[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-Appellant

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Appellate Case No. 29005 

Trial Court Case No. 1994-CR-1193 

(Criminal Appeal from 

Common Pleas Court) 

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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. 0074332, Assistant 

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

Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 

45422 

 Attorney for Plaintiff-Appellee 

 

PAUL EUGENE ALLEN, #A308-052, P.O. Box 209, Orient, Ohio 43164 

 Defendant-Appellant, Pro Se 

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HALL, J. 

{¶ 1} Paul Eugene Allen appeals pro se from the trial court’s decision, order, and 

entry overruling his “Motion to Correct a Facially Illegal, Void 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 felonious assault 

in 1995 and sentenced to prison. In response to a motion from Allen, the trial court filed 

a nunc pro tunc judgment entry in 2010 specifying that he had been found guilty by a jury. 

Thereafter, Allen filed a 2018 motion seeking to correct a purportedly 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 that 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 argued 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 that 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 noted that certain 

statements Allen made while in custody had been suppressed prior to his trial. The trial 
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court further noted that those statements were not used during the prosecution’s case in 

chief. The suppressed statements were used by the prosecution in rebuttal, however, 

without objection, after Allen testified in his own defense. The trial court then cited case 

law establishing that otherwise voluntary statements obtained in 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 record 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 determined 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 statements 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 suppressed statements 

to rebut his own trial testimony. He argues that allowing the prosecution 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 thoroughly addressed 

the issues raised by Allen’s motion. Even setting aside the extreme 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 court correctly found res 

judicata applicable. The trial court also correctly observed that the State was permitted to 

use the suppressed statements to rebut Allen’s testimony. “ ‘Under 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 
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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 argument about the Miranda

violation had merit (which it does not), his prison sentence would 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 error 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