State v. Henderson (Slip Opinion) , 2020 Ohio 4784 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Henderson, Slip Opinion No. 2020-Ohio-4784.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-4784
THE STATE OF OHIO, APPELLEE, v. HENDERSON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Henderson, Slip Opinion No. 2020-Ohio-4784.]
Criminal law—State cannot challenge a voidable sentence through a
postconviction motion for resentencing—R.C. 5145.01 cannot be read to
give correctional institutions the power to transform a sentence from what
the sentencing entry expressly contains—A judgment or sentence is void
only if it is rendered by a court that lacks subject-matter jurisdiction over
the case or personal jurisdiction over the defendant—If a court has
jurisdiction over the case and the person, any error in the court’s exercise
of that jurisdiction is voidable, including sentences in which a trial court
fails to impose a statutorily mandated term—Court of appeals’ judgment
reversed in part and cause remanded.
(No. 2019-0182—Submitted February 12, 2020—Decided October 7, 2020.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 106308,
2018-Ohio-5155.
SUPREME COURT OF OHIO
_________________
FRENCH, J.
{¶ 1} In this case, we consider whether to declare a sentence void and allow
the state to correct a sentencing error through a motion for resentencing. To answer
that question, we consider the last three decades of our void-sentence analysis,
reject that analysis, and return to our traditional understanding of the distinction
between void and voidable sentences. Our decision today takes us the next and
final step toward a return to that traditional understanding after our recent decision
in State v. Harper, ___ Ohio St.3d ___, 2020-Ohio-2913, ___ N.E.3d ___, which
held that “[w]hen a case is within a court’s subject-matter jurisdiction and the
accused is properly before the court, any error in the exercise of that jurisdiction in
imposing postrelease control renders the court’s judgment voidable,” id. at ¶ 4.
Here, we conclude that sentences based on an error, including sentences in which a
trial court fails to impose a statutorily mandated term, are voidable if the court
imposing the sentence has jurisdiction over the case and the defendant. Applying
that reasoning, we conclude easily that defendant-appellant Rogers T. Henderson’s
sentence was voidable. Even though the trial court should have sentenced
Henderson to an indefinite sentence of 15 years to life for his offense, he was
sentenced to a definite sentence. Eighteen years later, the state tried to correct that
sentence by filing a motion for resentencing, which the trial court granted and the
court of appeals affirmed. Because the state cannot challenge Henderson’s
voidable sentence through a postconviction motion for resentencing, we reverse the
decision of the Eighth District Court of Appeals and remand this matter to the trial
court to vacate the sentencing entry it issued on September 20, 2017.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Henderson was arrested on September 22, 1999, for his involvement
in the death of Lester Bryant. Henderson was indicted on one count of aggravated
murder, in violation of R.C. 2903.01. The charge included two firearm
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specifications, pursuant to R.C. 2941.141 and 2941.145. On November 30, 1999,
Henderson pleaded guilty to one count of murder, in violation of R.C. 2903.02(A),
with one three-year firearm specification, R.C. 2941.145. At the time of
Henderson’s plea and sentencing, a murder conviction carried an indefinite
sentence of 15 years to life. The firearm specification added a three-year mandatory
consecutive sentence. During the plea, the trial court told Henderson that the charge
to which he was pleading guilty carried a sentence of “15 years to life.” Henderson
said he understood that sentence. During the sentencing portion of the hearing,
though, the trial court stated the following, in totality, regarding the sentence it was
imposing:
Boy, Mr. Henderson, you’re really pathetic. 15 years on the
underlying offense, three-year firearm specification, to be served
prior to and consecutive with the 15 years. Mr. Henderson, shame
on you.
The trial court did not mention the life-tail portion1 of the sentence after it accepted
Henderson’s plea. The state did not object to or otherwise challenge the trial court’s
omission of the life-tail portion of the sentence. The sentencing entry also failed to
include the life-tail portion of the sentence, stating only: “The court imposes a
prison term * * * of 3 years to run prior to and consecutive with base charge of 15
years.” Neither party filed a direct appeal.
1. A sentence with a “life tail” is a sentence that is indefinite in length, beginning with the mandatory
minimum term the trial court imposes and extending up to a maximum term of life in prison. See
State ex rel. Carnail v. McCormick, 126 Ohio St. 3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 22.
An offender completes the incarceration portion of his indefinite sentence after he becomes eligible
for parole and the adult parole authority authorizes his release. See R.C. 2967.01(E). R.C. 2967.13
governs when an offender who is serving a sentence with a life tail becomes eligible for parole.
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{¶ 3} On March 31, 2009, Henderson filed a motion for sentencing in which
he argued that his sentence was unconstitutional and void because the judge
imposed a term of postrelease control. In support of his motion, Henderson cited
this court’s cases on void sentences and the trial court’s statement during
Henderson’s plea and sentencing hearing that “[a]lthough the courts of appeals in
the State of Ohio have determined that the following is unconstitutional, sir, I will
advise you, until the Supreme Court of Ohio speaks, that you may be placed on
post-release control at the expiration of a prison term.” He moved to vacate his
sentence and requested a new sentencing hearing. The state opposed the motion,
arguing that Henderson’s sentence did not include a term of postrelease control
because the sentencing entry itself did not impose postrelease control on
Henderson. The state represented that Henderson was sentenced to precisely “15
years on the underlying offense.” It argued that Henderson “was properly
sentenced and he is not entitled to a resentencing.” The trial court denied
Henderson’s motion.
{¶ 4} On August 20, 2009, Henderson filed another motion for sentencing.
In this motion, Henderson argued that his sentence was void because the trial court
had sentenced him to “15-years flat” when the statute required that he receive “an
indefinite term of fifteen years to life.” He requested that the trial court resentence
him to correct the void sentence. The state did not respond to that motion. The
trial court denied the motion in an entry, stating only: “motion for sentencing filed
8/20/09 is denied.”
{¶ 5} On June 28, 2010, Henderson filed a motion to declare his original
15-year sentence final under the doctrine of collateral estoppel. The state opposed
the motion, representing that the original sentencing journal entry became final and
appealable when it was filed in 1999, negating any need to finalize it again. It
argued that Henderson was just trying to restart the appeal process after failing to
avail himself of a direct appeal. The court did not rule on that motion.
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{¶ 6} In May 2011, the Bureau of Sentence Computation sent a letter to the
trial court and the prosecutor informing them that Henderson had been mistakenly
sentenced to a definite 15-year term instead of an indefinite term that included a
life tail. On June 15, 2011, the state filed a motion to correct the sentence because
the trial court only imposed a 15-year sentence instead of a sentence of 15 years to
life. The trial court did not act on the bureau’s letter or the state’s motion.
{¶ 7} On August 31, 2017, Henderson filed a motion for jail-time credit.
He represented that he entered custody on September 24, 1999, and was sent to
prison on December 1, 1999, but that he was awarded only 2 days of jail-time credit
for this time period. He requested an additional 66 days of jail-time credit, for a
total of 68 days. The trial court granted his motion on September 14, 2017, but it
awarded him a total of 66 days of jail-time credit. The record does not indicate
whether the trial court intentionally or inadvertently reduced Henderson’s request
from 68 days to 66 days.
{¶ 8} On September 15, 2017, a few days before Henderson was set to be
released from custody, the state filed a motion for resentencing to correct
Henderson’s sentence. The state argued that Henderson’s original sentence was
void because the trial court imposed an unlawful definite 15-year sentence. In that
motion, the state represented that Henderson was due to be released on September
19, 2017. Henderson argued that the court lacked jurisdiction to resentence him
because he had already completed his sentence. According to Henderson, he
entered custody on September 22, 1999, and was entitled to 71 total days of jail
credit. Accounting for five leap-year days that the Bureau of Sentence Computation
deducts in computing a sentence, his sentence was complete on September 16,
2017. Henderson argued that his expectation in the finality of his sentence fully
matured even before his sentence was complete and that double-jeopardy and due-
process considerations prevented the trial court from resentencing him.
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{¶ 9} The state filed a supplemental motion on September 20, 2017. In this
motion, the state argued that R.C. 5145.01 automatically transforms the unlawful
definite sentence the trial court imposed into the indefinite sentence it should have
imposed.
