[Cite as State v. Simmons, 2014-Ohio-1014.] STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 JE 15 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) MICHAEL SIMMONS ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 05 CR 130
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane M. Hanlin Prosecuting Attorney Jefferson County Justice Center 16001 State Route 7 Steubenville, Ohio 43952
For Defendant-Appellant: Michael Simmons, Pro se #491-890 Warren Correctional Institution 5787 State Route 63 P.O. Box 120 Lebanon, Ohio 45036
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 13, 2014 [Cite as State v. Simmons, 2014-Ohio-1014.] WAITE, J.
{¶1} Appellant Michael Simmons appeals the judgment of the Jefferson
County Court of Common Pleas overruling a motion to vacate his sentence.
Appellant argues that three of his four convictions were allied offenses of similar
import and should have merged, and that his sentence is therefore void. Appellant
bases his argument on State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061. Appellant’s arguments are not persuasive. First, errors in determining
allied offenses do not result in a void sentence. State v. Gessner, 7th Dist. No. 12
MA 182, 2013-Ohio-3999, ¶25. Second, any errors Appellant may have raised
regarding allied offenses are now res judicata due to Appellant's many prior appeals
in this case. Appellant appealed his original sentence in 2006, and did not raise this
issue. Nor did Appellant raise the issue in his second appeal in 2007, a prior motion
to vacate his sentence, or in a prior postconviction relief petition. This present appeal
is based on yet another motion to vacate filed on May 17, 2013, which again raised
sentencing errors and which was also denied. It is in this last motion that Appellant
raised for the first time the issue of alleged allied offenses errors. Based on the
principles of res judicata his assignment of error is overruled and the judgment of the
trial court is affirmed.
Brief History of the Case
{¶2} The facts of this case were set out at length in State v. Simmons, 7th
Dist. No. 06-JE-4, 2007-Ohio-1570 (Simmons 1), ¶2-3. On August 11, 2005,
Appellant sold crack cocaine to a confidential informant. The sale took place less
than 500 feet from Steubenville High School, and there was a juvenile in the -2-
passenger seat of Appellant's vehicle at the time of the sale. Appellant was
subsequently convicted by the jury on one count of corrupting a minor, a first-degree
felony in violation of R.C. 2925.02(A)(4)(c)(C)(1), with a specification that the offense
was committed in the vicinity of a school; one count of trafficking in crack cocaine in
an amount that equals or exceeds one gram but is less than five grams, a third-
degree felony in violation of R.C. 2925.03(A)(1)(C)(4)(c), with a specification that the
offense was committed in the vicinity of a school or a juvenile; one count of tampering
with evidence, a third-degree felony in violation of R.C. 2921.12(A)(1); and one count
of possession of crack cocaine in an amount that equals or exceeds one gram but is
less than five grams, a fourth-degree felony in violation of R.C. 2925.11(A)(C)(4)(b).
{¶3} In a judgment entry filed January 13, 2006, the trial court sentenced
Appellant to a total of 15 years in prison (eight years for corrupting a minor, three
years for trafficking in crack cocaine, three years for tampering with evidence, and 12
months for possession of crack cocaine). Appellant appealed, and we affirmed his
conviction but vacated his sentence and remanded the matter for resentencing based
on State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Simmons 1 at
¶174. On remand, the trial court held a resentencing hearing. On April 19, 2007, the
court imposed the same 15-year sentence. Appellant filed an appeal from this
resentencing judgment, and the sentence was affirmed. State v. Simmons, 7th Dist.
No. 07-JE-22, 2008-Ohio-3337 (Simmons 2).
{¶4} On October 26, 2006, Appellant filed a petition for postconviction relief.
The trial court overruled the petition on May 8, 2007 and the judgment was not
appealed. -3-
{¶5} On December 11, 2009, Appellant filed a motion to vacate his sentence
due to errors in the imposition of postrelease control. On January 27, 2010, the court
reissued the conviction and sentence to correct any errors regarding postrelease
control language. Appellant filed another appeal, and the sentence was affirmed.
State v. Simmons, 7th Dist. No. 10-JE-4, 2011-Ohio-2625 (Simmons 3).
{¶6} On May 17, 2013, Appellant filed yet another motion to vacate his
sentence, this time on the theory that the trial court failed to merge allied offenses
pursuant to R.C. 2941.25 as interpreted by Johnson. The trial court denied the
motion on May 22, 2013. This timely appeal followed.
ASSIGNMENT OF ERROR
The court of common pleas committed plain error and exposed
Defendant-Appellant to multiple punishments for the same offense in
violation of his rights under the Double Jeopardy Clauses of the Fifth
and Fourteenth Amendments to the United States Constitution and
Article I, § 10 of the Ohio Constitution when it failed to merge the guilty
verdicts on the counts of corrupting another w/ drugs, trafficking in
crack cocaine, and possession of crack cocaine pursuant to
R.C.2941.25 and, instead, entered separate convictions and
consecutive prison terms thereon.
