[Cite as State v. Gross , 2021-Ohio-3289.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNT Y STATE OF OHIO, Plaintiff-Appellee,

- v - MIGEL MANUEL GROSS, Defendant-Appellant. CASE NO. 2021-L-042

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2010 CR 000728

O P I N I O N Decided: September 20, 2021 Jud g ment: Affirmed

Charles E. Coulson , Lake County Prosecutor, and Teri R. Daniel , Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 ( For Plaintiff-Appellee )

. Migel Manuel Gross , pro se, PID# A602-478, Marion Correctional Institution, 940 Marion-Williamsport Road, P.O. B ox 57, Marion, OH 43302 ( Defendant-Appellant )

.
MARY JANE TRAPP, P.J. {¶1} Appellant, Migel Manuel Gross (“Mr. Gross”), appeals from the L ake County Court of Common Pleas’ judgment that denied his “Motion to Corr ect Entry” regarding his 2011 convictions for kidnapping, rape, gross sexual imposition, and unlawful sexual conduct with a minor. The trial court found his claims regardi ng merger of allied offenses and consecutive sentence findings were barred by the doctrine o f res judicata and should have been raised on direct appeal.2 Case No. 2021-L-042 {¶2} Mr. Gross raises two assignments of error on appeal, contending that the trial court erred by denying his motion because at the time of sentencing it failed to: (1) merge the counts of kidnapping and rape pursuant to State v. Logan , 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), because these offenses are always allie d offenses of similar import, and (2) include consecutive sentence findings pursuant to R.C. 2929.14(C)(4) in the sentencing judgment entry. {¶3} After a review of the record and pertinent caselaw, we find Mr. Gross’s assignments of error to be without merit. Mr. Gross should hav e raised these arguments regarding merger of allied offenses and lack of consecutive sen tence findings pursuant to R.C. 2929.14(C)(4) on direct appeal. Thus, the trial court did not err in finding his motion was precluded under the doctrine of res judicata. {¶4} The judgment of the Lake County Court of Common Pleas is affirm ed. Substantive and Procedural Facts {¶5} In State v. Gross , 11th Dist. Lake No. 2011-L-073, 2012-Ohio-3020, this court affirmed Mr. Gross’s conv ictions for kidnapping, rape, gr oss sexual imposition, and unlawful sexual contact with a minor. {¶6} We reviewed the following facts in our opinion: {¶7} Mr. Gross was visiting at the minor victim’s house, who was at home with her mother and her siblings, including her older sister and her sister’s two children. The older sister, who was also an acquaintance of Mr. Gross, was cl eaning the room she shared with her children. Mr. Gross came into the room and mad e sexual advances toward her, which she rejected. Mr. Gross became angry and sat in a chair outside of her bedroom in the hallway, close to the door. Approximately f ive to ten minutes later,3 Case No. 2021-L-042 the older sister opened her bedroom door and noticed all the li ghts were out in the home. She attempted to open her little sister’s door, but Mr. Gross’s body was blocking the entrance, and she observed Mr. Gross performing oral sex on the minor. Despite yelling and hitting Mr. Gross, he refused to get off of the minor victi m. Id. at ¶ 2-5. {¶8} The minor victim also testified at trial. She stated that she was sitting against the door to prevent Mr. Gross from entering her bedroom . Mr. Gross forced his way in, pulled her down, put his head between her legs, and put his mouth on her vagina. She was unable to push him off – Mr. Gross was 5’8” and weighed 310 pounds. Id. at ¶ 3, 7. {¶9} After the incident, Mr. Gross incessantly telephoned the home, at times calling every 30 seconds for several hours. He also offered th e victim’s older sister $500 if she would not report the incident to the police. The teleph one calls, all initiated by Mr. Gross, were documented through phone records. Id. at ¶ 6. The detective who interviewed the minor also testified that after an interview wi th her older sister, the minor victim was more “willing and able to tell her side of the story .” Id. at ¶ 8. {¶10} The jury also heard an audio-taped interview of Mr. Gross’s ver sion of events. He admitted to officers that he had consensual sex wit h the minor victim. He later recanted his statement and then claimed he was about to g ive oral sex to the minor and she informed him she was 18 years of age. Id. at ¶ 9. {¶11} Mr. Gross was found guilty on all four counts. Id. at ¶ 10. {¶12} A review of the transcript reveals that during the sentencing h earing, defense counsel raised the issue of merger, arguing that the ra pe and kidnapping charges should be merged because the asportation was extremely minimal with a single animus4 Case No. 2021-L-042 and single conduct. Based on the facts at trial, the trial cou rt determined the offenses did not constitute “the same conduct with a single state of mind” a nd that the two counts should not be merged. {¶13} A review of the sentencing entry reveals the consecutive senten ce findings required by R.C. 2929.14(C)(4) that the trial court articulated on the record at the hearing did not make their way into the judgment entry. {¶14} Mr. Gross was sentenced to a 15-year total term of imprisonment