{¶ 10} Henderson also filed a motion on September 20, 2017, requesting
additional jail-time credit—71 days total. He represented that he entered custody
on September 22, 1999, when he was arrested, but the trial court mistakenly used
the date he was booked into county jail when it calculated his jail-time credit. He
was not booked until two days after he was taken into custody. Furthermore, he
argued that he was not imprisoned until December 2, 1999, not December 1, 1999,
as he previously believed. Those additional three days plus the two days the trial
court inexplicably failed to include in its previous decision awarding jail-time credit
amounted to 71 days total.
{¶ 11} The trial court held a hearing on the state’s motion for resentencing
on September 20, 2017. During the hearing, a supervisor from the Bureau of
Sentence Computation who calculates inmate release dates testified about when
Henderson completed his sentence. She stated that the Bureau of Sentence
Computation starts with the offender’s admission date, here December 2, 1999. It
then adds the sentence, here 18 years total—15 years for the murder charge and 3
years for the firearm specification. The bureau then subtracts the jail-time credit
that has been awarded. Here, it originally subtracted 66 days because that was what
the trial court had already awarded Henderson. It then subtracts a day for each leap
year that the offender is incarcerated, because sentences are calculated based on a
365-day calendar. Henderson had five days subtracted, representing leap years in
2000, 2004, 2008, 2012, and 2016. The supervisor indicated that an offender is
typically awarded credit for his conveyance days, which include the day after
sentencing through the day prior to his admission to a correctional facility. Based
on the jail-time credit Henderson was already awarded, his sentence would have
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ended on September 21, 2017. But with the extra days Henderson requested that
the court add to his jail-time credit, his sentence would have been completed on
September 16, 2017. Specifically, she testified that an inmate who entered custody
on September 22, 1999, and who received an 18-year sentence, would be released
on September 16, 2017. The court agreed that Henderson had been in custody since
September 22, 1999. Nonetheless, the court denied the motion for jail-time credit
during the hearing, providing no explanation except to say that it did not affect the
court’s final decision.
{¶ 12} The trial court ultimately granted the state’s motion for resentencing.
The court said Henderson received a “voidable sentence, not a void sentence.” And
the court found that R.C. 5145.01 applied to convert Henderson’s sentence into an
indefinite term. The court resentenced Henderson to a term of 15 years to life on
the murder charge and three years on the firearm specification, to run consecutively.
Thereafter, the trial court issued entries granting the motion for resentencing,
resentencing Henderson, and denying Henderson’s motion for jail-time credit.
{¶ 13} Henderson appealed the trial court’s decision to resentence him. On
October 31, 2017, after Henderson filed his notice of appeal but before the appeal
was briefed, the trial court revisited its prior decision and granted Henderson’s
motion for additional jail-time credit. It awarded him a total credit of 69 days,
without explaining why it did not award him the full 71 days he requested.
{¶ 14} The Eighth District Court of Appeals affirmed in part the trial court’s
decision on the state’s motion for resentencing. The court applied R.C. 5145.01 to
automatically transform Henderson’s sentence from the definite 15-year sentence
originally imposed into an indefinite 15-years-to-life sentence the law required he
receive. Because of that statute, the court found the sentence was not void; it was
always correct. The trial court, therefore, erred in resentencing Henderson. Even
though the trial court did not need to resentence Henderson, the Eighth District
affirmed the trial court’s September 20, 2017 resentencing. In its decision, the court
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also reversed the trial court’s decision belatedly granting Henderson’s motion for
additional jail-time credit. The appellate court awarded Henderson the additional
two days of jail-time credit that the trial court had failed to award him, for a total
of 71 days of jail-time credit. The state has not appealed any of the jail-time credit
Henderson was given by the trial court or the court of appeals. Henderson filed an
appeal with this court, and we accepted jurisdiction on the following two
propositions of law:
1. A sentence of imprisonment that has already been served
in full cannot be increased even if the original sentence is below the
minimum sentence required by statute.
2. R.C. 5145.01 cannot transform a definite sentence
imposed by a trial court by adding an indefinite tail to that sentence.
ANALYSIS
Because the trial court erred in sentencing Henderson to a definite term, the
sentence is voidable
{¶ 15} Henderson first asks us to hold that a sentence of imprisonment that
has already been served in full cannot be increased, even if the original sentence is
below the minimum sentence required by statute. We do not need to address that
issue though, because the state cannot challenge a voidable sentence through a
postconviction motion for resentencing.
Our void-versus-voidable jurisprudence
{¶ 16} This court has long recognized the finality of a decision rendered by
a court that had both subject-matter jurisdiction over the case and personal
jurisdiction over the parties. See Sheldon’s Lessee v. Newton, 3 Ohio St. 494
(1854). If the court had jurisdiction, it was “altogether immaterial how grossly
irregular, or manifestly erroneous, its proceedings may have been”; its final order
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could not be regarded as a nullity and could not be collaterally attacked. Id. at 498.
A judgment was void only if the court proceeded without jurisdiction. Id. at 498-
499. This concept applied equally to errors made in criminal sentencing. See Ex
parte Shaw, 7 Ohio St. 81 (1857). If the court pronouncing the sentence had
jurisdiction to do so, a sentence imposed in excess of that permitted by law was
“erroneous and voidable, but not absolutely void.” Ex parte Van Hagan, 25 Ohio
St. 426, 432 (1874); accord Ex parte Allen, 91 Ohio St. 315, 326, 110 N.E. 535
(1915). Plainly, a sentencing error was never considered a jurisdictional error. See
In re Winslow, 91 Ohio St. 328, 330, 110 N.E. 539 (1915).
{¶ 17} In Tari v. State, 117 Ohio St. 481, 159 N.E. 594 (1927), we explained
the difference between a void judgment and a voidable judgment and the rationale
behind the distinction. The question simply turns on whether the court had
jurisdiction over the subject matter and the person. Id. at 492. A void judgment is
rendered by a court without jurisdiction. It is a mere nullity and can be disregarded.
It can be attacked in collateral proceedings. Id. at 494. A voidable judgment is one
pronounced by a court with jurisdiction. The Tari court reiterated that unless it is
vacated on appeal, a voidable judgment has the force of a valid legal judgment,
regardless of whether it is right or wrong. Id. The failure to timely—at the earliest
available opportunity—assert an error in a voidable judgment, even if that error is
constitutional in nature, amounts to the forfeiture of any objection. Id. at 495.
{¶ 18} The court in Tari explained that allowing erroneous judgments to be
collaterally attacked would seriously jeopardize the finality of judgments. Id. at
498. At that time, this court understood that adopting anything but a bright-line
jurisdictional rule to govern all cases, civil and criminal, would “result in hopeless
confusion.” Id.
{¶ 19} For decades, we recognized the general rule that if a trial court has
jurisdiction over the person and the subject matter, a judgment rendered based on
the exercise of jurisdiction in excess of that permitted by law is voidable, not void.
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Stahl v. Currey, 135 Ohio St. 253, 259-261, 20 N.E.2d 529 (1939); State v. Perry,
10 Ohio St. 2d 175, 178-179, 226 N.E.2d 104 (1967). The court in Perry held that
if a judgment is voidable, the doctrine of res judicata bars a party from raising and
litigating in any proceeding, except a direct appeal, claims that could have been
raised in the trial court. Perry at paragraph nine of the syllabus. Again, this secures
parties’ expectations in the finality of a judgment.
{¶ 20} But in State v. Beasley, 14 Ohio St. 3d 74, 471 N.E.2d 774 (1984),
the court shifted. In that procedurally unique case, the trial court had intentionally
disregarded the sentencing statute that required imposition of a minimum prison
sentence. Instead, it imposed only a monetary fine. Rather than file a direct appeal,
the state filed a mandamus action in the court of appeals. The court of appeals
issued the writ of mandamus requiring the trial court to impose the correct sentence.
After the trial court resentenced the defendant, she filed a direct appeal and argued
that the resentencing violated the Double Jeopardy Clause of the Fifth Amendment
to the United States Constitution. This court declared that jeopardy had not
attached and the defendant could be resentenced because the original sentence was
a nullity. As part of its analysis, the court said: “Any attempt by a court to disregard
statutory requirements when imposing a sentence renders the attempted sentence a
nullity or void.” Id. at 75.