{¶7} Appellant argues that the trial court exposed him to multiple
punishments for the same offense by not merging his convictions as allied offenses
pursuant to R.C. 2941.25 and State v. Johnson, supra. “Allied offenses” are defined
by R.C. 2941.25, which provides: “Where the same conduct by defendant can be -4-
construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be
convicted of only one.” R.C. 2941.25(A). Determining whether offenses are allied
within the meaning of the statute is a two-step process. A court must first determine
whether, when the elements of the two crimes are compared, the elements
“correspond to such a degree that the commission of one crime will result in the
commission of the other.” State v. Rance, 85 Ohio St.3d 632, 638, 710 N.E.2d 699
(1999) (reversed on other grounds). When conducting this analysis a court must
consider both the elements of the offenses and the conduct of the accused.
Johnson, supra, at paragraph one of the syllabus. If the two crimes are allied
offenses, then the court must consider whether the offenses were committed
separately, or if the defendant has separate animus for each offense.
{¶8} An argument raising the merger of allied offenses is essentially a
double jeopardy argument. “R.C. 2941.25 is a prophylactic statute that protects a
criminal defendant's rights under the Double Jeopardy Clauses of the United States
and Ohio Constitutions.” Johnson at ¶45. A motion to vacate on double jeopardy
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[Cite as State v. Simmons, 2014-Ohio-1014.] STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 JE 15 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) MICHAEL SIMMONS ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 05 CR 130
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane M. Hanlin Prosecuting Attorney Jefferson County Justice Center 16001 State Route 7 Steubenville, Ohio 43952
For Defendant-Appellant: Michael Simmons, Pro se #491-890 Warren Correctional Institution 5787 State Route 63 P.O. Box 120 Lebanon, Ohio 45036
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 13, 2014 [Cite as State v. Simmons, 2014-Ohio-1014.] WAITE, J.
{¶1} Appellant Michael Simmons appeals the judgment of the Jefferson
County Court of Common Pleas overruling a motion to vacate his sentence.
Appellant argues that three of his four convictions were allied offenses of similar
import and should have merged, and that his sentence is therefore void. Appellant
bases his argument on State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061. Appellant’s arguments are not persuasive. First, errors in determining
allied offenses do not result in a void sentence. State v. Gessner, 7th Dist. No. 12
MA 182, 2013-Ohio-3999, ¶25. Second, any errors Appellant may have raised
regarding allied offenses are now res judicata due to Appellant's many prior appeals
in this case. Appellant appealed his original sentence in 2006, and did not raise this
issue. Nor did Appellant raise the issue in his second appeal in 2007, a prior motion
to vacate his sentence, or in a prior postconviction relief petition. This present appeal
is based on yet another motion to vacate filed on May 17, 2013, which again raised
sentencing errors and which was also denied. It is in this last motion that Appellant
raised for the first time the issue of alleged allied offenses errors. Based on the
principles of res judicata his assignment of error is overruled and the judgment of the
trial court is affirmed.
Brief History of the Case
{¶2} The facts of this case were set out at length in State v. Simmons, 7th
Dist. No. 06-JE-4, 2007-Ohio-1570 (Simmons 1), ¶2-3. On August 11, 2005,
Appellant sold crack cocaine to a confidential informant. The sale took place less
than 500 feet from Steubenville High School, and there was a juvenile in the -2-
passenger seat of Appellant's vehicle at the time of the sale. Appellant was
subsequently convicted by the jury on one count of corrupting a minor, a first-degree
felony in violation of R.C. 2925.02(A)(4)(c)(C)(1), with a specification that the offense
was committed in the vicinity of a school; one count of trafficking in crack cocaine in
an amount that equals or exceeds one gram but is less than five grams, a third-
degree felony in violation of R.C. 2925.03(A)(1)(C)(4)(c), with a specification that the
offense was committed in the vicinity of a school or a juvenile; one count of tampering
with evidence, a third-degree felony in violation of R.C. 2921.12(A)(1); and one count
of possession of crack cocaine in an amount that equals or exceeds one gram but is
less than five grams, a fourth-degree felony in violation of R.C. 2925.11(A)(C)(4)(b).
{¶3} In a judgment entry filed January 13, 2006, the trial court sentenced
Appellant to a total of 15 years in prison (eight years for corrupting a minor, three
years for trafficking in crack cocaine, three years for tampering with evidence, and 12
months for possession of crack cocaine). Appellant appealed, and we affirmed his
conviction but vacated his sentence and remanded the matter for resentencing based
on State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Simmons 1 at
¶174. On remand, the trial court held a resentencing hearing. On April 19, 2007, the
court imposed the same 15-year sentence. Appellant filed an appeal from this
resentencing judgment, and the sentence was affirmed. State v. Simmons, 7th Dist.
