[Cite as State v. Wilson,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : PER CURIAM OPINION

Plaintiff-Appellee, : CASE NO. 2015-L-067 - vs - :

ORLANDO WILSON, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000427.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Orlando Wilson, Pro se, PID# A642-635, Richland Correctional Institution, P.O. Box 8107, 1001 Olivesburg Road, Mansfield, OH 44905 (Defendant-Appellant).

PER CURIAM

{¶1} Defendant-appellant, Orlando Wilson, appeals from the Judgment Entry of

the Lake County Court of Common Pleas, denying his Notice of Plain Error Pursuant to

Cr.R. 52(B). The issue to be determined by this court is whether alleged sentencing

errors raised subsequent to a direct appeal are barred by res judicata. For the following

reasons, we affirm the judgment of the court below.

{¶2} On August 27, 2012, the Lake County Grand Jury issued an Indictment,

charging Wilson with two counts of Grand Theft, felonies of the fourth degree, in violation of R.C. 2913.02(A)(1); two counts of Safecracking, felonies of the fourth

degree, in violation of R.C. 2911.31; and two counts of Receiving Stolen Property,

felonies of the fourth degree, in violation of R.C. 2913.51(A).

{¶3} On January 11, 2013, Wilson entered a Written Plea of Guilty to two

counts of Grand Theft and one count of Safecracking. A Judgment Entry was filed on

the same date, accepting the plea and entering a Nolle Prosequi on the remaining

counts.

{¶4} A sentencing hearing was held on July 9, 2013, at which the court denied

Wilson’s request to withdraw his plea. A Judgment Entry of Sentence was filed on July

12, 2013, ordering Wilson to serve a prison term of 30 months, to be served

consecutively with a sentence in Cuyahoga Case No. CR-12-568655.

{¶5} Wilson appealed to this court, arguing that his plea was not given

knowingly, intelligently, and voluntarily. His conviction was affirmed in State v. Wilson,

11th Dist. Lake No. 2013-L-075,

.

{¶6} On January 14, 2015, Wilson filed a Notice of Plain Error Pursuant to

Cr.R. 52(B) in the trial court, in which he argued that various sentencing errors had

been committed. The State filed a Response on January 16, 2015, asserting that these

claims were barred by the doctrine of res judicata and could have been raised on direct

appeal. Wilson filed a Reply on January 30, 2015.

{¶7} The trial court issued a Judgment Entry on May 19, 2015, denying

Wilson’s Notice of Plain Error.

{¶8} Wilson timely appeals and raises the following assignments of error:

{¶9} “[1.] The trial court abused its discretion in denying appellant’s Cr.R.

52(B) notice of plain error where the sentence consisted of allied offenses.

2 {¶10} “[2.] The sentence is void where the trial court had no statutory authority

to impose consecutive sentences in Case No. 12-CR-000427 (Lake County) and Case

No. CR-12-568655 (Cuyahoga County).

{¶11} “[3.] The sentence is void where the trial court failed to make the

statutorily required findings pursuant to O.R.C. 2929.14(C)(4) prior to imposing

consecutive sentences in Case No. 12-CR-000427 and Case No. CR-12-568655.”

{¶12} Wilson’s assignments of error will be considered jointly, as the analysis on

these issues is interrelated. First, Wilson contends that the trial court erred in failing to

merge certain offenses prior to sentencing.

{¶13} This argument is barred by the doctrine of res judicata. “[A] convicted

defendant is precluded under the doctrine of res judicata 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 appeal from that judgment.” State v.

Hobbs, 11th Dist. Lake No. 2010-L-064,

, ¶ 39, citing State v. Szefcyk,

,

(1996).

{¶14} “This court has continually held that when an appellant does not raise the

issue of allied offenses of similar import in a timely direct appeal, the challenge is barred

by the doctrine of res judicata. This is also the law throughout Ohio.” State v. Cline,

11th Dist. Geauga No. 2012-G-3101,

; State v. Britta, 11th Dist.

Lake No. 2011-L-041,

, ¶ 17, citing Smith v. Voorhies,

,

,

(“‘allied-offense claims are

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

3 raised, or could have been raised, on direct appeal”); State v. Cioffi, 11th Dist. Trumbull

Nos. 2011-T-0072 & 2011-T-0073,

, ¶ 14.

{¶15} Wilson pursued a direct appeal before this court where he failed to raise

the issue of allied offenses. This argument is now barred by the doctrine of res judicata

and we will not consider its merits.

{¶16} Wilson also argues that the trial court erred in ordering him to serve his

sentence consecutive with a sentence in a separate Cuyahoga County conviction and in

failing to consider the appropriate factors for consecutive sentencing. To avoid the

application of the doctrine of res judicata, Wilson argues that the alleged errors

rendered his sentence void.

{¶17} 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.”

Britta,

, at ¶ 14, citing State v. Fischer,

, 2010-Ohio-

6238,

, paragraph one of the syllabus. “[P]rinciples of res judicata do

not apply to void sentences because, by definition, a void sentence means that no final

judgment of conviction has been announced.” (Citation omitted.) State v. Wells, 11th

Dist. Ashtabula No. 2013-A-0014,

. In contrast, “a voidable

judgment is one rendered by a court that has both jurisdiction and authority to act,” but

is “invalid, irregular, or erroneous.” Cioffi,

, at ¶ 12, citing State v.

Simpkins,

,

,

, ¶ 12.

{¶18} It has generally been held that sentencing errors do not render a judgment

void because they have no effect upon the trial court’s jurisdiction. Fischer at ¶ 7. The

exception to this rule, which is applied in limited circumstances, is that “a sentence that

does not contain a statutorily mandated term is a void sentence.” Simpkins at ¶14;

4 State v. Brown, 7th Dist. Mahoning No. 14 MA 37,

, ¶ 31 (the void

sentence “exception [to the doctrine of res judicata] is very limited and has been applied

sparingly”). Such is not the case here, where there was no mandatory sentence

required but, rather, an issue related to the consecutive nature of the sentences.

{¶19} Alleged errors in consecutive sentencing do not render a sentence void.

The Supreme Court “has declined to find sentences void based on the court’s failure to

comply with certain sentencing statutes, including the consecutive sentencing statute.”

State v. Butcher, 4th Dist. Meigs No. 14CA7,

, ¶ 27; State v. Holdcroft,

,

,

, ¶ 8 (challenges to consecutive

sentences must be brought on direct appeal).

{¶20} While Wilson is correct that a void sentence can be challenged at any

time, this type of case does not include the limited circumstances under which

sentences have been declared void and, instead, sets forth an error that the Supreme

Court has specifically found must be raised on direct appeal. Thus, the consecutive

sentencing issues raised by Wilson are also barred by the doctrine of res judicata.

{¶21} Wilson’s first, second, and third assignments of error are without merit.

{¶22} For the foregoing reasons, the Judgment Entry of the Lake County Court

of Common Pleas, denying Wilson’s Notice of Plain Error Pursuant to Cr.R. 52(B), is

affirmed. Costs to be taxed against appellant.

TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., COLLEEN MARY O’TOOLE, J., concur.

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