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IN THE SUPREME C(9ITR3<' OF OHIC)

STATE OF 0:E110,

Plaintiff-Appellee,

V.

MARK D. MUSSELMAN,

13 - 11 2 72

On Appeal from the MontgomeryCounty Court of Appeals,Second Appellate District

Court of AppealsCase No. 25295

Defendant-Appellant

IviE1V.iORANDU1V1 IN SUPPORT OF JURISDIC'T'IONOF APPELLANT MARK D. MUSSELMAN

MARK D. MUSSELMAN 555-139Chillicothe Correctional Institute15807 S. R. 104 NorthP.O. Box 5500Chulllcathe, Ohio 45601

DEFENDANT-APPELLANT, pro se

MATHIAS H. HECK, JR.PROSECUTING ATTORNEY

R. LYNN I`IOTHSTINE (0061560)Assistant Prosecuting AttomeyMontgomery County Prosecutor's OfficeAppellate DivisionP.O. Box 972301 West Third StreetDayton, Ohio 45422(937) 225-4117

FOR PLAI.NTIf'F-APPELLEE

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TABLE OE C(BNTENTS

PAGE

EXPLANATION OF WITY TgIIS CASE INVOLVING ASTATUTOR^.' FELONYSENTENCING ISSUE RAISES SEVERAL SUBSTANTIAL CONSTITUTIONALQUESTIONS AND IS ONE 0r PUBLIC AND GREAT GENEIZAL INTER:.EST .............. 1

STATEMENT OF THE CASE AND FACTS ........................................................ .9

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

prm.posatYon of Law No. 1: In a collateral proceeding raising the same issue,the courts below have a duty to follow and apply the intervening decision in.

Johnson, further clarifying the proper interpretation of R. C:°.2941.25, to a casewith an allied-offenses .......................... . ................. .l 1... ...................

Proposition of I.,aw No, 2: The doctrine of res judicata is inapplicable to bara collateral attack of an allied-offenses errn.r ....... . . . . ....... ... ... .. . . ...... .. ... ....... ... ] 3

C+ONCI,USION., . ............................................................. ......................15

CERTIFICATE OF SERVICE . . . . . . . . . .... . . . . . .. . . . . .. . . . ... . . . . . . . . . . .. . . . . . . . .. . . . . . . . .. . ...16

AP^'ENDIX AMx. Page

Decision a.nd Entry of the Second Appellate District,Application for Reconsideration(June 25, 2013) .. . . . . ... . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . .A l -A5

Final Entry of the Second Appellate District(April 19,2013 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A6-A7

Opinion of the Second Appellate District(April 19, 2013). .... .. . .... . .. . ... ....... . .. ... . .. ... ... . .. . . . . . . . . . . ... . . . . ... . . ....Ag-A18

17

EXPLANATI[1N OF WHY TIiI sCASE INVt)1C,VING A STATUTORY FELONY

SENTENCING ISSITE ItAISES SE'VEIM Sd^STAN'Y'IAL C NSTITI37CIONAL

QIJES'TIONS AND IS ONE ()F PUBLIC AND GREAT GENERAI. INTEREST

This case demonstrates the confusion, and confliction between precedents, resulting from the

intervening decision rendered in State v. Johnson, 12$ Ohio St.3d 153, 2010 Ohio 6314, 942 N.E.2d

1061, and the imperative need for a superior court resolution that will provide to the ccurts in Ohio a

vehicle for accmmplishing equity and uniformity when addressing an allied offenses of similar

import issuc, along with considering the constitutional implications, when presented in a collateral,

post-conviction action after a final judgrnent has been rendered in a cffininal case.

When comparing the application of intervening decisions between civil and criminal cases, it

commonly seems that prospective-only applications are attached to the criminal case decisions in a

far greater number than those in the civil context.

Historically, continuity and finality had been readily achieved by a courts' adherence to the

doctrine of stare decisis, of fundamental importance to the rule of law, when determining an issue

such as clarifying the proper interpretation of a statute.

Stare decisis requires a court to uphold its prior decision where time has vindicated the logic

utilized to render the holding and the rules of law stated in the earlier case as sound. Scott v.News

Herrald (19$6), 25 Ohio St.3d 243, 249, 496 N.E.2d 699, citing Hall v. Rosen (1977), 50 Ohio St.2d

135, 138, 363 Rt.E.2d 725. Nevertheless, the doctrine vf stare decisis is a principle of policy rather

than an inexorable comxn:and or mechanical formula of adherence to the latest decision. Payne v.

U.S. (1991), 501 U.S. 808, 828, 111 S.Ct.2597, 115 L.Ed.2d 720. However, "'any departure from

the doctrine of stare decisis demands special justifzcation."' Wesyi'eld Ins. Co. v Galatis, 100 Ohio

l

St. 3d 216, 2003 Ohio 5849, 797 N.E.2d 1256, at ¶44, quoting Wampler v. Higgins (2001), 93 Ohio

St.3d 111, 120, 752 N.i1.2d 962 (internal citations and quotations omitted).

For purposes of this discussion, the stare decisis doctrine would assist in attaining a

resolution to the substantial constitutional questions regarding double jeopardy, equal protection of

the laws, due process, and possible cruel and unusual punishment, left unresolved by the Johnson

decision.

Accordingly, "[tJhe general rule is that a decision of a court of supreme jurisdiction

overruling a former decision is retrospective in its operation, and the effect is not that the former was

bad law, but that it never was the law. The one general exception to this rule is where contractual

rights have arisen, or vested rights have been acquired under the prior decision." State v. Webb

(1994), 70 Ohio St.3d 325, 331; Agee v. Russell (2001) 92 Ohio St.3d 540, 544; DiCenzo v. A Best

Prods. Co. (2008), 120 Ohio St.3d 149, Pl 1; Taylor v Ernst & Young, L.L.P. (2011), 130 Ohio St.3d

411, 426, quoting Peerless Elec. Co. v. Bowers (1955), 164 Ohio St.209, 57 0.0.411, 129 N.h;.2d

467.

A general rule applicable for nearly 60 years.

This case involves the situation where an allied offenses of similar import error was raised on

direct appeal, in contravention to R.C.2941.25, with the court of appeals denying relief by

erroneously applying the guiding interpretation of R.C'.2941>2S in State v. Rance (1999), 85 Ohio

St.3d 632, 710 N.E.2d 699, after an intervening decision had been rendered prior to the appellate

court ruling.

During the direct appeal review of this case, the Ohio Supreme Court interpreting the

meaning and proper application of R. C..Z941.25, clarified how to compare the elements of an offense

in State v. Cahrrxles, 118 Ohio St.3d 54, 2008 Ohio 1625, 886 N.E.2d 181.

2

R.C:2941.,25, Ohio's allied offense statute, is premised on protecting against violations of the

Double Jeopardy Clause of both the Ohio and United States Constitutions.

