[Cite as State v. Franklin, 2018-Ohio-2904.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2017 CA 00170 DONALD ALBERT FRANKLIN, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2003 CR 01311
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 23, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO WAYNE E. GRAHAM PROSECUTING ATTORNEY 4450 Belden Village Street, NW RONALD MARK CALDWELL Suite 703 ASSISTANT PROSECUTOR Canton, Ohio 44718 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2017 CA 00170 2
Wise, John, P. J.
{¶1} Defendant-Appellant Donald A. Franklin, Jr., appeals from the decision of
the Court of Common Pleas, Stark County, which resentenced him, pursuant to R.C.
2929.191, on his 2003 felony convictions. Appellee is the State of Ohio. The relevant facts
leading to this appeal are as follows.
{¶2} On November 26, 2003, appellant was sentenced by the Stark County Court
of Common Pleas to a total of twenty years in prison for one count of aggravated burglary,
a felony of the first degree (R.C. 2911.11(A)(1)), and one count of attempt to commit
murder, a felony of the first degree (R.C. 2923.02(A)). On direct appeal, appellant raised
issues of manifest weight of the evidence and sufficiency of the evidence, and he
challenged the imposition of consecutive maximum sentences. This Court affirmed on
October 4, 2004. See State v. Franklin, 5th Dist. Stark No. 2003CA00442, 2004–Ohio–
5398. Appellant was thereafter unsuccessful in obtaining review in the Ohio Supreme
Court via a delayed appeal.
{¶3} On February 1, 2016, appellant filed a “Motion to Vacate Void Judgment,”
arguing (1) his post-release control (“PRC”) was improperly imposed and (2) his two
aforesaid offenses should have been merged pursuant to R. C. 2941.25. The State of
Ohio filed a response to appellant’s motion on February 25, 2016. Appellant filed a reply
on March 9, 2016.
{¶4} The trial court conducted a video-conference resentencing on April 1, 2016
for purposes of PRC notification. Stark County, Case No. 2017 CA 00170 3
{¶5} Via a judgment entry issued April 19, 2016, the trial court noted it had
conducted the aforesaid video-conference resentencing hearing, and further ruled that
appellant’s remaining claim as to allied offenses was not well-taken.
{¶6} On April 21, 2016, the trial court issued a resentencing entry, pursuant to
R.C. 2929.191, stating inter alia that appellant had been advised of a five-year mandatory
period of PRC on each charge.
{¶7} Appellant subsequently filed pro se notices of appeal, indicating his intent
to challenge both the resentencing and the denial of his allied offenses claim. On June
10, 2016, the trial court appointed appellate counsel for appellant, but only as to his
challenge to resentencing.
{¶8} Appellant thereafter presented this Court with two assigned errors. First,
appellant argued that the trial court had erred as a matter of law in failing to appoint
counsel for the resentencing hearing. Secondly, appellant maintained that the trial court
had erred as a matter of law in failing to appoint appellate counsel for an appeal of the
trial court's denial of appellant's motion to vacate his sentence, as it pertained to the issue
of allied offenses.
{¶9} Upon review, we found merit in appellant’s contention that his right to
counsel had been violated during the video conference resentencing hearing of April, 1,
2016. We noted that the State at that time conceded the validity of appellant's argument.
We then found appellant’s remaining assigned error to be premature. Therefore, in an
opinion issued June 12, 2017, we vacated the portion of the resentencing entered by the
trial court regarding post-release control contained in the April 21, 2016 judgment entry, Stark County, Case No. 2017 CA 00170 4
and we remanded the case to the trial court for further proceedings. See State v. Franklin,
5th Dist. Stark No. 2016CA00083, 2017-Ohio-5551.
{¶10} On August 11, 2017, the trial court conducted another resentencing hearing,
pursuant to this Court's aforesaid remand. Appellant was accompanied by his appointed
counsel. Via a judgment entry issued August 31, 2017, the trial court maintained
appellant’s twenty-year aggregate prison term. The trial court also again stated that
appellant had been advised of a five-year mandatory period of PRC on each charge. The
court also rejected appellant’s allied-offense argument, finding that the offenses of
aggravated burglary and attempted murder were not allied offenses of similar import per
R.C. 2941.25.
{¶11} On September 11, 2017, appellant filed a notice of appeal. He herein raises
the following sole Assignment of Error:
{¶12} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT
APPELLANT’S CONVICTIONS FOR AGGRAVATED BURGLARY AND ATTEMPTED
MURDER WERE NOT ALLIED OFFENSES.”
I.
{¶13} In his sole Assignment of Error, appellant challenges the trial court’s finding
that his convictions for attempted murder and aggravated burglary were not allied
offenses of similar import.
