State v. Johnson , 2012 Ohio 4251 ( 2012 )

[Cite as State v. Johnson, 2012-Ohio-4251.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26167
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EFREM R. JOHNSON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 10 03 0866
DECISION AND JOURNAL ENTRY
Dated: September 19, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} Efrem Johnson pleaded guilty to one count of aggravated murder with a firearm
specification and one count of having weapons while under disability. The trial court sentenced
him to life in prison on the aggravated murder charge, three years on the firearm specification,
and three years on the having-weapons-under-disability charge. Mr. Johnson did not appeal, but
later moved the court to set aside his sentence, asserting that it was void because it did not merge
allied offenses of similar import. The court denied his motion. Mr. Johnson then moved the
court to alter, amend, or correct a void judgment, asserting that it had not correctly imposed post-
release control. The court denied his motion. Mr. Johnson has appealed the denial of his motion
to alter, amend, or correct a void judgment, arguing that his plea was not knowing and voluntary,
that he was sentenced for a non-existent crime, that the firearm specification and the having-
weapons-under-disability offense should have merged at sentencing, and that the trial court
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should have held a hearing on his motion. We affirm because Mr. Johnson may not raise issues
on appeal that he did not raise in his motion.
MOTION TO ALTER, AMEND, OR CORRECT A VOID JUDGMENT
{¶2} Mr. Johnson’s first assignment of error is that the trial court exercised improper
discretion when it failed to schedule a hearing on his motion to alter, amend, or correct a void
judgment. While he has conceded in his brief that the court correctly denied his motion to the
extent that he had argued in support of it that the court had not properly imposed post-release
control, he has argued that the court ignored another issue that he had raised in his motion.
According to Mr. Johnson, he also asserted that the court should allow him to withdraw his
guilty plea because the court did not comply with Rule 11 of the Ohio Rules of Criminal
Procedure when it accepted his plea.
{¶3} The trial court did not overlook any issues raised by Mr. Johnson in his motion.
The motion was entirely devoted to Mr. Johnson’s argument that the court incorrectly imposed
post-release control when it sentenced him. According to Mr. Johnson, his motion also
challenged the validity of his guilty plea by implication because it contained a citation to State v.
Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748. In Clark, the Ohio Supreme Court did address the
requirements of a valid plea colloquy. See id. at ¶ 24-32. It explained in another part of the
opinion, however, that post-release control does not apply to unclassified felonies like
aggravated murder. Id. at ¶ 36. In his motion, the only paragraph that Mr. Johnson cited from
Clark was the paragraph in which the Supreme Court explained that post-release control does not
apply to unclassified felonies. Mr. Johnson cited the paragraph solely to support his argument
that, “because murder and aggravated murder are unclassified felonies, post release control does
not apply (see, State v. Clark, 893 N.E.2d 462 at ¶36 (citing Ohio Revised Code §2867.28)).” In
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addition, the argument Mr. Johnson made in support of his motion that the court did not properly
notify him about post-release control at sentencing cannot reasonably be construed as an
argument that the court did not properly notify him about post-release control when it accepted
his plea. Accordingly, we conclude that Mr. Johnson did not challenge the validity of the guilty
plea in his motion to alter, amend, or correct a void judgment. We, therefore, decline to address
Mr. Johnson’s argument regarding the validity of the plea colloquy. State v. Saravia, 9th Dist.
No. 25977, 2012-Ohio-1443, ¶ 17 (“This Court will not consider arguments made by an
appellant for the first time on appeal.”).
{¶4} Mr. Johnson has also argued that his sentence is invalid because it imposed a
three-year prison term for “Possession of a Firearm,” which, he contends, is not a criminal
offense under the laws of the State of Ohio. Because Mr. Johnson did not raise this issue in his
motion to alter, amend, or correct a void judgment, we decline to consider it. State v. Saravia,
9th Dist. No. 25977, 2012-Ohio-1443, ¶ 17. Even if we were to address Mr. Johnson’s
argument, we would conclude that the court’s “Possession of a Firearm” language is an obvious
reference to the firearm specification. Under Section 2929.14(D)(1)(a) of the Ohio Revised
Code, a court must impose “[a] prison term of three years if the specification . . . charges the
offender with having a firearm on or about the offender’s person . . . and displaying the firearm,
brandishing the firearm, indicating that the offender possessed the firearm, or using it to facilitate
the offense[.]” R.C. 2929.14(D)(1)(a)(ii), effective Apr. 7, 2009. While Section
2929.19(B)(2)(b) requires that a sentencing entry include “the name . . . of any specification or
specifications for which sentence is imposed and the sentence or sentences imposed for the
specification or specifications,” Mr. Johnson has not cited any authority for how a firearm
specification must be “name[d]” in a sentencing entry.
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{¶5} Mr. Johnson did not argue in his motion to alter, amend, or correct a void
judgment that the plea colloquy was deficient or that the court did not properly describe his
firearm-specification sentence in its judgment entry. His first assignment of error is overruled.
HEARING
{¶6} Mr. Johnson’s second assignment of error is that the trial court should have held a
hearing on whether he was improperly sentenced on allied offenses of similar import. He has
argued that the court should have considered whether he could be sentenced for both the
aggravated-murder firearm specification and the having-weapons-under-disability count.
{¶7} In his motion to alter, amend, or correct a void judgment, Mr. Johnson did not
argue that the trial court improperly sentenced him on allied offenses. State v. Saravia, 9th Dist.
No. 25977, 2012-Ohio-1443, ¶ 17 (“This Court will not consider arguments made by an
appellant for the first time on appeal.”). While he did raise the issue in his motion to set aside a
void sentence, the court denied his motion on August 25, 2011, and Mr. Johnson did not file a
timely appeal from its decision. Furthermore, this Court has held that the failure to merge allied
offenses does not result in a void sentence, which could be corrected notwithstanding Mr.
Johnson’s failure to raise the issue in his second post-trial motion. State v. Abuhilwa, 9th Dist.
No. 25300, 2010-Ohio-5997, ¶ 8 (concluding that failure to merge firearm specifications did not
result in a void sentence); Cincinnati Sch. Dist. Bd. of Educ. v. Hamilton County Bd. of Revision,
87 Ohio St. 3d 363, 368 (2000) (“recogniz[ing] the inherent power of courts to vacate void
judgments”).
{¶8} Because Mr. Johnson did not challenge the trial court’s failure to merge offenses
in his motion to alter, amend, or correct a void judgment, the court did not err when it did not
hold a hearing on his motion. Mr. Johnson’s second assignment of error is overruled.
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CONCLUSION
{¶9} The trial court correctly denied Mr. Johnson’s motion to alter, amend, or correct a
void judgment. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, J.
CONCURS IN JUDGMENT ONLY.
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CARR, P. J.
CONCURRING.
{¶10} I join in the majority’s conclusion that Johnson may not raise issues on appeal that
he did not present to the trial court in the first instance. I write separately to emphasize that
while the improper imposition of post-release control results in that specific part of the sentence
being void, res judicata applies to other aspects of the merits of a conviction, including the
determination of guilt and the lawful elements of the ensuing sentence. State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, paragraph three of the syllabus. Thus, even if Johnson had
raised other issues relating to his plea and sentence in his motion to “alter, amend or correct” a
post-release control error, those issues would have been barred by the doctrine of res judicata.
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.