[Cite as State v. Literal, 2012-Ohio-6298.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 12CA3479 

 : 

 vs. : RELEASED 12/26/12 

 : 

TIMOTHY LITERAL, : DECISION AND JUDGMENT 

 : ENTRY

 Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Timothy Literal, Lima, Ohio, Appellant, pro se. 

Mark E. Kuhn, Scioto County Prosecuting Attorney, Matthew A. Wisecup, 

Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee. 

_____________________________________________________________ 

 

McFarland, J.: 

{¶1} Appellant, Timothy Literal, appeals the trial court’s denial of his 

“Petition to Vacate Judgment of Conviction or Sentence.” In 2007, a jury 

found Appellant guilty of robbery, aggravated robbery, possession of drugs 

and trafficking in drugs. Appellant filed a direct appeal of his convictions 

and sentences, which we determined in State v. Literal, 4th Dist. No. 

07CA3207, 2009-Ohio-199. In his current appeal, Appellant contends that 

the trial court erred by overruling his petition to correct his illegal sentence, 

in which he claimed that the offenses of aggravated robbery and possession 
Scioto App. No. 12CA3479 2

of drugs were allied offenses of similar import, which should have merged 

pursuant to R.C. 2941.25, as well under State v. Johnson, 128 Ohio St.3d 

153, 2010-Ohio-6314, 942 N.E.2d 1061. 

{¶2} However, because Appellant could have, but failed to raise this 

argument as part of his original direct appeal, his argument is barred by the 

doctrine of res judicata. Further, although a void sentence is subject to 

challenge at any time, even if Appellant’s argument was meritorious, his 

convictions would simply be rendered voidable, not void. Accordingly, the 

decision of the trial court is affirmed. 

FACTS 

{¶3} In 2007, a jury found Appellant guilty of robbery, aggravated 

robbery, possession of drugs and trafficking in drugs. As part of his direct 

appeal, this Court vacated his conviction for trafficking in drugs, but 

affirmed all other aspects of his convictions and sentences. Since that time, 

Appellant has filed a series of post conviction motions, his most recent being 

his February 21, 2012, Petition to Vacate Judgment of Conviction and 

Sentence. Appellant raised only one claim in his petition, the claim being 

that aggravated robbery and possession of drugs are allied offenses of 

similar import and that his convictions should have been merged for 

purposes of sentencing. Appellant cited the recent holding of the Supreme 
Scioto App. No. 12CA3479 3

Court of Ohio in State v. Johnson, supra, in support of his argument. The 

trial court denied the petition as untimely on March 9, 2012. It is from this 

judgment entry that Appellant now brings his current appeal, setting forth a 

single assignment of error for our review. 

ASSIGNMENT OF ERROR 

“I. THE TRIAL COURT ERRED BY OVERRULING THE 

APPELLANT’S PETITION TO CORRECT ILLEGAL SENTENCE 

THAT IS BEING MAINTAINED IN VIOLATION OF HIS FIFTH, 

SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS 

UNDER THE CONSTITUTION OF THE UNITED STATES, AND 

SIMILAR PROVISIONS OF THE OHIO CONSTITUTIONS.” 

LEGAL ANALYSIS 

{¶4} In his sole assignment of error, Appellant contends that the trial 

court erred in overruling his petition to correct illegal sentence. As set forth 

above, Appellant contends that aggravated robbery and possession of drugs 

are allied offenses of similar import which should have been merged, and 

that the trial court erred in denying his petition to vacate his judgment of 

conviction or sentence. As such, Appellant claims that his sentence is void, 

can be challenged at any time, and is not barred by the principles of res 

judicata. 

{¶5} “ ‘In general, a void judgment is one that has been imposed by a 

court that lacks subject-matter jurisdiction over the case or the authority to 

act. Unlike a void judgment, a voidable judgment is one rendered by a court 
Scioto App. No. 12CA3479 4

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

invalid, irregular, or erroneous.’ ” (Internal citation omitted.) State v. 

