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State v. Johnson

Court of Appeals of Ohio, Fourth District, Hens

December 28, 2016

STATE OF OHIO, Plaintiff-Appellee,
v.
VANCE JOHNSON Defendant-Appellant.

          Vance Johnson, London, Ohio, Pro Se Appellant.

          Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Matthew W. McFarland, Judge

         {¶1} Vance Johnson appeals the decision of the Athens County Court of Common Pleas, entered March 31, 2016, denying his "Motion to Vacate a Void Sentence." On appeal, Appellant submits two assignments of error for our review:

         (1) Did the trial court err by failing to merge allied offenses of similar import; and

         (2) Did the trial court err by failing to make statutory findings required by R.C. 2929.14 before imposing consecutive sentences. Upon review of the record and relevant Ohio law, we construe Appellant's motion to vacate sentence to be an untimely petition for post-conviction relief. Furthermore, Appellant's arguments are barred by the doctrine of res judicata. As such, we decline to consider the merits of Appellant's assignments of error. The appeal is hereby dismissed.

         FACTS

         {¶2} On April 8, 2013, Vance Johnson was indicted by the Athens County Grand Jury for one count of breaking and entering, a violation of R.C. 2911.13(A), a felony of the fifth degree, and one count of possessing criminal tools, a violation of R.C. 2923.24(A), also a felony of the fifth degree. These charges were assigned Athens County Common Pleas Court Case No. 13CR0145. Appellant was arraigned, entered not guilty pleas, and was released on a recognizance bond.

         {¶3} While these cases were pending, Appellant was again indicted in Athens County for two counts of operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them, in violation of R.C. 4511.19(A)(1)(a). These counts were felonies of the third degree. Appellant was also indicted for one count of endangering children, R.C. 2919.22(C)(1), and one count of tampering with evidence, R.C. 2921.12(A)(1). These charges were assigned case number 13CR0292. Appellant was arraigned and pleaded not guilty; however, he was held on a cash/surety bond.[1]

         {¶4} On November 18, 2013, Appellant pleaded guilty to both indictments and his sentence was jointly recommended for the trial court's consideration.[2] The court sentencing occurred on December 4, 2013. In case number 13CR0145, Appellant was sentenced to one year on counts one and two, to be served consecutively to each other for a total of two years, and consecutively to 13CR0292. In 13CR0292, Appellant was sentenced to two years on counts one, three, and four, for a total of six years. He was also sentenced to 180 days in jail on count two, to be served concurrently. Appellant's total prison sentence was eight years in prison with credit for time served, a fine, a fifteen-year license suspension, and mandatory alcohol programming. In addition, on the four violations of community control, his community control was revoked and his underlying sentence in those cases was to be served concurrently to his eight-year prison sentence in 13CR0145 and 13CR0292. Appellant has not directly appealed his sentence in 13CR0145 and 13CR0292.

         {¶5} On March 14, 2016, Appellant filed a motion to vacate a void sentence in 13CR0145 and 13CR0292. The State filed a response and on March 31, 2016, the trial court denied Appellant's motion. Appellant's motion was filed 2 years, 4 months, and 14 days after the filing of the judgment entry of his original sentence, December 4, 2013.[3]

         {¶6} This timely appeal of the denial of his motion to vacate a void sentence followed.

ASSIGNMENTS OF ERROR
"I. THE TRIAL COURT ERRED IN AS A MATTER OF FACT AND LAW WHEN IT CONVICTED AND SENTENCED DEFENDANT ON ALLIED OFFENSES OF SIMILAR IMPORT.
II. THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW WHEN IT FAILED TO MAKE THE STATUTORY FINDINGS REQUIRED BY R.C. 2929.14(C)(4) BEFORE IMPOSING CONSECUTIVE SENTENCES MAKING ...

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