State v. Johnston, 2013 Ohio 4401

Background

Johnston was convicted by jury of aggravated murder, aggravated burglary, and burglary for the 2000 killing of Bobby Matthews.
In 2001 the trial court merged burglary-related counts and sentenced Johnston to life for aggravated murder and ten years for aggravated burglary, to be served concurrently; post-release control (PRC) was not discussed at sentencing nor were appellate rights fully explained.
Johnston appealed only the jury instructions, and the appellate court affirmed in 2002; no PRC issues were raised on direct appeal.
In 2012 Johnston moved for resentencing, arguing voidness due to improper PRC notification, mandatory PRC, and other alleged errors including life vs. indeterminate life and failure to sentence for burglary.
The trial court partly granted and partly denied, ruled PRC issues implicated R.C. 2929.191, and found other claims barred by res judicata or not ripe; Johnston appeals the resulting judgment.
The appellate court affirms, holding only the PRC issue may be revisited, with other challenged aspects barred by res judicata and the burglary issue properly merged under allied offenses.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court properly treated Johnston's claims as post-conviction relief requests and whether res judicata barred his other claims.	Johnston (Perry) argues void sentence; seeks resentencing.	State contends most claims are barred under res judicata; PRC issue may be revisited.	First assignment overruled; res judicata bars other claims aside from PRC.
Whether post-release control was properly imposed and whether R.C. 2929.191 applies.	Johnston contends improper PRC imposition and retroactive application of 2929.191.	State maintains PRC must be corrected via resentencing under Fischer; 2929.191 applies prospectively.	Second assignment overruled; only PRC portion may be corrected; not ripe to challenge procedure; 2929.191 does not require full de novo resentencing.
Whether the life sentence and failure to sentence for burglary render the judgment void or final.	Johnston argues void, due to life sentence and missing burglary sentence.	State argues issues are barred by finality and allied offenses doctrine; correct merger occurred.	Third assignment overruled; merger and finality proper; no separate burglary sentence required.
Whether the burglary offense was properly merged with aggravated burglary and thus no separate burglary sentence was needed.	Johnston contends failure to sentence on burglary creates error.	State argues allied offenses require merger and single sentence for the remaining offense.	Merger required; no error in not imposing a separate burglary sentence.
Whether the trial court's pending resentencing procedure has any ripe issue for review.	Johnston challenges anticipated use of 2929.191; seeks de novo resentencing.	State argues sentencing procedure only becomes ripe after actual resentencing.	Not ripe; challenge to anticipated procedure is premature.

Key Cases Cited

State v. Perry, 10 Ohio St.2d 175 (1967) (res judicata governs final judgments and potential remedies)
State v. Parson, 2012-Ohio-730 (2d Dist. Montgomery) (void vs voidable judgments; direct appellate avenues)
State v. Fischer, 2010-Ohio-6238 (Ohio) (correcting post-release control; limited resentencing scope)
State v. Singleton, 2009-Ohio-6434 (Supreme Court) (prior approach to PRC and void sentences; superseded by Fischer)
State v. Bezak, 114 Ohio St.3d 94 (2007) (limits of authority to resentence for PRC issues)
State v. Reid, 2012-Ohio-2666 (2d Dist. Montgomery) (resentencing for PRC within same aggregate term permissible)
State v. Whitfield, 124 Ohio St.3d 319 (2010) (merger under allied offenses; proper sentencing for single conviction)
State v. Damron, 129 Ohio St.3d 86 (2011) (definition of conviction includes guilt and sentence for allied offenses)