[Cite as State v. Gilmore, 2012-Ohio-2216.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97844

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

KEVIN J. GILMORE

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-493778, CR-498126, CR-498813, and CR-499150 

BEFORE: Keough, J., Sweeney, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: May 17, 2012 
FOR APPELLANT

Kevin J. Gilmore, pro se 

Inmate #553-065 

P.O. Box 5500 

Chillicothe, OH 45601 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

Mary McGrath 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
KATHLEEN ANN KEOUGH, J.: 

{¶1} Defendant-appellant, Kevin J. Gilmore, pro se, appeals the trial court’s 

judgment denying his “motion to vacate void and illegal judgment and sentence.” For 

the reasons that follow, we affirm. 

 I. Procedural History 

{¶2} In 2007, Gilmore was indicted in four separate cases.1

 After a bench trial 

in Case No. CR-498813, the trial court found Gilmore guilty of failure to comply with an 

order or signal of a police officer and having a weapon while under a disability, as well as 

the one-year firearm specifications attached thereto. The court acquitted Gilmore of the 

other three charges. Subsequently, Gilmore entered guilty pleas as to all charges in the 

other three cases. On August 25, 2008, the trial court sentenced Gilmore in all four cases 

to a total prison sentence of nine years. 

{¶3} This court affirmed Gilmore’s convictions on appeal. State v. Gilmore, 8th 

Dist. Nos. 92106, 92107, 92108, and 92109, 2009-Ohio-4230 (“Gilmore I”). The Ohio 

Supreme Court declined jurisdiction over Gilmore’s appeal. State v. Gilmore, 125 Ohio 

St.3d 1450, 2010-Ohio-2510, 927 N.E.2d 1129. 

 1

CR-493778, CR-498126, CR-498813, and CR-499150. 
{¶4} Gilmore then filed a “motion to vacate void and illegal judgment and 

sentence” in the trial court. In his motion, Gilmore argued that his sentence in Case No. 

CR-498813 was void because the trial court had not made adequate findings at trial to 

determine the level of penalty on the firearm specifications. He argued further that the 

trial court had failed to advise him of postrelease control before accepting his guilty pleas 

in the other three cases and, therefore, his pleas were not knowingly, voluntarily, and 

intelligently made and should be vacated. 

{¶5} The trial court denied Gilmore’s motion. It ruled that it had properly 

advised Gilmore of postrelease control and that Gilmore’s challenge to his convictions 

was barred by the doctrine of res judicata. Gilmore appeals from this judgment. 

 II. Analysis 

{¶6} In his single assignment of error, Gilmore challenges the trial court’s denial 

of his motion to vacate. Specifically, he contends that his sentence was “void,” and 

therefore not subject to the res judicata bar, because the trial court failed to properly 

advise him of postrelease control before accepting his guilty pleas, and did not make 

adequate findings at trial in Case No. CR-498813 to determine the level of penalty for the 

firearm specifications. 

{¶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 

proceedings 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 that 
resulted in the judgment of conviction, or on an appeal from that judgment. State v. 

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. This 

doctrine “promotes the principles of finality and judicial economy by preventing endless 

relitigation of an issue on which a defendant has already received a full and fair 

opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 

N.E.2d 824, ¶ 18. 

{¶8} While Gilmore correctly asserts that res judicata does not preclude review 

of a “void” sentence, 2

 the doctrine “still applies to other aspects of the merits of a 

conviction, including the determination of guilt and the lawful elements of the ensuing 

sentence.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, 

paragraph three of the syllabus. Thus, to survive the res judicata bar, Gilmore was 

required to demonstrate that his sentence was “void.” 

{¶9} Gilmore’s motion failed to demonstrate any error, much less “void” 

sentencing error. The record reflects that Gilmore did not attach transcripts of the trial, 

plea, or sentencing hearings to his motion to vacate. In the absence of such transcripts, 

the trial court was permitted to presume that Gilmore was properly informed of 

postrelease control before it accepted his guilty pleas and at sentencing, and that the trial 

court made adequate findings at trial to support Gilmore’s convictions. State v. 

Falkenstein, 8th Dist. No. 96659, 2011-Ohio-5188, ¶ 3, fn.1; State v. Harden, 2d Dist. 

 2

“[P]rinciples of res judicata do not apply to void sentences because, by definition, a void 

sentence means that no final judgment of conviction has been announced.” State v. McGee, 8th 

Dist. No. 91638, 2009-Ohio-3374, ¶ 8. 
No. 23742, 2010-Ohio-5282, ¶ 17. Likewise lacking any transcripts, we have no record 

on which to review the trial, plea, or sentencing hearings, and in that circumstance, must 

presume the regularity and validity of the trial court’s proceedings and affirm. Id., citing 

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). 

{¶10} Moreover, even if Gilmore’s sentence were void, the doctrine of res judicata 

applies to the arguments he raised in his motion to vacate and on appeal. In State v. 

Fountain, 8th Dist. Nos. 92772 and 92874, 2010-Ohio-1202, this court considered the 

impact of res judicata on a motion to withdraw a guilty plea filed after the imposition of a 

void sentence. This court concluded that “the application of res judicata to a motion to 

withdraw a guilty plea is not impacted by a void sentence.” Id. at ¶ 9. Thus, this court 

affirmed the trial court’s denial of the defendant’s motion to vacate his plea on the basis 

that he had been misinformed at his plea hearing about postrelease control. This court 

held that “Fountain could have raised that issue on direct appeal [and,] [t]herefore, his 

motion is barred by res judicata.” Id. at ¶ 11. See also State v. Gross, 8th Dist. No. 

93819, 2010-Ohio-3727 (defendant’s sentence was void, requiring de novo resentencing, 

where the trial court failed to properly advise defendant of postrelease control at 

sentencing but res judicata barred consideration of defendant’s motion to withdraw his 

plea because defendant did not raise the issue on direct appeal). 

{¶11} Here, although Gilmore titled his motion “motion to vacate void and illegal 

judgment and sentence,” it was in essence a motion to withdraw his guilty pleas with 

respect to the three cases in which he pled guilty. But like the defendant in Fountain, 
Gilmore could have raised any issue regarding the adequacy of the trial court’s 

postrelease control advisement during the plea colloquys on direct appeal. Because he 

did not do so, the issue is barred by res judicata.3

 

{¶12} Likewise, because Gilmore did not raise any issue on direct appeal regarding 

the adequacy of the trial court’s findings on the firearm specifications in Case No. 

CR-498813, the doctrine of res judicata bars any further consideration of those issues. 

Accordingly, the trial court properly denied Gilmore’s “motion to vacate void and illegal 

judgment and sentence.” 

{¶13} 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 common 

pleas 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. 

KATHLEEN ANN KEOUGH, JUDGE 

JAMES J. SWEENEY, P.J., and 

SEAN C. GALLAGHER, J., CONCUR 

 3

Furthermore, Gilmore challenged the voluntariness of his pleas in Gilmore I, 

and this court found that his pleas were entered knowingly, intelligently, and 

voluntarily. Accordingly, any issue about his pleas is barred by res judicata.