State of Ohio v. Ronald J. Dority
Court of Appeals No. E-13-065
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
Decided: March 14, 2014
2014-Ohio-966
YARBROUGH, P.J.
Trial Court No. 2008-CR-352
Ronald J. Dority, pro se.
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YARBROUGH, P.J.
I. Introduction
{¶ 1} Aрpellant, Ronald J. Dority, appeals from the judgment of the Erie County Court of Common Pleas, which denied, without a hearing, his postconviction “Motion for Allied Offenses Determination.” We affirm.
{¶ 2} This is the third time appellant has appeared beforе our court in this matter. In 2009, appellant pleaded guilty to violation of a protection order, kidnapping, and felоnious assault, and was sentenced to a total prison term of 12 years. Appellant appealed his convictiоn and sentence, which we affirmed on May 20, 2011, in State v. Dority, 6th Dist. Erie No. E-09-027, 2011-Ohio-2438. Notably, in his appeal, appellant argued that the kidnapping and violаtion of a protection order charges were allied offenses, but we held that the offenses were not committed with a single state of mind, and thus were not subject to merger. Id. at ¶ 30.
{¶ 3} Thereafter, on October 25, 2012, appellant filed a motion to withdraw his guilty plea. The trial court denied his motion. On November 15, 2013, we affirmed the trial court‘s decision in State v. Dority, 6th Dist. Erie No. E-13-018, 2013-Ohio-5068.
{¶ 4} While his second appeal was pending, appellant filed a “Motion for Allied Offenses Determination” on August 30, 2013. The trial court again denied his motion without a hearing. It is from this decision that appellant presently appeals.
B. Assignment of Error
{¶ 5} Appellant offers one assignment of error for our review:
- Whether the Federal Constitution‘s Fifth Amendment “double jeopardy” protections (and as codified in:
O.R.C. § 2941.25 ), are subjеct to waiver even under the guise of res judicata. see: Brown v. Ohio, 432 U.S. 161, 165 (1977); North Carolina v. Pearce, 395 U.S. 711, 717 (1969); and, Ohio v. Johnson, 467 U.S. 493, 498 (1984).
II. Analysis
{¶ 6} In his assignment of error, appellant argues that the trial cоurt was required by
{¶ 7} Appellant‘s arguments are not new to this court. See, e.g., State v. Yee, 6th Dist. Erie No. E-12-017, 2013-Ohio-5184; State v. Porter, 6th Dist. Lucas No. L-12-1243, 2013-Ohio-1360; State v. Guevara, 6th Dist. Lucas No. L-12-1218, 2013-Ohio-728. We begin by noting that appellant‘s “Motion for Allied Offenses Determination” is properly characterized as a petition for postconviction relief. State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997), syllabus (“Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been viоlated, such a motion is a petition for postconviction relief as defined in
{¶ 8} A petition for postconviction relief “shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the dirеct appeal of the judgment of conviction.”
{¶ 9} A trial court “may not entertain” an untimely petition for postconviction relief unless the untimeliness is excused.
{¶ 10} Here, appellant does not argue thаt this timeliness exception applies. Further, we find that the circumstances of appellant‘s case do not supрort application of
{¶ 11} Appellant attempts to escape this result by arguing that his conviction is void because the court did not conduct a merger analysis, and thus his conviction is subject to attack at any time. See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 30 (res judicata does not bar a trial court from correcting a void sentence). However, appellant is incorrect on the former point: “the failure to merge allied offenses at sentencing does not render a sentence void.” Guevara, 6th Dist. Lucas No. L-12-1218, 2013-Ohio-728 at ¶ 8. Because appellant‘s sentence is not void, it is subject to res judiсata. In particular, we have held, “The res judicata bar applies to any defense that was raised or could have been raised in a criminal defendant‘s prior direct appeal from his conviction and/or sentence.” Yee, 6th Dist. Erie No. E-12-017, 2013-Ohio-5184 at ¶ 10, quoting State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645, ¶ 9. Therefore, even if the trial court could have entertained appellant‘s untimely postconviction petition, aрpellant‘s petition would be barred by res judicata as he has already raised an allied offenses claim in his direct аppeal.
{¶ 12} Accordingly, appellant‘s assignment of error is not well-taken.
{¶ 13} For the foregoing reasons, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J. _______________________________
James D. Jensen, J. JUDGE
CONCUR. _______________________________
JUDGE
This decisiоn is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.