and DONOVAN, JJ.,          concur.




Copies mailed to:

Mathias H. Heck
Andrew T. French
Antwan J. Reid
                            9


Hon. Michael W. Krumholtz
