2019 Ohio 4445
Ohio Ct. App.2019Background
- In 2001 a jury convicted Elliot Cherry of one count of child endangering and one count of murder; the trial court found the counts should merge but imposed an 8-year sentence on the child-endangering count and 15 years-to-life on the murder count, to run concurrently.
- Cherry appealed; this court affirmed his convictions and sentence in 2002.
- In March 2019 Cherry moved to vacate his sentence, arguing the entry unlawfully imposed separate sentences for allied offenses that should have merged under R.C. 2941.25.
- The trial court denied the motion as barred by res judicata; the State argued the filing should be treated as an untimely postconviction petition.
- The Ninth District relied on Ohio Supreme Court precedent (notably State v. Williams) holding that imposing separate concurrent sentences for merged allied offenses is void and reviewable at any time, and concluded Cherry’s sentence for child endangering was void.
- The court reversed, vacated the void sentence, and remanded for a new sentencing hearing at which the State must elect which allied offense to pursue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentencing entry imposing separate sentences for allied offenses is void and reviewable despite res judicata/time bars | Cherry: the trial court unlawfully imposed separate concurrent sentences for allied offenses; sentence is void under R.C. 2941.25 | State/Trial Court: the claim is barred by res judicata or must be treated as an untimely postconviction petition | Court: the sentence for child endangering is void under State v. Williams; res judicata/time bars do not preclude review of a void sentence; reversed and remanded for new sentencing with State election |
Key Cases Cited
- State v. Williams, 148 Ohio St.3d 403 (2016) (holding that imposing separate concurrent sentences for merged allied offenses is not equivalent to merger and such sentences are void and reviewable at any time)
- State v. Damron, 129 Ohio St.3d 86 (2011) (concurrent sentences do not accomplish statutory merger of allied offenses)
- State v. Whitfield, 124 Ohio St.3d 319 (2010) (remedy on reversal: remand for new sentencing hearing where prosecution must elect between allied offenses)
- State v. Fischer, 128 Ohio St.3d 92 (2010) (void sentences may be attacked at any time)
- State v. Washington, 137 Ohio St.3d 427 (2013) (R.C. 2941.25 is primary test for whether offenses are allied and merger is required)