[Cite as State v. Studgions, 2016-Ohio-5236.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103546
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ANTOINE B. STUDGIONS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-521554-A
BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 4, 2016 ATTORNEY FOR APPELLANT
Kelly Zacharias 5546 Pearl Road Parma, Ohio 44129
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Brett Hammond T. Allan Regas Assistant Prosecuting Attorneys The Justice Center, 8th and 9th Floors 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1. Defendant-appellant, Antoine B. Studgions (“Studgions”), appeals
the sentence he received in response to his motion to correct his sentence. He assigns the
following sole assignment of error:
1. The trial court committed error when it failed to determine if two of appellant’s convictions were allied offenses that merged.
{¶2} We find no merit to the appeal and affirm the trial court’s judgment.
I. Facts and Procedural History
{¶3} In June 2009, Studgions pleaded guilty to one count each of attempted
felonious assault, domestic violence, and drug possession. The charges resulted from an
incident in which police observed Studgions kicking and punching his pregnant
girlfriend, who was lying on the ground in the fetal position. Studgions and his girlfriend
had been in a relationship for six years and had two children together in addition to their
unborn child. Studgions was not sentenced as scheduled in July 2009 because he was in
federal custody.
{¶4} Three years later, in September 2012, Studgions was remanded from a federal
prison for sentencing in this case. The court sentenced Studgions to five years on the
attempted felonious assault conviction, 12 months on the drug possession conviction, and
six months in the county jail on the domestic violence conviction. The court ordered the sentences on the attempted felonious assault and drug possession convictions to be served
consecutively for an aggregate six-year prison term.
{¶5} Studgions did not appeal his convictions or sentence, but later moved, pro se,
to correct an unlawful sentence in June 2015. He argued his six-year prison sentence
was void as contrary to law because the five-year prison term on the attempted felonious
assault charge exceeded the permissible statutory range for a third-degree felony. The
trial court granted Studgions’s motion, resentenced him to 36 months in prison on the
attempted felonious assault conviction and reimposed the six- and 12-month prison terms
on the drug possession and domestic violence convictions. Again, the court ordered the
sentences on the attempted felonious assault and drug possession convictions to be served
consecutively, for an aggregate 48-month sentence.
{¶6} Studgions now appeals his sentence.
II. Law and Analysis
{¶7} In his sole assignment of error, Studgions argues the trial court erroneously
failed to merge allied offenses when it resentenced him. He contends the domestic
violence and attempted felonious assault convictions should have merged because they
both arose from the same conduct. The state contends Studgions’s allied offenses
argument is barred by the doctrine of res judicata.
{¶8} Under the doctrine of res judicata, a final judgment of conviction bars the
convicted defendant 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 that resulted in the conviction. State v.
Qunnie, 8th Dist. Cuyahoga No. 100317, 2014-Ohio-1435, ¶ 11. Therefore, any issue
that could have been raised on direct appeal and was not is barred by res judicata and not
subject to review in subsequent proceedings. State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.
{¶9} Generally, sentencing errors do not render a judgment void because such
errors have no effect upon the trial court’s jurisdiction. State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 7. However, “[i]f a judgment is void, the
doctrine of res judicata has no application, and the propriety of the decision can be
challenged on direct appeal or by collateral attack.” State v. Holmes, 8th Dist. Cuyahoga
No. 100388, 2014-Ohio-3816, citing Fischer at paragraph one of the syllabus (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 collateral attack”.).
{¶10} A sentence that is unauthorized by law is void. State v. Billiter, 134 Ohio
St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 10. A void sentence is a nullity; “‘[i]t is
as though such proceedings had never occurred * * * and the parties are in the same
position as if there had been no judgment.’” Id. at ¶ 10, quoting State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 12, overruled on other grounds, State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
{¶11} The trial court originally sentenced Studgions to a five-year prison term on
the attempted felonious assault conviction, which was a third-degree felony. R.C. 2929.14(A)(3), which governs basic prison terms, provides that the maximum prison term
for most third-degree felonies, including Studgions’ attempted felonious assault
conviction, is 36 months. Therefore, his original five-year sentence exceeded the
permissible statutory range, was not authorized by law, and was void.
{¶12} Since Studgions original sentence was void and it is as if it never occurred,
the sentence he now appeals is reviewable and is not barred by res judicata. However,
Studgions failed to object to the separate punishments at sentencing and has forfeited all
but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶
3.
{¶13} Crim.R. 52(B) authorizes appellate courts to correct “‘[p]lain errors or
defects affecting substantial rights’ notwithstanding the accused’s failure to meet his
obligation to bring those errors to the attention of the trial court.” Rogers at ¶ 22,
quoting Crim.R. 52(B). To prevail under a plain error analysis, the appellant bears the
burden of demonstrating that the trial court “deviated from a legal rule,” or that there was
“an ‘obvious’ defect in the proceedings” that resulted in prejudice, i.e., the outcome of the
proceedings would have been different. Id. at ¶ 17-22, quoting State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶14} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio
Constitution, which prohibits multiple punishments for the same offense. State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23.
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[Cite as State v. Studgions, 2016-Ohio-5236.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103546
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ANTOINE B. STUDGIONS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-521554-A
BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 4, 2016 ATTORNEY FOR APPELLANT
Kelly Zacharias 5546 Pearl Road Parma, Ohio 44129
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Brett Hammond T. Allan Regas Assistant Prosecuting Attorneys The Justice Center, 8th and 9th Floors 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1. Defendant-appellant, Antoine B. Studgions (“Studgions”), appeals
the sentence he received in response to his motion to correct his sentence. He assigns the
following sole assignment of error:
1. The trial court committed error when it failed to determine if two of appellant’s convictions were allied offenses that merged.