{¶14} As indicated in our recitation of the procedural history of this case, supra,
appellant sought review of the issue of merger of his 2003 offenses (along with the issue
of imposition of post-release control) via his “motion to vacate void judgment” filed with
the trial court on February 1, 2016, more than twelve years after he was sentenced. Stark County, Case No. 2017 CA 00170 5
{¶15} In its development of the “void sentence” doctrine, the Ohio Supreme Court
has recognized: “* * * [I]n the normal course, sentencing errors are not jurisdictional and
do not render a judgment void. * * * But in the modern era, Ohio law has consistently
recognized a narrow, and imperative, exception to that general rule: a sentence that is
not in accordance with statutorily mandated terms is void.” State v. Fischer, 128 Ohio
St.3d 92, 94, 2010–Ohio–6238, ¶ 7–¶ 8. But the rule of Fischer was supposed to be
limited to “a discrete vein of cases: those in which a court does not properly impose a
statutorily mandated period of postrelease control.” See Fischer at ¶ 31.
{¶16} The Ohio Supreme Court, in State v. Williams, 148 Ohio St.3d 403, 2016-
Ohio-7658, 71 N.E.3d 234, subsequently extended Fischer somewhat by holding that the
imposition of separate sentences for allied offenses of similar import is contrary to law
and such sentences are void. As such, res judicata does not preclude a court from
correcting those sentences after a direct appeal. Id. at ¶ 2. Nonetheless, the Court
reiterated that void sentence jurisprudence does not apply to challenges to a sentencing
court's basic determination as to “whether offenses are allied.” Id. at ¶ 24. The Court thus
stated 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,
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[Cite as State v. Franklin, 2018-Ohio-2904.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2017 CA 00170 DONALD ALBERT FRANKLIN, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2003 CR 01311
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 23, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO WAYNE E. GRAHAM PROSECUTING ATTORNEY 4450 Belden Village Street, NW RONALD MARK CALDWELL Suite 703 ASSISTANT PROSECUTOR Canton, Ohio 44718 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2017 CA 00170 2
Wise, John, P. J.
{¶1} Defendant-Appellant Donald A. Franklin, Jr., appeals from the decision of
the Court of Common Pleas, Stark County, which resentenced him, pursuant to R.C.
2929.191, on his 2003 felony convictions. Appellee is the State of Ohio. The relevant facts
leading to this appeal are as follows.
{¶2} On November 26, 2003, appellant was sentenced by the Stark County Court
of Common Pleas to a total of twenty years in prison for one count of aggravated burglary,
a felony of the first degree (R.C. 2911.11(A)(1)), and one count of attempt to commit
murder, a felony of the first degree (R.C. 2923.02(A)). On direct appeal, appellant raised
issues of manifest weight of the evidence and sufficiency of the evidence, and he
challenged the imposition of consecutive maximum sentences. This Court affirmed on
October 4, 2004. See State v. Franklin, 5th Dist. Stark No. 2003CA00442, 2004–Ohio–
5398. Appellant was thereafter unsuccessful in obtaining review in the Ohio Supreme
Court via a delayed appeal.
{¶3} On February 1, 2016, appellant filed a “Motion to Vacate Void Judgment,”
arguing (1) his post-release control (“PRC”) was improperly imposed and (2) his two
aforesaid offenses should have been merged pursuant to R. C. 2941.25. The State of
Ohio filed a response to appellant’s motion on February 25, 2016. Appellant filed a reply
on March 9, 2016.
{¶4} The trial court conducted a video-conference resentencing on April 1, 2016
for purposes of PRC notification. Stark County, Case No. 2017 CA 00170 3
{¶5} Via a judgment entry issued April 19, 2016, the trial court noted it had
conducted the aforesaid video-conference resentencing hearing, and further ruled that
appellant’s remaining claim as to allied offenses was not well-taken.
{¶6} On April 21, 2016, the trial court issued a resentencing entry, pursuant to
R.C. 2929.191, stating inter alia that appellant had been advised of a five-year mandatory
period of PRC on each charge.
{¶7} Appellant subsequently filed pro se notices of appeal, indicating his intent
to challenge both the resentencing and the denial of his allied offenses claim. On June
10, 2016, the trial court appointed appellate counsel for appellant, but only as to his
challenge to resentencing.
{¶8} Appellant thereafter presented this Court with two assigned errors. First,
appellant argued that the trial court had erred as a matter of law in failing to appoint
counsel for the resentencing hearing. Secondly, appellant maintained that the trial court
had erred as a matter of law in failing to appoint appellate counsel for an appeal of the
trial court's denial of appellant's motion to vacate his sentence, as it pertained to the issue
of allied offenses.
{¶9} Upon review, we found merit in appellant’s contention that his right to
counsel had been violated during the video conference resentencing hearing of April, 1,
2016. We noted that the State at that time conceded the validity of appellant's argument.
We then found appellant’s remaining assigned error to be premature. Therefore, in an
opinion issued June 12, 2017, we vacated the portion of the resentencing entered by the
trial court regarding post-release control contained in the April 21, 2016 judgment entry, Stark County, Case No. 2017 CA 00170 4
and we remanded the case to the trial court for further proceedings. See State v. Franklin,
5th Dist. Stark No. 2016CA00083, 2017-Ohio-5551.
