[Cite as State v. Montgomery,
2021-Ohio-4396.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
CYRILL MONTGOMERY, : Case No. 2021 CA 00009
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Case No.
17 CR 386
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 14, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT JAMES A. ANZELMO
Fairfield County Prosecutor Anzelmo Law
446 Howland Drive
By: CHRISTOPHER A. REAMER Gahanna, Ohio 43230
Assistant County Prosecutor
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 2021 CA 00009 2
Baldwin, P.J.
{¶1} Defendant-appellant Cyrill Montgomery appeals from the January 28, 2021
Entry of the Fairfield County Court of Common Pleas denying his Motion to Correct Void
Sentence. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 17, 2017, the Fairfield County Grand Jury indicted appellant on one
count of attempted murder in violation of R.C. 2903.02(A), 2903.02(D) and 2929.02(B), a
felony of the first degree, one count of felonious assault in violation of R.C. 2903.11(A)(2)
and 2903.11(D)(1)(a), a felony of the second degree, one count of improperly discharging
a firearm at or into a habitation or a school safety zone in violation of R.C. 2923.161(A)(1)
and 2923.161(C), a felony of the second degree, one count of discharge of a firearm on
or near prohibited premises in violation of R.C. 2923.162(A)(3) and 2923.162(C)(2), a
felony of the third degree, and one count of having weapons while under disability in
violation of R.C. 2923.13(A)(2) and 2923.13(B), a felony of the third degree. The
indictment also contained four firearm specifications. At his arraignment on July 24, 2017,
appellant entered a plea of not guilty to the charges in the indictment.
{¶3} Subsequently, appellant withdrew his former not guilty plea and entered a
plea of guilty to felonious assault (Count Two) with a firearm specification, improperly
discharging a firearm at or into a habitation or a school safety zone (Count Three) with a
firearm specification, discharge of a firearm on or near prohibited premises (Count Four)
with a firearm specification and having weapons while under disability (Count Five).
Pursuant to a Judgment Entry filed on April 12, 2018, appellant was sentenced to two
years on Count Two to be served consecutively to three years on the firearm specification,
Fairfield County, Case No. 2021 CA 00009 3
to two years on Count Three to be served concurrently to Count Two but consecutively
to the firearm specification, and to one year on Count Five to be served concurrently to
Counts Two and Three. Appellant’s aggregate prison sentence was eight years.
Appellant was also fined $1,800.00 on Count Two, $1,600.00 on Count Three and
$900.00 on Count Five and was ordered to pay restitution to the victim. At the request of
appellee, Count One was dismissed. A Nunc Pro Tunc Judgment Entry of Sentence was
filed on March 13, 2019 to indicate that appellant’s fines were suspended due to
indigency.
{¶4} Thereafter, on December 29, 2020, appellant filed a Motion to Correct Void
Sentence pursuant to R.C. 2953.21 and 2941.25, arguing that Counts Two, Three and
Four were allied offenses of similar import and should have been merged for the purpose
of sentencing. Appellant argued that appellee had elected to have appellant sentenced
as to Counts Two and Three. Appellee, on January 22, 2021, filed a memorandum in
opposition to such motion. Appellee, in its motion, maintained that the trial court made
certain merger findings at the time of sentencing, that appellant did not object or argue
that the trial court should merge additional offenses, and that appellant had never filed a
direct appeal and, therefore, was barred from raising such claim by way of a post-
conviction petition.
{¶5} The trial court, as memorialized in an Entry filed on January 28, 2021,
denied appellant’s motion. The trial court noted that appellant had never filed a direct
appeal and that appellant’s claimed error, if it existed, would have resulted in a voidable
sentencing error that should have been raised in a direct appellant. The trial court found
that appellant was barred from raising such claim by way of his post-conviction petition.
