State v. Taylor , 2019 Ohio 1376 ( 2019 )

[Cite as State v. Taylor, 2019-Ohio-1376.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28166
:
v. : Trial Court Case No. 2008-CR-1087
:
GUDONAVON J. TAYLOR : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 12th day of April, 2019.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
GUDONAVON J. TAYLOR, Inmate No. 627-232, Trumbull Correctional Institution, P.O.
Box 901, Leavittsburg, Ohio 44430
Defendant-Appellant, Pro Se
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WELBAUM, P.J.
{¶ 1} This case is the fourth appeal we have considered involving Defendant-
Appellant Gudonavon Taylor. Taylor is now appealing pro se from the trial court’s
judgment denying Taylor’s motion to correct his sentence by merging his conviction for
discharge of a firearm on or near prohibited premises with either his murder or his
felonious assault conviction. This motion was filed after his conviction and after his direct
appeal. For the reasons discussed below, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 2} In April 2008, an indictment was filed charging Taylor with three counts of
murder, two counts of felonious assault, one count of having weapons while under
disability, and one count of discharging a firearm on or near a prohibited premises. Each
count also included a three-year firearm specification. The State later dismissed the
firearm specification on the charge for having weapons while under disability.
{¶ 3} After a jury trial, the jury found Taylor guilty of each indicted offense and
specification, except the charge for having weapons while under disability, which was
tried to the bench. The trial court found Taylor guilty of having weapons while under
disability and merged some of the offenses. The judge sentenced Taylor to an
aggregate term of 41 years to life in prison with the possibility of parole.
{¶ 4} Taylor’s conviction arose from events occurring in December 2007, when
Taylor shot and killed Jerod Bryson following an argument over drugs that began at a
boarding house on Lincoln Street in Dayton, Ohio, and “ended with Bryson's death on
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nearby Warren Street.” State v. Taylor, 2d Dist. Montgomery No. 23990, 2013-Ohio-
186, ¶ 6 (Taylor I). According to the eyewitness testimony, Taylor shot Bryson in the
street, and Bryson got up and walked away. Taylor then followed Bryson and shot him
several more times after Bryson had fallen down. Id. at ¶ 12 and 28. A forensic
pathologist “recovered seven bullets from Bryson's body, namely two from his back, one
from his right hand, one from the left side of his chest, one from the right side of his head,
one from his pelvis, and one from his neck.” Id. at ¶ 7. She also said that “she found
14 separate and distinct entrance wounds to Bryson's body, and she testified that Bryson
died of ‘multiple gunshot wounds of the head and torso.’ ” Id.
{¶ 5} Taylor filed a direct appeal from his conviction, and we affirmed the trial
court’s judgment. Taylor I at ¶ 60. We later allowed Taylor to reopen his appeal, and
he raised five additional assignments of error. After considering the new assignments of
error, we reaffirmed his conviction. See State v. Taylor, 2d Dist. Montgomery No. 23990,
2014-Ohio-3647, ¶ 53 (Taylor II).
{¶ 6} Three years later, Taylor filed a pro se “motion to vacate unlawful sentence,”
arguing that his sentence violated the Eighth Amendment’s prohibition against cruel and
unusual punishment. The trial court rejected the motion, and Taylor appealed to our
court on January 29, 2018. While that appeal was pending, Taylor filed a pro se “motion
to correct allied offenses” in the trial court. However, the court denied Taylor’s motion
on September 17, 2018, reasoning that it lacked jurisdiction due to the pending appeal.
Taylor then filed a timely notice of appeal concerning that order.
{¶ 7} In November 2018, we agreed with the trial court that Taylor’s sentence did
not violate the Eighth Amendment, and we affirmed the trial court’s denial of the motion
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to vacate sentence. See State v. Taylor, 2d Dist. Montgomery No. 27879, 2018-Ohio-
4628, ¶ 17 (Taylor III). The matter before us now involves Taylor’s appeal from the order
denying his motion to correct allied offenses based on lack of jurisdiction.
II. Alleged Error in Finding Lack of Jurisdiction
{¶ 8} Taylor’s First Assignment of Error states that:
The Trial Court Erred in Finding That It Lacked Jurisdiction to Hear
Appellant’s Motion to Correct Allied Offenses and Dismissing the Motion
Based Upon That Finding, in Violation of His Due Process Protections
Under the Fourteenth Amendment to the U.S. Constitution, and Article I,
Section 10 of the Ohio Constitution.
{¶ 9} Under this assignment of error, Taylor contends that the trial court erred in
concluding that it lacked jurisdiction to hear his “motion to correct allied offenses.” In its
order, the trial court noted that it had recently overruled Taylor’s motion to vacate his
sentence and that Taylor’s appeal from that order was pending. Because Taylor’s
subsequent motion involved the same issues, the court concluded that it lacked
jurisdiction to hear the motion at that time. The court, therefore, denied the motion. Doc.
#4, pp. 1-2.
{¶ 10} According to Taylor, the pending appeal in Taylor III involved a challenge
only to the sentencing of juvenile offenders and had nothing to do with allied offenses.
The State disagrees, noting that if the trial court had granted Taylor’s allied offenses
motion and modified the sentence, its order would have interfered with our jurisdiction to
reverse, modify, or affirm Taylor’s sentence in the pending appeal. We agree with the
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State.