{¶ 21} Beasley relied on another unique case that pronounced a sentence
void. Id. In Colegrove v. Burns, 175 Ohio St. 437, 195 N.E.2d 811 (1964), this
court, in dicta, said that a sentence for a probation violation was “void” because
there is no sentence that can be imposed on a probation violation itself. Id. at 438.
Rather, the proper procedure is to revoke probation and impose a sentence on the
underlying conviction if an offender violates probation. As part of its decision, the
court said: “Crimes are statutory, as are the penalties therefor, and the only sentence
which a trial court may impose is that provided for by statute. A court has no power
to substitute a different sentence for that provided for by statute or one that is either
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January Term, 2020
greater or lesser than that provided for by law.” Id. While true, the court’s language
allowed the Beasley court to support an analysis that the failure to follow a statutory
mandate rendered a sentence void.
{¶ 22} For a while, despite Colegrove and Beasley, the court continued to
use the traditional jurisdiction-based definition of a void judgment and recognize
that sentences containing errors are voidable. See Majoros v. Collins, 64 Ohio St. 3d
442, 443, 596 N.E.2d 1038 (1992); State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-
4642, 873 N.E.2d 306, ¶ 27; State ex rel. Shackleford v. Moore, 116 Ohio St. 3d
310, 2007-Ohio-6462, 878 N.E.2d 1035, ¶ 5. At the same time though, the
distinction began to erode, beginning in cases involving improperly imposed
postrelease control. In that line of cases, we held that a trial court’s failure to fully
comply with the statutory requirements related to postrelease control rendered the
sentence void. State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, 817 N.E.2d
864, ¶ 23; State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, 868 N.E.2d 961,
¶ 16. In State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, 884 N.E.2d 568,
we declared that a court’s failure to impose a sentence as required by law is an
exception to the traditional jurisdiction-based definition of a void judgment; it falls
within the “narrow vein of cases,” id. at ¶ 14, in which sentences are declared void
despite the sentencing court having jurisdiction over the case and defendant. See
id. at ¶ 20-30. Then in State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942
N.E.2d 332, we held that “void sentences are not precluded from appellate review
by principles of res judicata and may be reviewed at any time, on direct appeal or
by collateral attack.” Id. at ¶ 40. Although Fischer again limited its decision to the
“discrete vein of cases” in which a court does not properly impose postrelease
control, id. at ¶ 31, it nonetheless reiterated the new definition of a void sentence,
stating that “a sentence that is not in accordance with statutorily mandated terms is
void,” id. at ¶ 8. The court intended to “provide a clear, simple, and more workable
solution to a vexing issue without compromising the interests of fairness,” id. at
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¶ 40. But its modern, expansive definition of a void sentence, combined with its
holding, had the exact opposite effect.
{¶ 23} Rather than follow our commitment to limit the modern definition
of a void sentence to the discrete and narrow line of cases involving the imposition
of postrelease control, we began applying the “same logic in Fischer,” State v.
Harris, 132 Ohio St. 3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 16, in a variety of
cases involving sentencing errors. See, e.g., Harris at ¶ 16-18 (explicitly
acknowledging that although Fischer was limited to postrelease control cases, the
court would apply it to the failure to include a mandatory driver’s-license
suspension and declare the sentence void in part); State v. Moore, 135 Ohio St. 3d
151, 2012-Ohio-5479, 985 N.E.2d 432, syllabus (failure to impose mandatory fine
when no affidavit of indigency was filed rendered that part of the sentence void);
State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 28
(imposition of separate sentences for allied offenses rendered the sentences void).
{¶ 24} The court’s expansion of the void-sentence doctrine from the
traditional understanding, to cases involving improper imposition of postrelease
control, and finally to cases in which a court deviates from a statutory mandate has
created the slippery slope that Justice Lanzinger foresaw in In re J.S., 136 Ohio
St.3d 8, 2013-Ohio-1721, 989 N.E.2d 978, ¶ 15 (Lanzinger, J., dissenting). She
wrote:
Because this court has equated judicial actions that are
contrary to law or “not in accordance with statutorily mandated
terms” to actions that are void, the number of judicial actions subject
to collateral attack under this court’s conception of what is void is
limited only by the number of statutes mandating that a court act in
a specific way and the creativity of the attorney challenging the
court’s action.
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Id. at ¶ 18 (Lanzinger, J., dissenting), quoting Fischer at ¶ 8. Several other justices
have expressed similar concerns about infinitely appealable judgments under the
modern doctrine. See, e.g., State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658,
71 N.E.3d 234, ¶ 69 (Kennedy, J., dissenting); State v. Grimes, 151 Ohio St. 3d 19,
2017-Ohio-2927, 85 N.E.3d 700, ¶ 27 (French, J., concurring in judgment only)
and ¶ 37 (DeWine, J., concurring in judgment only); State v. Johnson, 155 Ohio
St.3d 441, 2018-Ohio-4957, 122 N.E.3d 126, ¶ 17 (DeGenaro, J., concurring in
judgment only); State v. Straley, 159 Ohio St. 3d 82, 2019-Ohio-5206, 147 N.E.3d
623, ¶ 53 (Donnelly, J., concurring in judgment only).
{¶ 25} As Justice Lanzinger recognized, based on our modern void-
sentence decisions, “[n]either the state nor defendants can be certain when
judgments are final and when they are subject to collateral attack.” In re J.S. at
¶ 16 (Lanzinger, J., dissenting). Even this court has struggled to determine when
an erroneous decision is subject to collateral attack. See Williams at ¶ 60-62
(Lanzinger, J., dissenting) (reviewing this court’s conflicting decisions on which
errors result in void sentences). Similarly, our decisions have confused and
frustrated appellate courts across the state. The Fourth District Court of Appeals
felt compelled by our precedent to apply the modern void-sentence doctrine to a
motion to withdraw a guilty plea filed eight years after the defendant was sentenced.
State v. Straley, 2018-Ohio-3080, 107 N.E.3d 8 (4th Dist.). In doing so, the court
expressed frustration about the expanded doctrine and the “absurdity” of the result
its application created, id. at ¶ 34. Similarly, the Third District Court of Appeals
lamented about the “mass confusion” that has resulted from this court’s departure
from the traditional understanding of what constitutes a void—versus voidable—
sentence. State v. Kegley, 3d Dist. Crawford No. 3-18-03, 2018-Ohio-4167, ¶ 13.
That court recognized that our “sloppiness has expanded the void-sentencing-error
concept beyond postrelease-control cases to include other random
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nonjurisdictional-sentencing errors.” Id. at ¶ 14. The Tenth District Court of
Appeals has declared that this court’s extension of the void-sentence doctrine
“threaten[s] to swallow the rule [on finality] and lead to a situation where virtually
any allegedly serious error in sentencing can be revived time and time again without
being foreclosed by res judicata.” State v. Steele, 10th Dist. Franklin No. 18AP-
187, 2018-Ohio-3950, ¶ 11, fn. 1. The Sixth District has bemoaned the
“ ‘monstrosity of a problem’ ” this court’s modern void-sentence jurisprudence has
created. State v. Mitchell, 187 Ohio App. 3d 315, 2010-Ohio-1766, 931 N.E.2d
1157, ¶ 28 (6th Dist.), quoting the appellant’s argument. And other districts have
struggled with deciding whether to apply the void-sentence doctrine to
nonjurisdictional errors in light of our inconsistent precedent. See In re J.S., 8th
Dist. Cuyahoga No. 96637, 2011-Ohio-6280 (applying the void-sentence doctrine
in the serious-youth-offender context); State v. Covington, 2d Dist. Clark No 2019-
CA-50, 2020-Ohio-390 (reviewing the various applications of the doctrine before
ultimately deciding that it did not apply to a collateral attack of an improper
nonmandatory sentence); State v. Grant, 1st Dist. Hamilton No. C-120695, 2013-
Ohio-3421, ¶ 17 (declining to declare sentence based on an allied-offenses error
void because then the court would be “hard-pressed to identify any intellectually
justifiable stopping point” in the doctrine’s application). It is time to correct our
error and return to a clear, traditional understanding of a void sentence.