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6, quoting 

State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 

12. Typically, “sentencing errors are not jurisdictional and do not render a 

judgment void.” Id. at ¶ 7. However, “a sentence that is not in accordance 

with statutorily mandated terms is void.” Id. at ¶ 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. 

{¶6} In contrast, arguments challenging the imposition of a voidable 

sentence are barred by the doctrine of res judicata if not raised on a direct 

appeal. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 

N.E.2d 306, ¶ 30. The doctrine of res judicata bars claims that the defendant 

raised or could have raised on direct appeal. In re B.C.S., 4th Dist. No. 

07CA60, 2008-Ohio-5771, ¶ 14. “[T]he doctrine serves to preclude a 

defendant who has had his day in court from seeking a second on that same 

issue. In so doing, res judicata promotes the principles of finality and 

judicial economy by preventing endless relitigation of an issue on which a 
Scioto App. No. 12CA3479 5

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. 

{¶7} Here, Appellant’s argument that the trial court should have 

merged his convictions under R.C. 2941.25, even if meritorious,1

 would only 

render the judgment voidable, not void. State v. Miller, 4th Dist. No. 

11CA14, 2012-Ohio-1922, ¶ 6; citing State v. Cioffi, 11th Dist. Nos. 2011-T0072 & 2011-T-0073, 2012-Ohio-299, ¶¶ 13–14; State v. Britta, 11th Dist. 

No. 2011-L-041, 2011-Ohio-6096, ¶ 17; See State ex rel. Martin v. Russo, 

130 Ohio St.3d 269, 2011-Ohio-5516, 957 N.E.2d 769 (holding that 

defendant's claims of sentencing error via writ of mandamus, including 

allied-offense claim, barred by res judicata). As in Miller, because 

Appellant failed to raise his allied offenses argument on direct appeal, that 

issue has become res judicata and he cannot challenge his sentence on that 

basis collaterally through a petition to vacate his judgment of conviction or 

sentence. Miller at ¶ 6. 

{¶8} Thus, we cannot conclude that the trial court erred in denying 

Appellant’s petition. This is true despite the fact that the trial court’s denial 

 

1

 We take this opportunity to note that even if we were to address Appellant’s allied offenses argument on 

the merits, the reasoning of the Supreme Court of Ohio in State v. Johnson, supra, would not impact our 

analysis. “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 O.O.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 all of his appellate remedies. Id.” State v. Layne, 4th Dist. No. 11CA17, 2012-Ohio-1627, ¶ 10 

(internal citations omitted). Appellant’s case was not pending on direct review at the time State v. Johnson

was released. As such, it has no applicability to Appellant’s convictions or sentences. 
Scioto App. No. 12CA3479 6

of the petition was based upon the reasoning that it was untimely filed, as 

opposed to being barred by res judicata principles. Id. at ¶ 6; citing Captain 

v. United Ohio Ins. Co., 4th Dist. No. 09CA14, 2010-Ohio-2691, ¶ 33; 

quoting State v. Sebastian, 4th Dist. No. 08CA19, 2009-Ohio-3117, at ¶ 25 

(“ ‘[W]hen a trial court has stated an erroneous basis for its judgment, an 

appellate court must affirm the judgment if it is legally correct on other 

grounds, that is, it achieves the right result for the wrong reason, because 

such an error is not prejudicial.’ ”). Accordingly, the decision of the trial 

court is affirmed. 

JUDGMENT AFFIRMED. 

Kline, J., concurring. 

{¶9} I respectfully concur in judgment only because I conclude that 

the Appellant’s petition was not timely filed. See R.C. 2953.21(A)(2) and 

R.C. 2953.23(A). 
Scioto App. No. 12CA3479 7

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of 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 Scioto County Common Pleas Court to carry this judgment into 

execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

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

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Abele, P.J.: Concurs in Judgment and Opinion. 

Kline, J.: Concurs in Judgment Only with Opinion. 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland, Judge 
Scioto App. No. 12CA3479 8

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.