[Cite as State v. Hipsher,
2016-Ohio-5877.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
CASE NO. 6-16-01
PLAINTIFF-APPELLEE,
v.
CRAIG W. HIPSHER, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20122303 CRI
Judgment Affirmed
Date of Decision: September 19, 2016
APPEARANCES:
Howard A. Elliott for Appellant
Jason M. Miller for Appellee
Case No. 6-16-01
WILLAMOWSKI, J.
{¶1} Defendant-appellant Craig W. Hipsher (“Hipsher”) brings this appeal
from the judgment of the Court of Common Pleas of Hardin County denying
Hipsher’s motion to vacate his sentence. Hipsher claims that the offenses were
allied offenses of similar import. For the reasons set forth below, the judgment is
affirmed.
{¶2} On December 26, 2012, the Hardin County Grand Jury indicted Hipsher
on 29 Counts. Doc. 1. Hipsher was arraigned on January 7, 2013, and entered pleas
of not guilty to all counts. Doc. 7. On July 23, 2013, Hipsher withdrew his pleas
of not guilty as to Count 2, Burglary in violation of R.C. 2911.12(A)(2), a felony of
the second degree; Count 4 with a firearm specification, Grand Theft in violation of
R.C. 2913.02(A)(1),(B)(4), a felony of the third degree; and Count 6 with a firearm
specification, Grand Theft in violation of R.C. 2913.02(A)(1),(B)(4), a felony of the
third degree. Doc. 29. Hipsher then entered pleas of guilty to these counts and
specifications. Id. The trial court accepted the guilty pleas. Doc. 30. A sentencing
hearing was held on September 10, 2013. Doc. 34. The trial court then sentenced
Hipsher to an aggregate prison term of nine years with two years mandatory.
Id.
The remaining charges in the indictment were then dismissed.
Id. No timely appeal
was taken from this judgment.
{¶3} On August 1, 2014, Hipsher filed a notice of appeal. Doc. 40. The
request for a delayed appeal was denied. Doc. 46. On November 6, 2014, Hipsher
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filed a motion to withdraw his guilty plea. Doc. 48. The basis for the motion was
that the convictions for burglary and grand theft were allied offenses of similar
import. Id. The State filed a response to the motion on November 17, 2014. Doc.
49. On January 2, 2015, the trial court denied the motion on the grounds that the
offenses were two separate offenses as the burglary occurred on December 7, 2012,
and the grand theft charges occurred on November 19, 2012.
Id. Since the offenses
occurred at two separate times, they were not allied offenses of similar import.
Id.
Hipsher then appealed from that judgment. Doc. 52. The appeal was dismissed as
being untimely. Doc. 57.
{¶4} On December 21, 2015, Hipsher filed a motion to vacate a void
sentence. Doc. 62. Hipsher alleges in this motion that he was sentenced on allied
offenses of similar import for the two grand theft convictions. Id. The State filed
its response on December 28, 2015. Doc. 63. On January 6, 2016, the trial court
overruled Hipsher’s motion. Doc. 64. Hipsher then filed a timely notice of appeal
from that judgment. Doc. 66. On appeal, Hipsher raises the following assignment
of error.
The trial court committed reversible error in failing to grant
[Hipsher’s] motion to vacate sentence as to counts four and six of
the indictment, both theft charges arising out of the same act of
burglary. They were allied offenses of similar import and as such,
the court failed to merge them in imposing sentence and this
created a void sentence.
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Case No. 6-16-01
{¶5} Hipsher’s argument is that his sentence was void because he was
sentenced on two counts which were allied offenses of similar import. The Ohio
Supreme Court has held that merger of allied offenses of similar import is not of
such fundamental importance that it cannot be waived or forfeited by a defendant.
See State v. Comen, 50 Ohio St.3d 206, 211,
553 N.E.2d 640 (1990). The failure to
merge allied offenses of similar import at sentencing merely makes the sentence
“voidable”, not “void”. State v. Guevara, 6th Dist. Lucas No. L-12-1218, 2013-
Ohio-728, ¶ 8. While a court has continuing jurisdiction to address a void sentence,
the doctrine of res judicata applies to sentencing errors that are merely voidable.
State v. Currie, 5th Dist. Stark No. 2013 CA 00155,
2013-Ohio-5223. The doctrine
of res judicata bars consideration of issues that could have been raised on direct
appeal. State v. Saxon,
109 Ohio St.3d 176,
2006-Ohio-1245,
846 N.E.2d 824, ¶
16-17. This court has previously held that allied offenses of similar import are non-
jurisdictional and may be barred by the doctrine of res judicata. State v. Nava, 3d
Dist. Wyandot No. 16-15-07,
2015-Ohio-5053, ¶14. See also, State v. Townsend,
8th Dist. Cuyahoga No. 97214,
2012-Ohio-496; State v. Williams, 2d Dist. Greene
No. 2012-CA-43,
2014-Ohio-725; State v. Pemberton, 4th Dist. Gallia No. 13CA8,
2014-Ohio-1204; and State v. Pearson, 5th Dist. Licking No. 13-CA-59, 2013-Ohio-
5690.
{¶6} In this case, Hipsher did not challenge the issue of allied offenses on
direct appeal. He could have done so as all of the necessary information was before
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Case No. 6-16-01
him at the time of sentencing. Thus, the issue is barred from consideration by the
doctrine of res judicata. The assignment of error is overruled.
{¶7} Having found no prejudicial errors in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Hardin County is affirmed.
Judgment Affirmed
SHAW, P.J. and ROGERS, J., concur.
/hls
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