Following the appellate court determining that the offenses in this case were not of sinaiiar

import, after comparing their elements in the "abstract," the subsequent appeal to the Ohio Supreme

Court was denied jurisdiction to be heard.

An additional intervening decision was rendered by the Ohio Supreme Court in Johnson,

supra, further clarifying the proper interpretation of R. C:2941.23 by overraling Rcrrace 's abstract

analysis, and holding that "[w]hen determining whether two offenses are allied offenses of similar

import subject to merger under R. C.2941. 25, the conduct of the accused must be considered." Id. at

syllabus.

Upon discovering the Johnson decision, and in combination with the precedents set forth in

the Ohio Supreme Court's retrospective ri.tles of law, the allied offenses error was presented to the

trial and appellate courts for application of the proper analysis and interpretation of R. C. 2941.25, to

the conduct and facts in the case.

In relation, a reviewing panel in Clements v. Ohio Hosp. Ins. Ca., 2005 Ohio 1956,

addressing the effects and application of an "intervening decision", quoted an Ohio Supreme Court

decision in Hopkins v. L^er, 104 Ohio St.3d 461, 2004 Ohio 6769, 820 N.E.2d 329, discussing the

law-of-the-case doctrine, which stated the following:

:"''fhe law of the case is a long-standing doctrine in. Ohio jurisprudence. `Thedoctrine provides that the decision of a reviewing court in a case remains the law ofthat case at both the trial and review levels.' Nolan v. Nolan, I l_ Ohio St.3d. at 3, 11OBR 1, 462 N.E.2d 410. The doctrine is necessary to ensure consistency of results ina case, to avoid endless litigation by settling the issues, and to preserve the structureof superior and inferior courts as designed by the Ohio Constitution. State ex rel.Potain v..tt4atheivs (1979), 59 Ohio St.2d 29, 32, 13.0.0.3d 17, 391 N.E.2d 343. It isconsidered a rule of practice, not a binding rule of substantive law. Hubbard ex. rel.Creed v. Sauline (1996), 74 Ohio St.3d 402, 404, 1996 Ohio 174, 659 N.E.2d 781."Hopkins at P1 5'7 Clements at P29.

The Court also explained, in,1-1opicins, that it has previously recognized an exception to the

doctrine of the law of the case in Jones v. Harmon (1930), 122 Ohio St. 420, 8 Ohio Law Abs. 321,

172 N.E.15 1, wherein the court clarified the law of the case doctrine and held: (1) that the trial court

must follow the law of the case where the Supreme Court's review of that case was not previously

sought; and (2) that the trial court has a"duty>' to follow the Supreme Court's intervening decision

where an appeal to the Supreme Court was sought and denied before the intervening decision was

rendered. See Clements at P.31.

The Ohio Supreme Court has defined an "intervening decision" not in terms of application,

but rather substance. Thus, according to the Ohio Supreme Court, an "intervening decision" is one

which states a rule of law in conflict with the earizer mandate. State ex rel. Crandall, Pheils &

WisnYewski v. 1)eCessncz (1995), 73 Ohio St.3d 180, 183, 1995 Ohio 98, 6521°d.E.2d 742. Clements

at JP 32.

With respect to appellate Courts on successive appeals, the doctrine is "not a limitation on

the courts" power," but merely a rule of practice. Annotation (1963), 87 A.L.R.2d 271, 282, citing

Ci-reen v. Acacia Mut. Life Ins. Co. (1954), 98 Ohio App. 101, 128 N.E.2d 222.

While "the doctrine f`amctions to compel trial courts to follow the mandates of reviewing

courts," particularly where a"trial court is confronted with substantially the same facts and issues as

were involved in the prior appeal," Nolan, at 3, an intervening Supreme Court decision is an

"extraordinary circumstance" justifying non-corn.pliance with the law of the case. State v. Wallace,

121 Ohio App. 3d 494, 700 N.E.2d 367, 1997 Ohio App. LEXIS 2860.

"'The [law-of the-casc] doctrine***will not be applied so as to achieve unjust reso.lts.">

State ex rel. Mullins v. Curran, 131 Ohio St.3d 441, 2012 Ohio 685, 966 N.E.2d 267.

Had the foregoing "intervening decision" precedents rendered by Ohio's court of supreme

jurisdiction been adhered to, as consistently e.tnployed titrze-after-time in civil cases, then the issue of

4

retroactivity and retrospectivity of Johnson',ss clarifyia2g interpretation of R.C:2941.25 would not

stand in confusion and conflict today.

The case is one mired by the trial and reviewing courts' selectivity among the competing new

state supreme court precedents interpreting a legislative enactment.

For instance, the Court, in Agee v. Russell, 751 N.E.2d 1043, 1047, reached its con.clusion,

maintaining consistency with the court's prior holding, that c"tn the absence of a specific provision

in a decision declaring its application to be prospective only* **the decision shall be applied

retrospectively as well."' Lakeside Ave. Ltd. Partnership v Cuyahoga Cty. Bd ofRevisi®n (1999),

85 Ohio St. 3d 125, 127, 7071`T.E.2d 472, 475, quoting State ex rel. Bosch v. Indus Comm. (1982), 1

Ohio St.3d 94, 98 1 Ohio B.Rep. 130, 133, 438 N.E.2c1415, 418.

Subsequent to Agee, the Ohio Supreme Court rejected the retroactive application of a new

state supreme court precedent that involved the construction of its state sentencing statutes, in tlli v.

State, 104 Ohio St.3d 328, 2004 Ohio 6592, 819 N.E.2d 687, 689, holding: "A new judicial ruling

may be applied only to cases that are pending on the announcement date. The new judicial ruling

may not be applied retroactively to a conviction that has become final, i.e., where the accused has

exhausted all of his appellate remedies."

The use of the Ala decision to bar a retrospective application of an intervening decision

interpreting a statute is misleading, where the Ohio Supreme Court has made a distinction specific to

the Alf decision in State v. Colon ("Colon ff'), 119 Ohio St.3d 204, 2008 Ohio 3749, 893 N.E.2d

169, stating: "Our holding in Colon I is only prospective in nature, in accordance with our general

policy that newly declared constitutional rules in crirninal cases are applied prospectively, not

retrospectively."

The Johnson decision did not announce a newly declared constitutional rule in a criminal

case, yet, on review of the successive appeal in this case, the court applied the Ali decision to thwart

5

the retrospective application of the Johnson intervening decision to the conduct and facts o#'this case

after ignoring the actual retrospective and law-of-the-case arguments presented.

