State v. Cherry, 2021 Ohio 1473

In 2001 Cherry was convicted of murder (15 years-to-life) and child endangering (8 years); the trial court merged the counts but imposed concurrent sentences.
Cherry’s convictions and sentence were affirmed on direct appeal (Cherry I).
In 2019 Cherry moved to vacate the child-endangering sentence as a prohibited separate sentence for allied offenses; the trial court denied relief as barred by res judicata (initial postconviction ruling leading to Cherry II).
In Cherry II this Court (relying on State v. Williams) held that imposing separate concurrent sentences for merged allied offenses is contrary to law, declared the child-endangering sentence void, reversed, and remanded for resentencing with the State required to elect which allied offense to pursue.
On remand the court held a resentencing hearing without Cherry present (Attorney Noah Munyer appeared); the State elected to keep the murder conviction, the court vacated the child-endangering sentence and left the 15-to-life murder sentence intact.
Cherry appealed arguing (1) the court resentenced him in his absence and he had a right to be present and to allocute, and (2) he was deprived of his counsel of choice because his retained appellate counsel had not been notified; the Ninth District affirmed.

Issue	Cherry's Argument	State's Argument	Held
Whether court could resentencing without Cherry present	Resentencing required de novo hearing; Cherry had constitutional right to be physically present and to allocute	No de novo resentencing required where original hearing found merger and State elected the surviving count; thus no right to be present	Court: No error — remand hearing unnecessary where merger was found and State elected; Cherry had no right to be present
Whether Cherry was deprived of his counsel of choice when Munyer appeared	Appearance by Munyer (instead of retained counsel) deprived Cherry of right to counsel of choice and structural error requires reversal	Cherry had no right to counsel at a hearing he was not entitled to attend; no reversible error	Court: No error — rights to counsel or counsel-of-choice did not attach because no de novo resentencing was required
Whether Cherry’s sentence was void (reviewable anytime) or voidable (subject to res judicata)	Cherry relied on Cherry II (following Williams) that separate sentence for merged offense is void and reviewable anytime	State argued recent Ohio Supreme Court decisions treat most sentencing errors as voidable (not void) when court had jurisdiction, so relief must be sought on direct appeal and res judicata applies	Court: Affirms that resentencing was unnecessary and, relying on Harper/Henderson precedent, treats the sentence as voidable such that earlier procedural bars apply; Cherry’s challenges fail

State v. Williams, 148 Ohio St.3d 403 (2016) (interprets R.C. 2941.25; holds imposition of separate concurrent sentences is not equivalent to merger)
State v. Damron, 129 Ohio St.3d 86 (2011) (explains merger principles under allied-offenses statute)
State v. Harper, 160 Ohio St.3d 480 (2020) (holds a sentence is void only when the trial court lacked jurisdiction; many sentencing errors render sentences voidable)
State v. Henderson, 161 Ohio St.3d 285 (2020) (extends Harper’s void/voidable framework to sentencing errors beyond postrelease-control issues)