State v. Harper signals a return to the traditional view of a void sentence
{¶ 26} This court now recognizes that the modern void-sentence
jurisprudence is unworkable and has created more problems than it has solved. In
State v. Harper, ___ Ohio St.3d ___, 2020-Ohio-2913, ___ N.E.3d ___, we
corrected the error in our postrelease-control cases and we “realign[ed] our
precedent in cases involving the imposition of postrelease control with the
traditional understanding of what constitutes a void judgment.” Id. at ¶ 4. Now,
under Harper, if a court has jurisdiction over the case and the defendant, any
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sentence based on an error in the court’s imposition of postrelease control is
voidable. The sentence may be set aside only if it is successfully challenged on
direct appeal. Id.
{¶ 27} Harper overruled our prior cases that conflicted with its holding, i.e.,
those cases in which we labeled as void sentences in which a trial court erred when
imposing postrelease control. Id. at ¶ 40. But Harper did not involve a case in
which a trial court deviated from a statutory mandate. Although Harper concluded
that a sentence is void only when a sentencing court lacks jurisdiction over the
subject matter of the case or personal jurisdiction over the accused, see id. at ¶ 42,
we are mindful that parties may still try to distinguish Harper from cases that do
not involve the imposition of postrelease control. Today, we make it clear that
sentences based on an error are voidable, if the court imposing the sentence has
jurisdiction over the case and the defendant, including sentences in which a trial
court fails to impose a statutorily mandated term. A sentence is void only if the
sentencing court lacks jurisdiction over the subject matter of the case or personal
jurisdiction over the accused.
Stare Decisis
{¶ 28} In returning to a traditional understanding of a void sentence, we are
cognizant of the importance of respecting stare decisis. The doctrine of stare decisis
generally compels a court to recognize and follow an established legal decision in
subsequent cases in which the same question of law is at issue. New Riegel Local
School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 157 Ohio
St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 18, citing Clark v. Snapper Power
Equip., Inc., 21 Ohio St. 3d 58, 60, 488 N.E.2d 138 (1986). It is a doctrine of policy
that recognizes the value of continuity and predictability in our legal system. Clark
at 60. It allows those individuals affected by the law to rely on its consistency.
Scott v. News-Herald, 25 Ohio St. 3d 243, 249, 496 N.E.2d 699 (1986); see also
Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d
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1256, ¶ 43. In Galatis, we laid out a test to help us consider the prudence of
overruling our prior decisions. We said that we must be willing to overrule our
prior decisions when (1) the decisions were wrongly decided or circumstances no
longer justify continued adherence to them, (2) the decisions defy practical
workability, and (3) abandoning the precedent would not create an undue hardship
for those who have relied upon it. Id. at ¶ 48.
{¶ 29} But we have not applied the Galatis test in all cases in which we
overrule a prior decision. We have said that it applies when we consider overruling
precedent on substantive law, State v. Silverman, 121 Ohio St. 3d 581, 2009-Ohio-
1576, 906 N.E.2d 427, ¶ 31, and that it is most helpful in cases involving contract,
property, and tort principles, State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424,
933 N.E.2d 753, ¶ 35-37 (lead opinion). In cases in which we overrule a prior
decision regarding procedural rules, evidentiary rules or constitutional questions
though, we have declared the Galatis analysis unnecessary. See, e.g., Silverman at
¶ 33 (the Galatis test does not apply in deciding whether to overrule precedent
interpreting procedural and evidentiary rules, where there is little reliance interest);
Bodyke at ¶ 37 (lead opinion) (the Galatis test is “not controlling” in cases that
present a constitutional question); State v. Johnson, 128 Ohio St. 3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061, ¶ 45 (lead opinion), abrogation on other grounds
recognized in State v. Jackson, 149 Ohio St. 3d 55, 2016-Ohio-5488, 73 N.E.3d 414
(the Galatis test is unnecessary in cases involving constitutional protections
because stare decisis has less force when constitutional rights are implicated). But
see State v. Williams, 103 Ohio St. 3d 112, 2004-Ohio-4747, 814 N.E.2d 818, ¶ 11,
superseded by statute as stated in State v. White, 132 Ohio St. 3d 344, 2012-Ohio-
2583, 972 N.E.2d 534, (applying the Galatis test and declining to overrule
precedent). And in some cases, we have simply overruled one of our prior decisions
without mentioning the Galatis test at all. See, e.g., Fischer, 128 Ohio St. 3d 92,
2010-Ohio-6238, 942 N.E.2d 332, at ¶ 36, overruled on other grounds in State v.
16
January Term, 2020
Harper, ___ Ohio St.3d ___, 2020-Ohio-2913, ___ N.E.3d ___; State v. Horner,
126 Ohio St. 3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 45.
{¶ 30} In short, we have been anything but consistent in applying the
Galatis test, we are not compelled to apply it here, and we decline to apply it here.
As we recognized in Harper, when adherence to our precedent is unfair and creates
doubt and confusion over certainty, we are not constrained to follow that precedent.
Harper at ¶ 38, citing Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio
St.3d 435, 438, 628 N.E.2d 46 (1994). Nevertheless, given the muddied history of
our jurisprudence on void sentences, the sheer number of cases implicating the
void-sentence doctrine, and the importance of stare decisis, some of the
considerations we outlined in Galatis help to illustrate why we feel compelled to
abandon our precedent in this area.
{¶ 31} This court, in 1854, defined a void judgment as a judgment rendered
by a court that lacks jurisdiction. See Sheldon’s Lessee, 3 Ohio St. 494. For over
100 years, this court was consistent in applying that definition, and that definition
was predictable and workable. Our modern void-sentence jurisprudence deviated
from that traditional definition and expanded our classification of a sentence as void
to a nonjurisdictional context—whenever a trial court fails to comply with a
statutory mandate. See, e.g., Fischer at ¶ 8. The extension of the void-sentence
doctrine in those cases is contrary to our historical practice and our longstanding
precedent. They were wrongly decided.
{¶ 32} Our modern void-sentence jurisprudence has defied practical
workability due to its inconsistent application in our court and in lower courts. See
Williams, 2016-Ohio-7658, 148 Ohio St. 3d 403, 71 N.E.3d 234, at ¶ 60-62
(Lanzinger, J., dissenting) (reviewing this court’s conflicting decisions on which
errors result in void sentences). The lower courts have bemoaned the difficulty in
navigating our muddy jurisprudence as they try to determine whether to apply the
modern doctrine to a particular judgment. See Grimes, 151 Ohio St. 3d 19, 2017-
17
SUPREME COURT OF OHIO
Ohio-2927, 85 N.E.3d 700, at ¶ 55-61 (DeWine, J., concurring in judgment only)
(reviewing numerous lower-court decisions expressing frustration about our
modern void-sentence jurisprudence and applying the Galatis analysis to support
overruling our prior precedent). Rather than provide a clear, simple, workable
standard, we have created uncertainty, inconsistency, frustration, and confusion.
Despite our pronouncements that Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, 817
N.E.2d 864, Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, 868 N.E.2d 961, Fischer,
128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, and their progeny would
remain limited to the discrete vein of postrelease-control cases, we have expanded
application of those holdings to other sentencing errors. The multitude of issues
with the modern void-sentence doctrine described by justices of this court,
combined with the widespread criticism of our modern void-sentence jurisprudence
emanating from the lower courts, shows that we have “created massive and
widespread confusion—the antithesis of what a decision of this court should do,”
Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 50.
{¶ 33} Our decision today will remove that confusion. It will restore
predictability and finality to trial-court judgments and criminal sentences.
{¶ 34} To that end, we realign our precedent with the traditional
understanding of what constitutes a void judgment. When our prior cases conflict
with this traditional understanding, we must overrule them. A judgment or sentence
is void only if it is rendered by a court that lacks subject-matter jurisdiction over
the case or personal jurisdiction over the defendant. If the court has jurisdiction
over the case and the person, any error in the court’s exercise of that jurisdiction is
voidable.
