State v. Baker, 2016 Ohio 5669

Auglaize County Grand Jury indicted Joshua Z. Baker (Oct. 2013) for burglary (2nd°), theft of a firearm (3rd°), and theft >$1,000 (5th°).
Baker pled guilty (Jan. 2014) pursuant to a plea agreement to an amended burglary charge (3rd°) and theft of a firearm; one theft count was nolled.
Sentenced (Feb. 28, 2014) to 30 months for burglary and 24 months for theft, ordered consecutive for a total of 54 months; Baker did not file a direct appeal.
Baker filed multiple judicial-release motions which were denied.
Pro se, Baker filed a postconviction petition styled “Motion to Correct an Illegal Sentence” (Apr. 2016) arguing the theft and burglary were allied offenses that should have merged; the State replied that the claim is barred by res judicata and timeliness rules.
Trial court denied the motion as untimely and barred by res judicata; the court concluded failure to merge is a voidable (not void) sentencing error. Baker appealed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Baker)	Held
Whether Baker’s merged-offense claim renders his sentence void and therefore reviewable in a late postconviction petition	Claim is untimely and barred by res judicata; failure to merge is voidable, not void	Sentence is illegal (void) because theft and burglary were allied offenses under R.C. 2941.25 and State v. Johnson	Court held the merger claim challenges a voidable, not void, sentence; therefore it is subject to res judicata and timeliness rules and cannot be raised in this late petition
Whether the untimely petition fits an exception to R.C. 2953.21 so it may proceed	No applicable exception shown; petitioner didn’t demonstrate unavoidable prevention or new retroactive right	Baker contends exceptions apply or that res judicata should not bar correction of an illegal sentence	Court held Baker failed to meet exceptions for untimely postconviction relief and his claim could have been raised on direct appeal; petition rejected

State v. Gondor, 112 Ohio St.3d 377 (Ohio 2006) (standard for reviewing postconviction petition findings)
State v. Cole, 2 Ohio St.3d 112 (Ohio 1982) (res judicata bars claims that were or could have been raised at trial or on direct appeal)
State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (foundational res judicata rule for postconviction relief)
State v. Underwood, 124 Ohio St.3d 365 (Ohio 2010) (discussing sentence-review principles)
State v. Fischer, 128 Ohio St.3d 92 (Ohio 2010) (procedures for correcting sentencing errors)
State v. Johnson, 128 Ohio St.3d 153 (Ohio 2010) (analysis of allied offenses/merger under R.C. 2941.25)
State v. Moore, 135 Ohio St.3d 151 (Ohio 2013) (further discussion of merger and allied-offense analysis)