[Cite as State v. Taylor, 2019-Ohio-1376.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

GUDONAVON J. TAYLOR 

Defendant-Appellant 

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Appellate Case No. 28166 

Trial Court Case No. 2008-CR-1087 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 12th day of April, 2019. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

GUDONAVON J. TAYLOR, Inmate No. 627-232, Trumbull Correctional Institution, P.O. 

Box 901, Leavittsburg, Ohio 44430 

 Defendant-Appellant, Pro Se 

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WELBAUM, P.J. 

{¶ 1} This case is the fourth appeal we have considered involving DefendantAppellant Gudonavon Taylor. Taylor is now appealing pro se from the trial court’s 

judgment denying Taylor’s motion to correct his sentence by merging his conviction for 

discharge of a firearm on or near prohibited premises with either his murder or his 

felonious assault conviction. This motion was filed after his conviction and after his direct 

appeal. For the reasons discussed below, the judgment of the trial court will be affirmed. 

I. Facts and Course of Proceedings 

{¶ 2} In April 2008, an indictment was filed charging Taylor with three counts of 

murder, two counts of felonious assault, one count of having weapons while under 

disability, and one count of discharging a firearm on or near a prohibited premises. Each 

count also included a three-year firearm specification. The State later dismissed the 

firearm specification on the charge for having weapons while under disability. 

{¶ 3} After a jury trial, the jury found Taylor guilty of each indicted offense and 

specification, except the charge for having weapons while under disability, which was 

tried to the bench. The trial court found Taylor guilty of having weapons while under 

disability and merged some of the offenses. The judge sentenced Taylor to an 

aggregate term of 41 years to life in prison with the possibility of parole. 

{¶ 4} Taylor’s conviction arose from events occurring in December 2007, when 

Taylor shot and killed Jerod Bryson following an argument over drugs that began at a 

boarding house on Lincoln Street in Dayton, Ohio, and “ended with Bryson's death on 
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nearby Warren Street.” State v. Taylor, 2d Dist. Montgomery No. 23990, 2013-Ohio186, ¶ 6 (Taylor I). According to the eyewitness testimony, Taylor shot Bryson in the 

street, and Bryson got up and walked away. Taylor then followed Bryson and shot him 

several more times after Bryson had fallen down. Id. at ¶ 12 and 28. A forensic 

pathologist “recovered seven bullets from Bryson's body, namely two from his back, one 

from his right hand, one from the left side of his chest, one from the right side of his head, 

one from his pelvis, and one from his neck.” Id. at ¶ 7. She also said that “she found 

14 separate and distinct entrance wounds to Bryson's body, and she testified that Bryson 

died of ‘multiple gunshot wounds of the head and torso.’ ” Id. 

{¶ 5} Taylor filed a direct appeal from his conviction, and we affirmed the trial 

court’s judgment. Taylor I at ¶ 60. We later allowed Taylor to reopen his appeal, and 

he raised five additional assignments of error. After considering the new assignments of 

error, we reaffirmed his conviction. See State v. Taylor, 2d Dist. Montgomery No. 23990, 

2014-Ohio-3647, ¶ 53 (Taylor II). 

{¶ 6} Three years later, Taylor filed a pro se “motion to vacate unlawful sentence,” 

arguing that his sentence violated the Eighth Amendment’s prohibition against cruel and 

unusual punishment. The trial court rejected the motion, and Taylor appealed to our 

court on January 29, 2018. While that appeal was pending, Taylor filed a pro se “motion 

to correct allied offenses” in the trial court. However, the court denied Taylor’s motion 

on September 17, 2018, reasoning that it lacked jurisdiction due to the pending appeal. 

Taylor then filed a timely notice of appeal concerning that order. 

{¶ 7} In November 2018, we agreed with the trial court that Taylor’s sentence did 

not violate the Eighth Amendment, and we affirmed the trial court’s denial of the motion 
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to vacate sentence. See State v. Taylor, 2d Dist. Montgomery No. 27879, 2018-Ohio4628, ¶ 17 (Taylor III). The matter before us now involves Taylor’s appeal from the order 

denying his motion to correct allied offenses based on lack of jurisdiction. 

II. Alleged Error in Finding Lack of Jurisdiction 

{¶ 8} Taylor’s First Assignment of Error states that: 

The Trial Court Erred in Finding That It Lacked Jurisdiction to Hear 

Appellant’s Motion to Correct Allied Offenses and Dismissing the Motion 

Based Upon That Finding, in Violation of His Due Process Protections 

Under the Fourteenth Amendment to the U.S. Constitution, and Article I, 

Section 10 of the Ohio Constitution. 

{¶ 9} Under this assignment of error, Taylor contends that the trial court erred in 

concluding that it lacked jurisdiction to hear his “motion to correct allied offenses.” In its 

order, the trial court noted that it had recently overruled Taylor’s motion to vacate his 

sentence and that Taylor’s appeal from that order was pending. Because Taylor’s 

subsequent motion involved the same issues, the court concluded that it lacked 

jurisdiction to hear the motion at that time. The court, therefore, denied the motion. Doc. 

#4, pp. 1-2. 

{¶ 10} According to Taylor, the pending appeal in Taylor III involved a challenge 

only to the sentencing of juvenile offenders and had nothing to do with allied offenses. 

The State disagrees, noting that if the trial court had granted Taylor’s allied offenses 

motion and modified the sentence, its order would have interfered with our jurisdiction to 

reverse, modify, or affirm Taylor’s sentence in the pending appeal. We agree with the 
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State. 