{¶ 35} Subject-matter jurisdiction refers to the constitutional or statutory
power of a court to adjudicate a case. Harper, ___ Ohio St.3d ___, 2020-Ohio-
2913, ___ N.E.3d ___, at ¶ 23; Smith v. May, 159 Ohio St. 3d 106, 2020-Ohio-61,
148 N.E.3d 542, ¶ 37. It is the court’s power to hear a case and render a sentence.
18
January Term, 2020
See State ex rel. Tubbs Jones v. Suster, 84 Ohio St. 3d 70, 75, 701 N.E.2d 1002
(1998). Through the power vested in it by Article IV, Section 4(B), of the Ohio
Constitution, the General Assembly has given the common pleas courts original
jurisdiction over “all crimes and offenses, except in cases of minor offenses the
exclusive jurisdiction of which is vested in courts inferior to the court of common
pleas.” R.C. 2931.03. This includes subject-matter jurisdiction over felony cases.
Smith v. Sheldon, 157 Ohio St. 3d 1, 2019-Ohio-1677, 131 N.E.3d 1, ¶ 8.
{¶ 36} Personal jurisdiction refers to the court’s power to render a valid
judgment against a particular individual. In 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 plea to the charge. Tari, 117 Ohio St. at 490,
159 N.E. 594. A defendant also submits to the court’s jurisdiction if he does not
object to the court’s exercise of jurisdiction over him. Id. at 491.
{¶ 37} If the court has jurisdiction over the case and the person, any
sentence or judgment based on an error in the court’s exercise of that jurisdiction
is voidable.
{¶ 38} Having returned to the traditional, narrow, and accurate view of void
judgments as those being rendered by a court without jurisdiction, we now apply
that doctrine to the case before us.
The state cannot challenge Henderson’s sentence through a postconviction
motion
{¶ 39} Here, the trial court stated that it was sentencing Henderson to “15
years” during the sentencing hearing. It did not say that it was sentencing him to
an indefinite sentence that included a life tail. Likewise, in its sentencing entry, the
court indicated only that it sentenced Henderson to a 15-year sentence. A trial court
speaks through its journal entry. State v. Hampton, 134 Ohio St. 3d 447, 2012-Ohio-
5688, 983 N.E.2d 324, ¶ 15. And here, that entry indicated that Henderson was
sentenced to a definite 15-year term.
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{¶ 40} There is no dispute that the trial court’s sentence was unlawful.
Former R.C. 2929.02(B), Am.Sub.S.B. No. 107, 157 Ohio Laws, Part IV, 7435,
required that Henderson receive an indefinite sentence of 15 years to life, and the
court failed to impose that sentence. The state had a full and fair opportunity to
object to or challenge the trial court’s sentence. It did not. In fact, it did not seek
to correct the error for almost 12 years, and it then waited 6 more years before filing
the motion at issue in this appeal. Because the sentencing error rendered the
sentence voidable, the state’s attempt to correct the error in a postconviction motion
for resentencing was improper.
R.C. 5145.01 cannot transform a definite sentence imposed by a trial court
by adding an indefinite tail to that sentence
{¶ 41} As a final matter, we address the argument that R.C. 5145.01
automatically transforms Henderson’s sentence to conform to what the legislature
intended—an indefinite sentence. Because of this, the state argues, we need not
need consider whether Henderson’s sentence is void. We disagree. That statute
cannot operate with the power the state ascribes to it.
{¶ 42} R.C. 5145.01 states, in part:
If, through oversight or otherwise, a person is sentenced to a
state correctional institution under a definite term for an offense for
which a definite term of imprisonment is not provided by statute, the
sentence shall not thereby become void, but the person shall be
subject to the liabilities of such sections and receive the benefits
thereof, as if the person had been sentenced in the manner required
by this section.
The statute is in R.C. Chapter 5145, which governs the administration of state
correctional institutions. See State ex rel. McKee v. Cooper, 40 Ohio St. 2d 65, 71,
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January Term, 2020
320 N.E.2d 286 (1974). The statute cannot be read to give correctional institutions
the power to transform a sentence from what the sentencing entry expressly
contains. “It is emphatically the province and duty of the judicial department to
say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60
(1803). The separation-of-powers doctrine prohibits the executive branch of
government from overriding a court’s judgment about what the law requires in a
particular case—even if the court errs in its judgment and even if the error was
fairly obvious. But that is exactly what the state’s interpretation of R.C. 5145.01
would require. It would allow the Bureau of Sentence Computation to ignore the
definite term provided in the trial court’s original sentencing entry and replace it,
on its own, with a new indefinite term. And although the legislature vests the
judiciary with the power to sentence, even it cannot enact laws that allow the
executive branch to override a judicial determination of what the law requires in a
particular case. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753, at
¶ 55. “ ‘[T]he legislature cannot annul, reverse, or modify a judgment’ ” that a
court has already entered. Id. at ¶ 56, quoting Bartlett v. State, 73 Ohio St. 54, 58,
75 N.E. 939 (1905). And it cannot create a scheme that gives the executive branch
authority to review court judgments. Id. at ¶ 55.
CONCLUSION
{¶ 43} Our decision today restores the traditional understanding of what
constitutes a void sentence. A judgment or sentence is void only if it is rendered
by a court that lacks subject-matter jurisdiction over the case or personal
jurisdiction over the defendant. If the court has jurisdiction over the case and the
person, any sentence based on an error in the court’s exercise of that jurisdiction is
voidable. Neither the state nor the defendant can challenge the voidable sentence
through a postconviction motion.
{¶ 44} The state cannot seek to correct Henderson’s unlawful sentence
through a postconviction motion filed 18 years after the sentence was entered. The
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trial court originally sentenced Henderson to a definite 15-year sentence, plus an
additional three years for a firearm specification. That is the sentence we enforce
today. We reverse the decision by the court of appeals, vacate the sentencing entry
issued by the trial court on September 20, 2017, and remand this case to the trial
court to reinstate its original sentence. In doing so, we clarify that our decision
reverses only that part of the Eighth District’s judgment that is before us on
appeal—whether the trial court properly granted the state’s motion for
resentencing. The Eighth District also reversed the trial court’s decision on
Henderson’s motion for additional jail-time credit and awarded Henderson a total
of 71 days of jail-time credit. The state did not appeal that part of the judgment,
and our decision today does not affect it.
Judgment reversed in part
and cause remanded.
FISCHER and DEWINE, JJ., concur.
O’CONNOR, C.J., concurs in judgment only, with an opinion.
KENNEDY, J., concurs in judgment only, with an opinion.
DONNELLY, J., concurs, with an opinion.
STEWART, J., concurs in judgment only.
_________________
O’CONNOR, C.J., concurring in judgment only.
{¶ 45} The majority opinion’s decision to return to what it calls a
“traditional” view of void judgments, despite decades of precedent to the contrary,
is presented to the reader as though it will provide immediate clarity to our
jurisprudence in this area. See also State v. Harper, ___ Ohio St.3d __, 2020-Ohio-
2913, __ N.E.3d. ___. But, in truth, today’s decision simply takes our case law
back to the starting line. The substantial concerns that this court’s void-sentence
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January Term, 2020
jurisprudence addressed will not disappear.2 Those concerns are particularly
evident in the postrelease-control context, in which a sentencing error may not
reveal itself until the time for appeal has passed, and in cases in which a defendant
does not suffer prejudice from a sentencing error until years after the time for direct
appeal has passed. See, e.g., State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238,
942 N.E.2d 33, overruled on other grounds in State v. Harper, ___ Ohio St.3d ___,
2020-Ohio-2913, ___ N.E.3d ___; State v. Billiter, 134 Ohio St. 3d 103, 2012-Ohio-
5144, 980 N.E.2d 960. Of course, this case does not present that scenario. I would
find that the state is not entitled to the resentencing it seeks, because appellant,
Rogers T. Henderson, has completed his sentence. For that reason, I concur in
judgment only.
2. The court explained in State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
¶ 20-21, overruled on other grounds in State v. Harper, ___ Ohio St.3d ___, 2020-Ohio-2913, ___
N.E.3d ___, why it had departed from the prior, limited view of void judgments:
But in the modern era, in which we have a more sophisticated
understanding of individual rights, we have not so severely limited the notion of
void judgments to only those judgments that arise from jurisdictional cases. See,
e.g., State v. Foster, 109 Ohio St. 3d 1, 2006 Ohio 856, 845 N.E.2d 470, ¶ 103-
104. The historic, narrow view does not adequately address the constitutional
infirmities of a sentence imposed without statutory authority.