In Johnson, the Ohio Supreme Court labeled its section concerning its new test as a

"[p]rospective analysis of allied offenses under R. C.2941.25.°" 942 N.E. 2d at 1070. The court's

use of the term "prospective," albeit without furtlaer conunent, suggests that its new test for allied

offenses was not intended to be applied retroactively. The court, however, did not engage in a

retroactivity discussion. Nor did it explain whether, by using the term "prospective,"g its new test

would apply only to pending crirrainal matters. See Volpe v. Trim, 2013 U.S. App. LEXIS 2158,

2013 FED App. 0024A (6th Cir.)

In the interests of consistency and equity, since Johnson lacked "a specific provision in [its]

decision declaring its application to be prospective onlya"' [then] "the decision shall be applied

retrospectively," Agee, supra, to the case subjudice, and to all others that have similar allied offenses

issues in cases that have exhausted all of its appellate remedies, now being raised in post-conviction

proceedings as a collateral attack, Johnson pennits relief only if the offenses in question are

deterruined to be of similar irnpart.

However, blind application of the Peerless doetri-ne has never been mandated by the Ohio

Supreme Court. See Wagner v. Midwestern Indemn. Co. (1998), 83 Ohio "t.3d 287, 290, 1998 Ohio

111, 699 N.E.2d 507, citing Roberts v. United States Fid. & Guar. Co. (1996), 75 Ohio St.3d 630,

633, 1996 Ohio 101, 665 N.E.2d 664. "'Consistent with what has been temied the Sunburst

Doctrine [, established in Great N. Ry. Co. v Sunburst Oil & Refining Co. (1932), 287 U.S. 358,

53S.Ct. 145J, state courts have ***recognized and used prospective application of a decision as a

means of avoiding injustice in cases dealing with question having widespread ramifications for

persons not parties to the actimn."' 1(Ellipsis sic.) Minster Farmers Caop. Exchange Cg., Inc. v.

Meyer, 117 Ohio St.3d 459, 2008 Ohio 1259, 884 N.E.2d 1056, P30, quoting Hoover v. Franklin

6

C'ty. Bd. Of Comtatrs. (1985), 19 Ohio St.3d 1, 9, 19 Ohio BA, 482 N.E.2d 575 (Douglas, J.,

concurring).

The widespread ramifications of the allied offenses issue would produce substantial benefits

to the vast majority of persotis not parties to this action. Moreover, the economical savings to the

state, overall, would far outweigh all considerations of judicial, economy. Therefrom, no injustice

question arises from all state courts recognizing and applying the Johnson decision to post-

conviction, collateral proceedings.

Courts applying the Sunburst doctrine leave no doubt as to what the law is and to whom it

applies; the determination that the decision will be prospective only is made clear in the very opinion

that announces the decision. DiCenzo v. A Best Prods. Co., 120 Ohio St.3d 149 (Pfeiffer, J.,

dissenting).

Thus, the conf-uskon lying in the uasettled questions of which manner shall the Johnson

decision be applied in a collateral, post-conviction context?

An Ohio Court has discretion to apply its decision only prospectively after weighing the

following considerations: (1) whether the decision establishes a new principle of law that was not

foreshadowed in prior decisions; (2) whether retroactive application of the decision promotes or

retards the purpose behind the rule defined in the decision; and (3) whether retroactive application of

the decision causes an inequitable result. DiCenzo, 897 N.E.2d 132, 140, citing Chevrcrn Oil Ca. v.

Huson, 404 U.S. at 106-107, 92 S.Ct. 349, 30 L.Ed.2d 296.

That said, prospective-only application is justified only under exceptional circumstances.

The public interest in the implications of the trial and appeals cou.rts' decisions to disregard

the numerous, long-standing precedents set forth by the superior court in the state, especially in the

context of statutory interpretation, is motivated by the desire for assurances in the consistent and

iinpartial application of the rules of law.

7

The erroneous and unguided decisions of the trial and appeals courts in this collateral action,

as well as others Re it, if allowed to stand, establishes a class specification between those convicted

of multiple offenses at different times and an unequal disparity in the punishments served for the

same or similar conducts for which the analysis in R.C2941.25 considers to reach its required

deterrnination.

Ae Equal Protection Crause prevents states from treating people differently under its laws

on an arbitrary basis. State v. Williams (2004), 88 Ohio St.3d 513, 728 N.E.2d 342.

Thus, the substantial constitutional question of double jeopardy, inherent in the allied

offenses statute, expands into one of a cruel and unusual punishznent inquiry if the clarifying

interpretation of R. C. 2941.25 is limited to only those criminal cases that had not exhausted their

appellate remedies when Johnson was decided.

Finally, this case puts into issue the superior courts' failure to fully perform its

constitutionally imposed duty to provide fina.lity, as Ohio's court of supreme jurisdiction, to the

unsettled question of retrospective, retroactive, or prospective application of it clarifying

interpretatiozt of R. C 2941.25, a judicially developed and time-evolving, legislatively created

concept.

Therefore, this Court must grant jurisdiction to hear this case in order to provide answers to

the unresolved questions of (1) whether a prospective-only application of the Johnson decision

creates an impermissive inequity, (2) whether the court has decided to effectively overraale every

retrospective precedent followed over the last five-plus decades, and (3) whether the law-of-the-case

doctrine requires inferior courts to re-examine their previous allied offenses of similar import

decisions?

8

STATEMENT OF THF, CASE AND FACTS

Following a,}uzy trial in April 2007, the appellant, Mark D.1V.lusselrnan, was found guilty of

comrnittiizg forty-eight criminal offenses, all arising from a mortgage scheme to obtain extra money

through the purchase of twelve properties using forged documents and assumed identities, along

with his business partner and co-defendant.

On June 5, 2007 the trial court imposed an aggregate prison terna, consisting of concurrent

and consecutive sentences, totaling twelve (12) years, along with a restitution order of $1,151,150,

and a fine of $3,450,000 on count one, engaging in a pattern of conz.ipt activity.

The appellant appealed the conviction and sentence to the Second District Court of Appeals,

raising seven (7) assignments of error, one of which was that the trial court "erred in convicting him

of allied offenses of similar import," and the errors respective to the fine and restitution order

imposed.

b January 2009, the court of appeals, after applying R. C. 2941.25 and the "abstract" analysis

in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, finding the appellant's allied offenses

argument to be without merit, and denied the remainder of his assignments of error. See State v.

Musselman, 2d Dist. Montgomery No. 22210, 2009 Ohio 424.

On June 3, 2009, the Ohio Supreme Court declined to accept the appellant's a.ppeal. See

State v. Musselman, Ohio Supreme Court Case No. 2009-045 9, 2009 Ohio 2511.

The appellant pursued his claims in a federal habeas action to the United States District Court

and Sixth Circuit Court of Appeals, without being granted relief.

In 2010, the Ohio Supreme Court rendered an intervening decision further clarifying the

interpretation of R. C.294,Z.25, ovenuling Rance in State v. Johnson, 128 Ohio St3d 153.

9

Subsequently, on February 11, 2011, the appellant filed a collateral, post-conviction motion

asking the trial court to correct and/or modify his sentence, arguing that it was disproportionate,

inconsistent, and contained an allied offenses of similar import error.

The arguments suggested that the sentence and financial sanctions imposed are contrary to

law, and void.

