[Cite as State v. Horton, 2013-Ohio-848.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 12CA010271
Appellee
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
ANTHONY G. HORTON COUNTY OF LORAIN, OHIO
CASE Nos. 04CR065388
Appellant 04CR065403
04CR065599
DECISION AND JOURNAL ENTRY
Dated: March 11, 2013
WHITMORE, Judge.
{¶1} Defendant-Appellant, Anthony Horton, appeals from the judgment of the Lorain
County Court of Common Pleas. This Court affirms.
I
{¶2} In July 2004, Horton was indicted on a total of 25 counts, stemming from three
separate cases. In February 2006, Horton pleaded guilty to all counts and was sentenced to a
total of 15 years in prison. After sentencing, Horton filed a direct appeal, which was dismissed
by this Court in June 2006 because he failed to respond to a show cause order. Subsequently,
Horton filed a delayed appeal, which was also dismissed.
{¶3} Over the next several years, Horton filed numerous motions with the trial court
seeking to withdraw his guilty plea and requesting judicial release. The trial court denied all of
his motions. In 2010, Horton appealed from the court’s denial of judicial release. The appeal
was dismissed for lack of a final, appealable order.
2
{¶4} On August 8, 2012, Horton filed a “Motion to Correct Illegal Sentence,” which
was denied by the trial court. Horton now appeals and raises two assignments of error for our
review.
II
Assignment of Error Number One
WHERE A TRIAL COURT ERRONEOUSLY INFORMS A DEFENDANT
DURING THE PLEA COLLOQUY THAT HE COULD BE CONVICTED OF
AND SENTENCED TO OFFENSES THAT ARE ALLIED OFFENSES OF
SIMILAR IMPORT THE TRIAL COURT FAILS TO INFORM OF THE
MAXIMUM-PENALTY COMPONENT OF CRIM.R. 11(C)(2)(A).
{¶5} In his first assignment of error, Horton argues that the trial court erred when it
failed to properly inform him of the maximum penalty as required by Crim.R. 11(C)(2)(A).
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. Perry, 10 Ohio St.3d 175 (1967), paragraph nine of the syllabus. The doctrine of res
judicata applies even if the defendant does not perfect a direct appeal from his or her conviction.
State v. Rhoten, 9th Dist. No. 24487, 2009-Ohio-3362, ¶ 6.
{¶6} Horton argues that his sentence is invalid because the trial court failed to comply
with Crim.R. 11. Even assuming this were true, Horton could have raised this argument in his
direct appeal in 2006. It is well established law in Ohio that res judicata prohibits the
consideration of issues that could have been raised on direct appeal. State v. Saxon, 109 Ohio
St.3d 176, 2006-Ohio-1245, ¶ 16-17, citing State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-
5607, ¶ 37; State v. D’Ambrosio, 73 Ohio St.3d 141, 143 (1995). Because Horton’s argument
could have been raised in his direct appeal, it is now barred by the doctrine of res judicata.
3
{¶7} Horton’s first assignment of error is overruled.
Assignment of Error Number Two
THE TRIAL COURT VIOLATED APPELLANT’S SIXTH AMENDMENT
RIGHT TO A JURY, BY ENGAGING IN IMPROPER FACT-FINDING AND,
CONSEQUENTLY, SENTENCED HIM TO FIFTEEN YEARS
INCARCERATION RATHER THAN THE STATUTORY MINIMUM PRISON
TERM FOR AN INDIVIDUAL WHO HAS NOT PREVIOUSLY SERVED A
PRISON TERM, AS PRESCRIBED BY O.R.C. §2929.14(B)(1).
{¶8} In his second assignment of error, Horton argues that the trial court erred by (1)
not sentencing him, as a first time offender, to a minimum term of incarceration, and (2) by
engaging in unconstitutional fact-finding.
{¶9} A sentence may be void or voidable. “A void sentence is one that a court imposes
despite lacking subject-matter jurisdiction or the authority to act. Conversely, a voidable
sentence is one that a court has jurisdiction to impose, but was imposed irregularly or
erroneously.” (Internal citations omitted.) State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,
¶ 27.
Voidable
{¶10} A voidable sentence may only be set aside if successfully challenged on direct
appeal. Id. at ¶ 28. Prior to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, courts were
required to engage in judicial fact-finding when sentencing defendants to a term greater than the
statutory presumptive terms. Payne at ¶ 29; Foster at syllabus. The Foster Court held that this
mandatory judicial fact-finding was a constitutional violation and severed the offending portions
of the sentencing statute. Foster at syllabus. Because courts prior to Foster had jurisdiction to
impose a sentence within the statutory range after conducting the judicial fact-finding as
previously required by the statute, the sentences were an erroneous exercise of the trial court’s
4
jurisdiction. Therefore, pre-Foster sentences imposed after judicial fact-finding are voidable, not
void, sentences. Payne at ¶ 29.