The majority’s decision to include sentences that disregard legislatively
imposed mandates within a narrow class of void judgments reflects a fundamental
understanding of constitutional democracy: judges are not imperial. We
recognize that our authority to sentence in criminal cases is limited by the people
through the Ohio Constitution and by our legislators through the Revised Code.
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{¶ 46} In her dissenting opinion ten years ago, Justice Lanzinger noted,
“The real question here is: ‘What is the proper remedy when a judge makes a
sentencing mistake?’ ” Fischer at ¶ 53 (Lanzinger, J., dissenting). In support of a
voidable-sentence doctrine, to which today’s majority now aligns, she explained:
Licensed attorneys should be competent to perform their
duties during a sentencing hearing, and it is not unreasonable for
prosecutors and defense counsel to review the judgment issued in
a case to ensure that the sentence complies with Ohio law. This
approach is the pragmatic approach—equitable, economical, and
efficient.
(Emphasis sic.) Id.
{¶ 47} As this case demonstrates, however, mistakes happen. And, in other
cases, sentencing mistakes are not revealed until after the time for direct appeal has
passed. For these types of cases in particular, the question Justice Lanzinger raised
in Fischer still remains: what is the proper remedy?
{¶ 48} I fear that the court’s eagerness to overturn our void jurisprudence
for what it may view as an easier or more “pragmatic approach” (as Justice
Lanzinger described it) will leave certain sentencing errors without a remedy.
Those errors will certainly be felt more acutely by defendants who rely largely on
counsel to interpret complex sentencing statutes and for whom unwarranted time
incarcerated or under state supervision will result. Will the court recognize a
habeas petition for these errors or for clearly unlawful sentencing? See, e.g.,
Hernandez v. Kelly, 108 Ohio St. 3d 395, 2006-Ohio-126, 844 N.E.2d 301,
superseded by statute as stated in State v. Singleton, 124 Ohio St. 3d 173, 2009-
Ohio-6434, 920 N.E.2d 958; In re Bonner, 151 U.S. 242, 14 S. Ct. 323, 38 L. Ed.
149 (1894). Will the court allow the reopening of an appeal for a claim of
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January Term, 2020
ineffective assistance of counsel in sentencing? How broadly will it apply the
doctrine of res judicata to bar a claim? See, e.g., State v. Parker, 157 Ohio St. 3d
460, 2019-Ohio-3848, 137 N.E.3d 1151, ¶ 36. In sum, will the courts take a fair
and thoughtful approach to solving the difficult questions that arise from sentencing
errors challenged after the time for direct appeal has passed or will they use res
judicata and the void-sentence doctrine as an excuse to keep the courthouse doors
closed? Will courts elevate predictability and finality over fairness and substantial
justice?
{¶ 49} This court’s void-sentence jurisprudence was correct. As I wrote for
the majority in Fischer, “Although the interests in finality of a sentence are
important, they cannot trump the interests of justice, which require a judge to follow
the letter of the law in sentencing a defendant.” 128 Ohio St. 3d 92, 2010-Ohio-
6238, 942 N.E.2d 33, at ¶ 23. And the res judicata doctrine is to be applied as a
shield against repeated litigation of an issue, but “ ‘is not to be applied so rigidly as
to defeat the ends of justice or so as to work an injustice,’ ” State v. Simpkins, 117
Ohio St. 3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 25, quoting 46 American
Jurisprudence 2d, Judgments, Section 522, at 786-787 (1994).
_________________
KENNEDY, J., concurring in judgment only.
{¶ 50} Because the majority does not apply our binding precedent in State
v. Harper, ___ Ohio St.3d ___, 2020-Ohio-2913, ___ N.E.3d ___, to resolve this
case, I concur in judgment only. The majority purports to distinguish Harper from
the case before us today on the basis that Harper’s holding is limited to cases
involving the failure to properly impose a statutorily mandated term of postrelease
control, while this case involves the failure to impose a different statutorily
mandated term in the sentence, a “life tail.”
{¶ 51} Taking the majority’s distinction to its logical conclusion would
mean that our void-sentence jurisprudence could be overruled only on a piecemeal
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basis when a specific statutorily mandated term is squarely before the court. Under
that reasoning, the court’s decision today could apply only to life-tail cases, while
caselaw holding that a sentence is void if it lacks other statutorily mandated terms—
e.g., a mandatory prison term, a mandatory driver’s-license suspension, or a
mandatory fine—could not yet be overturned and would remain binding on inferior
courts. But that is not how precedent works, and courts could not function if we
approached each decision as a blank slate presenting a question of first impression.
{¶ 52} All of the cases composing our void-sentence jurisprudence
expressed the same fundamental principle that the failure to impose a statutorily
mandated term in the sentence rendered that sentence void. In rejecting that
principle in Harper, this court overturned our void-sentence jurisprudence in its
entirety as it applies to the failure to impose statutorily mandated terms in the
sentence. And applying Harper here, the trial court’s failure to impose a life tail as
required by statute rendered the sentence voidable, not void ab initio.
Void or Voidable
{¶ 53} In Ohio, judges have no inherent authority to establish the penalty
for committing a crime. State v. Anderson, 143 Ohio St. 3d 173, 2015-Ohio-2089,
35 N.E.3d 512, ¶ 10. The power to define criminal offenses and prescribe
punishment is vested in the General Assembly, and courts may impose sentences
only as provided by statute. See id. To secure the boundary between these judicial
and legislative functions, we adopted our void-sentence jurisprudence, holding that
“[a]ny attempt by a court to disregard statutory requirements when imposing a
sentence renders the attempted sentence a nullity or void,” State v. Beasley, 14 Ohio
St.3d 74, 75, 471 N.E.2d 774 (1984).
{¶ 54} Beasley was the fountainhead of our jurisprudence that a sentence is
void when the trial court fails to impose a statutorily mandated term in the sentence.
In that case, the offender had been found guilty of two counts of felonious assault.
The sentencing statute mandated the imposition of a 2-to-15-year prison term for
26
January Term, 2020
that offense, but the trial court imposed a fine only. We held that the trial court’s
failure to impose the statutorily mandated prison term in the sentence rendered the
sentence void and subject to correction by the trial court. Beasley at 75.
{¶ 55} Beasley initially remained an outlier. It ran counter to the well-
established “traditional” rule that a sentence is void when the sentencing court lacks
jurisdiction over the subject matter of the case or personal jurisdiction over the
accused; but when the sentencing court has jurisdiction to act, a sentencing error
made in the exercise of that jurisdiction renders the court’s sentence voidable, not
void. See State v. Perry, 10 Ohio St. 2d 175, 178, 226 N.E.2d 104 (1967); In re
Winslow, 91 Ohio St. 328, 330, 110 N.E. 539 (1915); Ex parte Van Hagan, 25 Ohio
St. 426, 432 (1874); Ex parte Shaw, 7 Ohio St. 81, 82 (1857).
{¶ 56} Beasley and our void-sentence jurisprudence gained new life 20
years later in State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, 817 N.E.2d 864.
In Jordan, we extended our void-sentence jurisprudence by applying the holding in
Beasley to remedy a trial court’s failure to properly impose a statutorily mandated
term of postrelease control. Id. at ¶ 23. Following Beasley, we explained that “[t]he
court’s duty to include a notice to the offender about postrelease control at the
sentencing hearing is the same as any other statutorily mandated term of a
sentence.” Id. at ¶ 26.
{¶ 57} Jordan gave rise to a line of cases seeking to untangle the
consequences of the trial court’s failure to properly impose a statutorily mandated
term of postrelease control. E.g., State ex rel. Cruzado v. Zaleski, 111 Ohio St. 3d
353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 28; State v. Bezak, 114 Ohio St. 3d 94,
2007-Ohio-3250, 868 N.E.2d 961, ¶ 16; State v. Simpkins, 117 Ohio St. 3d 420,
2008-Ohio-1197, 884 N.E.2d 568, ¶ 6; State v. Boswell, 121 Ohio St. 3d 575, 2009-
Ohio-1577, 906 N.E.2d 422, ¶ 8. But rather than distinguishing Beasley on the
basis that it involved a statutorily mandated term of imprisonment rather than
postrelease control, Jordan’s progeny invariably began the analysis with Beasley.
