[Cite as State v. Parson, 2012-Ohio-730.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

 : 

STATE OF OHIO 

Plaintiff-Appellee : C.A. CASE NO. 24641 

vs. : T.C. CASE NO. 01 CR 546 

 : (Criminal Appeal from 

JAMES T. PARSON Common Pleas Court) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 24th day of February, 2012. 

 . . . . . . . . . 

Mathias H. Heck, Jr., Prosecuting Attorney, Carley J. Ingram, Atty. 

Reg. No. 0020084, Assistant Prosecuting Attorney, Montgomery 

County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, 

OH 45422 

Attorneys for Plaintiff-Appellee 

James T. Parson, #445-040, London Correctional Institution, P.O. 

Box 69, London, OH 43140 

Defendant-Appellant, Pro Se 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant, James T. Parson, appeals from a final order denying his “Motion to 

Correct Void Judgment or Sentence.” 

{¶ 2} On March 9, 2005, Defendant pled guilty to three counts of felonious assault 
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and one count of kidnapping. Defendant was sentenced to four years imprisonment on each 

of the felonious assault counts, to be served concurrently, and to eight years imprisonment on 

the kidnapping count, to be served consecutive to the felonious assault charges, for a total of 

twelve years. Defendant did not file a direct appeal from this judgment. 

{¶ 3} On August 5, 2009, Defendant filed a motion to modify sentencing, arguing 

that his kidnapping sentence should run concurrently with, rather than consecutive to, his 

felonious assault sentences, and that his felonious assault and kidnapping charges should have 

been merged for purposes of sentencing. After considering Defendant’s motion as a motion 

for judicial release, motion for post conviction relief, and a motion to vacate plea, the trial 

court denied the motion. Defendant did not file a direct appeal from this order. 

{¶ 4} On March 8, 2011, Defendant filed his “Motion to Correct Void Judgment or 

Sentence.” In his motion, Defendant argued that the trial court erred by not merging his 

kidnapping charge with the felonious assault charges because they were allied offenses of 

similar import, relying on the Supreme Court’s recent decision in State v. Johnson, 128 Ohio 

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. On April 18, 2011, the trial court denied 

Defendant’s motion, finding that the arguments raised are barred by the doctrine of res 

judicata. Defendant filed a notice of appeal from that order. 

FIRST ASSIGNMENT OF ERROR

{¶ 5} “SHOULD KIDNAPPING AND FELONIOUS ASSAULT BE MERGED AS 

ALLIED OFFENSES WHEN THERE IS NOT A SEPARATE ANIMUS FOR EACH 

CRIME, AS THE KIDNAPPING CHARGE WAS INHERENT WITHIN THE FELONIOUS 

ASSAULT CHARGE IN THIS INSTANT CASE.” 
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SECOND ASSIGNMENT OF ERROR

{¶ 6} “CONSTITUTIONAL VIOLATIONS CAN NOT BE BARRED FROM 

REVIEW OR REVERSAL BASED ON THE DOCTRINE OF RES JUDICATA WHEN THE 

STANDARD OF LAW DURING THE FIRST PRESENTMENT OF THE CLAIM BY THE 

DEFENDANT DID NOT SUPPORT A REVERSAL IN HIS CASE, AND UNTIL THE 

EXTRAORDINARY CIRCUMSTANCES WITH THE RULING OF LAW IN ANOTHER 

CASE CHANGED THE STANDARD OF LAW THAT UPHELD THE ORIGINAL 

CONVICTION OF THE DEFENDANT.” 

{¶ 7} “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 by the defendant at the trial, which resulted 

in that judgment of conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio 

St.3d 93, 671 N.E.2d 233, syllabus. As the trial court explained, the doctrine of res judicata, 

if applicable, bars the arguments raised in Defendant’s motion. 

{¶ 8} Defendant argues that the trial court’s judgment and his resulting sentence are 

void. Under Ohio law, “a sentence that is not in accordance with statutorily mandated terms 

is void.” State v. Fischer, 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.” Id. 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 
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erroneous.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.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, 114 Ohio St.3d 502, 

2007-Ohio-4642, 873 N.E.2d 306, ¶ 30. 

{¶ 9} The claims raised in Defendant’s motion to correct void judgment or sentence 

demonstrate that, at most, his claim is that his sentence is voidable. Defendant does not 

claim that his sentence is not in conformity with statutorily mandated terms, or is not 

provided for by law, 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 assault and kidnapping charges were not allied offenses of similar 

import, Defendant’s sentence would be voidable, but in no way is the sentence illegal so as to 

render it void. 

{¶ 10} Arguments challenging the imposition of a sentence that is voidable are barred 

by the doctrine of res judicata if not raised on direct appeal. Simpkins, at ¶ 30. Since 

Defendant’s sentence, assuming his allied offense argument had merit, would be voidable, he 

is barred by the doctrine of res judicata 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-Ohio-4479, 894 N.E.2d 44, ¶ 10-11 (“allied-offense claims are 

nonjurisdictional,” and, thus, barred by the doctrine of res judicata where they were raised, or 

could have been raised, on direct appeal). 

{¶ 11} 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 
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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 omitted.) Ali v. State, 104 Ohio St.3d 328, 

2004-Ohio-6592, 819 N.E.2d 687, ¶ 6. 

{¶ 12} The assignments of error are overruled. The judgment of the trial court will be 

affirmed. 

FROELICH, J., And HALL, J., concur. 

Copies mailed to: 

Carley J. Ingram, Esq. 

James T. Parson 

Hon. Mary Wiseman