In a supplemental motion to take judicial notice, filed on June 27, 2011, the appellant

requested the trial court to consider the Johnson decision for correcting the allied offenses claim

raised.

On July 11, 2012, the trial court filed a Decision, Order and Entry Overruling the appellant's

motion to correct/modify the sentence imposed in this case on. June 5, 2007, finding the claims

barred by the doctrine qf res,judicata.

On July 30, 2012, the appellant filed a Notice of Appeal, and subsequently subtnitted a merit

brief to the Second Appellate District, raising three (3) assigntnents of error that "tlae trial court

abused its discretion and plainly erred." when imposing a disproportionate and inconsistent sentence,

failed to correct the multiple sentences for allied offenses of similar import, and imposed a fine and

restitution order contrary to law.

On April 19, 2013, the appellate court rendered an Opinion and Final Entry affirming the

judgrnent of the trial court, overruling all tkiree assignments of error as being barred by the doctrine

ofresjudicata. State v. tllusselman, 2013 Ohio 1584.

The appellant timely filed an application for reconsideration, App.R.26 (A), directing the

reviewing court's attention to the obvious error in its misconstruing the retrospective argument as a

retroactive application request, and for its failure to review the law-of-the-case doctrine and plain

error arguments.

10

On June 25, 2013, the court of appeals filed a Decision and Entry, finding no obvious error in

their decision, that plain error is not an exception to the res judicata bar, and that the appellate courts

reliance on a judgment being "voidable" as a basis for disregarding subsequent decisions of the

Supreme Court of Ohio that altered the law in effect at the time of the original judgxnent, ruling that

the appellant's "motion for reconsideration is without merit and is overruled."

The trial and appeals courts erred to the appellant's prejudice when failing to adhere to the

long-standing superior court precedents, denying the appellant the relief legally due to him.

In support of this position on these issues, the appellant presents the following arguments.

Pr°onosation of I.awv In a collateral proceeding raising the same issue, the

courts below have a duty to follow and apply the intervening decision in Johnson,

further clarifying the proper interpretation of R. C 2941.25, to a case with an allied

offenses issue.

In cases in which the imposition of multiple punishments is at issue, R. C 2941.25 (A) 's

mandate that a defendant may be "convicted" of only one allied offense is a protection against

multiple sentences rather than multiple convictions. State v. Whitfreld, 124 Ohio St.3d 319, 2010

Ohio 2, 922 N.E.2d 182.

The appellant's charges arose from the transactions involving the purchase of twelve (12)

separate properties through a mortgage brokerage company he co-owned, by using forged

documents in the name of recently deceased people, obtaining .money from a mortgage lender in

amounts above the actual selling price of the properties, supposedly targeted for renovation of the

properties purchased.

The State proceeded with prosecuting the original complaint which consisted of twelve (12)

counts of theft by deception, nine (9) counts of forgery, valued over $100,000, twenty-five (25)

11

counts of forgery, valued between $5,000 and $100,000, and twelve (12) counts of tampering with

government records.

`l'he prosecution, in an obvious effort to enhance the seriousness of the conduct, cornbi-ned

the twelve (12) thefts by deception into one (1) aggravated theft by deception charge, thereby,

permitting an engaging in a pattem of corrupt activity charge to be added against the appellant.

In the appellant's direct appeal, the argument was presented that the action of combining the

theft offenses demonstrated the prosecution's reliance on a single crim:inal transaction to prove its

case, therefrom, creating a situation of allied offenses of similar import. At the time of the

appellant's direct appeal, the Second Appellate District was still applying Rance's "abstract"

analysis of the offenses elements, and ruled that his offenses were not of similar import, but each

was committed with separate animus. See State v. Musselman, 2009 Ohio 424.

Provided to support his allied-offenses argument, were the following Ohio Supreme Court

and appellate court decisions properly merging the multiple offenses same or samilar to those in this

case: State v. Logan (1979), 60 Ohio St.2d 126; State v. Baer (1981), 67 C)bio St.2d 220, and State

v. Wolfe (1983), 10 Ohio App.3d 324.

The Ohio Supreme Court decided Johnson within a year after the appellant's direct appeal

was exhausted, overruling Rance, "to the extent that it calls for a comparison of statutory elements

solely in the abstract under R. C. 2941. 25. " I'a? at144.

The Johnson decision established that the conduct of the accused must be considered, and a

look to the evidence to determine if the state relied upon the "saane conduct" to prove the two

offenses, and that the offenses were committed neither separately nor with separate anirnus as to

each, then the defendant is afforded the protections of R. C. 2941.25, and the trial coW errs by

imposing separate sentences for the offenses. See State v. Anderson, 2012 Ohio 3347, P 20.

12

Subsequently, the appellant raised a collateral attack of his allied offenses issue based upon

the intervening decision in Johnson, and the Ohio Supreme Court's long-standing legal precedent

that: "A decision of this Court overruling a former decision `is retrospective in its operation, and the

effect is not that the former [decisio.nJ was bad law, but that it never was the law." Taylor v. Ernst &

Young, L.L.d', (2011), 130 Ohio St.3d 411, 426, quoting Peerless Elec. C'o. v. Bowers (1955), 164

Ohio St. 209, 210

Additional superior court precedent, established in. State v. Lynn (1966), 5 Ohio St.2d 106,

108-109, sets forth: "Retrospective application of a decision would require application of the new

ruling to a conviction which had become final. The term "fmal conviction" when used in relation to

the doctrine ofretrospective application of a judicial ruling means a conviction in which the accused

has exhausted all his appellate remedies or as to which the time for appeal as of right has expired.'

The trial and appeals courts, both disregarded the doctrine of retrospective application

argument, and refused to subject the appellant's conduct to the proper analysis set forth in Johnson,

which would have substantzally reduced the imposed prison tetm in this case, and exception to the

law-of=the-case doctrine.

The lower court's decision is contrary to lawa prejudicial to the appellant, and requires this

Court to reverse their erroneous decisions.

Pro osition of I.6aw No. 2: The doctrine of res judicata is inapplicable to bar a

collateral attack of an allied offenses error.

Any issue that could have been raised at trial and was not is barred from being raised in later

proceedings, with the exception of errors that constitute plain error, otherwise known as the doctrine

of res judicata. Ohio's doctrine of res judicata in cnminal cases, enunciated in State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104 (1967), par. 7 of the syllabus, is an independent and adequate state

procedural ground. State v. Robinson, 2009 Ohio 898.

13

""'The doctrine of res judicata is not a mere matter of practice or procedureinherited from a more technical time, but rather a rule of fun.darnental and substantialjustice, or public policy and of private peace. The doctrine may be said to adhere inlegal systems as a rule of justice. Hence, the position has been taken that the doctrineQf res judicata is to be applied in particular situations as fairness and justice require,and that it is not to be applied so rigidly as to defeat the ends of justice or so as towork an injustice."' Grava, 73 Ohio St. 3d at 386, 653 N.E.2d at 232 (Douglas, J.,dissenting), quoting 46 American Jurisprudence 2d (1994) 786-787, Judgments,Section 522"

Davis v. Wal-Nlart Stores, Inc., 93 Ohio St.3d 488, 2001 Ohio 1593, 756 N.E.2d 657.