Fairfield County, Case No. 2021 CA 00009 4
{¶6} Appellant now appeals from the trial court’s January 28, 2021 Entry raising
the following assignment of error on appeal:
{¶7} “I. THE TRIAL COURT ERRED BY DENYING MONTGOMERY’S MOTION
TO CORRECT HIS SENTENCE.”
I.
{¶8} Appellant, in his sole assignment of error, argues that the trial court erred in
denying his Motion to Correct Sentence. We disagree.
{¶9} As is stated above, appellant, on December 29, 2020, filed a Motion to
Correct Void Sentence Pursuant to R.C. 2953.21 and 2941.25, arguing that Counts Two,
Three and Four were allied offenses of similar import and should have been merged for
the purpose of sentencing. Appellant did not file a direct appeal.
{¶10} It is well settled that “[w]here a criminal defendant, subsequent to his or her
direct appeal, files a motion seeking vacation or correction of his or her sentence on the
basis that his or her constitutional rights have been violated, such a motion is a petition
for postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d
158,
1997-Ohio-304,
679 N.E.2d 1131, at syllabus. See also State v. Smotherman, 10th
Dist. No. 16AP-471,
2016-Ohio-8133, ¶ 6. Furthermore, R.C. 2953.21(K) specifies that
R.C. 2953.21 “is the exclusive remedy by which a person may bring a collateral challenge
to the validity of a conviction or sentence in a criminal case.”
{¶11} As such, appellant's December, 2020 motion is a petition for postconviction
relief.
{¶12} In State v. Perry, 10 Ohio St.2d 175, 180,
226 N.E.2d 104 (1967), the Ohio
Supreme Court stated:
Fairfield County, Case No. 2021 CA 00009 5
Under the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant from raising and litigating in any proceeding, except
an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the
trial which resulted in that judgment of conviction or on an appeal from that
judgment.
{¶13} The doctrine of res judicata bars a defendant from asserting the “merger”
issue in a post-judgment motion for resentencing; i.e., the lack of merger must be
contested in a direct appeal from the final sentencing judgment. State v. Stalnacker, 11th
Dist. Lake No. 2013–L–006, 2013–Ohio–3479, ¶ 12; State v. Norris, 7th Dist. Monroe No.
11 MO 4, 2013–Ohio–866, ¶ 15; State v. Garnett, 10th Dist. Franklin No. 12AP–594,
2013–Ohio–1210, ¶ 9; State v. Downey, 5th Dist. Stark No. 2013CA00157, 2013–Ohio–
4693, As noted by the court in Garnett,
[T]he failure to merge allied offenses at sentencing does not render
a sentence void. State v. Guevara, 6th Dist. No. L–12–1218, 2013–Ohio–
728, ¶ 8. See also State v. Greenberg, 10th Dist. No. 12AP–11, 2012–Ohio–
3975, ¶ 12, quoting Timmons [10th Dist. Franklin No. 11AP–895, 2012–
Ohio–2079], at ¶ 12 (“an allied offenses error renders the sentence
voidable. ‘Arguments challenging the imposition of a sentence that is
voidable are barred by the doctrine of res judicata if not raised on direct
appeal.’ ”).
Garnett, 2013–Ohio–1210, ¶ 10.
Fairfield County, Case No. 2021 CA 00009 6
{¶14} Appellant claims that Counts Two, Three and Four were allied offenses of
similar import and should have been merged for the purpose of sentencing. Because
appellant’s argument that such counts should have been merged is not a void sentence
issue, the issue raised in appellant’s assignment of error could have been raised on direct
appeal, and therefore, is barred by the doctrine of res judicata. Appellant failed to raise
the issue of merger/allied offenses on direct appeal. Pursuant to res judicata, he is now
barred from raising the same.
{¶15} As his claim is barred, appellants sole assignment of error is overruled.
{¶16} Accordingly, the judgment of the Fairfield County Court of Common Pleas
is affirmed.
By: Baldwin, P.J.
Hoffman, J. and
Delaney, J. concur.
