Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-472337
FOR APPELLANT Marvin Marks, pro se
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Mary H. McGrath Assistant Prosecuting Attorney
BEFORE: S. Gallagher, J., Jones, P.J., and EA. Gallagher, J.
JOURNAL ENTRY AND OPINION
SEAN C. GALLAGHER, J.:
(¶l} Appellant, Marvin Marks, appeals the trial court's decision to deny his motion to correct improper sentence and his separate motion for jail-time credit. For the following reasons, we affirm.
(¶ 2} In January 2007, Marks pleaded guilty to voluntary manslaughter, with a three-year firearm specification, and having weapons under disability. The trial court sentenced Marks to 15 years. No direct appeal was filed. Around December 2012, Marks filed a motion for jail-time credit and a separate motion to correct an improper sentence, arguing that the offenses underlying his conviction were allied offenses subject to merger. The trial court denied Marks's motion for jail-time credit on December 17, 2012, and Marks's motion to correct improper sentence on January 2, 2013. Marks appealed these two decisions on January 28, 2013, raising two assignments of error that provide as follows:
Assignment of Error I.
The trial court erred and abused its discretion when Appellant was improperly charged, the evidence was and is insufficient for the charges of weapon while under disability and firearm specification.
Assignment of Error II.
The trial court erred when it denied Appellant's motion for jail time credit for the time he spent in Cuyahoga County jail.
(¶3} Appellant's first assignment of error is without merit. Not only does it impermissibly seek to challenge his sentence based on an allied-offense issue through a motion to correct an improper sentence, but it is also facially untimely. As this court has consistently maintained:
"A motion that is not filed pursuant to a specific rule of criminal procedure 'must be categorized by a court in order for the court to know the criteria by which the motion should be judged.' Where a criminal defendant, subsequent to a direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21."
(Citations omitted.) State v. Alexander, 8th Dist. Cuyahoga No. 95995, 2011-Ohio-1380, at ¶ 12, quoting State v. Elkins, 10th Dist. Franklin No. 10AP-6, 2010-Ohio-4605, ¶ 7-8; see also State v. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, _ 11. Nonetheless, "[a] motion to correct an illegal sentence is 'an appropriate vehicle for raising the claim that a sentence is facially illegal at any time.'" Id, quoting State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 17. In Kelly, however, this court held that the failure to merge allied offenses does not render a conviction facially void. Id. at _ 8. Therefore, a motion to correct an illegal or improper sentence is not the appropriate vehicle to advance the allied-offense claim in a postconviction setting. Id. The correct procedure is for the defendant to file a ...