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SUPREME COURT OF OHIO
E.g., State v. Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 3;
Singleton at ¶ 12.
{¶ 58} Soon, a growing swell of offenders began asserting that our void-
sentence jurisprudence entitled them to de novo sentencing hearings, followed by
new direct appeals allowing them to relitigate the merits of their convictions.
{¶ 59} We sought to limit our void-sentence jurisprudence in State v.
Fischer, clarifying that although a sentence that does not include a properly
imposed term of postrelease control is void in part, 128 Ohio St. 3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, paragraph one of the syllabus, the “determination of guilt
and the lawful elements of the [original] sentence” were nonetheless valid and
remained subject to res judicata, id. at paragraph three of the syllabus. In rolling
back our void-sentence jurisprudence, we proclaimed that it was “limited to a
discrete vein of cases: those in which a court does not properly impose a statutorily
mandated period of postrelease control.” Id. at ¶ 31. And because the General
Assembly had enacted R.C. 2929.191 in 2006 to provide a statutory remedy for
correcting an error in imposing postrelease control, we said that “it is likely that our
work in this regard is drawing to a close, at least for purposes of void sentences.”
Fischer at ¶ 31; see Singleton at paragraph two of the syllabus (“For criminal
sentences imposed on and after July 11, 2006, in which a trial court failed to
properly impose postrelease control, trial courts shall apply the procedures set forth
in R.C. 2929.191”).
{¶ 60} The hope that our void-sentence jurisprudence neared obsolescence
proved short-lived. We continued to permit collateral attacks on “void” sentences
imposed on or after the effective date of R.C. 2929.191, discovering new ways in
which the trial courts failed to properly impose a statutorily mandated term of
postrelease control. See, e.g., State v. Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927,
85 N.E.3d 700, ¶ 2 (sentence entered in 2011); State v. Johnson, 155 Ohio St. 3d
441, 2018-Ohio-4957, 122 N.E.3d 126, ¶ 2 (sentence entered in 2013).
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January Term, 2020
{¶ 61} And rather than limit our void-sentence doctrine to a discrete vein of
cases, we extended it to encompass the failure to impose other statutorily mandated
terms, such as the failure to include a mandatory driver’s-license suspension in the
sentence, State v. Harris, 132 Ohio St. 3d 318, 2012-Ohio-1908, 972 N.E.2d 509,
paragraph one of the syllabus, and the failure to impose a mandatory fine, State v.
Moore, 135 Ohio St. 3d 151, 2012-Ohio-5479, 985 N.E.2d 432, syllabus. We
expanded this jurisprudence further when we held that the trial court’s failure to
comply with the statutory duty to merge allied offenses of similar import resulted
in a void sentence. State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658, 71
N.E.3d 234, ¶ 28.
{¶ 62} Respecting the principle of stare decisis, I had joined prior cases
applying our void-sentence jurisprudence. E.g., State v. Wesson, 137 Ohio St. 3d
309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 68. However, I drew the line in Williams,
explaining that the allied-offenses statute, R.C. 2941.25(A), had codified the
double-jeopardy protection against multiple punishments for the same offense. Id.
at ¶ 89 (Kennedy, J., dissenting). That protection, as we had recognized in prior
cases, could be forfeited if the accused did not object either before conviction or on
direct appeal, and an error in failing to merge allied offenses of similar import could
not be asserted in postconviction proceedings. See id. at ¶ 89-90. Overlaying our
void-sentence jurisprudence conflicted with this precedent, and I concluded that
[b]y expanding the void-sentence doctrine beyond postrelease-
control cases and cases in which the trial court abridges the
sentencing commands of the General Assembly, this decision will
spawn a new wave of void-sentence litigation and severely
undermine res judicata, which “promotes the principles of finality
and judicial economy by preventing endless relitigation of an issue
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on which a defendant has already received a full and fair opportunity
to be heard.”
Id. at ¶ 95 (Kennedy, J., dissenting), quoting State v. Saxon, 109 Ohio St. 3d 176,
2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.
{¶ 63} In the end, this court extended our void-sentence jurisprudence to
apply to all cases involving sentencing errors that occurred when the trial court
disregarded a mandatory-sentencing provision. Although these cases involved
different statutory mandates, the reasoning undergirding the decisions remained the
same: substituting a different sentence for the one mandated by statute rendered the
sentence—or part of the sentence—void and subject to correction at any time before
the expiration of the original sentence, whether that statutorily mandated term was
imprisonment as in Beasley, a term of postrelease control as in Jordan, or a
mandatory fine as in Moore.
State v. Harper
{¶ 64} In Harper, we confronted the legacy of our void-sentence
jurisprudence, which had extended far beyond a “discrete vein of cases,” spawned
“seemingly endless litigation,” and undermined the finality of criminal judgments.
___ Ohio St.3d ___, 2020-Ohio-2913, ___ N.E.3d ___, at ¶ 3, 34, 37, 39. And we
pointed out that “[n]either Beasley nor Jordan nor their progeny have persuasively
explained why a sentencing error implicating the separation-of-powers doctrine
renders any part of the sentence void ab initio, as we have long recognized that
other failures to comply with statutory mandates make a sentence merely voidable,
not void.” Id. at ¶ 35.
{¶ 65} Basing the void-sentence jurisprudence on the separation-of-powers
doctrine could not pay its own way. In other cases, we had held that constitutional
errors other than separation-of-powers violations, including those involving the
fundamental rights of the accused, did not render the resulting judgment void ab
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initio. For example, we had recognized that the violation of an accused’s right to a
jury trial based on improper judicial fact-finding at sentencing results in a voidable
sentence. State v. Silsby, 119 Ohio St. 3d 370, 2008-Ohio-3834, 894 N.E.2d 667,
¶ 20, citing State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, 873 N.E.2d 306,
¶ 1. We had decided that a judgment of conviction is not void even though the
accused’s due-process right to trial before an impartial judge was violated. Tari v.
State, 117 Ohio St. 481, 493-497, 159 N.E. 594 (1927). Further, we have suggested
that even structural errors—constitutional errors so affecting the framework of the
trial that they are subject to automatic reversal, see State v. Fisher, 99 Ohio St. 3d
127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9—may be forfeited by failing to object
to the error at trial, see State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 24; State v. Perry, 101 Ohio St. 3d 118, 2004-Ohio-297, 802 N.E.2d
643, ¶ 17-18, 23; see also Weaver v. Massachusetts, ___ U.S. ___, 137 S. Ct. 1899,
1910-1913, 198 L. Ed. 2d 420 (2017) (holding that when a structural error is raised
in the context of an ineffective-assistance-of-counsel claim, the error is not
automatically reversible and the defendant is required to demonstrate prejudice to
obtain a new trial).
{¶ 66} In Harper, we determined that adhering to our void-sentence
jurisprudence “excepts a narrow class of our cases from established, fundamental
principles of law without providing any sound basis for departing from those
principles,” Harper at ¶ 39, and therefore we “realigned our jurisprudence with the
traditional understanding of void and voidable sentences,” id. at ¶ 43. And we held:
A sentence is void when a sentencing court lacks jurisdiction
over the subject-matter of the case or personal jurisdiction over the
accused. When the sentencing court has jurisdiction to act,
sentencing errors in the imposition of postrelease control render the
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sentence voidable, not void, and the sentence may be set aside if
successfully challenged on direct appeal.
Id. at ¶ 42.
{¶ 67} Harper put an end to this court’s “void-voidable” debate by
definitively holding that a sentencing error based on a failure to impose a statutorily
mandated term renders the sentence voidable, not void. Id.
Harper Controls the Disposition of Henderson’s Appeal
{¶ 68} In support of his first proposition of law, Henderson asks the court
to apply our void-sentence jurisprudence to the trial court’s failure to impose the
life-tail portion of the sentence required by former R.C. 2929.02(B), Am.Sub.S.B.
No. 107, 157 Ohio Laws, Part IV, 7435. He directly analogizes the trial court’s
failure to impose the life tail to a failure to properly impose postrelease control. In
response, the state agrees that the sentence is void because the trial court failed to
impose a statutorily mandated term of imprisonment in the sentence, but it contends
that the sentence is still subject to correction.