{¶ 11} As a general rule, when an appeal is taken, the lower court “ ‘is divested of
jurisdiction, except to take action in aid of the appeal, until the case is remanded to it by
the appellate court.’ ” State ex rel. Special Prosecutors v. Judges, Court of Common
Pleas, 55 Ohio St. 2d 94, 97, 378 N.E.2d 162 (1978), quoting 7 Moore, Federal Practice,
419, Paragraph 60.30(2) (2d Ed.). The court “does retain jurisdiction over issues not
inconsistent with [the jurisdiction] of the appellate court to review, affirm, modify or reverse
the appealed judgment,” like collateral issues. Id.
{¶ 12} The trial court’s consideration of the “motion to correct allied offenses” was
not a collateral matter and would have been inconsistent with our ability to affirm, modify,
or reverse the judgment on appeal. Specifically, in the trial court and on appeal in Taylor
III, Taylor alleged that his 41-year sentence violated the Eighth Amendment’s prohibition
of cruel and unusual punishment and should be vacated. As support for this claim,
Taylor relied on State v. Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127,
and Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). See
Taylor III, 2d Dist. Montgomery No. 27879, 2018-Ohio-4628, at ¶ 5. In these cases, the
courts found that the juveniles’ sentences did violate the Eighth Amendment and reversed
and remanded the cases for resentencing. Moore at ¶ 100; Miller at 465.
{¶ 13} If we had agreed with Taylor’s position in Taylor III, we would have reversed
his sentence and remanded for resentencing. However, if the trial court had accepted
Taylor’s position that some offenses were allied and should have been merged, the court
would have modified Taylor’s sentence. Clearly, this would have interfered with our
jurisdiction in the pending appeal in Taylor III.
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{¶ 14} Accordingly, at the time the trial court ruled, it did not err in refusing to
exercise jurisdiction over Taylor’s “motion to correct allied offenses.” Taylor’s First
Assignment of Error, therefore, is overruled.
III. Trial Court’s Alleged Failure to Merge Counts
{¶ 15} Taylor’s Second Assignment of Error states that:
The Trial Court Failed to Merge Count 6, Discharge of a Firearm On
or Near Prohibited Premises With Either Count 2, Felony Murder, or Count
3, Felonious Assault, violating Appellant’s Protection Against Double
Jeopardy, as Provided by the Fifth Amendment to the U.S. Constitution, and
Article I, Section 10 of the Ohio Constitution.
{¶ 16} Under this assignment of error, Taylor contends that his conviction for
discharging a firearm on or near prohibited premises (Count 6) should have been merged
with his conviction for felony murder (Count 2), or with his conviction for felonious assault
(Count 3). According to Taylor, trial courts have a statutory duty to decide if offenses
should be merged, and if a court either fails to do so or errs in doing so, the sentence that
results is void and may be challenged at any time in a collateral attack. After making
these points, Taylor details the reasons why, under a plain error review, these convictions
should have been merged.
{¶ 17} In response, the State argues that Taylor’s claims are barred by res judicata
because issues pertaining to merger of allied offenses of similar import must be raised on
direct appeal. State’s Brief at p. 3, citing State v. Stevens, 2d Dist. Montgomery No.
26328, 2015-Ohio-2971. This is because “ ‘failure to merge allied offenses does not
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render a judgment void, but voidable.’ ” Id., quoting State v. Byrd, 2d Dist. Montgomery
No. 26700, 2015-Ohio-5293, ¶ 10. In its brief, the State also addresses Taylor’s merger
argument on the merits.
{¶ 18} Because the trial court did not err in denying Taylor’s motion, we need not
consider this assignment of error. However, as the State points out, a better course
would have been for the trial court to simply refrain from ruling on Taylor’s motion while
the appeal was pending. State’s Brief at p. 3, fn. 1. Consequently, we will briefly
discuss this assignment of error. After consideration, we agree with the State that
Taylor’s claim is barred by res judicata.
{¶ 19} As noted, this is Taylor’s fourth appeal. He raised three issues during his
initial direct appeal, but did not challenge his sentence. Taylor I, 2d Dist. Montgomery
No. 23990, 2013-Ohio-186. We then allowed Taylor to reopen his appeal, and he
asserted five more assignments of error, one of which involved the trial court’s failure to
merge the allied offenses of felonious assault and murder. Taylor II, 2d Dist.
Montgomery No. 23990, 2014-Ohio-3647, at ¶ 8. We rejected that argument because
“there were two separate shootings in two separate locations.” Id. at ¶ 13. We also
rejected the other assignments of error and affirmed the conviction. Id. at ¶ 53.
{¶ 20} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits
bars all subsequent actions based on any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist.
Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio
St.3d 379, 653 N.E.2d 226 (1995). “The res judicata bar applies to any defense that was
raised or could have been raised in a criminal defendant's prior direct appeal from his
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conviction and/or sentence.” Id., citing State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d
104 (1967).
{¶ 21} As the State notes, we said in Byrd that:
The failure to merge allied offenses does not render a judgment void,
but voidable. * * * Consequently, challenges to the trial court's failure to
merge allied offenses are barred by the doctrine of res judicata if they could
have been, but were not, raised on direct appeal.
(Citations omitted.) Byrd, 2d Dist. Montgomery No. 26700, 2015-Ohio-5293, ¶ 10.
{¶ 22} Because Taylor could have raised the trial court’s failure to merge his
conviction for discharging a firearm on or near prohibited premises during his direct
appeal (and did, in fact, raise another merger argument), he is barred by res judicata from
raising this issue now. Accordingly, the Second Assignment of Error is without merit and
is overruled.
IV. Conclusion
{¶ 23} All of Taylor’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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FROELICH, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Gudonavon J. Taylor
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Hon. Gregory F. Singer