{¶11} Horton was sentenced on February 13, 2006, prior to the Foster decision on
February 27, 2006. Assuming Horton’s argument to be true, that the court engaged in judicial
fact-finding, this only makes his sentence voidable. Any challenge to a voidable sentence should
have been raised on direct appeal and is now barred by the doctrine of res judicata. Id. at ¶ 28.
{¶12} To the extent that Horton argues the court erred by failing to merge allied
offenses, this argument could have been raised in his direct appeal and is also now barred by the
doctrine of res judicata. State v. Thomas, 9th Dist. No. 25590, 2011-Ohio-4226, ¶ 5.
Void
{¶13} The doctrine of res judicata does not apply to appeals taken from a void judgment.
Therefore, a defendant may challenge a void judgment at any time. State v. Baker, 9th Dist. No.
25024, 2010-Ohio-4329, ¶ 9. “A void sentence is one that a court imposes despite lacking
subject-matter jurisdiction or the authority to act.” Payne at ¶ 27.
{¶14} Horton makes no argument that the trial court lacked subject-matter jurisdiction,
nor do we find any evidence in the record to support such an argument. Thus, as long as
Horton’s sentences were within the statutory ranges, they are not void.
Case/Count Level of Offense Sentence Imposed Sentence
Permitted by
Statute1
04CR065388 – F1 9 Years 3 to 10 Years
Count 1
04CR065388 – F1 9 Years 3 to 10 Years
Count 2
04CR065388 – F1 9 Years 3 to 10 Years
Count 3
1
Former R.C. 2929.14 and 2929.24.
5
04CR065388 – F1 9 Years 3 to 10 Years
Count 4
04CR065388 – F2 8 Years 2 to 8 Years
Count 5
04CR065388 – F2 8 Years 2 to 8 Years
Count 6
04CR065388 – F2 8 Years 2 to 8 Years
Count 7
04CR065388 – F1 9 Years 3 to 10 Years
Count 8
04CR065388 – F1 9 Years 3 to 10 Years
Count 9
04CR065388 – F2 8 Years 2 to 8 Years
Count 10
04CR065388 – F2 8 Years 2 to 8 Years
Count 11
04CR065388 – F2 8 Years 2 to 8 Years
Count 12
04CR065388 – F4 18 Months 6 to 18 Months
Count 13
04CR065388 – F5 12 Months 6 to 12 Months
Count 14
04CR065388 – F2 8 Years 2 to 8 years
Count 15
04CR065388 – F2 8 Years 2 to 8 years
Count 16
04CR065388 – M1 6 Months Not more than 180
Count 17 Days
04CR065388 – M1 6 Months Not more than 180
Count 18 Days
04CR065388 – F4 18 Months 6 to 18 Months
Count 19
04CR065388 – M1 6 Months Not more than 180
Count 20 Days
04CR065388 – F5 12 Months 6 to 12 Months
Count 21
04CR065403 – M1 6 Months Not more than 180
Count 1 Days
04CR065403 – F5 11 Months 6 to 12 Months
Count 2
04CR065599 – F2 2 Years 2 to 8 Years
Count 1
6
04CR065599 – F3 3 Years 1 to 5 Years
Count 2
{¶15} In case number 04CR065388, Horton was sentenced to a total of twelve years in
prison on 21 counts. He was sentenced to nine years on each of the six felonies of the first
degree; eight years on each of the eight felonies of the second degree; eighteen months on each
of the two felonies of the fourth degree; twelve months on each of the two felonies of the fifth
degree; and six months on each of the three misdemeanors of the first degree. The court ordered
the sentences to run concurrently. In addition, most counts had a three year firearm specification
attached. The court ordered the firearm specifications to be served concurrently, but consecutive
to the sentence of nine years on the underlying offenses.
{¶16} In case number 04CR065403, Horton was sentenced to a prison term of eleven
months on two counts. He was sentenced to eleven months on a felony of the fifth degree and
six months on a misdemeanor of the first degree. The court ordered the sentences to be served
concurrently to each other and concurrent to the twelve years in case 04CR065388.
{¶17} In case number 04CR065599, Horton was sentenced to a prison term of three
years on two counts. He was sentenced to two years on a felony of the second degree and three
years on a felony of the third degree. The court ordered the sentences to be served concurrently
to each other, but consecutive to the twelve years in case 04CR065388.
{¶18} As the chart demonstrates, all of Horton’s sentences fall within the applicable
statutory range. The trial court acted within its authority when it imposed his sentences.
Accordingly, Horton’s sentences are not void. Horton’s second assignment of error is overruled.
7
III
{¶19} Horton’s assignments of error are overruled, and the judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CARR, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
ANTHONY G. HORTON, pro se, Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.