The trial court's duty to merge multiple allied counts at sentencing is mandatory, not

discretionary, State v, Undei-wood, 124 Ohio St. 365, and a sentence that contains an allied-offenses

error is contrary to law. Id at ¶6, T26.

The Supreme Court of Ohio has held that a trial court commits plain error when it imposes

multiple sentences for allied offenses of similar import. State v. Ross, 2011. Ohio 3197, citing

Underwood at 131.

"Plain error" exists if the trial court deviated from a legal rule, the error constiituted an

obvious defect in the proceedings, and the error affected a substantial right of the accused. State v.

Williams, 2011 Ohio 925, at ¶]0, citing State v. Barnes, 94 Ohio St.3d, 21, 27, 2002 Ohio 68, 759

N.E.2d 1240.

Plain error is the only exception to the res judicatcr bar as plain errors are not waivahle. State

v. Chisna, 1999 Ohio App. LEXIS 4700.

In the context of the unsettled allied-offenses legal standing, the appellant urges this Court to

adopt the insightful opinion of Justice Cunningham, of the First Appellate District, concurring in part

and dissenting in part, in State v. Lee, 2013 Ohio 1811, where his Honor detert^^:haed. "Because a

court has no authority to impose a sentence contrary to that mandated by R.C. 2941.25, sentences

imposed in contravention of the statute are unauthorized and thus void." Id. at P28.

14

The appellant's collateral allied-offenses argument is nearly identical to that of Justice

Cunningham, and shares the same conclusion.

"A void sentence is not barred under the doctrine of res judicata and is subjectto review and correction at any time. Fischer, 128 Ohio St.3d 92, 2010 Ohio 6238,942 N.E.2d 332, at paragraph one of the syllabus. Therefore, when a trial court hasimposed sentences in violation of R.C.2941.25, and the matter has come to a court'sattention, the sentence is void and is subject to review and correction, regardless ofthe case's procedural posture. See State uBoswell, 12I Ohio St.3d 575, 2009 Ohio1577, 906 N.E.2d 422, 112. Accord State v. Holcomb, 184 Ohio App. 3d 577, 2009Ohio 3187, 921 N.E.2d 1077, ¶I7-20 (90' Dist.); State v. Long lsg Dist. No C-100285,2010 Ohio 6115, T,5>" Lee at P 29.

Based upon the foregoing arguments in law, the trial and appeals courts had jurisdiction to

entertain the appellant's collateral allied-offenses claim. Therefore, this Court should remand this

case for proper application of the R. C. 2941.25 analysis set forth in Johnson, in the interest of

justice.

CONCLUSION

For the many reasons discussed above, this case involves an unsettled statutory felony

sentencing issue, a matter of public and great general interest. Several substantial constitutional

questions have arisen from the unresolved issue that has far-reaching ramifications, without the

proper clarification from Ohio's Court of SupremeaurAsdiction, that may result in substantial

inequity.

The appellant recl-uests that this Court accept,jurisdiction in this case so that the important

issues presented herein will be reviewed on their merits, based upon applicable statutory law at the

time of punishment imposed in this case.

Respectfully snbrni.tted,

/-^I, . =^Mark D. Musselznan 555-139Defendant Appellant, pee se

15

C]ERTIFrCATE !2F SERVICE

I certify that a copy of this Memorandum In Support of Jurisdiction was sent by ordinary

U.S. mail to COUNSEL FOR APPELLEE, R. LYNN NOTHSTINE (0061560), Assistant

Prosecuting Attorncy, P.O. Box 972, 301 W. Third St., Suite 500, Dayton, O.l:l[ 45422, (937) 225-

4117, this 5"h day of August, 2013.

^^.

v^

Mark D. Musselman 555-139Defendant-Appellant, pro se

16

, ...

FILED

2013 JUN 2SAKTIx 08G¢t^ ti%>t; i P. 3^ l3aH

^iiMaNTGO?^l^9Y C0. Olit{?

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee Appellate Case No. 25295

V.

MARK D. MUSSELMAN

Trial Court Case No, 05-CR-5085t1

Defendant-Appellant

Decision and EntryJune 25th, 2013

PER CURIAM

This matter is before the court on a motion for reconsideration filed by

Defendant-Appellant, Mark Musselman, pro se. The State has not responded to the

motion, and the matter is ripe for decision.

In the motion, Musselman asks us to reconsider the opinion that we recently

rendered in Musselman's appeal from a triat court order denying his motion for

modification or correction of his sentence. See State v. Musselman, 2d Dist.

Montgomery No. 25295, 2013-Ohio-1584. In NJusselman, we rejected the following

arguments: (1) "that the trial abused its discretion and committed plain error by imposing

a disproportionate and inconsistent sentence contrary to statutory sentencing

guidelines"; (2) "that the trial court abused its discretion and committed plain error by

failing to correct multiple sentences for allied offenses of similar import that are contrary

THE COURT OF APPEALS OF OHIOSECOND APPELLATE I3kS7'RICT

Al.

lM

to statutory guidelines"; and (3) "that the trial court abused its discretion and committed

plain error by imposing a fine and restitution order that is contrary to law." Id. at ¶ 1.

We concluded that Musselman's arguments could have been raised on direct appeal

and were barred by res judioata. Id. at12.

Musselman's arguments for reconsideration appear to be contending that his

claim about statutory issues is plain error, which is an exception to the doctrine of res

judicata. In addition, Musselman appears to contend that we are not entitled to rely on

the fact that a judgment is voidable, and use that as a basis for disregarding subsequent

decisions of the Supreme Court of Ohio that altered the law in effect at the time of the

original judgrrlent.

An application for reconsideration is used to call the court's attention to obvious

errors in a decision or to raise issues that the court either failed to consider or did not

fully consider when the original decision was made. Matthews v. Matthews, 5 Ohio

App.3d 140, 143, 450 N.E.2d 278 (10th Dist.1981). However, applications for

reconsideration are "not designed for use in instances where a party simply disagrees

with the conclusions reached and the logic used by an appellate court. App.R. 26

provides a mechanism by which a party may prevent miscarriages of justice that could

arise when an appellate court makes an obvious error or renders an unsupportable

decision under the law." State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956

(11 th Dist.1 996).

After reviewing Musselman's motion, we find no obvious error in our decision, nor

does the motion raise issues that we failed to fully consider, Musselman cites State v.

Stojetz, 84 Ohio St.3d 452, 705 N,E.2d 329 (1999), for the proposition that "plain error is

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

A2

the only exception to the res judicata bar" because plain error cannot be waived.

Application for Reconsideration, p. 2.

