[Cite as State v. Johnson, 2019-Ohio-3813.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals No. L-18-1222 

 

 Appellee Trial Court No. CR0201001329 

v. 

Henry O. Johnson, Jr. DECISION AND JUDGMENT

Appellant Decided: September 20, 2019 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Alyssa Breyman, Assistant Prosecuting Attorney, for appellee. 

 Henry O. Johnson, Jr., pro se. 

* * * * * 

PIETRYKOWSKI, J. 

{¶ 1} Appellant, Henry O. Johnson, Jr., appeals the judgment of the Lucas County 

Court of Common Pleas denying appellant’s “Motion for Relief from Judgment under 

Civ.R. 60(B)(5) and Motion to Correct a Voidable Sentence and Merge Sentences.” For 

the reasons that follow, we affirm. 

 
2.

I. Facts and Procedural Background

{¶ 2} On May 20, 2010, appellant entered no contest pleas to, and was found 

guilty of, one count of aggravated robbery, one count of felonious assault, and one count 

of attempted murder, each with attendant firearm specifications. At the sentencing 

hearing on June 22, 2010, the trial court merged the count of felonious assault with the 

count of attempted murder, and sentenced appellant to a total prison term of 20 years. 

Appellant did not directly appeal his conviction. 

{¶ 3} The present matter was initiated on September 14, 2018, when appellant 

filed his “Motion for Relief from Judgment under Civ.R. 60(B)(5) and Motion to Correct 

a Voidable Sentence and Merge Sentences.” In his motion, appellant argued that the 

count of aggravated robbery also should have merged with the count of attempted 

murder. The trial court denied appellant’s motion on September 26, 2018, finding that it 

was an untimely postconviction petition, and further that appellant’s arguments were 

barred by res judicata. 

II. Assignments of Error

{¶ 4} Appellant has appealed the trial court’s September 26, 2018 judgment, and 

now asserts two assignments of error for our review: 

1. Trial court erred in construing the motion submitted as anything 

other than what it was plainly designated. 

2. Trial court erred in failing to vacate defendant’s sentence as being 

in violation of double jeopardy then merging the aggravated robbery into 

the already merged attempted murder and felonious assault. 
3.

III. Analysis

{¶ 5} In his first assignment of error, appellant argues that the trial court erred 

when it construed his motion as a postconviction petition. We disagree. “Where a 

criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation 

or correction of his or her sentence on the basis that his or her constitutional rights have 

been violated, such a motion is a petition for postconviction relief as defined in R.C. 

2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997), syllabus. 

Here, in his motion—which was filed long after the time for a direct appeal had run—

appellant sought to vacate his sentence, arguing that his constitutional rights against 

double jeopardy would be violated if the count of aggravated robbery did not merge with 

the count of attempted murder. Therefore, pursuant to Reynolds, we hold that the trial 

court properly recognized appellant’s motion as a petition for postconviction relief. 

{¶ 6} Accordingly, appellant’s first assignment of error is not well-taken. 

{¶ 7} In his second assignment of error, appellant argues that the trial court erred 

in not addressing the merits of his motion. We review a trial court’s decision granting or 

denying a postconviction petition for an abuse of discretion. State v. Gondor, 112 Ohio 

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion connotes that 

the trial court’s attitude is arbitrary, unreasonable, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶ 8} In its decision, the trial court found that appellant’s motion was untimely. 

R.C. 2953.21(A)(2) provides that “[i]f no appeal is taken, except as otherwise provided in 

section 2953.23 of the Revised Code, the petition shall be filed no later than three 
4.

hundred sixty-five days after the expiration of the time for filing the appeal.” Here, the 

time for filing the direct appeal expired in July 2010, thus appellant’s motion was 

untimely by more than seven years. 

{¶ 9} This court has held that “[a] trial court has no jurisdiction to consider an 

untimely petition for postconviction relief unless the untimeliness is excused under R.C. 

2953.23(A)(1).” State v. Porter, 6th Dist. Lucas No. L-12-1243, 2013-Ohio-1360, ¶ 10, 

quoting State v. Guevara, 6th Dist. Lucas No. L-12-1218, 2013-Ohio-728, ¶ 8. In this 

case, appellant does not argue that any of the exceptions to the timeliness requirement set 

forth in R.C. 2953.23 apply. Instead, appellant argues that his sentence is void and a 

nullity because the trial court’s failure to merge the offenses of aggravated robbery and 

attempted murder violated his due process rights. However, contrary to appellant’s 

assertion, “the failure to merge allied offenses at sentencing does not render a sentence 

void.” Guevara at ¶ 8. Therefore, we hold that the trial court properly determined that 

appellant’s postconviction petition was untimely, and the court did not abuse its 

discretion in denying the petition for that reason. 

{¶ 10} Accordingly, appellant’s second assignment of error is not well taken. 

IV. Conclusion

{¶ 11} For the foregoing reasons, we find that substantial justice has been done the 

party complaining, and the judgment of the Lucas County Court of Common Pleas is 

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. 

Judgment affirmed. 
5.

L-18-1222 

State v. Johnson, Jr. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Thomas J. Osowik, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.