[Cite as State v. Musselman,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

MARK D. MUSSELMAN

Defendant-Appellant

Appellate Case No. 25295

Trial Court Case No. 2005-CR-5085/1

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 19th day of April, 2013.

...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MARK D. MUSSELMAN, Inmate No. 555-139, Chillicothe Correctional Institution, 15802 S.R. 104 North, P.O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant, pro se 2

.............

WELBAUM, J.

{¶ 1} Defendant-Appellant, Mark Musselman, appeals pro se from a trial court order

denying his motion for modification or correction of his sentence. Musselman contends that the

trial abused its discretion and committed plain error by imposing a disproportionate and

inconsistent sentence contrary to statutory sentencing guidelines. Musselman also contends that

the trial court abused its discretion and committed plain error by failing to correct multiple

sentences for allied offenses of similar import that are contrary to statutory guidelines. Finally,

Musselman contends that the trial court abused its discretion and committed plain error by

imposing a fine and restitution order that is contrary to law.

{¶ 2} We conclude that all of Musselman’s arguments could have been raised on

direct appeal and are barred by res judicata. Accordingly, the judgment of the trial court will be

affirmed.

I. Facts and Course of Proceedings

{¶ 3} Following a jury trial, Musselman was convicted in April 2007 on one count of

Engaging in a Pattern of Corrupt Activity (Count One); one count of Aggravated Theft by

Deception ($100,000 or more) (Count Two); nine counts of Forgery involving a value of

$100,000 or more (Counts Three to Eleven); 25 counts of Forgery involving a value of $5,000 to

$100,000 (Counts Twelve to Thirty-Six); and 12 counts of Tampering with Government Records

(Counts Thirty-Seven to Forty-Eight). Musselman was sentenced to the following terms of

imprisonment: five years on Count One; two years on Count Two; two years each on Counts 3

Three to Eleven, to be served concurrently with each other; twelve months each on Counts

Twelve to Thirty-Six, to be served concurrently with each other; and two years each on Counts

Thirty-Seven to Forty-Eight, to be served concurrently with each other. Counts One and Two

were to be served consecutively to each other and consecutively to the other remaining counts,

resulting in a total term of imprisonment of twelve years. The trial court also imposed

restitution of $1,151,150, and a fine of $3,450,000 on Count One.

{¶ 4} We affirmed Musselman’s conviction and sentence in January 2009. See State

v. Musselman, 2d Dist. Montgomery No. 22210,

. Regarding the factual

background, we noted that:

The present appeal stems from Musselman's involvement in a scheme to

buy properties through a mortgage-broker business under the forged names of

recently deceased people. According to the State, Musselman and his partner,

Mark Edwards, falsified documents so a mortgage lender would loan far more

money on the property than the selling price. The additional money was paid to

the B & B Foundation, an organization established by Musselman and Edwards,

ostensibly for repairs to the properties. The State alleged, however, that the funds

deposited into the B & B Foundation account were used for the personal gain of

Musselman and Edwards. The State's case was based on transactions involving

twelve properties. The buyers of these properties all were dead at the time of the

real estate transactions. Id. at ¶ 3.

{¶ 5} On appeal, Musselman raised seven assignments of error, one of which was that

the trial court had “erred in convicting him of allied offenses of similar import.” Id. at ¶ 22. In 4

this regard, Musselman argued that:

[E]ngaging in a pattern [of] corrupt activity, aggravated theft by deception,

forgery, and tampering with government records are all allied offenses of similar

import. [Musselman] asserts that “there existed only one intent throughout the

scheme, defrauding lenders through [his] brokerage company.” He further argues

that all of the offenses had “similar” elements, particularly “the intent to defraud

through falsified documents.” In his reply brief, Musselman suggests that all of his

offenses should merge into one offense of engaging in a pattern of corrupt activity.

Id.

{¶ 6} After applying R.C. 2941.25 and the analysis set forth in State v. Rance,

,

(1999), we found Musselman’s argument to be without merit.

. Several months later, the Supreme Court of Ohio declined to accept

Musselman’s appeal. See 06/03/2009 Case Announcements,

(declining to hear

the appeal in State v. Musselman, Ohio Supreme Court Case No. 2009-0459).

{¶ 7} Subsequently, in February 2011, Musselman filed a motion asking the trial court

to correct or modify its “void” sentence. Musselman filed another motion in June 2011, asking

the court to take judicial notice of State v. Johnson,

,

,

. In Johnson, the Supreme Court of Ohio overruled Rance, and held that “[w]hen

determining whether two offenses are allied offenses of similar import subject to merger under

R.C. 2941.25, the conduct of the accused must be considered.”

at syllabus.

