State v. Van Kell, 2021 Ohio 3880

Aug. 2018: Van Kell charged with felony trespass in an occupied habitation and felony grand theft of a motor vehicle; he pleaded guilty.
At plea, he was on community control for two prior convictions; Sept. 28, 2018 the court found a violation, revoked community control, and imposed consecutive 18‑month terms on each felony-four count plus prior terms for an aggregate 59 months; no direct appeal was taken.
June 19, 2019: judicial release was granted; Aug. 2019: appellant cited for new offenses and a warrant issued for community-control violation.
Nov. 14, 2019: after waiving revocation hearings and pleading guilty to the violation, the trial court reimposed the original 59‑month sentence.
Nov. 2020: appellant filed a “nunc pro tunc” motion seeking merger of the two felony-four convictions; the trial court denied it as barred by res judicata because the Sept. 2018 judgment was final and unappealed. Appellant pursued a delayed appeal.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Van Kell)	Held
Whether the two convictions (trespass in habitation and grand theft of vehicle) should merge under R.C. 2941.25 / Ruff test	The Sept. 2018 judgment was final and unappealed, so res judicata bars the merger claim; on the merits, offenses are dissimilar/separate	The trespass and theft arose from a single course of conduct and single animus, so they must merge	Court: Res judicata bars collateral challenge to a voidable sentencing issue; even on merits, Ruff factors show separate animus and separate acts, so no merger
Whether trial counsel was ineffective for failing to object to consecutive sentences	Claim is barred by res judicata because consecutive-sentence objections could have been raised on direct appeal; sentencing errors are voidable	Counsel’s failure to object was deficient and prejudicial	Court: Claim barred by res judicata; no relief — sentencing challenge is voidable and must be raised on direct appeal; ineffective‑assistance claim fails

State v. Payne, 114 Ohio St.3d 502 (Ohio 2007) (distinguishes void and voidable judgments)
State v. Simpkins, 117 Ohio St.3d 420 (Ohio 2008) (definition and effect of void vs. voidable judgments)
State v. Fischer, 128 Ohio St.3d 92 (Ohio 2010) (void judgments are nullities and not subject to res judicata)
State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (articulates three‑part test for allied‑offense merger under R.C. 2941.25)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)