[Cite as State v. Merritt,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200351 TRIAL NO. B-1701287 Plaintiff-Appellee, :

vs. : O P I N I O N.

SHANNON MERRITT, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 10, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Shannon Merritt, pro se. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Defendant-appellant Shannon Merritt appeals the Hamilton County

Common Pleas Court’s judgment dismissing his “Motion in Support of Petition to

Vacate or Set Aside Void Sentence.” We affirm the court’s judgment.

Procedural Posture {¶2} In 2017, Merritt was convicted upon guilty pleas to felonious assault,

rape, and kidnapping. The trial court imposed agreed prison terms totaling 11 years.

We affirmed his convictions in the direct appeal because his guilty pleas were

knowing, voluntary, and intelligent. State v. Merritt, 1st Dist. Hamilton No. C-

170649,

.

{¶3} Merritt also challenged his convictions in his 2020 “Motion in Support

of Petition to Vacate or Set Aside Void Sentence.” In that motion, he sought relief

from his convictions on two grounds. He asserted that his rape and kidnapping

sentences are void because those offenses are allied offenses of similar import subject

to merger under R.C. 2941.25. He further asserted that his sentences are void and

contrary to law and that he was denied due process because the trial court did not

make statutory sentencing findings or consider the statutory sentencing purposes

and principles or seriousness and recidivism factors, as required by R.C. 2929.11,

2929.12 and 2929.14.

{¶4} In this appeal, Merritt presents a single assignment of error

contending that the trial court erred in reviewing and dismissing the motion under

R.C. 2953.21 et seq., governing the proceedings on a petition for postconviction

relief. We overrule the assignment of error because the trial court had no jurisdiction

to grant the relief sought in the motion.

Jurisdiction {¶5} In his motion, Merritt did not designate a statute or rule under which

the common pleas court may have afforded the relief sought. Thus, the court was left

2 OHIO FIRST DISTRICT COURT OF APPEALS

to “recast” the motion “into whatever category necessary to identify and establish the

criteria by which the motion should be judged.” State v. Schlee,

,

,

, ¶ 12 and syllabus.

Allied-offenses claim

{¶6} Relief from a conviction may be granted under the postconviction

statutes upon proof of a constitutional violation during the proceedings resulting in

that conviction. See R.C. 2953.21(A)(1); State v. Powell,

,

(1st Dist. 1993). The Double Jeopardy Clauses of the Fifth Amendment

to the United States Constitution and Article I, Section 10, of the Ohio Constitution

protect against the imposition of multiple punishments for the same offense. Those

protections are effectuated by R.C. 2941.25, which governs sentencing on multiple

counts charged in the same indictment. State v. Payne, 1st Dist. Hamilton No. C-

790257,

(May 28, 1980). Thus, Merritt’s postconviction allied-

offenses claim sought relief from his convictions based on an alleged constitutional

violation during the proceedings resulting in those convictions. Therefore, the trial

court properly reviewed that claim under the standards provided by the

postconviction statutes.

{¶7} But the allied-offenses claim was presented in a motion filed well after

the time for filing a postconviction petition had expired. See R.C. 2953.21(A)(2). And

Merritt failed to satisfy the R.C. 2953.23 jurisdictional requirements for filing a late

postconviction claim because he did not show either that he had been unavoidably

prevented from discovering the facts upon which his allied-offenses claim depended,

or that that claim was based on a new and retrospectively applicable right recognized

by the United States Supreme Court since the time for filing the claim had expired.

See R.C. 2953.23(A)(1)(a). Therefore, the postconviction statutes did not confer upon

the common pleas court jurisdiction to entertain Merritt’s allied-offenses claim.

3 OHIO FIRST DISTRICT COURT OF APPEALS

Statutory-violation claims.

{¶8} Merritt, in his motion, also sought relief on the grounds that the trial

court had sentenced him without making statutory findings or considering the

statutory sentencing purposes and principles or seriousness and recidivism factors,

as required by R.C. 2929.11, 2929.12 and 2929.14. Those claims did not allege

constitutional violations and thus were not, as the trial court concluded, reviewable

under the postconviction statutes. See R.C. 2953.21(A)(1); State v. Littlepage, 1st

Dist. Hamilton Nos. C-170207 and C-170157,

.

{¶9} Nor did the trial court have jurisdiction to entertain those claims

under any other postconviction procedure provided by statute or rule. The claims

were not reviewable under Crim.R. 33, which governs motions for a new trial. The

claims were not reviewable under Crim.R. 32.1, governing motions to withdraw a

guilty or no-contest plea, because Merritt was convicted upon guilty pleas not

following a trial and he did not seek by his motion to withdraw those pleas. The

claims were not reviewable under R.C. Chapter 2731, governing mandamus, under

R.C. Chapter 2721, governing declaratory judgment, or under R.C. Chapter 2725,

governing habeas corpus, because the motion in which the claims were advanced did

not satisfy those statutes’ procedural requirements. See R.C. 2731.04, 2721.12(A),

and 2725.04. And Crim.R. 57(B) did not require the common pleas court to entertain

the claims under Civ.R. 60(B), because Merritt’s convictions were reviewable, and

were reviewed, under the procedures provided for a direct appeal.

Sentence was not void {¶10} Finally, a court always has jurisdiction to correct a void sentence. See State ex rel. Cruzado v. Zaleski,

,

,

. A sentence is void if it was imposed by a court acting without personal

and subject-matter jurisdiction. See State v. Harper,

, 2020-

Ohio-2913,

, ¶ 4-6 and 41.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶11} In sentencing Merritt, the trial court had personal jurisdiction by virtue of his appearance before the court upon his indictment for felony offenses.

And the trial court acted with subject-matter jurisdiction in imposing sentences upon

finding him guilty of those offenses. Accordingly, the claimed sentencing errors, even

if demonstrated, would not have rendered Merritt’s sentences void.

Judgment Affirmed {¶12} The common pleas court properly dismissed Merritt’s postconviction allied-offenses claim for lack of jurisdiction under R.C. 2953.23. His statutory-

violation claims were not reviewable under the postconviction statutes. But the court

properly dismissed those claims for lack of jurisdiction, because the claims were not

reviewable under any other postconviction procedure provided by statute or rule. See

State v. Peagler,

,

(1996), paragraph one of the

syllabus; State v. Blankenship,

,

(1988).

Accord State v. Gipson, 1st Dist. Hamilton Nos. C-960867 and C-960881,

, *7 (Sept. 26, 1997) (affirming a lower court’s judgment that was “right for

the wrong reason”). Nor could the court have granted relief under its jurisdiction to

correct a void sentence, because the alleged sentencing errors would not have

rendered Merritt’s sentences void. Accordingly, we affirm the court’s judgment

dismissing his “Motion in Support of Petition to Vacate or Set Aside Void Sentence.”

Judgment affirmed.

MYERS, P.J., and BERGERON, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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