Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Trial Court Case No. 05-CR-4213/4
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Attorney for
WILLIAM DIXON, Defendant-Appellant, Pro Se.
1} William Dixon appeals pro se from the trial
court's denial of his April 17, 2017 motion for relief
from judgment on the basis of a void sentence.
2} Although Dixon's appellate brief lacks an
assignment of error, the essence of his argument, both in his
motion below and on appeal, is that the trial court erred in
failing to merge allied offenses when it sentenced him in
2006 to an aggregate twenty-one-year prison term for
complicity to commit aggravated robbery, complicity to commit
aggravated burglary, and complicity to commit felonious
assault, all with firearm specifications.
3} Following his conviction, Dixon filed an
unsuccessful direct appeal. He also unsuccessfully pursued
post-conviction relief on appeal. See, e.g.,
State v. Dixon, 2d Dist. Montgomery No. 21823,
2008-Ohio-755; State v. Dixon, 2d Dist. Montgomery
No. 23592, 2010-Ohio-2635; State v. Dixon, 2d Dist.
Montgomery No. 26873, 2016-Ohio-5538.
4} In his recent motion for relief from judgment,
Dixon argued that the trial court had a mandatory duty to
merge allied offenses of similar import in his case and that
res judicata did not preclude him from raising the issue now
because the non-merger of allied offenses rendered his 2006
sentence void. (Doc. #11). The trial court rejected
Dixon's argument. While not conceding that he was
entitled to merger, the trial court reasoned that a failure
to merge allied offenses of similar import renders a sentence
voidable, not void. That being so, the trial court concluded
that res judicata applied because Dixon could have raised the
issue on direct appeal. (Doc. #15).
5} Upon review, we see no error in the trial
court's ruling. Any allied-offense sentencing error would
have rendered Dixon's sentence voidable, not void. Thus,
res judicata precludes him from raising an allied-offense
issue in post-conviction proceedings when the issue could
have been raised on direct appeal. State v. Byrd, 2d
Dist. Montgomery No. 26700, 2015-Ohio-5293, ¶ 10
("The failure to merge allied offenses does not render a
judgment void, but voidable. * * * Consequently, challenges
to the trial court's failure to merge allied offenses are
barred by the doctrine of res judicata if they could have
been, but were not, raised on direct appeal."); see
also State v. Haynes, 2d Dist. Clark No. 2013 CA 90,
2014-Ohio-2675, ¶ 14 ("[T]he issues raised in
Haynes's assignments of error could have been raised on
direct appeal, and are barred by res judicata, regardless of
whether they might be characterized as plain error.");
State v. Dominguez, 2d Dist. Montgomery No. 26853,
2016-Ohio-5051, ¶ 11 ("Because Dominguez could have
raised the allied-offense issue in a direct appeal, the trial
court correctly concluded that res judicata applied to his
post-conviction motions."). Here we see no reason why
Dixon could not have raised an allied-offense argument on
direct appeal, and he has not identified any such reason.
6} In his reply brief, Dixon suggests that his
attorney actually did raise an allied-offense issue on direct
appeal. This court's February 22, 2008 opinion affirming
Dixon's conviction on direct appeal contains no reference
to an allied-offense issue. See State v. Dixon, 2d
Dist. Montgomery No. 21823, 2008-Ohio-755. But even if we
assume his assertion is true, res judicata still applies.
See, e.g., State v. Kidd, 2d Dist.
Clark No. 2016-CA-87, 2017-Ohio-6996, ¶ 12 (recognizing
that res judicata applies to issues that were or could have
been raised on direct appeal).
7} In short, the trial court correctly found that
Dixon's sentence would have been voidable, not void, if
an allied-offense error had occurred and that res judicata
applied. The judgment of the Montgomery County Common Pleas
Court is affirmed.
WELBAUM, J. and TUCKER, J., concur.