2018 Ohio 2904
Ohio Ct. App.2018Background
- Donald A. Franklin, Jr. was sentenced in 2003 to an aggregate 20 years for aggravated burglary (1st deg.) and attempted murder (1st deg.).
- Franklin unsuccessfully appealed in 2004 and later filed a 2016 “motion to vacate void judgment” claiming improper post-release control (PRC) and that the two offenses should have merged as allied offenses.
- The trial court held a video-conference resentencing in April 2016 to correct PRC notification but did not merge the offenses; Franklin appealed claiming denial of counsel at the video hearing.
- This Court vacated the PRC portion of the April 2016 entry and remanded for proper resentencing; Franklin was resentenced in August 2017 with counsel, the 20-year term and PRC reinstated, and the trial court again rejected merger.
- Franklin appealed, arguing his convictions for aggravated burglary and attempted murder are allied offenses of similar import and should have merged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether aggravated burglary and attempted murder are allied offenses of similar import requiring merger | State: trial court correctly found offenses not allied; resentencing was limited to PRC so prior sentence stands | Franklin: the two convictions are allied and separate sentences are void under allied-offense doctrine; subject to correction despite delay | The court held Franklin's allied-offense claim was barred by res judicata because it could have been raised on direct appeal; limited resentencing on PRC did not permit relitigation of merger |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010) (a sentence not including statutorily mandated PRC is void)
- State v. Williams, 148 Ohio St.3d 403 (2016) (imposition of separate sentences for allied offenses is contrary to law and void, but a trial court’s initial determination whether offenses are allied is a merits question subject to res judicata)