We have reviewed Stojetz., and it makes no such statement. Stojetz was a direct

appeal from a death penalty conviction, and res judicata would not have been

applicable. !d: at 454. The Supreme Court of Ohio did mention plain error and waiver a

number of times, because the defendant failed to object to various matters at trial. The

court, therefore, held that the errors were waived, other than plain error. Id. at 455

(noting, for example, that trial counsel failed to object to the jury selection process and

had waived all but plain error.)

In contrast, Musselman has already prosecuted a direct appeal from his 2007

conviction. We affirmed his conviction in January 2009, and his latest appeal was a

post-conviction, collateral proceeding, to which res judicata would apply. Musselman,

2d Dist. Montgomery No. 25295, 2013-Ohio-1584, at 11, 4, and 11.

Musselman's second argument pertains to our to refusal to retroactively apply

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1081. In this

regard, we noted that "'fajrguments challenging the imposition of a sentence that is

voidable are barred by the doctrine of resjudicata if not raised on direct appeal,' "

Musselman at118, quoting from State v. Parson, 2d Dist. Montgomery No. 24641,

2012-Ohio-730,110. Nothing Musselman has raised on reconsideration provides a

basis from departing from Parsons or Musselman.

We also noted that Musselman had exhausted his appellate remedies in June

2009, which was well before Johnson was decided. Musselman at 120. In Af► v, State,

104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, the Supreme Court of Ohio

THE COURT OF aPPEALS OF OHIOSECOND A.1'PELLATE DISTRICT

A3

stressed that:

A new judicial ruling may be applied only to cases that are pending

on the announcement date. State v. Evans (1972), 32 Ohio St.2d 185,

186, 61 0.0.2d 422, 291 N.E.2d 466. The new judicial ruling may not be

applied retroactively to a conviction that has become final, i.e., where the

accused has exhausted a!1 of his appellate remedies. ld ; State v. Lynn

(1966), 5 Ohio St.2d 106, 108, 34 0.0.2d 226, 214 N.E.2d 226; see, also,

State v. Gonzalez (2000), 138 Ohio App.3d 853, 859, 742 id.E.2d 710; cf.

Transamerica Ins. Co. v. Nolan (1995), 72 Ohio St,3d 320, 323, 649

N.E.2d 1229, quoting Doe v. Trumbull Cty. CChildren Serv. Bd. (1986), 28

Ohio St.3d 128, 28 OBR 225, 502 N.E.2d 605, paragraph one of the

syllabus (° [']A subsequent change in the controlling case law in an

unrelated proceeding does not constitute grounds for obtaining relief from

final judgment under Civ.R. 60 [B]' "). (italics added.) Rli at 16.

Accordingly, we correctly refused to apply Johnson to Musselman's case, which

was final in June 2009.

Based on the preceding discussion, Musselman's motion for reconsideration is

without merit and is overruled.

SO ORDERED.

.

M#KE FAIN, Judge

'CHE COURT OF APPEALS OF OH1[3SECOND APPEF..I.ATr, I?ESTT23C'T

A4

MARY E. DONOVAN, Judge

FFERY M. WELBAUM, Judge

Copies mailed to:

R. Lynn NothstineMontgomery County Prosecutor's Office301 W. Third St.P.O. Box 972Dayton, Ohio 45422

Mark MusselmanInmate No. 555-139Chillicothe Gorrectionaf InstituteP.O. Box 550015802 S. R. 104 NorthGhiiEiCothe, Ohio 45601

Hon. Frances E. McGeeMontgomery Co. Common Pleas Court41 N. Perry StreetDayton, Ohio 45422

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

A5

F;L E D^^...^,:a ... .,. . __ _2013 APR ! AM S-* 4 7:

n^}i . -.'` Eq. ^.r.^i^l•1

CLE COURTSMQ=3f t*G^tE3^` C0.1DHit3

$TATE OF OHIO

F'laintiff-Appelfee

V.

MARK D. MUSSELMAN

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

Defendant-Appellant

Appellate Case No. 25295

Trial Court Case No. 2005-CR-508511

(Criminal Appeal fromCommon Pleas Court)

FINAL ENTRY

Pursuant to the opinion of this court rendered on the 1 9th day

of 2013, the judgment of the trial court is Affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby ordered that the clerk of the Montgomery

County Court of Appeals shall immediately serve notice of this judgment upon all parties and

make a note in the docket of the mailing.

MIKE FAIN, Presiding Judge

TEiC COURT OF AP4'EALS OF 411I()SECOND APPELLATE D2STRiCI'

A6

C ^...,eJMAR . DQ OVAN, Judge

^

6 um ----^'FEREY M. WELBAl1M, Judge

Copies mailed to:

Mathias H. Heck, Jr.R. Lynn NothstineMontgomery County Prosecutor's OfficeP.O. Box 972301 W. Third StreetDayton, OH 45422

Mark D. MussalmanInmate No. 555-139Chillicothe Correctional Institution15802 S.R. 104 NorthP.O. Box 5504Chiiiicothe, OH 45601

Hon. Frances E, McGeeMontgomery County Common Pleas Court41 N. Perry StreetDayton, OH 45422

THE CCttJFtT 01' APPEALS OF OHIOSECOND AI'Pi:LLAT£ DiSTRfCT

A7

STATE OF OHIO

I xeesa

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

V.

Piaintiff-Appallee Appellate Case No. 25295

MARK D. MUSSELMAN

Trial Court Case No. 2005-CR-5085/1

(Criminal Appeal fromCommon Pleas Court)

OPINION

Rendered on the 19"day of April, 2013.

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, AssistantProsecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division,Montgomery County Courts Building, P,O. Box 972, 301 West Third Street, Dayton, Ohio45422

Attorney for Plaintiff-Appellee

MARK D. tUlUSSEI"MAN, Inmate No. 555-139, Chillicothe Correctional lnstitutian, 15802S.R. 104 North, P.O. Box 5500, Chillicothe, Ohio 45601

Defendant-Appellant, pro se

WELBAUM, J.

^•: > ,a

2013APR 19 Tr,r.^:......, ^i^

EAa'F6ci::i1': i A. {tf^'

^F'tr '`' {1(JR^!tnJrtTti.GG^9iGMRY CO. OHIA

3 ,^:

Defendant-Appellant

(11) Defendant-Appellant, Mark Musselman, appeals pro se from a trial court order

denying his motion for modification or correction of his sentence. Musselman contends

TIl E COURT OF APPEALS OF E)FIIC?SECOND APPELLATE DISTRICT

AR

7

thatthe trial abused its discretion and committed plain error by imposing a disproportionate

and inconsistent sentence contrary to statutory sentencing guidelines. Musselman also

contends that the trial court abused its discretion and committed plain error by failing to

correct multiple sentences for allied offenses of similar import that are contrary to statutory

guidelines. Finally, Musselman contends that the trial court abused its discretion and

committed plain error by imposing a fine and restitution order that is contrary to law.