{¶10} On August 11, 2017, the trial court conducted another resentencing hearing,
pursuant to this Court's aforesaid remand. Appellant was accompanied by his appointed
counsel. Via a judgment entry issued August 31, 2017, the trial court maintained
appellant’s twenty-year aggregate prison term. The trial court also again stated that
appellant had been advised of a five-year mandatory period of PRC on each charge. The
court also rejected appellant’s allied-offense argument, finding that the offenses of
aggravated burglary and attempted murder were not allied offenses of similar import per
R.C. 2941.25.
{¶11} On September 11, 2017, appellant filed a notice of appeal. He herein raises
the following sole Assignment of Error:
{¶12} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT
APPELLANT’S CONVICTIONS FOR AGGRAVATED BURGLARY AND ATTEMPTED
MURDER WERE NOT ALLIED OFFENSES.”
I.
{¶13} In his sole Assignment of Error, appellant challenges the trial court’s finding
that his convictions for attempted murder and aggravated burglary were not allied
offenses of similar import.
{¶14} As indicated in our recitation of the procedural history of this case, supra,
appellant sought review of the issue of merger of his 2003 offenses (along with the issue
of imposition of post-release control) via his “motion to vacate void judgment” filed with
the trial court on February 1, 2016, more than twelve years after he was sentenced. Stark County, Case No. 2017 CA 00170 5
{¶15} In its development of the “void sentence” doctrine, the Ohio Supreme Court
has recognized: “* * * [I]n the normal course, sentencing errors are not jurisdictional and
do not render a judgment void. * * * But in the modern era, Ohio law has consistently
recognized a narrow, and imperative, exception to that general rule: a sentence that is
not in accordance with statutorily mandated terms is void.” State v. Fischer, 128 Ohio
St.3d 92, 94, 2010–Ohio–6238, ¶ 7–¶ 8. But the rule of Fischer was supposed to be
limited to “a discrete vein of cases: those in which a court does not properly impose a
statutorily mandated period of postrelease control.” See Fischer at ¶ 31.
{¶16} The Ohio Supreme Court, in State v. Williams, 148 Ohio St.3d 403, 2016-
Ohio-7658, 71 N.E.3d 234, subsequently extended Fischer somewhat by holding that the
imposition of separate sentences for allied offenses of similar import is contrary to law
and such sentences are void. As such, res judicata does not preclude a court from
correcting those sentences after a direct appeal. Id. at ¶ 2. Nonetheless, the Court
reiterated that void sentence jurisprudence does not apply to challenges to a sentencing
court's basic determination as to “whether offenses are allied.” Id. at ¶ 24. The Court thus
stated 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,
emphasis added.
{¶17} Recently, in State ex rel. Cowan v. Gallagher, --- N.E.3d ---, 2018-Ohio-
1463, the Ohio Supreme Court clarified its Williams holding as follows: “*** [A] judgment
of sentence is void in one particular circumstance: when the trial court determines that Stark County, Case No. 2017 CA 00170 6
multiple counts should be merged but then proceeds to impose separate sentences in
disregard of its own ruling.” Id. at ¶ 20, citing Williams at ¶¶ 28–29.
{¶18} In the case sub judice, our present review of the 2003 sentencing entry
reveals the trial court was silent as to any finding regarding allied offenses. As such, we
are compelled to apply the above rationale of the Ohio Supreme Court set forth in Williams
and Cowan. Accordingly, we hold appellant’s 2016 challenge to his sentencing based on
an allied offense theory could have been raised as part of his direct appeal, and his
present claim is therefore barred by res judicata.
{¶19} We do not wish to ignore that the trial court, upon appellant’s renewed
request to consider merger at the August 11, 2017 hearing, did render a ruling in the
August 31, 2017 judgment entry under appeal that appellant’s offenses of aggravated
burglary and attempted murder were not allied offenses of similar import per R.C.
2941.25. However, while we do not seek to fault the trial court for doing so, “[a] limited
resentencing must cover only the imposition of post-release control and the remainder of
the sentence is valid under the principles of res judicata.” State v. Valentine, 5th Dist.
Ashland No. 15-COA-020, 2015-Ohio-5396, ¶ 14. Similarly, “[b]ecause resentencing [to
correct a PRC error] is limited to the imposition of post-release control, any additional
action taken by the trial court with respect to the sentence is a nullity.” State v. Stiggers,
9th Dist. Summit No. 25486, 2011-Ohio-4225, ¶ 6, citing State v. Cool, 9th Dist. Summit
Nos. 25135 & 25214, 2011–Ohio–1560, ¶¶ 4–6.
{¶20} Accordingly, under the circumstances of the case sub judice, the trial court,
following our remand, was not obligated to address the merits of merger of offenses at Stark County, Case No. 2017 CA 00170 7
all, and appellant therefore cannot show prejudicial error in the court’s decision to reject
same.
{¶21} Appellant’s sole Assignment of Error is therefore overruled.
{¶22} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, John, P. J.
Gwin, J., and
Wise, Earle, J., concur.
JWW/d 0703