. {¶15} On appeal, Mr. Gross raised six assignments of error, contendin g that (1) the trial court improperly permitted jury questions; (2) the tr ial court allowed prejudicial other acts evidence; (3) the verdict was against the manifest w eight of the evidence, and the evidence was insufficient to sustain the verdict; (4) opini on/expert opinion testimony regarding the alleged victim’s emotional state, reasons for inc onsistency, and delayed reporting should have been inadmissible; (5) ineffective assist ance of counsel; and lastly, (6) the trial court erred in failing to consider and issue a ju ry instruction regarding the definition of “force.” We found Mr. Gross’s assignments to be without merit and affirmed the judgment of the Lake County Court of Common Pleas. Id. at ¶ 11-88. {¶16} Eleven years later, in March 2021, Mr. Gross filed a “Motion to Correct an Entry that’s [sic] Contrary to Law,” contending that the offens es of kidnapping and rape were allied offenses and should have been merged and that the t rial court failed to consider the factors of R.C. 2929.14(C)(4) in the judgment entr y of his sentence. The state argued that res judicata precluded the trial court from c onsidering Mr. Gross’s motion because sentencing errors must be brought on direct appe al.5 Case No. 2021-L-042 {¶17} The trial court denied the motion after finding that both of Mr . Gross’s arguments were barred by res judicata. The trial court noted t hat it specifically considered merging the kidnapping and rape convictions during the sentenci ng hearing, that Mr. Gross admitted the issue of merger was raised by his attorney d uring the sentencing hearing, and that he could have raised the issue on direct appe al. {¶18} Mr. Gross raises two assignments of error on appeal: {¶19} “[1.] Judge, Eugene A. Lucci was in error and the appellant wa s prejudice. [sic] When the court refused to accept, honor and uphold: State v. Logan , 60 Ohio St.3d 125 [sic], 397 N.E.2d 1345 (1979). {¶20} “[2.] Judge, Eugene A. Lucci was in error and the appellant wa s prejudice. [sic] When the court refused to accept, honor and uphold: State v. Payne , 2019-Ohio2852.” Res Judicata {¶21} In State v. Harper , 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, the Supreme Court of Ohio “realigned” its jurisprudence “with t he traditional understanding of void and voidable sentences.” Id. at ¶ 43. According to the court, “when a specific action is within a court’s subject-matter jurisdicti on, any error in the exercise of that jurisdiction renders the court’s judgment voidable, not vo id.” Id. at ¶ 26, quoting Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 12, 21. “Generally, a voidable judgment may be set aside only if successfully challen ged on direct appeal.” Id. ; State v. Hall , 11th Dist. Trumbull No. 2020-T-0031, 2021-Ohio-791, ¶ 23-24. {¶22} Following Harper , the court expressly held that “sentences based on an error, including sentences in which a trial court fails to impo se a statutorily mandated6 Case No. 2021-L-042 term, are voidable if the court imposing the sentence has juris diction over the case and the defendant.” State v. Henderson , 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 1. Thus, “if a judgment is voidable, the doctrine of re s judicata bars a party from raising and litigating in any proceeding, except a direct appea l, claims that could have been raised in the trial court.” Id. at ¶ 19. See also State v. Hudson , 161 Ohio St.3d 166, 2020-Ohio-3849, 161 N.E.3d 608 ¶ 16 (concluding that because th e defendant could have, but did not, raise a claimed sentencing error on direct a ppeal, the error was “now barred by the doctrine of res judicata”). {¶23} We conclude the trial court possessed subject-matter jurisdicti on over Mr. Gross’s case and personal jurisdiction over Mr. Gross. See Harper at ¶ 25, quoting Smith v. Sheldon , 157 Ohio St.3d 1, 2019-Ohio-1677, 131 N.E.3d 1, ¶ 8, (recogni zing that “‘a common pleas court has subject-matter jurisdiction over felony cases’”); Henderson at ¶ 36 citing Tari v. State , 117 Ohio St. 481, 490, 159 N.E. 594 (1927) (noting that “[i]n a criminal matter, the court acquires jurisdiction over a person by lawfully issued process, followed by the arrest and arraignment of the accused and his p lea to the charge”). Accordingly, any error in the exercise of the court’s jurisdict ion rendered Mr. Gross’s sentence voidable, not void. See State v. Christy , 5th Dist. Fairfield No. 20-CA-29, 2021- Ohio-1470, ¶ 26. {¶24} Because Mr. Gross could have raised his argument regarding alli ed offenses on direct appeal, the trial court did not err in findi ng his motion was precluded under the doctrine of res judicata. “‘The imposition of compou nd sentences for allied offenses is an error in the exercise of jurisdiction, to be cha llenged at sentencing and remedied on direct appeal.’” State v. Brooks , 2d Montgomery No. 29004, 2021-Ohio-7 Case No. 2021-L-042 2427, ¶ 9, quoting State ex rel. Romine v. McIntosh , 162 Ohio St.3d 501, 2020-Ohio6826, 165 N.E.3d 1262, ¶ 15. {¶25} Similarly, Mr. Gross could have, but did not, raise an argument on direct appeal regarding the absence of consecutive sentence findings p ursuant to R.C. 2929.14(C)(4) in the sentencing entry. See State v. Chapin , 10th Dist. Franklin No. 14AP1003, 2015-Ohio-3013, ¶ 8 (appellant was barred by the doctrine of res judicata since any error in failing to make the consecutive sentence findings should have been raised on direct appeal). {¶26} Even prior to the Supreme Court of Ohio’s holdings in Harper and Henderson , claims of merger and consecutive sentence findings were consi dered voidable sentencing errors that must be raised on direct appeal

. See State v. Adams , 10th Dist. Franklin No. 14AP-623, 2015-Ohio-868, ¶ 8 (claims re garding merger and consecutive sentence findings were barred by the doctrine of re s judicata). {¶27} Based on the foregoing, Mr. Gross’s assignments of error are ov erruled. The judgment of the Lake County Court of Common Pleas is affirm ed.

THOMAS R. WRIGHT, J., JOHN J. EKLUND, J.,

concur.