[Cite as State v. Holmes,
2014-Ohio-3816.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100388
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DESMON HOLMES
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-07-502442
BEFORE: Keough, J., Rocco, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: September 4, 2014
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Joseph J. Ricotta
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Desmon Holmes, appeals the trial court’s decision
denying his motion to vacate and from the nunc pro tunc sentencing entry issued in May
2012. For the reasons that follow, we reverse and remand for resentencing.
{¶2} On July 17, 2008, a jury found Holmes guilty of rape and kidnapping, and the
trial court sentenced him to a ten-year term of imprisonment. Holmes directly appealed
his conviction challenging the manifest weight of the evidence, and issues pertaining to
speedy trial, confrontation of witnesses, and effective assistance of trial counsel. State v.
Holmes, 8th Dist. Cuyahoga No. 91948, 2009-Ohio-3736 (“Holmes I”). This court
affirmed his convictions.
Id.
{¶3} Subsequent to his appeal, Holmes filed a petition for postconviction relief
pursuant to R.C. 2953.21, arguing that his trial counsel was ineffective. The trial court
dismissed his petition on the grounds of res judicata. Holmes appealed and this court
affirmed the trial court’s decision. State v. Holmes, 8th Dist. Cuyahoga No. 96479,
2011-Ohio-5848 (“Holmes II”).
{¶4} In May 2012, the trial court issued a nunc pro tunc sentencing journal entry to
reflect that the five-year term of postrelease control ordered at sentencing in 2008 was
mandatory. In April 2013, Holmes moved the trial court to vacate or set aside his
judgment and sentence, which the trial court summarily denied.
{¶5} This court granted Holmes’s request for a delayed appeal to challenge the
trial court’s nunc pro tunc sentencing journal entry and the denial of his motion to vacate
or set aside the judgment and sentence. Holmes raises three assignments of error for our
review, which will be addressed out of order.
I. Finding of Guilt
{¶6} In his second assignment of error, Holmes contends that the trial court erred
by denying his motion to vacate or set aside judgment and sentence because the jury
verdicts and judgment were insufficient to sustain a first-degree felony offense.
{¶7} Holmes’s challenge to the jury verdict forms are barred by res judicata. He
could have and should have raised such errors in his direct appeal. Appellate courts,
including this court, that have addressed this issue have found that, where the appellant
filed and argued a direct appeal but did not raise any arguments related to the inadequacy
of the jury verdict form, res judicata applies to subsequent appeals. See, e.g., State v.
Cardamone, 8th Dist. Cuyahoga No. 94405, 2011-Ohio-818, ¶ 19; State v. Garner, 11th
Dist. Lake No. 2010-L-111,
2011-Ohio-3426; State v. Evans, 9th Dist. Wayne No.
10CA0027,
2011-Ohio-1449; State v. Foy, 5th Dist. Stark No. 2009-CA-00239,
2010-Ohio-2445.
{¶8} Accordingly, Holmes’s second assignment of error is overruled.
II. Void Entry of Conviction
{¶9} In his first assignment of error, Holmes contends that the trial court erred by
denying his motion to set aside his conviction and sentence because the sentencing
journal entries were void and violated his constitutional rights to due process and
protection against double jeopardy. Specifically, he challenges (1) the trial court’s
imposition of a sentence on a count that the court found to be allied and subject to
merger; (2) the state’s failure to elect which count survived merger; and (3) the trial
court’s assessment of court costs in the sentencing journal entry when he was not advised
at sentencing that costs would be imposed. We find the first issue dispositive.
{¶10} The trial court at sentencing and upon recommendation by the state, found
that both Count 1, rape and Count 2, kidnapping were allied offenses and subject to
merger. In its announcement of the sentence, the trial court stated on the record: “[t]he
court does find the two offenses merge for the purposes of sentencing. And it is ordered
the defendant serve a stated term of ten years in prison on the merged counts.” The
court’s sentencing journal entry ordered: “10 years on each of Counts 1 and 2, Counts 1
and 2 merge for sentencing.”
{¶11} Holmes contends that the imposition of a sentence on a count that was allied
and the state’s subsequent failure to elect which count survives merger renders his
sentence void. While the state concedes that it did not elect which count Holmes should
receive his sentence, the state claims that Holmes’s challenge regarding allied offenses is
barred by res judicata because he could have raised this issue in his direct appeal.
