FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 05CR067825
APPEARANCES: MARK ALSTON, pro se, Appellant.
P. WILL, Prosecuting Attorney, and NATASHA GUERRIERI,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL, PRESIDING JUDGE
Mark Alston appeals an order of the Lorain County Court of
Common Pleas that denied his motion to vacate void sentence
of conviction. For the following reasons, this Court affirms.
In 2005, a jury found Mr. Alston guilty of murder, aggravated
robbery, having weapons under disability, felonious assault,
and tampering with evidence as well as several firearm
specifications. The trial court sentenced him to a total of
24 years to life in prison. This Court upheld his convictions
on appeal. In May 2017, Mr. Alston filed a motion to vacate
void sentence of conviction, arguing that the trial court
should vacate his sentence because the counts are allied
offenses of similar import. The trial court denied his
motion. Mr. Alston has appealed, assigning as error that the
trial court incorrectly denied his motion to vacate.
TRIAL COURT DID ERRED (SIC) IN DENYING APPELLANT MR.
ALSTON'S, MOTION TO VACATE MR. ALSTON'S, VOID
SENTENCE OF CONVICTION UNDER CRIM. R. 52(B), PLAIN ERROR, AND
R.C. 2941.25(A), MULTIPLE COUNTS OF ALLIED OFFENSES OF
SIMILAR IMPORT OF R.C. 2911.01(A)(1)(A)(3), AGGRAVATED
ROBBERY, R.C. 2903.02(B), MURDER, R.C. 2903.11(A)(1)(A)(2),
FELONIOUS ASSAULT, IN VIOLATION OF STATE V. WILLIAMS
Mr. Alston argues that the trial court incorrectly denied his
motion to vacate because it sentenced him on allied offenses.
He also argues that, because of the error, his sentence is
"Under the doctrine of res judicata, a final
judgment of conviction bars a convicted defendant who was
represented by counsel 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 * * * on an appeal from that judgment."
State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus.
We note that Mr. Alston did not make his allied offense
argument in either his direct appeal or his earlier
post-judgment motion. State v. Alston, 9th Dist.
Lorain No. 05CA008769, 2006-Ohio-4152; State v.
Alston, 9th Dist. Lorain No. 16CA010945,
The Ohio Supreme Court has held that, if a trial court
imposes separate sentences on two offenses that it has
determined are allied, the resulting sentence is void.
State v. Williams, 148 Ohio St.3d 403,
2016-OHIO-7658, ¶ 28. It explained in Williams,
however, that, if "a trial court finds that convictions
are not allied offenses of similar import, or when it fails
to make any finding regarding whether the offenses are
allied, imposing a separate sentence for each offense is not
contrary to law, and any error must be asserted in a timely
appeal or it will be barred by principles of res
judicata." Id. at ¶ 26, citing State
v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶
Mr. Alston has not directed this Court to any place in the
record where the trial court found that his offenses are
allied. His sentence, therefore, is not void, even if the
offenses are allied. Upon review of the record, we conclude
that Mr. Alston could have raised his allied-offenses
argument on direct appeal and that it is now barred under the
doctrine of res judicata. Accordingly, the ...