State v. Dukes

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[Cite as State v. Dukes, 2012-Ohio-3033.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, - vs - : : : DARRELL L. DUKES, Defendant-Appellant. OPINION CASE NOS. 2011-P-0098 and 2011-P-0099 : : Criminal Appeals from the Court of Common Pleas, Case Nos. 2009 CR 00405 and 2009 CR 00491. Judgment: Affirmed. Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). Darrell L. Dukes, pro se, PID: A582418, Mansfield Correctional Institution, P.O. Box 788, Mansfield, OH 44901 (Defendant-Appellant). TIMOTHY P. CANNON, P.J. {¶1} Appellant, Darrell L. Dukes, pro se, appeals the judgments of the Portage County Court of Common Pleas denying his pro se motions for resentencing. For the following reasons, the judgment is affirmed. {¶2} In July 2009, a three-count indictment was filed against appellant, charging him with two counts of trafficking in cocaine and one count of possessing criminal tools. In August 2009, another three-count indictment was filed against appellant, charging him with complicity to murder, aggravated burglary, and aggravated robbery. {¶3} In March 2010, appellant negotiated guilty pleas as to both respective indictments. On the second indictment, appellant pled guilty to aggravated burglary, a first-degree felony in violation of R.C. 2911.11(A)(1)(B), and aggravated robbery, a firstdegree felony in violation of R.C. 2911.01(A)(3). The state entered a nolle prosequi on the remaining count of complicity to murder. Appellant was sentenced to seven years in prison for the aggravated burglary and a consecutive term of eight years for the aggravated robbery, for a total of 15 years in prison. On the first indictment, appellant pled guilty to all counts: trafficking in cocaine (both counts), fourth-degree felonies in violation of R.C. 2925.03(A)(C)(4)(c), and possession of criminal tools, a fifth-degree felony in violation of R.C. 2923.24(A)(C). The trial court sentenced appellant to three consecutive one-year terms for these offenses, which were ordered to be served concurrent with his 15-year sentence. {¶4} In October 2011, appellant filed two motions to alter, amend or vacate his sentences, arguing the court erred in its March 2010 sentencing and seeking a de novo resentencing hearing. In his motions, appellant argued that many of his offenses were allied offenses of similar import and should have merged. The trial court denied both motions. {¶5} Appellant now appeals. This court, sua sponte, consolidated appellant s cases for the purpose of this appeal. Appellant asserts two assignments of error: 2 {¶6} [1.] The Trial Court erred when it denied Appellant s motion for resentencing when it found Appellant to have had a separate animus for each of his offenses. {¶7} [2.] The Trial Court erred improperly sentencing [sic] Appellant to separate sentences for offenses which should have been merged as allied offenses of similar import pursuant to Ohio Revised Code §2941.25(A). {¶8} It is well founded that any issues that could have been raised by a defendant on direct appeal are res judicata and not subject to appellate review. State v. Lintz, 11th Dist. No. 2010-L-067, 2011-Ohio-6511, ¶36, citing State v. Perry, 10 Ohio St.2d 175 (1967). Here, appellant argues that his sentences are void and therefore not precluded from review by principles of res judicata. While appellant correctly notes that the doctrine of res judicata does not preclude review of a void sentence, the doctrine still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph three of the syllabus. The Ohio Supreme Court in Fischer recognized that sentences considered void are typically those in which the trial court lacked subject-matter jurisdiction. Id. at ¶7. In the normal course, sentencing errors are not jurisdictional as to render a judgment void. Id. The Fischer Court merely defined the failure to impose post-release control in accordance with the statutorilymandated terms as a narrow and limited exception to that rule. Id. at ¶12. {¶9} This court has declined to expand the holding in Fischer and has continually held that the failure to merge sentences does not render a judgment void, 3 but voidable; therefore, such challenges, if not raised on direct appeal, are barred by the doctrine of res judicata. State v. Cioffi, 11th Dist. Nos. 2011-T-0072 & 2011-T0073, 2012-Ohio-299, ¶14, citing State v. Britta, 11th Dist. No. 2011-L-041, 2011-Ohio6069, ¶17-18. See also State v. Hobbs, 11th Dist. No. 2010-L-064, 2011-Ohio-1298, ¶43 and State v. Freeman, 11th Dist. No. 2010-T-0069, 2011-Ohio-2457, ¶16. Thus, when an appellant does not raise the issue of allied offenses of similar import in a timely direct appeal, the challenge is barred by the doctrine of res judicata. Cioffi, supra, ¶14, citing State v. Dodson, 12th Dist No. CA2011-02-034, 2011-Ohio-6347, ¶9. See also State v. Poole, 8th Dist. No. 94759, 2011-Ohio-716, ¶13 ( the time to challenge a conviction based on allied offenses is through a direct appeal not a resentencing hearing ); and State v. Goldsmith, 8th Dist. No. 95073, 2011-Ohio-840, ¶11 ( [b]ecause [appellant] failed to raise on direct appeal from his conviction the issue concerning whether the offenses challenged herein are allied offenses of similar import subject to merger, we find that the issue is barred by the doctrine of res judicata ). {¶10} Appellant is attempting to use the denials of his motions for sentencing relief to raise issues that could and should have been raised on a direct appeal. Appellant claims the court erred in its March 4, 2010 entry by failing to merge certain offenses. Appellant had the opportunity to timely file a direct appeal from this entry. He failed to do so. Instead, appellant waited approximately 19 months to challenge his sentences by filing a motion for sentencing relief with the trial court. Appellant cannot now collaterally attack his original sentences by the denial of his present motions. {¶11} Further, even if this issue could be considered, appellant s argument would still fail. Appellant contends that many of his offenses should have merged for 4 the purposes of sentencing, pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010Ohio-6313. However, appellant was sentenced before Johnson was decided. As the Second Appellate District recently explained, an appellant seeking to challenge his preJohnson sentencing on the grounds of merger cannot rely on Johnson because [a] new judicial ruling may be applied only to cases that are pending on the announcement date. * * * The new judicial ruling may not be applied retroactively to a conviction that has become final, i.e. where the accused has exhausted all of his appellate remedies. State v. Parson, 2d Dist. No. 24641, 2012-Ohio-730, ¶11, quoting Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, ¶6. {¶12} Consequently, the judgments of the Portage County Court of Common Pleas are affirmed. THOMAS R. WRIGHT, J., concurs, DIANE V. GRENDELL, J., concurs in judgment only. 5

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