{¶12} “A judgment will be deemed void when it is issued by a court which did not
have subject matter jurisdiction or otherwise lacked the authority to act.” State v.
Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332, ¶ 6. On the other hand,
“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.” State v. Simpkins,
117
Ohio St.3d 420,
2008-Ohio-1197,
884 N.E.2d 568, ¶ 12.
{¶13} If a judgment is void, the doctrine of res judicata has no application, and the
propriety of the decision can be challenged on direct appeal or by collateral attack.
Fischer at paragraph one of the syllabus (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
collateral attack”); State v. Billiter, 134 Ohio St.3d 103,
2012-Ohio-5144,
980 N.E.2d
960, ¶ 10 (“if a trial court imposes a sentence that is unauthorized by law, the sentence is
void”). If a sentencing judgment is voidable, the doctrine of res judicata applies and any
argument regarding the merits of the decision is considered waived for all purposes unless
it is asserted as part of the direct appeal. State ex rel. Porterfield v. McKay, 11th Dist.
Trumbull No. 1012-T-0012,
2012-Ohio-5027, ¶ 13.
{¶14} Therefore, the issue before this court is whether Holmes’s sentence is void
because the trial court imposed a prison sentence on both counts that were determined to
be allied. We find that it is.
{¶15} Generally, sentencing errors do not render a judgment void because such
errors have no effect upon the trial court’s jurisdiction. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332, ¶ 7. One exception to this general rule is that a
sentencing judgment will be considered void when the imposed sentence does not lie
within the statutorily mandated terms. Id. at ¶ 8.
{¶16} The First Appellate District recently explained and summarized the Ohio
Supreme Court’s holdings as it applies to void sentences.
The commonality of the voidness cases is that they all involve situations
where the court has failed to impose a sentence term that it was mandated
by law to impose (postrelease control, driver’s license suspension,
statutorily mandated fine), or where a court has attempted to impose a
sentence that was completely unauthorized by statute. They involve
instances where a trial court has refused or neglected to do what the General
Assembly has commanded with respect to a mandatory criminal sentencing
term, see Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332, ¶
15 and fn. 1, rather than where the trial court got the law wrong. Either
something that was required was left out of the sentences, or the trial court
simply decided to create its own sentence despite statutory dictates to the
contrary.
State. v. Grant, 1st Dist. Hamilton No. C-120695, 2013-Ohio-3421, ¶ 15. See Fischer;
State v. Harris,
132 Ohio St.3d 318,
2012-Ohio-1908,
972 N.E.2d 509; State v. Moore,
135 Ohio St.3d 151,
2012-Ohio-5479,
985 N.E.2d 432.
{¶17} In applying the “void v. voidable” concept to allied offenses and merger,
courts of this state, including this court, have consistently held that sentences that involve
alleged errors in the merger of allied offenses are voidable and not void; thus, res judicata
will prevent any collateral attack challenging the imposition of allied offenses. See, e.g.,
State v. Hough, 8th Dist. Cuyahoga Nos. 98480 and 98482, 2013-Ohio-1543, State v.
Segines, 8th Dist. Cuyahoga
No. 99789, 2013-Ohio-5259 (res judicata bars
postconviction appeals collaterally attacking the trial court’s failure to merge allied
offenses at sentencing when the issue was not raised on direct appeal); Grant.
{¶18} However, those line of cases involved the issue of whether certain offenses
were allied — the determination stage of the allied analysis. Whereas in this case before
this court, the trial court found the offenses allied, yet imposed a sentence on both counts
prior to ordering that the counts “merge.”
{¶19} R.C. 2941.25, codifies the protections of the Double Jeopardy Clause, and it
“clearly provides that there may be only one conviction for allied offenses of similar
import; a defendant may be sentenced for only one offense.” State v. Underwood, 124
Ohio St.3d 365,
2010-Ohio-1,
922 N.E.2d 923, ¶ 26. “Thus, a trial court is prohibited
from imposing individual sentences for counts that constitute allied offenses of similar
import. This duty is mandatory, not discretionary.”
