STATE OF OHIO, Plaintiff-Appellee, vs. TIMOTHY LITERAL, Defendant-Appellant.
Case No. 12CA3479
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
RELEASED 12/26/12
2012-Ohio-6298
McFarland, J.
DECISION AND JUDGMENT ENTRY
Timothy Literal, Lima, Ohio, Appellant, pro se.
Mark E. Kuhn, Scioto County Prosecuting Attorney, Matthew A. Wisecup, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appelleе.
McFarland, J.:
{¶1} Appellant, Timothy Literal, appeals the trial court‘s denial of his “Petition to Vacate Judgment of Conviction or Sentence.” In 2007, a jury found Appellаnt guilty of robbery, aggravated robbery, possession of drugs and trafficking in drugs. Appellant filed a direct appeal of his convictions and sentences, which wе determined in State v. Literal, 4th Dist. No. 07CA3207, 2009-Ohio-199. In his current appeal, Appellant contends that the trial court erred by overruling his petition to correct his illegal sentence, in which hе claimed that the offenses of aggravated robbery and possession
{¶2} However, because Appellant could have, but failed to raise this argument as part of his original direct appeal, his argument is barred by the doctrine of res judicata. Further, although a void sentence is subject to challenge at any time, even if Appellant‘s argument was meritoriоus, his convictions would simply be rendered voidable, not void. Accordingly, the decision of the trial court is affirmed.
FACTS
{¶3} In 2007, a jury found Appellant guilty of robbery, aggravated robbery, possession of drugs and trafficking in drugs. As part of his direct appeal, this Court vacated his conviction for trafficking in drugs, but affirmed all other aspects of his convictions and sentences. Since that time, Appellant has filed a series of post conviction motions, his most recent being his February 21, 2012, Petition to Vacate Judgment of Conviction and Sentence. Appellant raised only one claim in his petition, the claim being that aggravated robbery and possession of drugs are allied offenses of similar import and that his convictions should have been merged for purposes of sentencing. Appellant cited the recent holding of the Supreme
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT‘S PETITION TO CORRECT ILLEGAL SENTENCE THAT IS BEING MAINTAINED IN VIOLATION OF HIS FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES, AND SIMILAR PROVISIONS OF THE OHIO CONSTITUTIONS.”
LEGAL ANALYSIS
{¶4} In his sole assignment of error, Appellant contends that the trial court erred in overruling his pеtition to correct illegal sentence. As set forth above, Appellant contends that aggravated robbery and possession of drugs are allied оffenses of similar import which should have been merged, and that the trial court erred in denying his petition to vacate his judgment of conviction or sentence. As such, Appellant claims that his sentence is void, can be challenged at any time, and is not barred by the principles of res judicata.
{¶5} ” ‘In general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act. Unlike a void judgment, a voidаble judgment is one rendered by a court
{¶6} In contrast, arguments challenging the imposition of a voidable sentence are barred by the doctrine of res judicata if not raised on a direct appeal. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 30. The doctrine оf res judicata bars claims that the defendant raised or could have raised on direct appeal. In re B.C.S., 4th Dist. No. 07CA60, 2008-Ohio-5771, ¶ 14. “[T]he doctrine serves to preclude a dеfendant who has had his day in court from seeking a second on that same issue. In so doing, res judicata promotes the principles of finality and judicial eсonomy by preventing endless relitigation of an issue on which a
{¶7} Here, Appellant‘s argument that the trial court should have merged his convictions under
{¶8} Thus, we cannot conclude that the trial court erred in denying Appellant‘s petition. This is true despite the fact that the trial court‘s denial
JUDGMENT AFFIRMED.
Kline, J., concurring.
{¶9} I respectfully concur in judgment only because I conclude that the Appellant‘s petition was not timely filed. See
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Commоn Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency оf proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Apрellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion. Kline, J.: Concurs in Judgment Only with Opinion.
For the Court,
BY: ____________________________
Matthew W. McFarland, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.