{¶2} We find no merit to the appeal and affirm the trial court’s judgment.
I. Facts and Procedural History
{¶3} In June 2009, Studgions pleaded guilty to one count each of attempted
felonious assault, domestic violence, and drug possession. The charges resulted from an
incident in which police observed Studgions kicking and punching his pregnant
girlfriend, who was lying on the ground in the fetal position. Studgions and his girlfriend
had been in a relationship for six years and had two children together in addition to their
unborn child. Studgions was not sentenced as scheduled in July 2009 because he was in
federal custody.
{¶4} Three years later, in September 2012, Studgions was remanded from a federal
prison for sentencing in this case. The court sentenced Studgions to five years on the
attempted felonious assault conviction, 12 months on the drug possession conviction, and
six months in the county jail on the domestic violence conviction. The court ordered the sentences on the attempted felonious assault and drug possession convictions to be served
consecutively for an aggregate six-year prison term.
{¶5} Studgions did not appeal his convictions or sentence, but later moved, pro se,
to correct an unlawful sentence in June 2015. He argued his six-year prison sentence
was void as contrary to law because the five-year prison term on the attempted felonious
assault charge exceeded the permissible statutory range for a third-degree felony. The
trial court granted Studgions’s motion, resentenced him to 36 months in prison on the
attempted felonious assault conviction and reimposed the six- and 12-month prison terms
on the drug possession and domestic violence convictions. Again, the court ordered the
sentences on the attempted felonious assault and drug possession convictions to be served
consecutively, for an aggregate 48-month sentence.
{¶6} Studgions now appeals his sentence.
II. Law and Analysis
{¶7} In his sole assignment of error, Studgions argues the trial court erroneously
failed to merge allied offenses when it resentenced him. He contends the domestic
violence and attempted felonious assault convictions should have merged because they
both arose from the same conduct. The state contends Studgions’s allied offenses
argument is barred by the doctrine of res judicata.
{¶8} Under the doctrine of res judicata, a final judgment of conviction bars the
convicted defendant 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 that resulted in the conviction. State v.
Qunnie, 8th Dist. Cuyahoga No. 100317, 2014-Ohio-1435, ¶ 11. Therefore, any issue
that could have been raised on direct appeal and was not is barred by res judicata and not
subject to review in subsequent proceedings. State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.
{¶9} Generally, sentencing errors do not render a judgment void because such
errors have no effect upon the trial court’s jurisdiction. State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 7. However, “[i]f a judgment is void, the
doctrine of res judicata has no application, and the propriety of the decision can be
challenged on direct appeal or by collateral attack.” State v. Holmes, 8th Dist. Cuyahoga
No. 100388, 2014-Ohio-3816, citing Fischer at paragraph one of the syllabus (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 collateral attack”.).
{¶10} A sentence that is unauthorized by law is void. State v. Billiter, 134 Ohio
St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 10. A void sentence is a nullity; “‘[i]t is
as though such proceedings had never occurred * * * and the parties are in the same
position as if there had been no judgment.’” Id. at ¶ 10, quoting State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 12, overruled on other grounds, State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
{¶11} The trial court originally sentenced Studgions to a five-year prison term on
the attempted felonious assault conviction, which was a third-degree felony. R.C. 2929.14(A)(3), which governs basic prison terms, provides that the maximum prison term
for most third-degree felonies, including Studgions’ attempted felonious assault
conviction, is 36 months. Therefore, his original five-year sentence exceeded the
permissible statutory range, was not authorized by law, and was void.
{¶12} Since Studgions original sentence was void and it is as if it never occurred,
the sentence he now appeals is reviewable and is not barred by res judicata. However,
Studgions failed to object to the separate punishments at sentencing and has forfeited all
but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶
3.
{¶13} Crim.R. 52(B) authorizes appellate courts to correct “‘[p]lain errors or
defects affecting substantial rights’ notwithstanding the accused’s failure to meet his
obligation to bring those errors to the attention of the trial court.” Rogers at ¶ 22,
quoting Crim.R. 52(B). To prevail under a plain error analysis, the appellant bears the
burden of demonstrating that the trial court “deviated from a legal rule,” or that there was
“an ‘obvious’ defect in the proceedings” that resulted in prejudice, i.e., the outcome of the
proceedings would have been different. Id. at ¶ 17-22, quoting State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶14} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio
Constitution, which prohibits multiple punishments for the same offense. State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. Under R.C. 2941.25(A), when the same conduct by the defendant “can be 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.” However,
R.C. 2941.25(B) provides that
[w]here the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶15} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Ohio Supreme Court held that if a defendant’s conduct consisted of multiple offenses, the
defendant can be convicted of all of the offenses if any one of the following is true (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows the offenses were
committed separately, or (3) the conduct shows the offenses were committed with
separate animus. Id. at paragraph three of the syllabus, citing R.C. 2941.25(B). Two or
more offenses are of dissimilar import within the meaning of R.C. 2941.25(B) “when the
defendant’s conduct constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.” Id. at paragraph two of the
syllabus.
{¶16} Studgions was convicted of domestic violence and attempted felonious
assault for kicking and punching his pregnant girlfriend. Studgions’ conduct was
directed at two victims; his girlfriend and her unborn child. Even if the trial court had
considered the merger of allied offenses on the record, the offenses would not have merged. Studgions’s conduct related to two victims with a separate animus to each.
Therefore, Studgions fails to show that the failure to merge allied offenses was plain
error.
{¶17} The sole assignment of error is overruled.
{¶18} The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR