State v. Smith , 2020 Ohio 1026 ( 2020 )

[Cite as State v. Smith, 2020-Ohio-1026.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108499
v. :
MARCELLUS SMITH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 19, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-13-576912-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christopher D. Schroeder, Assistant
Prosecuting Attorney, for appellee.
Michael B. Telep, for appellant.
EILEEN T. GALLAGHER, A.J.:
Defendant-appellant, Marcellus Smith (“Smith”), appeals the denial
of a motion to correct his sentence and claims the following two errors:
1. The trial court erred when it failed to determine whether the facts
surrounding defendant’s convictions arose from the same conduct and,
therefore, were subject to merger for sentencing purposes.
2. The trial court erred when it imposed a sentence contrary to law by
imposing consecutive sentences without making specific findings
required by R.C. 2929.14(C).
We find no merit to the appeal and affirm the trial court’s judgment.
I. Facts and Procedural History
In 2013, Smith was charged with two counts of aggravated murder,
two counts of aggravated burglary, and one count each of murder, felonious assault,
kidnapping, and having weapons while under disability. All the charges except the
having weapons while under disability charge included one- and three-year firearm
specifications. Smith pleaded guilty to one count of involuntary manslaughter, with
a three-year firearm specification, and one count of aggravated burglary as alleged
in Counts 1 and 5 of the amended indictment. The remaining charges were nolled.
The plea agreement included an agreed sentencing range of between
13 and 20 years in prison. (Tr. 9, 18, 60, 83.) The parties also agreed that the
involuntary manslaughter charge as amended in Count 1 and aggravated burglary
as alleged in Count 5 were not allied offenses of similar import. (Tr. 76.) In
accordance with the parties’ agreed sentencing range, the court sentenced Smith to
11 years on the involuntary manslaughter conviction, to be served consecutive to the
three years on the attendant firearm specification, and six years on the aggravated
burglary conviction, to be served consecutive to the other prison terms, for an
aggregate 20-year sentence. Smith did not appeal his sentence.
Four and one-half years later, in March 2019, Smith filed a pro se
“request for merger of Counts 1 and 5,” arguing that his involuntary manslaughter
and aggravated burglary convictions were allied offenses that should have merged
at sentencing. The trial court denied the motion. Smith now appeals the trial court’s
judgment.
II. Law and Analysis
A. Allied Offenses
In the first assignment of error, Smith argues the trial court erred in
failing to grant his motion to merge allied offenses. He contends his involuntary
manslaughter and aggravated burglary convictions involved the same conduct and,
therefore, should have merged for sentencing purposes.
As previously stated, Smith did not file a direct appeal of his sentence;
he appeals the denial of a postconviction motion requesting merger of allied
offenses. The doctrine of res judicata bars a convicted defendant from raising a
defense or claiming a lack of due process that was or could have been raised at trial
or on direct appeal. State v. Samuels, 8th Dist. Cuyahoga No. 106520, 2018-Ohio-
3675, ¶ 8, citing State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967).
Nevertheless, “[v]oid sentences are not precluded from appellate review by
principles of res judicata and may be reviewed at any time, on direct appeal or by
collateral attack.” State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d
332, ¶ 40. Therefore, we must determine whether Smith’s sentence is void.
A “void” sentence is one imposed by a court without subject matter
jurisdiction or the authority to act. State v. Straley, Slip Opinion No. 2019-Ohio-
5206, ¶ 25. A “voidable” sentence is one imposed by court having jurisdiction, but
was imposed irregularly or erroneously. Id.
In State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658, 71 N.E.3d
234, the Ohio Supreme Court revisited its jurisprudence on void sentences and held
that “if the sentencing court had jurisdiction to act, sentencing errors do not render
the sentence void and the sentence can be set aside only if successfully challenged
on direct appeal.” Id. at ¶ 23. The court recognized that “the trial court’s failure to
find that the offender has been convicted of allied offenses of similar import, even if
erroneous, does not render the sentence void.” Id. at ¶ 24. The court further
explained that its void sentence jurisprudence “does not apply to ‘challenges to a
sentencing court’s determination whether offenses are allied.’”1 Id., quoting State
v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8 (emphasis
added in Williams). Thus, the court concluded 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, citing Holdcroft at ¶ 8-9.
1 By contrast, the Williams court held that when a trial court finds that a defendant
has been found guilty of allied offenses of similar import, it is not authorized to impose a
separate sentence on each offense because the court has a mandatory duty to merge allied
offenses. Williams at ¶ 28. Thus, the imposition of separate sentences on allied offenses
is contrary to law because it violates the mandate of R.C. 2941.25(A), even if the sentences
are imposed concurrently. Id. Therefore, separate sentences on allied offenses are void.
The trial court in this case never determined whether Smith’s
convictions were allied offenses subject to merger because the parties agreed they
were not allied offenses. (Tr. 76.) Therefore, Smith’s sentences are not void and any
challenge to the validity of the sentences had to be made on direct appeal. Smith
never filed an appeal and his allied offense claim is now barred by res judicata.
Therefore, the first assignment of error is overruled.
B. Consecutive Sentences
In the second assignment of error, Smith argues his consecutive
sentence is contrary to law because the trial court failed to make the findings
required by R.C. 2929.14(C) for the imposition of consecutive sentences.
However, Smith failed to make this argument in his motion to request
merger of Counts 1 and 5 in the trial court. A party cannot raise new issues or
arguments for the first time on appeal; failure to raise an issue before the trial court
results in a waiver of that issue for appellate purposes. Lycan v. Cleveland, 8th Dist.
Cuyahoga Nos. 107700 and 107737, 2019-Ohio-3510, ¶ 32-33 (“It is well-established
that arguments raised for the first time on appeal are generally barred and a
reviewing court will not consider issues that the appellant failed to raise in the trial
court.”); In re Estate of O’Toole, 8th Dist. Cuyahoga No. 108122, 2019-Ohio-4165, ¶
46 (“Issues that were not raised at the trial-court level cannot be raised for the first
time on appeal, and thus, we do not need to address them now.”).
Any issues regarding Smith’s consecutive sentence are not properly
before this court because Smith failed to raise them in the trial court. Moreover,
errors in law, including the erroneous imposition of consecutive sentences, that
were raised or could have been raised on a direct appeal, are barred by res judicata.
See State v. Shie, 8th Dist. Cuyahoga No. 92632, 2009-Ohio-5828, ¶ 7, citing State
v. Frazier, 8th Dist. Cuyahoga No. 91617, 2009-Ohio-1091, ¶ 9. Therefore, Smith’s
claim that his consecutive sentence is contrary to law is not properly before the court
and is barred by res judicata.
The second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from 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
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE OPINION
SEAN C. GALLAGHER, J., CONCURRING:
I agree with the majority that Smith’s sentence is not void and that his
claims regarding allied offenses and consecutive sentences are barred by res
judicata. However, because the trial court sentenced appellant to consecutive prison
terms within an agreed sentencing range and the parties had agreed that the offenses
were not subject to merger, I also do not believe that the sentence is reviewable
pursuant to R.C. 2953.08. See State v. Grant, 2018-Ohio-1759, 111 N.E.3d 791, ¶ 19
(8th Dist.).