STATE OF OHIO, Plaintiff-Appellee -vs- DONALD ALBERT FRANKLIN, JR., Defendant-Appellant
Case No. 2017 CA 00170
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
July 23, 2018
[Cite as State v. Franklin, 2018-Ohio-2904.]
Hon. John W. Wise, P. J., Hon. W. Scott Gwin, J., Hon. Earle E. Wise, Jr., J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2003 CR 01311. JUDGMENT: Affirmed.
For Plaintiff-Appellee
JOHN D. FERRERO
PROSECUTING ATTORNEY
RONALD MARK CALDWELL
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
For Defendant-Appellant
WAYNE E. GRAHAM
4450 Belden Village Street, NW
Suite 703
Canton, Ohio 44718
Wise, John, P. J.
{¶1} Defendant-Appellant Donald A. Franklin, Jr., appeals from the decision of the Court of Common Pleas, Stark County, which resentenced him, pursuant to
{¶2} On November 26, 2003, appellant was sentenced by the Stark County Court of Common Pleas to a total of twenty years in prison for one count of aggravated burglary, a felony of the first degree (
{¶3} On February 1, 2016, appellant filed a “Motion to Vacate Void Judgment,” arguing (1) his post-release control (“PRC“) was improperly imposed and (2) his two aforesaid offenses should have been merged pursuant to
{¶4} The trial court conducted a video-conference resentencing on April 1, 2016 for purposes of PRC notification.
{¶6} On April 21, 2016, the trial court issued a resentencing entry, pursuant to
{¶7} Appellant subsequently filed pro se notices of appeal, indicating his intent to challenge both the resentencing and the denial of his allied offenses claim. On June 10, 2016, the trial court appointed appellate counsel for appellant, but only as to his challenge to resentencing.
{¶8} Appellant thereafter presented this Court with two assigned errors. First, appellant argued that the trial court had erred as a matter of law in failing to appoint counsel for the resentencing hearing. Secondly, appellant maintained that the trial court had erred as a matter of law in failing to appoint appellate counsel for an appeal of the trial court‘s denial of appellant‘s motion to vacate his sentence, as it pertained to the issue of allied offenses.
{¶9} Upon review, we found merit in appellant‘s contention that his right to counsel had been violated during the video conference resentencing hearing of April, 1, 2016. We noted that the State at that time conceded the validity of appellant‘s argument. We then found appellant‘s remaining assigned error to be premature. Therefore, in an opinion issued June 12, 2017, we vacated the portion of the resentencing entered by the trial court regarding post-release control contained in the April 21, 2016 judgment entry,
{¶10} On August 11, 2017, the trial court conducted another resentencing hearing, pursuant to this Court‘s aforesaid remand. Appellant was accompanied by his appointed counsel. Via a judgment entry issued August 31, 2017, the trial court maintained appellant‘s twenty-year aggregate prison term. The trial court also again stated that appellant had been advised of a five-year mandatory period of PRC on each charge. The court also rejected appellant‘s allied-offense argument, finding that the offenses of aggravated burglary and attempted murder were not allied offenses of similar import per
{¶11} On September 11, 2017, appellant filed a notice of appeal. He herein raises the following sole Assignment of Error:
{¶12} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT APPELLANT‘S CONVICTIONS FOR AGGRAVATED BURGLARY AND ATTEMPTED MURDER WERE NOT ALLIED OFFENSES.”
I.
{¶13} In his sole Assignment of Error, appellant challenges the trial court‘s finding that his convictions for attempted murder and aggravated burglary were not allied offenses of similar import.
{¶14} As indicated in our recitation of the procedural history of this case, supra, appellant sought review of the issue of merger of his 2003 offenses (along with the issue of imposition of post-release control) via his “motion to vacate void judgment” filed with the trial court on February 1, 2016, more than twelve years after he was sentenced.
{¶16} The Ohio Supreme Court, in State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, subsequently extended Fischer somewhat by holding that the imposition of separate sentences for allied offenses of similar import is contrary to law and such sentences are void. As such, res judicata does not preclude a court from correcting those sentences after a direct appeal. Id. at ¶ 2. Nonetheless, the Court reiterated that void sentence jurisprudence does not apply to challenges to a sentencing court‘s basic determination as to “whether offenses are allied.” Id. at ¶ 24. The Court thus stated that “*** when a trial court finds that convictions are not allied offenses of similar import, or when it fails to make any finding regarding whether the offenses are allied, imposing a separate sentence for each offense is not contrary to law and any error must be asserted in a timely appeal or it will be barred by principles of res judicata.” Id. at ¶ 26, emphasis added.
{¶17} Recently, in State ex rel. Cowan v. Gallagher, --- N.E.3d ---, 2018-Ohio-1463, the Ohio Supreme Court clarified its Williams holding as follows: “*** [A] judgment of sentence is void in one particular circumstance: when the trial court determines that
{¶18} In the case sub judice, our present review of the 2003 sentencing entry reveals the trial court was silent as to any finding regarding allied offenses. As such, we are compelled to apply the above rationale of the Ohio Supreme Court set forth in Williams and Cowan. Accordingly, we hold appellant‘s 2016 challenge to his sentencing based on an allied offense theory could have been raised as part of his direct appeal, and his present claim is therefore barred by res judicata.
{¶19} We do not wish to ignore that the trial court, upon appellant‘s renewed request to consider merger at the August 11, 2017 hearing, did render a ruling in the August 31, 2017 judgment entry under appeal that appellant‘s offenses of aggravated burglary and attempted murder were not allied offenses of similar import per
{¶20} Accordingly, under the circumstances of the case sub judice, the trial court, following our remand, was not obligated to address the merits of merger of offenses at
{¶21} Appellant‘s sole Assignment of Error is therefore overruled.
{¶22} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, John, P. J.
Gwin, J., and
Wise, Earle, J., concur.
JWW/d 0703