(12) We conclude that all of Musselman's arguments could have been raised on

direct appeal and are barred by resjudicata. Accordingly, the judgment of the trial court

will be affirmed.

I. Facts and Course of Proceedings

{13} Following a jury trial, Musselman was convicted in April 2007 on one count of

Engaging in a Pattern of Corrupt Activity (Count One); one count of Aggravated Theft by

Deception ($100,000 or more) (Count Two); nine counts of Forgery involving a value of

$100,000 or more (Counts Three to Eleven); 25 counts of Forgery involving a value of

$5,000 to $100,000 (Counts Twelve to Thirty-Six); and 12 counts of Tampering with

Government Records (Counts Thirty-Seven to Forty-Eight). Musselman was sentenced

to the following terms of imprispnment: five years on Count One; two years on Count Two;

two years each on Counts Three to Eleven, to be served concurrently with each other;

twelve months each on Counts Twelve to Thirty-Six, to be served eoncurrent6y with each

other; and tvoo years each on Counts Thirty-Seven to Forty-Eight, to be served concurrently

with each other. Counts One and Two were to be served consecutively to each other and

consecutively to the other remaining counts, resulting in a total term of imprisonment of

THE Ca11RT OF ArrEAl.S OF OHIOSECONE) APPELLATE DISTRICT

A9

twelve years. The trial court also imposed restitution of $1,151,150, and a fine of

$3,450,000 on Count One.

4} We affirmed Musselman's conviction and sentence in January 2009. See

State v. Musselman, 2d Dist. Montgomery No. 22210, 2009-Ohio-424. Regarding the

factual background, we noted that:.

The present appeal stems from Musselman's involvement in a scheme

to buy properties through a mortgage-broker business under the forged

names of recently deceased people. According to the State, Musselman and

his partner, Mark Edwards, falsified documents so a mortgage lender would

loan far more money on the property than the selling price. The additional

money was paid to the B & B Foundation, an organization established by

Musselman and Edwards, ostensibly for repairs to the properties. The State

alleged, however, that the funds deposited into the B & B Foundation

account were used for the personal gain of Musselman and Edwards. The

State's case was based on transactions involving twelve properties. The

buyers of these properties all were dead at the time of the real estate

transactions. Id. at 13.

{15} On appeal, Musselman raised seven assignments of error, one of which was

that the trial court had "erred in convicting him of allied offenses of similar import." td. at

¶ 22. In this regard, Musselman argued that:

[B]ngaging in a pattern [of] corrupt activity, aggravated theft by deception,

forgery, and tampering with government records are all allied offenses of

similar import. [Musselman] asserts that "there existed only one intent

THE cOUEiT+DF APPEALS OF aFilUSECOND APPE LLATE rliSTPiCT

Alf)

throughout the scheme, defrauding lenders through [his] brokerage

company." He further argues that all of the offenses had "similar" elements,

particularly "the intent to defraud through falsified documents." In his reply

brief, Musselman suggests that all of his offenses should merge into one

offense of engaging in a pattern of corrupt activity. Id.

1:16) After applying Ft,C. 2941.25 and the analysis set forth in State v. Rance, 85

Ohio St.3d 632, 710 N.E.2d 699 (1999), we found Musselman's argument to be without

merit. Musselman at ¶ 23-40. Several months later, the Supreme Court of Ohio declined

to accept Musselman's appeal, See 06/03/2009 Case Announcements, 2009-Ohio-2511

(declining to hear the appeal in State v. Musselman, Ohio Supreme Court Case No.

2009-0459}.

(17) Subsequently, in February 2011, Musselman filed a motion asking the trial

court to correct or modify its "void°" sentence. Musselman filed another motion in June

2011, asking the court to take judicial notice of State v. Johnson, 128 Ohio St.3d 153,

2010-Ot►io-6314, 942 N.E.2d 1061. In Johnson, the Supreme Court of Ohio overruled

Rance, and held that "[w]heri determining whether two offenses are allied offenses of

similar import subject to merger under R.C. 2941.25, the conduct of the accused must be

considered," Id. at syllabus.

(181 In July 2012, the trial court issued an order overruling Musselman's motion

to correct or modify his sentence. The court concluded that Musselman's arguments were

barred by resjudicata. Musselman appeals from the trial court order overruling his motion.

11. Is the Argument that the Sentence is Disproportionate

THE COURT OF APPEALS OF OHIOSECOND APPCLLATE DISTRICT

All

Barred by Res Judicata?

(19) Musselman's First Assignment of Error states as follows:

The Trial Court Abused its Discretion and Plainly Erred to the

Prejudice of Appellant when Imposing the Disproportionate and Inconsistent

Sentence Contrary to Statutory Sentencing Guidelines.

(110) Under this assignment of error, Musselman contends that his sentence is

contrary to law and is disproportionate because it is harsher than the six-year sentence

imposed on his co-defendant, who allegedly had the same "record" and committed the

same offenses. Musselman also points to cases in which other defendants received

lighter sentences for engaging in similar criminal activity. For example, in State v. Burke,

8th Dist. Cuyahoga No. 91081, 2009-Ohio-118, the defendant was sentenced to 11 months

in prison based on her participation in a mortgage-fraud scheme that involved more than

a million dollars. fd, at 13 and 16.

(I 11) As a preliminary matter, we note that "[a] postconviction proceeding is not

an appeal of a criminal conviction, but, rather, a collateral civil attack on the judgment."

State v, Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994), citing State v. Crowder,

60 Ohio St.3d 151, 573 N.E.2d 652 (1991). "Postconviction review is a narrow remedy,

since resjudicata bars any claim that was or could have been raised at trial or on direct

appeat." (Citations omitted.) Id.

(112) In State v, Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), the Supreme

Court of Ohio stressed that:

Under the doctrine of res judcata, a final judgment of conviction bars

a convicted defendant who was represented by counsel from raising and

THF COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

A12

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 by the defendant at the trial, which resulted in that judgment of

conviction, or on an appeal from that judgment. (Emphasis added.) Id. at

176, paragraph nine of the syllabus.

{¶ 13) Because Musselman could have raised the proportionafity of his sentence

on direct appeal, his claim is barred by res judicata. The First Assignment of Error is

overruled.

Ili. Is the Issue of Merger Barred by Res Judicata?

{¶ 14) Musselman's Second Assignment of Error states that;

The Trial Court Abused its Discretion and Plainly Erred, Denying

Appellant Equal Protection of the Laws and the Protection from. Double

Jeopardy, when Failing to Correct the Multiple Sentences for Allied Offenses

of Similar Import Contrary to Statutory Guidelines.

(115) As was noted, Musselman raised the allied offenses issue during his direct

appeal. We rejected his argument, relying on Rance, 85 Ohio St.3d 632,710 N. E.2d 699.

Musselman, 2d Dist, Montgomery No. 22210, 2009-Qhio-424, at123-40.

