Summary
The Third District Court of Appeals of Ohio affirms the trial court's denial of the defendant's motion for resentencing, which it classified as an untimely and successive petition for post-conviction relief. The court holds that the defendant's argument regarding the merger of allied offense convictions was barred by res judicata because it could have been raised on direct appeal. Additionally, any potential error was deemed invited due to the defendant's negotiated plea agreement.
Topics
Practice areas
Questions Presented
- Whether Durst's post‑conviction petition is untimely and barred by res judicata
- Whether the trial court erred by sentencing the convictions concurrently rather than merging them
Holdings
- The petition is untimely and barred by res judicata; the trial court did not commit reversible error.
- Because the petition is barred, the trial court's sentencing decision stands; the convictions are not merged.
Key quotations
“Durst’s petition is facially untimely, and he does not establish any error, particularly given that he agreed to the sentence in this case.”
“Because Durst could have raised his allied offenses argument in a direct appeal, his argument is barred by res judicata.”
Factual background
Durst was indicted on three felonies in September 2022, pleaded guilty to violating a protection order and felonious assault, and received concurrent sentences of 18 months and a 3‑4.5 year term. He later sought to merge the convictions for sentencing.
Procedural history
Durst pleaded guilty to two felonies and received concurrent sentences. He later filed a motion to withdraw his plea and a motion for resentencing, both denied. He appealed, arguing the convictions should merge for sentencing.
Remand instructions
The cause is remanded to the trial court for execution of the judgment for costs.