{¶ 11} As a general rule, when an appeal is taken, the lower court “ ‘is divested of 

jurisdiction, except to take action in aid of the appeal, until the case is remanded to it by 

the appellate court.’ ” State ex rel. Special Prosecutors v. Judges, Court of Common 

Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978), quoting 7 Moore, Federal Practice,

419, Paragraph 60.30(2) (2d Ed.). The court “does retain jurisdiction over issues not 

inconsistent with [the jurisdiction] of the appellate court to review, affirm, modify or reverse 

the appealed judgment,” like collateral issues. Id. 

{¶ 12} The trial court’s consideration of the “motion to correct allied offenses” was 

not a collateral matter and would have been inconsistent with our ability to affirm, modify, 

or reverse the judgment on appeal. Specifically, in the trial court and on appeal in Taylor 

III, Taylor alleged that his 41-year sentence violated the Eighth Amendment’s prohibition 

of cruel and unusual punishment and should be vacated. As support for this claim, 

Taylor relied on State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, 

and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). See

Taylor III, 2d Dist. Montgomery No. 27879, 2018-Ohio-4628, at ¶ 5. In these cases, the 

courts found that the juveniles’ sentences did violate the Eighth Amendment and reversed 

and remanded the cases for resentencing. Moore at ¶ 100; Miller at 465. 

{¶ 13} If we had agreed with Taylor’s position in Taylor III, we would have reversed 

his sentence and remanded for resentencing. However, if the trial court had accepted 

Taylor’s position that some offenses were allied and should have been merged, the court 

would have modified Taylor’s sentence. Clearly, this would have interfered with our 

jurisdiction in the pending appeal in Taylor III. 
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{¶ 14} Accordingly, at the time the trial court ruled, it did not err in refusing to 

exercise jurisdiction over Taylor’s “motion to correct allied offenses.” Taylor’s First 

Assignment of Error, therefore, is overruled. 

III. Trial Court’s Alleged Failure to Merge Counts 

{¶ 15} Taylor’s Second Assignment of Error states that: 

The Trial Court Failed to Merge Count 6, Discharge of a Firearm On 

or Near Prohibited Premises With Either Count 2, Felony Murder, or Count 

3, Felonious Assault, violating Appellant’s Protection Against Double 

Jeopardy, as Provided by the Fifth Amendment to the U.S. Constitution, and 

Article I, Section 10 of the Ohio Constitution. 

{¶ 16} Under this assignment of error, Taylor contends that his conviction for 

discharging a firearm on or near prohibited premises (Count 6) should have been merged 

with his conviction for felony murder (Count 2), or with his conviction for felonious assault 

(Count 3). According to Taylor, trial courts have a statutory duty to decide if offenses 

should be merged, and if a court either fails to do so or errs in doing so, the sentence that 

results is void and may be challenged at any time in a collateral attack. After making 

these points, Taylor details the reasons why, under a plain error review, these convictions 

should have been merged. 

{¶ 17} In response, the State argues that Taylor’s claims are barred by res judicata 

because issues pertaining to merger of allied offenses of similar import must be raised on 

direct appeal. State’s Brief at p. 3, citing State v. Stevens, 2d Dist. Montgomery No. 

26328, 2015-Ohio-2971. This is because “ ‘failure to merge allied offenses does not 
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render a judgment void, but voidable.’ ” Id., quoting State v. Byrd, 2d Dist. Montgomery 

No. 26700, 2015-Ohio-5293, ¶ 10. In its brief, the State also addresses Taylor’s merger 

argument on the merits. 

{¶ 18} Because the trial court did not err in denying Taylor’s motion, we need not 

consider this assignment of error. However, as the State points out, a better course 

would have been for the trial court to simply refrain from ruling on Taylor’s motion while 

the appeal was pending. State’s Brief at p. 3, fn. 1. Consequently, we will briefly 

discuss this assignment of error. After consideration, we agree with the State that 

Taylor’s claim is barred by res judicata. 

{¶ 19} As noted, this is Taylor’s fourth appeal. He raised three issues during his 

initial direct appeal, but did not challenge his sentence. Taylor I, 2d Dist. Montgomery 

No. 23990, 2013-Ohio-186. We then allowed Taylor to reopen his appeal, and he 

asserted five more assignments of error, one of which involved the trial court’s failure to 

merge the allied offenses of felonious assault and murder. Taylor II, 2d Dist. 

Montgomery No. 23990, 2014-Ohio-3647, at ¶ 8. We rejected that argument because 

“there were two separate shootings in two separate locations.” Id. at ¶ 13. We also 

rejected the other assignments of error and affirmed the conviction. Id. at ¶ 53. 

{¶ 20} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits 

bars all subsequent actions based on any claim arising out of the transaction or 

occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist. 

Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio 

St.3d 379, 653 N.E.2d 226 (1995). “The res judicata bar applies to any defense that was 

raised or could have been raised in a criminal defendant's prior direct appeal from his 
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conviction and/or sentence.” Id., citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 

104 (1967). 

{¶ 21} As the State notes, we said in Byrd that: 

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. 

(Citations omitted.) Byrd, 2d Dist. Montgomery No. 26700, 2015-Ohio-5293, ¶ 10. 

{¶ 22} Because Taylor could have raised the trial court’s failure to merge his 

conviction for discharging a firearm on or near prohibited premises during his direct 

appeal (and did, in fact, raise another merger argument), he is barred by res judicata from 

raising this issue now. Accordingly, the Second Assignment of Error is without merit and 

is overruled. 

IV. Conclusion 

{¶ 23} All of Taylor’s assignments of error having been overruled, the judgment of 

the trial court is affirmed. 

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FROELICH, J. and HALL, J., concur. 

Copies sent to: 

Mathias H. Heck, Jr. 

Andrew T. French 

Gudonavon J. Taylor 
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Hon. Gregory F. Singer