State v. Pemberton, 2014 Ohio 1204

Pemberton pled guilty on August 5, 2008 to two counts of Felonious Assault (second degree) with gun specifications and one count of Abduction (third degree) under a plea agreement.
Sentence totaled 23 years: 8 years on each Felonious Assault count, 3 years for each gun specification, and 1 year for Abduction, with sentences consecutive.
Direct appeal deadline passed; initial appeal filed September 26, 2008 and later dismissed; multiple subsequent appeals and petitions followed.
In 2011, this Court affirmed convictions in State v. Pemberton, 4th Dist. Gallia No. 10CA4, 2011-Ohio-373 (Pemberton I).
In 2012, pro se motions to Correct Unauthorized Sentence and for Re-sentencing argued that Felonious Assault and Abduction should have merged under State v. Johnson; the trial court treated these as postconviction petitions.
The trial court denied the petitions in 2013, citing untimeliness and lack of evidentiary substantiation, and determining the issues were new-law-based and not cognizable on postconviction relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Should the felonious assault and abduction counts have merged as allied offenses?	Pemberton urged Johnson/Rance-based merger as allied offenses.	State urged res judicata and that counts were not allied offenses.	Issue barred by res judicata; merger merits not reached; petitions dismissed for lack of jurisdiction.
Are the postconviction petitions timely and within court's jurisdiction?	Petitions rooted in new law; should be heard on merits.	Petitions untimely under R.C. 2953.21 and res judicata.	Petitions untimely; trial court lacked jurisdiction; must dismiss.
Does res judicata bar raising merger/allied-offense issues in postconviction proceedings?	Allied-offense dispute could be relitigated postconviction.	Issues could have been raised on direct appeal; barred by res judicata.	Res judicata applies; issues barred.

State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (merger/ally-offense analysis under Johnson)
State v. Rance, 85 Ohio St.3d 632 (1999-Ohio-291) (two-part test for allied offenses)
State v. Reynolds, 79 Ohio St.3d 158 (1997) (postconviction relief is collateral attack)
State v. Calhoun, 86 Ohio St.3d 279 (1999-Ohio-714) (standards for postconviction relief and evidentiary showing)
State v. Szefcyk, 77 Ohio St.3d 93 (1996) (res judicata in postconviction context)
State v. Allbaugh, 2013-Ohio-2031 (4th Dist. Athens) (allied-offense claim not raised on direct appeal barred by res judicata)
State v. Perry, 10 Ohio St.2d 175 (1967) (syllabus on res judicata framework)
State v. Pearson, 2013-Ohio-5690 (5th Dist. No. 13CA59) (identity of merger issue and direct appeal opportunity)
State v. Townsend, 2012-Ohio-496 (8th Dist.) (timeliness of merger claim on direct appeal)