{¶ 8} In July 2012, the trial court issued an order overruling Musselman’s motion to

correct or modify his sentence. The court concluded that Musselman’s arguments were barred by 5

res judicata. Musselman appeals from the trial court order overruling his motion.

II. Is the Argument that the Sentence is Disproportionate

Barred by Res Judicata?

{¶ 9} Musselman’s First Assignment of Error states as follows:

The Trial Court Abused its Discretion and Plainly Erred to the Prejudice of

Appellant when Imposing the Disproportionate and Inconsistent Sentence

Contrary to Statutory Sentencing Guidelines.

{¶ 10} Under this assignment of error, Musselman contends that his sentence is

contrary to law and is disproportionate because it is harsher than the six-year sentence imposed

on his co-defendant, who allegedly had the same “record” and committed the same offenses.

Musselman also points to cases in which other defendants received lighter sentences for engaging

in similar criminal activity. For example, in State v. Burke, 8th Dist. Cuyahoga No. 91081,

, the defendant was sentenced to 11 months in prison based on her participation in

a mortgage-fraud scheme that involved more than a million dollars.

at ¶ 3 and 16.

{¶ 11} As a preliminary matter, we note that “[a] postconviction proceeding is not an

appeal of a criminal conviction, but, rather, a collateral civil attack on the judgment.” State v.

Steffen,

,

(1994), citing State v. Crowder,

,

(1991). “Postconviction review is a narrow remedy, since res judicata bars

any claim that was or could have been raised at trial or on direct appeal.” (Citations omitted.)

{¶ 12} In State v. Perry,

,

(1967), the Supreme Court

of Ohio stressed that: 6

Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in

any proceeding except an appeal from that judgment, any defense or any claimed

lack of due process that was raised or could have been raised by the defendant at

the trial, which resulted in that judgment of conviction, or on an appeal from that

judgment. (Emphasis added.)

, paragraph nine of the syllabus.

{¶ 13} Because Musselman could have raised the proportionality of his sentence on

direct appeal, his claim is barred by res judicata. The First Assignment of Error is overruled.

III. Is the Issue of Merger Barred by Res Judicata?

{¶ 14} Musselman’s Second Assignment of Error states that:

The Trial Court Abused its Discretion and Plainly Erred, Denying

Appellant Equal Protection of the Laws and the Protection from Double Jeopardy,

when Failing to Correct the Multiple Sentences for Allied Offenses of Similar

Import Contrary to Statutory Guidelines.

{¶ 15} As was noted, Musselman raised the allied offenses issue during his direct

appeal. We rejected his argument, relying on Rance,

,

.

Musselman, 2d Dist. Montgomery No. 22210,

.

{¶ 16} Rance provided that “[u]nder an R.C. 2941.25(A) analysis, the statutorily

defined elements of offenses that are claimed to be of similar import are compared in the

abstract.” Rance at 633, paragraph one of the syllabus. Subsequently, the Supreme Court of

Ohio overruled Rance, and held that “[w]hen determining whether two offenses are allied 7

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must

be considered.” Johnson,

,

,

, at syllabus.

{¶ 17} Musselman contends that Johnson should be retroactively applied, and that his

offenses were not committed separately, nor were they committed with a separate animus.

Musselman also argues that the trial court’s failure to merge the allied offenses at sentencing was

contrary to law, and that his sentence, therefore, is void.

{¶ 18} We rejected similar arguments in State v. Parson, 2d Dist. Montgomery No.

24641,

. We noted in Parson that:

Defendant argues that the trial court's judgment and his resulting sentence

are void. Under Ohio law, “a sentence that is not in accordance with statutorily

mandated terms is void.” State v. Fischer,

,

,

, ¶ 8. A void sentence “is not precluded from appellate review by

principles of res judicata, and may be reviewed at any time, on direct appeal or by

collateral attack.”

at paragraph one of the syllabus. “Unlike a void judgment,

a voidable judgment is one rendered by a court that has both jurisdiction and

authority to act, but the court's judgment is invalid, irregular, or erroneous.” State

v. Simpkins,

,

,

, ¶ 12.

Moreover, “defendants with a voidable sentence are entitled to resentencing only

upon a successful challenge on direct appeal.” State v. Payne,

,

,

.