No. 07-JE-22, 2008-Ohio-3337 (Simmons 2).
{¶4} On October 26, 2006, Appellant filed a petition for postconviction relief.
The trial court overruled the petition on May 8, 2007 and the judgment was not
appealed. -3-
{¶5} On December 11, 2009, Appellant filed a motion to vacate his sentence
due to errors in the imposition of postrelease control. On January 27, 2010, the court
reissued the conviction and sentence to correct any errors regarding postrelease
control language. Appellant filed another appeal, and the sentence was affirmed.
State v. Simmons, 7th Dist. No. 10-JE-4, 2011-Ohio-2625 (Simmons 3).
{¶6} On May 17, 2013, Appellant filed yet another motion to vacate his
sentence, this time on the theory that the trial court failed to merge allied offenses
pursuant to R.C. 2941.25 as interpreted by Johnson. The trial court denied the
motion on May 22, 2013. This timely appeal followed.
ASSIGNMENT OF ERROR
The court of common pleas committed plain error and exposed
Defendant-Appellant to multiple punishments for the same offense in
violation of his rights under the Double Jeopardy Clauses of the Fifth
and Fourteenth Amendments to the United States Constitution and
Article I, § 10 of the Ohio Constitution when it failed to merge the guilty
verdicts on the counts of corrupting another w/ drugs, trafficking in
crack cocaine, and possession of crack cocaine pursuant to
R.C.2941.25 and, instead, entered separate convictions and
consecutive prison terms thereon.
{¶7} Appellant argues that the trial court exposed him to multiple
punishments for the same offense by not merging his convictions as allied offenses
pursuant to R.C. 2941.25 and State v. Johnson, supra. “Allied offenses” are defined
by R.C. 2941.25, which provides: “Where the same conduct by defendant can be -4-
construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be
convicted of only one.” R.C. 2941.25(A). Determining whether offenses are allied
within the meaning of the statute is a two-step process. A court must first determine
whether, when the elements of the two crimes are compared, the elements
“correspond to such a degree that the commission of one crime will result in the
commission of the other.” State v. Rance, 85 Ohio St.3d 632, 638, 710 N.E.2d 699
(1999) (reversed on other grounds). When conducting this analysis a court must
consider both the elements of the offenses and the conduct of the accused.
Johnson, supra, at paragraph one of the syllabus. If the two crimes are allied
offenses, then the court must consider whether the offenses were committed
separately, or if the defendant has separate animus for each offense.
{¶8} An argument raising the merger of allied offenses is essentially a
double jeopardy argument. “R.C. 2941.25 is a prophylactic statute that protects a
criminal defendant's rights under the Double Jeopardy Clauses of the United States
and Ohio Constitutions.” Johnson at ¶45. A motion to vacate on double jeopardy
grounds subsequent to a direct appeal is typically treated as a petition for
postconviction relief. State v. Sturdivant, 8th Dist. No. 98747, 2013-Ohio-584, ¶7.
When the issue is framed as an assertion that the sentence is void due to lack of
subject matter jurisdiction, even if the specific issue at hand is a failure to merge
allied offenses, the rules governing postconviction relief are sidestepped and the
voidness question is immediately addressed. This is presumably due to the fact that
a void judgment may be challenged at any time. State v. Billiter, 134 Ohio St.3d 103, -5-
2012-Ohio-5144, 980 N.E.2d 960, ¶7. Appellant has alleged that his sentence is void
under R.C. 2941.25. Appellant is mistaken.
{¶9} We have held that “errors in merging charges are not jurisdictional and
do not result in void convictions or sentences.” State v. Gessner, 7th Dist. No. 12 MA
182, 2013-Ohio-3999, ¶23. That said, failure to properly merge allied offenses could
result in a sentence that is potentially voidable rather than void ab initio, but voidable
errors must be raised on direct appeal or else they are waived. Id. at ¶23-24; see
also, State v. Norris, 7th Dist. No. 11 MO 4, 2013-Ohio-866. Allied offense claims are
barred by the doctrine of res judicata where they could have been raised on direct
appeal and were not. Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894
N.E.2d 44, ¶10-11; see also, Billiter v. Banks, 7th Dist. No. 12NO397, 2012-Ohio-
4556, ¶6-7. A defendant has an adequate remedy for any errors relating to allied
offenses by way of direct appeal. Id. This record reflects that Appellant could have
raised his allied offense argument on direct appeal, in his prior motions to vacate, or
in his prior petition for postconviction relief. Therefore, the error he raises is res
judicata. His assignment of error is overruled and the judgment of the trial court is
affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.