[Cite as State v. Allen , 2021-Ohio-2783.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. PAUL EUGENE ALLEN Defendant-Appellan t : : : : : : : : : : Appellate Case No. 29005

Trial Court Case No. 1994-CR-1193 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 13th day of August, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074 332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee PAUL EUGENE ALLEN, #A308-052, P.O. Box 209, Orient, Ohio 43164 Defendant-Appellant, Pro Se

. . . . . . . . . . . . .-2- HALL, J. {¶ 1} Paul Eugene Allen appeals pro se from the trial court’s decisio n, order, and entry overruling his “Motion to Correct a Facially Illegal, Voi d Sentence Based on Criminal Rule 52(B) Plain Error Analysis.” {¶ 2} In his sole assignment of error, Allen contends the trial court erred “when it granted Appellant’s suppression hearing stating that his Miranda rights had been violated, yet failed to grant Appellant relief pursuant to Miranda v. Arizona .” {¶ 3} The record reflects that Allen was convicted of murder and felo nious assault in 1995 and sentenced to prison. In response to a motion from A llen, the trial court filed a nunc pro tunc judgment entry in 2010 specifying that he had b een found guilty by a jury. Thereafter, Allen filed a 2018 motion seeking to correct a purp ortedly void sentence. In support, he argued, among other things, that the trial court’s decision sustaining a suppression motion due to a Miranda violation had not been “applied” during his 1995 trial. The trial court overruled the motion, and we affirmed. See State v. Allen , 2d Dist. Montgomery No. 28266, 2019-Ohio-4594. In so doing, we noted tha t any argument about the trial court’s application of a suppression ruling at trial could have been raised on direct appeal and was barred by res judicata. Id . at ¶ 11. {¶ 4} Allen then filed his present motion on October 22, 2020. He arg ued that the

trial court found a Miranda violation and sustained his suppression motion in 1995 but failed to grant him any “relief.” On that basis, he asserted th at his conviction was invalid

and that his sentence was void. The trial court addressed Allen ’s argument in a comprehensive 10-page decision. It reviewed the record and note d that certain statements Allen made while in custody had been suppressed prio r to his trial. The trial-3- court further noted that those statements were not used during the prosecution’s case in chief. The suppressed statements were used by the prosecution i n rebuttal, however, without objection, after Allen testified in his own defense. Th e trial court then cited case law establishing that otherwise voluntary statements obtained i n violation of Miranda may be used to rebut a defendant’s trial testimony. The trial court further found that Allen’s motion was untimely and not supported by evidence outside the r ecord regardless of whether it was characterized as a petition for post-conviction relief, a motion for leave to seek a new trial, or something else. Finally, the trial court d etermined that any argument

about statements obtained in violation of Miranda being used against Allen was barred by res judicata. {¶ 5} On appeal, Allen asserts that his sentence is void because his conviction resulted in part from illegally-obtained evidence, namely the s tatements obtained in

violation of Miranda . In his reply brief, Allen urges us not to apply res judicata where his suppression motion was sustained but the prosecution used the s uppressed statements to rebut his own trial testimony. He argues that allowing the p rosecution to use the statements in rebuttal deprived him of the protection afforded by Miranda

. {¶ 6} Upon review, we find that the trial court correctly and thoroug hly addressed the issues raised by Allen’s motion. Even setting aside the ext reme untimeliness of the motion, his argument about the improper admission of suppressed statements at trial could have been raised on direct appeal. Therefore, the trial c ourt correctly found res judicata applicable. The trial court also correctly observed th at the State was permitted to use the suppressed statements to rebut Allen’s testimony. “ ‘Un der Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the state can use an accused’s-4- voluntary, but un- Mirandized statement to impeach trial testimony[.]’ ” State v. Mack , 2d Dist. Montgomery No. 26749, 2016-Ohio-6958, ¶ 39, quoting State v. Hill , 75 Ohio St .3d 195, 661 N.E.2d 1068 (1996). Finally, even if Allen’s legal arg ument about the Miranda violation had merit (which it does not), his prison sentence wo uld not be void. An error in

the admission of evidence at trial does not render a defendant’ s sentence void. {¶ 7} For the foregoing reasons, we overrule Allen’s assignment of er ror and affirm the judgment of the Montgomery County Common Pleas Court.

. . . . . . . . . . . . .

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to: Mathias H. Heck, Jr. Elizabeth A. Ellis Paul Eugene Allen Hon. Mary Katherine Huffman