Stаte of Ohio, Plaintiff-Appellee, v. John W. Souza, Defendant-Appellant.
No. 15AP-87
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 25, 2015
[Cite as State v. Souza, 2015-Ohio-2541.]
DORRIAN, J.
(C.P.C. No. 09CR-588) (REGULAR CALENDAR)
Rendered on June 25, 2015
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
John W. Souza, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, John W. Souza (“appеllant“), appeals pro se the December 29, 2014 judgment of the Franklin County Court of Common Pleas which denied his December 8, 2014 “Motion to Vacate a Void and or Voidable Sentenсe Pursuant to Criminal Rules 47 and 57 Request a Hearing” (“motion“). For the following reasons, we affirm.
{¶ 2} On January 19, 2010, appellant pled guilty to voluntary manslaughter, tampering with evidence, and domestic viоlence, all without specifications. On the same day, the parties jointly recommended ten years in prison on the voluntary manslaughter, five years on the tampering with evidencе, and five years on the domestic violence, to be served consecutively for a total of twenty years in prison. The trial court accepted
{¶ 3} On December 8, 2014, appellant filed his motion requesting the court tо resentence him “in accordance with allied offenses of similar import, pursuant to
{¶ 4} On December 29, 2014, the trial court denied the motion. The court construed the motion as a petition for postconviction relief and found it to be untimely. Furthermore, the trial court noted the claim is barred by res judicata and lacks merit. Appellant timеly appealed.
{¶ 5} Appellant asserts the following three assignments of error:
[I.] THE TRIAL COURT ERRORED [SIC] IN DENYING DEFENDANT-APPELLANT‘S MOTION TO VACATE A VOID AND OR VOIDABLE SENTENCE, PURSUANT TO CRIMINAL RULES 47 AND 57, DISREGARDING THE REQUIREMENTS OF CRIMINAL RULES 47 AND 57.
[II.] THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPOSING MULTIPLE SENTENCES ON ALLIED OFFENSES OF SIMILAR IMPORT.
[III.] THE TRIAL COURT ERRORED [SIC] DISMISSING DEFENDANT-APPELLANT‘S MOTION AND OR PETITION FOR POST CONVICTION RELIEF AS UNTIMELY AND BARRED BY RES JUDICATA.
For ease of discussion, we will address appellant‘s assignments of error out of order.
{¶ 6} In his first assignment оf error, appellant argues that his sentence was void because the trial court did not comply with
{¶ 7} Pursuant to
{¶ 9} Appellant did not file an appeal of his January 19, 2010 plea and sentencing.3 Well over 180 days have passed since the end of the time for filing the appeal–almost 5 years. Furthermore, appellant did not address either of the exceptions to untimeliness in his motions. We find that the trial court did not err by denying appellant‘s motions as untimely. Therefore, appellant‘s petition for postconviction relief was untimely, and the trial court did not err in finding the same.
{¶ 10} Accordingly, we overrule appellant‘s first assignment of error.
{¶ 11} In his third assignmеnt of error, appellant alleges the trial court erred in dismissing his petition for postconviction relief as untimely and barred by res judicata. To the extent the third assignment of error аddresses the same issues raised in the first assignment of error, we find no error.
{¶ 12} To the extent the third assignment of error addresses whether the trial court erred in finding appellant‘s petition is barred by res judicata, we also find no error. “The postconviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment.” State v. Monroe, 10th Dist. No. 13AP-598, 2015-Ohio-844, ¶ 37, citing State v. Davis, 10th Dist. No. 13AP-98, 2014-Ohio-90, ¶ 17, citing State v. Calhoun, 86 Ohio St.3d 279, 281 (1999).
{¶ 14} Appellant did not file an appeal; therefore, any claims hе could have raised on direct appeal are now barred by res judicata, and the trial court did not err in finding the same.
{¶ 15} Appellant‘s petition was untimely. Furthermore, as apрellant did not appeal his conviction, he is barred now from raising issues he could have raised in a direct appeal. Accordingly, we overrule appellant‘s third assignment оf error.
{¶ 16} Finally, in his second assignment of error, appellant argues that the trial court committed plain error by not merging allied offenses of similar import. However, just as res judicata applies in all postconviction relief proceedings, it also applies to bar the raising of merger issues. State v. Ayala, 10th Dist. No. 12AP-1071, 2013-Ohio-1875, ¶ 13-14. “[T]he res judicata bar applies to any post-judgment prоceeding other than the direct appeal challenging a conviction including motions to ‘modify’ a sentence. Since appellant could have raised merger issues at the time of sentencing or thereafter on direct appeal, those issues are barred.” Id. at ¶ 13. A claim of error and failing to merge counts for sentencing purposes is not a “void sentence” issue. State v. Greenberg, 10th Dist. No. 12AP-11, 2012-Ohio-3975, ¶ 12. Merger claims are non-jurisdictional and barred by res judicata. Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479.
{¶ 18} For the foregoing reasons, we overrule appellant‘s three assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and BRUNNER, JJ., concur.