Id. “A sentence that contains an
allied-offenses error is contrary to law.” State v. Wilson,
129 Ohio St.3d 214,
2011-Ohio-2669,
951 N.E.2d 381, ¶ 14. In Underwood, the Ohio Supreme Court found
that because a sentence is authorized by law only if it comports with all mandatory
sentencing provisions, the directive in R.C. 2941.25 contains such mandatory provision.
Underwood at ¶ 23-30.
{¶20} In this case, on the face of the sentencing journal entry, the sentence
imposed on these allied offenses is contrary to R.C. 2941.25(A), not authorized by law,
and thus void. The trial court when sentencing Holmes determined that the two offenses
were allied. However, instead of merging both counts and imposing a sentence on one,
the court imposed a sentence on both counts. Once a trial court determines that two
offenses are allied and are subject to merger, the trial court acts without authority when it
imposes a sentence on both offenses. Thus, acting without authority renders the sentence
void. Although the court stated “counts 1 and 2 merge,” the sentencing journal entry
does not reflect which count Holmes is serving his ten-year sentence on.
{¶21} In so far as the trial court in this case stated that the ten-year sentence on
each count “merged,” this action is equivalent to a court ordering sentences to run
concurrent when the offenses are allied. The trial court’s failure to properly merge the
offenses as required means that Holmes has two “convictions” which are more than
authorized by law. Underwood at ¶ 26, citing State v. Gibson, 8th Dist. Cuyahoga No.
92275, 2009-Ohio-4984, ¶ 29 (“Even when the sentences are to be served concurrently, a
defendant is prejudiced by having more convictions than are authorized by law.”)
{¶22} Accordingly, because Holmes’s sentence is contrary to R.C. 2941.25 and not
authorized by law, we find his sentence is void. This limited conclusion falls in the
narrow exception of instances where a sentencing error does not lie within the statutory
mandated terms. This error is apparent from the face of the sentencing journal entry.
{¶23} Even if the voidness doctrine does not apply in this instance, we find that res
judicata should not bar consideration of this issue. As the Ohio Supreme Court
explained,
Res judicata is a rule of fundamental and substantial justice, that “‘is to be
applied in particular situations as fairness and justice require, and that …
is not to be applied so rigidly as to defeat the ends of justice or so as to
work an injustice.’” We would achieve neither fairness nor justice by
permitting a void sentence to stand.
Although res judicata is an important doctrine, it is not so vital that it can
override “society’s interest in enforcing the law, and in meting out the
punishment the legislature has deemed just.”
Every judge has a duty to impose lawful sentences. “Confidence in and
respect for the criminal-justice system flow from a belief that courts and
officers of the courts perform their duties pursuant to established law.” The
interests that underlie res judicata, although critically important, do not
override our duty to sentence defendants as required by the law.
(Citations omitted.) State v. Simpkins, 117 Ohio St.3d 420,
2008-Ohio-1197,
884 N.E.2d
568, ¶ 25-27. Correcting this error in Holmes’s sentence is both fair and just and res
judicata should not be used to permit a void sentence to stand.
{¶24} Our review of the case law reveals that this issue is fact specific and likely
will not present itself again. Our decision is not to be read broadly encapsulating all
collateral attacks on allied offenses. Nor does our holding create any conflict in our
district concerning this court’s treatment and disposition of postconviction attacks on
allied offenses. It remains that res judicata will continue to bar any collateral attack
challenging a determination of whether a defendant’s sentence contains allied offenses.
See, e.g., Hough, 8th Dist. Cuyahoga Nos. 98480 and 98482, 2013-Ohio-1543, Segines,
8th Dist. Cuyahoga
No. 99789, 2013-Ohio-5259
{¶25} Accordingly, we reverse Holmes’s sentence and remand to the trial court to
conduct a new sentencing hearing to allow the state to make an election on which count
survives merger. The trial court must then impose sentence only on that count, advise
Holmes regarding the assessment of costs, unless waived, and also properly advise
Holmes of postrelease control.
{¶26} Having sustained the first issue raised by Holmes in his first assignment
error and ordering a new sentencing hearing, we find the second issue presented in this
assignment of error regarding the imposition of court costs and the third assignment of
error challenging postrelease control, moot.
{¶27} Reversed and remanded for further proceedings consistent with this court’s
opinion.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
KENNETH A. ROCCO, P.J., and
MARY EILEEN KILBANE, J., CONCUR
