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State v. Gessner

Court of Appeals of Ohio, Seventh District

August 30, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
TIMOTHY GESSNER, DEFENDANT-APPELLANT.

Criminal Appeal from Common Pleas Court, Case No. 94CR91A.

For Plaintiff-Appellee: Attorney Paul Gains Prosecuting Attorney Attorney Ralph Rivera Assistant Prosecuting Attorney.

For Defendant-Appellant: Timothy Gessner, Pro se #301-240 Grafton Correctional institution.

JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro

OPINION

VUKOVICH, J.

(¶1} Defendant-appellant Timothy Gessner appeals the decision of the Mahoning County Common Pleas Court denying his motion for resentencing wherein he argued that his sentence was void because the aggravated murder and aggravated burglary charges were allied offenses of similar import which should have been merged at sentencing.

(¶2} The trial court found that appellant's motion was actually an untimely petition for post-conviction relief which contained no explanation for the untimeliness. The court also found that the merger issue was barred by the doctrine of res judicata as appellant could have raised it in his direct appeal.

(¶3} Appellant contends that the void sentence exception to these rules applies here. However, allied offense issues are not the type of errors that result in a void sentence. Rather, alleged merger errors would have resulted only in a voidable sentence, meaning that the matter should have been raised on direct appeal and cannot be raised nearly eighteen years after sentencing. The void sentence exception is thus inapplicable here. In accordance, the judgment of the trial court is affirmed.

STATEMENT OF THE CASE

(¶4} On October 20, 1993, Rose Bertolini, aged 72, was found beaten to death at her residence in Austintown. Her house had been ransacked, and her vehicle had been stolen. Later that evening, the police arrested appellant and two other seventeen year olds in connection with the murder. Appellant submitted a verbal and a written statement, confessing to the burglary.

(¶5} Appellant disclosed that he worked for the Bertolinis and planned the burglary days in advance, explaining that they fantasized about living "on the run" in Florida. He stated they broke into the home after retrieving the proper screwdrivers to fit the windows. They went through the house collecting valuables. He admitted that they then decided to wait for the Bertolinis to come home so they could get "credit card codes" from them. Although he said that he tried to talk the other two into leaving, he ended up staying with them to wait.

(¶6} He claimed that he did not plan on killing Mrs. Bertolini. However, he did admit that he told someone the night before the murder that he was going to break into a house and kill anyone who comes home. He also acknowledged that they did not wear masks as they waited for the residents to return home.

(¶7} Appellant said that when Mrs. Bertolini came home from work, Scott Camuso hit her in the back of the head with a baseball bat. He disclosed that they thought she was knocked out but then she started to moan so Scott Camuso continued to hit her multiple times with the bat. Appellant then dragged the victim to a back room, cleaned up the blood, and covered her face and body with a blanket. They were going to wait for the husband but then decided to leave. Appellant took the victim's keys and put the valuables in the trunk of her car. They drove the car to the woods behind a truck stop, hid the valuables in the woods, and called a friend for a ride at which time the police arrived to arrest them.

(¶8} Appellant was indicted on four counts: (1) aggravated murder in violation of R.C. 2903.01(A), which entails purposely causing a death with prior calculation and design; (2) aggravated murder in violation of R.C. 2903.01(B), which entails purposely causing a death while committing, attempting, or fleeing immediately after committing or attempting to commit certain offenses including aggravated burglary; (3) aggravated burglary in violation of R.C. 2911.11(A)(3); and ...


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