The claims raised in Defendant's motion to correct void judgment or

sentence demonstrate that, at most, his claim is that his sentence is voidable. 8

Defendant does not claim that his sentence is not in conformity with statutorily

mandated terms, or is not provided for by law, or even that the sentence fails to

comply with the formal requirements of R.C. 2941.25. To the extent that the trial

court may have erred at the time of sentencing in finding that the felonious assault

and kidnapping charges were not allied offenses of similar import, Defendant's

sentence would be voidable, but in no way is the sentence illegal so as to render it

void.

Arguments challenging the imposition of a sentence that is voidable are

barred by the doctrine of res judicata if not raised on direct appeal. Simpkins, at ¶

30. Since Defendant's sentence, assuming his allied offense argument had merit,

would be voidable, he is barred by the doctrine of res judicata from challenging

his sentence on those grounds collaterally through his “Motion to Correct Void

Judgment or Sentence.” Smith v. Voorhies,

,

,

(“allied-offense claims are

nonjurisdictional,” and, thus, barred by the doctrine of res judicata where they

were raised, or could have been raised, on direct appeal).

Further, as the State argues in its brief, Defendant cannot rely on the

Supreme Court's recent decision in Johnson because “[a] new judicial ruling may

be applied only to cases that are pending on the announcement date. * * * The

new judicial ruling may not be applied retroactively to a conviction that has

become final, i.e., where the accused has exhausted all of his appellate remedies.”

(Citations omitted.) Ali v. State,

,

, 819 9

N.E.2d 687, ¶ 6. (Emphasis added.) Parson at ¶ 8-11, referring to Johnson,

,

,

.

{¶ 19} Other appellate districts have reached the same conclusion regarding voidness.

See State ex rel. Porterfield v. McKay, 11th Dist. Trumbull No. 2012-T-0012,

, ¶

15 (noting that “[i]n applying both the general rule and the single exception to alleged errors

involving the merger of allied offenses, the courts of this state have expressly concluded that this

type of judicial mistake does not cause the resulting judgment to be void.”) See, also, State v.

Guevara, 6th Dist. Lucas No. L-12-1218,

, ¶ 8 (citing decisions from the Second,

Eighth, Tenth, and Eleventh Appellate Districts, and holding that “failure to merge allied offenses

at sentencing does not render a sentence void.”)

{¶ 20} Musselman’s direct appeals were exhausted on June 3, 2009, when the Supreme

Court of Ohio refused to hear his appeal. See 06/03/2009 Case Announcements,

(declining to hear the appeal in State v. Musselman, Ohio Supreme Court Case

No. 2009-0459). Johnson was decided on December 29, 2010, and cannot be applied to

Musselman.

{¶ 21} Based on the preceding discussion, Musselman’s claim with regard to the allied

offense doctrine is barred by res judicata. Accordingly, the Second Assignment of Error is

overruled.

IV. Are the Issues of Fines and Restitution Barred by Res Judicata?

{¶ 22} Musselman’s Third Assignment of Error is as follows:

The Trial Court Abused its Discretion and Plainly Erred to the Prejudice of 10

Appellant when Imposing a Fine and Restitution Order Contrary to Law.

{¶ 23} Under this assignment of error, Musselman challenges the trial court’s order of

restitution. Musselman contends that the order was not supported by competent and credible

evidence, created an impermissible financial windfall for the victim, and facilitated the

imposition of an excessively disproportionate fine under R.C. 2923.32(B)(2)(a).

{¶ 24} “A trial court abuses its discretion when it orders restitution that does not bear a

reasonable relationship to the actual financial loss suffered.” (Citation omitted.) State v.

Ratliff,

,

,

(2d Dist.). Furthermore, “

‘[f]or due process reasons, the amount of restitution must bear a reasonable relationship to the

loss suffered. Accordingly, to ensure a lawful award, there must be competent, credible

evidence in the record to support the trial court's order of restitution “to a reasonable degree of

certainty.” * * * ’ ” (Citations omitted.) Id. at ¶ 15.

{¶ 25} Issues pertaining to restitution and fines are matters for direct appeal. Because

Musselman had an opportunity to challenge the award of restitution and fines during his direct

appeal, these claims are now barred by res judicata. Accordingly, Musselman’s Third

Assignment of Error is without merit and is overruled.

V. Conclusion

{¶ 26} All of Musselman’s assignments of error having been overruled, the judgment

of the trial court is affirmed. 11

.............

FAIN, P.J. and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck R. Lynn Nothstine Mark D. Musselman Hon. Frances E. McGee