Second District Appeals Court Affirms That Mergers Take Place At Sentencing


In November 2011, a man was convicted in the Montgomery County Court of Common Pleas after he pled guilty to one count of aggravated burglary, two counts of aggravated robbery, three counts of kidnapping and two counts of felonious assault. The guilty pleas were part of a plea bargain, and in exchange, the state agreed to drop additional charges against him.

In September 2013, the defendant filed a motion for resentencing with the Second District Court of Appeals. Essentially, he was contesting his sentence rather than his conviction. He filed the motion for resentencing on the assignments of error that the trial court failed to:

  • Inform him that he could have to participate in community service if he failed to pay all necessary fines and fees;
  • Include a finding of guilt in his judgment entry;
  • Include a statement regarding his opportunity to speak

In addition to these assignments of error, he contested that the trial court should have merged all of his offenses during the plea hearing. Merging is an issue of res judicata.

Res Judicata

Res judicata literally means "a matter already judged." It is a legal principal that, among other things, prevents future judgments from opposing prior judgments. In other words, the same matter cannot be raised again. In this case, the defendant-appellant claimed that the trial court could not justifiably use the principal of res judicata to bar the issue, because its failure to merge offenses was plain error.

Judge Jeffrey Froelich, on behalf of the appeals court, stated that the trial court's judgment became final and therefore could not be raised again (res judicata), the moment the defendant failed to file a direct appeal. Froelich stated further that, even if res judicata did apply, the defendant-appellant's claims did not have any merit due to a lack of evidence to support his claims.

State v. Underwood and Merging Allied Offenses

The appeals court cited the 2010 case State v. Underwood. This case confirmed that when it comes to merging "allied" or similar offenses, the trial court is not required to do so until sentencing, rather than at the time of a guilty plea or guilty verdict. Keeping in step with the State v. Underwood decision, the Second District Court of Appeals affirmed the lower court's judgment.