(116) Rance provided that "[ujnder an R.C. 2941.25(A) analysis, the statutorily

defined elements of offenses that are claimed to be of similar import are compared in the

abstract." Rance at 633, paragraph one of the syllabus. Subsequently, the Supreme Court

of Ohio overruled Rance, and held that "[w]hen determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the

TFIG COURT OF APPEALS OF O}i [OSF',t:ONE? APPELLATE DISTRICT

A13

accused must be considered.,, Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 hl.E.2d

1061, at syllabus.

(1171 Musselman contends that Johnson should be retroactively applied, and that

his offenses were not committed separately, nor were they committed with a separate

animus. Musselman also argues that the trial court's failure to merge the allied offenses

at sentencing was contrary to law, and that his sentence, therefore, is void.

{¶ 18} We rejected similar arguments in State v. Parson, 2d Dist. Montgomery No.

24641, 2012-Ohio-730. We noted in Parson that:

Defendant argues that the trial court's judgment and his resulting

sentence are vpid. Under Ohio law, "a sentence that is not in accordance

with statutorily mandated terms is void." State v. t°Ischer,128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 233, ¶ 8. A void sentence "is not precluded

from appellate review by principles of res judicata, and may be reviewed at

any time, on direct appeal or by collateral attack." !d, at paragraph one of the

syllabus. "Unlike a void judgment, a voidable judgment is one rendered by

a court that has both jurisdiction and authority to act, but the court's judgment

is invalid, irregular, or erroneous." State V. Stmpkins, 117 Ohio St.3d 420,

2008-Ohio-1197, 884 hE.E.2d 568, ¶ 12_ Moreover, "defendants with a

voidable sentence are entitled to resentencing only upon a successful

challenge on direct appeal." State v. Payne, 1 14 Ohio St.3d 502, 2007-CJhio-

4642, 873 N.E.2d 306, ¶ 30.

The claims raised in Defendant's motion to correct void judgment or

sentence demonstrate that, at most, his claim is that his sentence is

T}{F COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

A14

voidable. Defendant does not claim that his sentence is not in conformity

with statutorily mandated terms, or is not provided for by Iaw, or even that the

sentence fails to comply with the formal requirements of R.C. 2941.25. To

the extent that the trial court may have erred at the time of sentencing in

finding that the felonious assautt and kidnapping charges were not aliied

offenses of similar import, Defendant's sentence would be voidable, but in no

way is the sentence illegal so as to render it void.

Arguments challenging the imposition of a sentence that is voidable

are barred by the doctrine of res judicata if not raised on direct appeai.

Simpkins, at 1130. Since Defendant's sentence, assuming his allied offense

argument had merit, would be voidable, he is barred by the doctrine of res

jcrdicata from challenging his sentence on those grounds collaterally through

his "Motion to Correct Void Judgment or Sentence." Smith v. Voorhies, 119

Ohio St.3d 345, 2008-Ohia-4479, 894 N.E.2d 44, ¶ 10-11 ("allied-offense

claims are nonjurisdictional," and, thus, barred by the doctrine of res judicafa

where they were raised, or could have been raised, on direct appeal).

Further, as the State argues in its brief, Defendant cannot rely on the

Supreme Court's recent decision in Johnson because "[a] new judicial ruling

may be applied only to cases that are pending on the announcement date.

The new judicial ruling may not be applied retroactively to a conviction

that has become final, i.e., where the accused has exhausted all of his

appellate remedies." (Citations amitted.) Ali v. State, 104 Ohio St.3d 328,

2004-Ohio-6592, 819 N.tw.2d 687, %6. (Emphasis added.) Parsan at¶ 8-11,

THE COURT OF APPEALS OF OHIOSECfJND APPELLATE DiSTRZCT

At.5

referring to Johnson, 128 Ohio St.3d 153, 2010-C?hio-6314, 942 N.E.2d

1061.

{119} Other appellate districts have reached the same conclusion regarding

voidness. See State ex reL Porterfield v. McKay, 91th Dist. Trumbull No. 2012-T-0012,

2012-ahio-5027, V 15 (noting that "[i]n applying both the general rule and the single

exception to alleged errors involving the merger of allied offenses, the courts of this state

have expressly concluded that this type of judiciaf mistake does not cause the resulting

judgment to be void.") See, also, State v. Guevara, 6th Dist. Lucas No. L-12-1218,

2013-Ohio-728, 18(citing decisions from the Second, Eighth, Tenth, and Eleventh

Appellate Districts, and holding that "failure to merge allied offenses at sentencing does not

render a sentence void.")

(120) Musselman's direct appeals were exhausted on June 3, 2409, when the

Supreme Court of Ohio refused to hear his appeal. See 06/03/2009 Case

Announcements, 2009-Qhio-2511 (declining to hear the appeal in State v. Musselman,

Ohio Supreme Court Case No. 2009-0459). Johnson was decided on December 29, 2010,

and cannot be applied to Musselman.

(121) Based on the preceding discussion,lulusselman's claim with regard to the

allied offense doctrine is barred by resjudicata. Accordingly, the Second Assignment of

Error is overruled.

IV. Are the Issues of Fines and Restitution Barred by Res Judicata?

{¶ 22) Musselman's Third Assignment of Error is as follows:

The Trial Court Abused its Discretion and Plainly Erred to the

THE COURT OF APPEALS OF C1i{rU:SEGOND APPELLATE DIS'rKlCT

Al6

Prejudice of Appeflant when Imposing a Fine and Restitution Order Contrary

to Law.

(123) Under this assignment of error, Musselman chal[engesthettrial court's order

of restitution. Musselman contends that the order was not supported by competent and

credible evidence, created an impermissible financial windfall for the victim, and facilitated

the imposition of an excessively disproportionate fine under R.C. 2923.32(B)(2)(a).

{124} "A trial court abuses its discretion when it orders restitution that does not

bear a reasonable relationship to the actual financial loss suffered." (Citation omitted.)

State v. Ratliff, 194 Ohio App.3d 202, 2011-Ohia-2313, 955 hl.E.2d 425, 19 (2d Dist.).

Furthermore, "'(fjordue process reasons, the amount of restitution must bear a reasonable

relationship to the loss suffered, Accordingly, to ensure a lawful award, there must be

competent, credible evidence in the record to support the trial court's order of restitution

"to a reasonable degree of certainty." ***'" (0itations omitted.) !d. at ¶ 15.

(125) Issues pertaining to restitution and fines are matters for direct appeal.

Because Musselman had an opportunity to challenge the award of restitution and fines

during his direct appeal, these claims are now barred by res judicata. Accordingly,

Musselman's Third Assignment of Error is without merit and is overruled.

V. Conclusion

(1261 All of Musselman's assignments of error having been overruled, the

judgment of the trial court is affirmed.

THE C;OUR"(' Uk APPEALS OF OFifC)SECOND APPELLATE DISTRtCT

A17