[Cite as State v. Robinson, 2014-Ohio-397.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 100077 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

KENNETH ROBINSON 

DEFENDANT-APPELLANT

 JUDGMENT: 

 AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-446184 

BEFORE: E.A. Gallagher, J., Jones, P.J., and Stewart, J. 

RELEASED AND JOURNALIZED: February 6, 2014 
ATTORNEY FOR APPELLANT

Walter T. Madison 

The Malone Bldg., Suite 201 

209 S. Main Street 

Akron, OH 44308 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Mary H. McGrath 

Assistant County Prosecutor 

Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
EILEEN A. GALLAGHER, J.: 

{¶1} Kenneth Robinson appeals the trial court’s denial of his motion to vacate a 

void sentence. Robinson challenges the constitutionality of Ohio’s postconviction relief 

statute, arguing that R.C. 2953.23 is unconstitutional and his convictions are for allied 

offenses thus entitling him to be resentenced. Finding no merit to the instant appeal, we 

affirm the decision of the trial court. 

{¶2} In May 2004, Robinson entered into a plea agreement with the state of 

Ohio whereby he pleaded guilty to felonious assault, as a lesser included offense of 

aggravated murder, involuntary manslaughter as a lesser included offense of aggravated 

murder, and kidnapping. In exchange, the state deleted all the attached specifications 

and dismissed the remaining count of the indictment. As part of the plea negotiations, 

the parties stipulated that all counts were to run consecutively, and the trial court 

sentenced Robinson to a total prison term of 28 years. 

{¶3} In May 2013, Robinson petitioned the court to vacate and correct his void 

sentence. The trial court denied Robinson’s petition and he appealed raising the 

following assignments of error: 

The trial court erred and abused its judicial discretion when not applying 

the Johnson and Williams decisions retroactively via the collateral-attack 

doctrine and in accord with principles set forth in Fiore, Bunkley, and 

Agee, violating the Due Process and Equal Protection Clauses of the 

United States and Ohio Constitutions. 

The trial court erred and abused judicial discretion when refusing to 

adjudicate that an application of Ali v. State of Ohio would be in direct 

violation of the Supremacy, Due Process and Equal Protection Clauses of 
the United States and Ohio Constitutions. 

The trial court erred and abused judicial discretion when refusing to 

adjudicate that the double jeopardy claim and challenge to the 

constitutionality of Ohio Rev. Code 2953.23(A)(1)(a) were not barred 

under the doctrine of res judicata, and that its application violates the Due 

Process and Equal Protection Clauses of the United States and Ohio 

Constitutions. 

The trial court erred and abused judicial discretion when refusing to 

adjudicate that Ohio Rev. Code section 2953.23(A)(1)(a) is 

unconstitutional upon its face and in its operation because such provides no 

provision to bring a claim under the principles set forth in Fiore, Bunkley, 

and Agee, violating the Due Process and Equal Protection Clauses of the 

United States and Ohio Constitutions. 

The trial court erred and abused judicial discretion when refusing to 

adjudicate the fact Appellant’s convictions and sentences are in violation 

of the Double Jeopardy Clauses of the United States and Ohio 

Constitutions, including Ohio Rev. Code section 2941.25(A) according to 

Johnson and Williams. 

{¶4} Robinson’s five assignments of error consist of one claim and, as such they 

will be addressed together. 

{¶5} In State v. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, this 

court stated the following: “[c]laims that offenses are allied invoke the protections of the 

Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and 

Section 10, Article I of the Ohio Constitution.” State v. Underwood, 124 Ohio St.3d 

365, 2010-Ohio-1, 922 N.E.2d 923. Ohio’s postconviction statute, R.C. 

2953.21(A)(1)(a), specifically applies to any person who has been convicted of a 

criminal offense and claims a denial or infringement of his rights “as to render the 

judgment void or voidable under the Ohio Constitution or the Constitution of the United 

States.” Kelly. 
A motion to correct an illegal sentence is “an appropriate vehicle for 

raising the claim that a sentence is facially illegal at any time.” [State v.] 

Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509. “Where a 

criminal defendant, subsequent to his or her direct appeal, files a motion 

seeking vacation or correction of his or her sentence on the basis that his or 

her constitutional rights have been violated, such a motion is a petition for 

postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 

Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131. 

Kelly, supra. 

{¶6} Although not captioned a petition for postconviction relief, Robinson’s 

petition to the trial court was such a petition. Accordingly, he must comply with the 

jurisdictional time limits on a postconviction petition for relief. State v. Johns, 8th Dist. 

Cuyahoga No. 93226, 2010-Ohio-162. A petition for postconviction relief that claims a 

violation of a constitutional right must be filed no later than 180 days after the expiration 

of the time for filing the appeal. R.C. 2953.21(A)(2). An exception to the time limit 

exists if it can be shown that (1) petitioner was unavoidably prevented from discovering 

the facts relied on in the claim for relief or that the United States Supreme Court 

recognized a new federal or state right that applies retroactively to persons in the 

petitioner’s situation, and the petition asserts a claim based on that right; and (2) there is 

clear and convincing evidence that but for the constitutional error at trial no reasonable 

trier of fact would have found the petitioner guilty of the offense. R.C. 2953.23(A)(1). 

{¶7} In the present case, Robinson filed his motion to correct an illegal sentence, 

treated by this court as a petition for postconviction relief, in 2013 — nearly nine years 

after the expiration of the time for filing the appeal. More than 180 days elapsed so his 

petition for postconviction relief was facially untimely. Kelly. 
{¶8} Further, none of the exceptions of R.C. 2953.23(A)(1) apply to extend the 

time requirement. Although Robinson argues that he had been unavoidably prevented 

from raising the issue of allied offenses in his direct appeal because State v. Johnson, 128 

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, had not yet been decided, he could 

not establish the second exception to the time limit because an alleged sentencing error 

would have no effect on his guilt or innocence on the charged offenses. State v. Rivers, 

12th Dist. Warren No. CA2006-OH-092, 2007-Ohio-2442; Kelly. 

{¶9} In Kelly, this court dealt with the same issue raised by Robinson in this 

present appeal: that his convictions were allied offenses based upon the Ohio Supreme 

Court’s decision in State v. Johnson, which established the test as “whether it is possible 

to commit one offense and commit the other with the same conduct[.]” Id. However, as 

stated in Kelly, Robinson’s conviction predated Johnson — the test in place at the time of 

Robinson’s conviction was that set forth in State v. Rance, 95 Ohio St.3d 632, 

1999-Ohio-291, 710 N.E.2d 699. “Rance required the courts to compare the elements 

of each offense in the abstract, with no reference to the particular facts of the case, to 

determine whether the commission of one offense would necessarily result in the 

commission of the other offense.” Kelly. In Kelly, this court determined that Kelly 

cannot rely on Johnson as support for his argument when it was the Rance test in place at 

the time of his conviction. Id. The same rationale applies in the instant case. 

{¶10} As such, we find no merit to Robinson’s argument. 

{¶11} Lastly, we overrule Robinson’s argument that R.C. 2953.23 is 

unconstitutional. This court, as well as other Ohio appellate courts have consistently 
held that R.C. 2953.23 is constitutional. 

Courts throughout this State have repeatedly found that R.C. 2953.23(A)(2) 

is constitutional and does not violate the Supremacy Clause, the Doctrine 

of Separation of Powers, the “due course of law” or “open courts” 

provisions of the Ohio Constitution. 

{¶12} Accordingly, Robinson’s first, second, third, fourth and fifth assignments of 

error are overruled. 

{¶13} The judgment of the trial court is affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

lower court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

 

 

EILEEN A. GALLAGHER, JUDGE 

LARRY A. JONES, SR., P.J., and 

MELODY J. STEWART, J., CONCUR