{¶ 69} The parties did not have the benefit of Harper in preparing their
briefs, but it provides the rule of decision that controls this case’s disposition: when
the sentencing court has jurisdiction to act, a sentencing error based on a failure to
impose a statutorily mandated term renders the sentence voidable, not void, and the
sentence may be set aside if successfully challenged on direct appeal.
{¶ 70} For this reason, the majority’s attempt to distinguish Harper rather
than apply it misses the mark. Its suggestion that Harper is not on point because it
“did not involve a case in which a trial court deviated from a statutory mandate,”
majority opinion at ¶ 27, is wrong on its face. The very premise of the void-
sentence jurisprudence was that the trial court’s failure to impose a statutorily
mandated term in the sentence rendered the sentence void, and postrelease control
is a statutorily mandated term that must be included in the sentence. Jordan, 104
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January Term, 2020
Ohio St. 3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 23; Singleton, 124 Ohio St. 3d
173, 2009-Ohio-6434, 920 N.E.2d 958, at ¶ 11; Fischer, 128 Ohio St. 3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, at ¶ 26 (“when a judge fails to impose statutorily
mandated postrelease control as part of a defendant’s sentence, that part of the
sentence is void and must be set aside” [emphasis sic]). The parties do not dispute
that like postrelease control, the life tail was a statutorily mandated term of
Henderson’s sentence.
{¶ 71} And the majority’s concern that the parties may try to distinguish
Harper in future cases that do not involve the failure to properly impose postrelease
control is unfounded. Harper spoke in terms of postrelease control, but that was
the factual context of the decision, and our opinions are to be read in light of the
facts of the case before us. See United States v. Weaver, 808 F.3d 26, 36
(D.C.Cir.2015), citing Phelps v. United States, 421 U.S. 330, 333-334, 95 S. Ct.
1728, 44 L. Ed. 2d 201 (1975). Cases rarely share identical facts, just as none of the
cases composing our void-sentence jurisprudence involved a trial court failing to
impose a life tail required by statute.
{¶ 72} But we do not review each case on a blank slate, because “the
reasoning of our decision generates a principle of law, the application of which
extends beyond the factual circumstances of [the] appeal,” United States v.
Johnson, 921 F.3d 991, 1003 (11th Cir.2019). It is that reasoning that creates
precedent, and in Harper we definitively abandoned our void-sentence
jurisprudence and held that “[a] sentence is void when a sentencing court lacks
jurisdiction over the subject matter of the case or personal jurisdiction over the
accused.” ___ Ohio St.3d ___, 2020-Ohio-2913, ___ N.E.3d ___, at ¶ 42. Inherent
in that holding is the reasoning we marshaled to support it: a trial court’s failure to
impose a statutorily mandated term involves an error in the exercise of jurisdiction,
not the absence of it, and that error is voidable on appeal, not void ab initio. See id.
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And the need to police the separation of powers did not justify maintaining an
exception to the traditional understanding of void and voidable sentences.
{¶ 73} If the reasoning of the majority were followed, then we would have
to wait for a case presenting an issue regarding each and every separate statutorily
mandated term to come before the court before we could finally lay to rest all of
our void jurisprudence. Rather than treating this case as presenting a question of
first impression, I would simply apply the principle of law generated by Harper to
the facts of this case.
The State’s Challenge to Henderson’s Sentence Is Time-Barred
{¶ 74} Henderson was indicted for aggravated murder. The common pleas
court was the proper forum for trial of this offense, and no one disputes that the
common pleas court acquired personal jurisdiction over Henderson. See Article
IV, Section 4(B), Ohio Constitution; R.C. 2931.03; State v. Hudson, ___ Ohio St.
3d ___, 2020-Ohio-3849, ___ N.E.3d ___, ¶ 15; Harper at ¶ 23. Accordingly, any
error in sentencing Henderson—including the error in failing to impose a statutorily
mandated life tail—rendered his judgment of conviction voidable, not void ab
initio.
{¶ 75} The majority correctly decides that R.C. 5145.01 would implicate
the separation-of-powers doctrine if we construed it to permit the executive branch
to reopen and modify a final judgment. See State v. Bodyke, 126 Ohio St. 3d 266,
2010-Ohio-2424, 933 N.E.2d 753, ¶ 53 (courts “condemn legislative
encroachments that violate the separation of powers by vesting officials in the
executive branch with the power to review judicial decisions or by commanding
that the courts reopen final judgments”). “[P]reserving the judiciary’s exclusive
authority to impose sentences is an area in which it is important for courts to be
vigilant.” United States v. Morin, 832 F.3d 513, 518 (5th Cir. 2016).
{¶ 76} I also agree that “the state cannot challenge Henderson’s voidable
sentence through a postconviction motion for resentencing,” majority opinion at
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January Term, 2020
¶ 1. Just as the legislative and executive branches do not have the power to reopen
a final judgment, this court has explained that “ ‘trial courts lack authority to
reconsider their own valid final judgments in criminal cases,’ ” State v. Raber, 134
Ohio St. 3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 20, quoting State ex rel. White
v. Junkin, 80 Ohio St. 3d 335, 338, 686 N.E.2d 267 (1997).
{¶ 77} And although we have stated that “trial courts retain continuing
jurisdiction to correct a void sentence and to correct a clerical error in a judgment,”
id., neither of those exceptions to the general rule applies here. As explained above,
the sentence the trial court imposed is not void ab initio. Also, the trial court did
not impose the life tail at the sentencing hearing, so it could not correct the
sentencing entry using a nunc pro tunc order. See State ex rel. Fogle v. Steiner, 74
Ohio St. 3d 158, 164, 656 N.E.2d 1288 (1995) (“nunc pro tunc entries are limited
in proper use to reflecting what the court actually decided, not what the court might
or should have decided or what the court intended to decide”). The trial court
therefore had no jurisdiction to reconsider the sentence it imposed in this case.
{¶ 78} That does not mean that the state is without remedy to correct an
unlawful sentence. First and foremost, the prosecutor has the right to attend the
sentencing hearing and object if the trial court imposes a sentence that is contrary
to law. State v. Heinz, 146 Ohio St. 3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 23
(explaining that the prosecuting attorney represents the state in criminal
proceedings and “is entitled to proper notice and an opportunity to appear and be
heard”).
{¶ 79} Second, R.C. 2945.67(A) permits the prosecutor to seek leave to
appeal a sentence that disregards statutory sentencing requirements or lacks a
statutorily mandated term. State ex rel. Zoller v. Talbert, 62 Ohio St. 2d 329, 329,
405 N.E.2d 724 (1980) (“R.C. 2945.67(A) provides a plain and adequate remedy
at law to correct errors in sentencing,” including the failure to impose a statutorily
mandated driver’s-license suspension); see also State v. Hancock, 108 Ohio St. 3d
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57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 118 (R.C. 2945.67 allowed state’s appeal
of the trial court’s decision granting a mistrial in penalty phase of trial and imposing
a life sentence on the accused). And if the court of appeals denies leave to appeal,
then the state may seek review in this court. See State ex rel. O’Malley v. Collier-
Williams, 153 Ohio St. 3d 553, 2018-Ohio-3154, 108 N.E.3d 1082, ¶ 14, citing
S.Ct.Prac.R. 5.02 (jurisdictional appeals); State ex rel. Corrigan v. Lawther, 39
Ohio St. 3d 157, 158, 529 N.E.2d 1377 (1988) (explaining that R.C. 2953.14 allows
the state to appeal the denial of leave to appeal to this court).
{¶ 80} But what the state may not do is move to correct an unlawful
sentence 18 years after that sentence was journalized. Rather, as the court explained
in Harper, the trial court’s failure to impose a statutorily mandated term in the
sentence “is best remedied the same way as other trial and sentencing errors—
through timely objections at sentencing and an appeal of the sentence,” id., ___
Ohio St.3d ___, 2020-Ohio-2913, ___ N.E.3d ___, at ¶ 40.
The Galatis Test Does Not Apply in Criminal Cases
{¶ 81} As explained above, Harper abrogated our void-judgment
jurisprudence. Because those cases are no longer good law, there is no need to
decide whether the test for overruling precedent set forth in Westfield Ins. Co. v.
Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of
the syllabus, applies in this case. The majority nonetheless concludes that although
we are “not compelled” to apply the Galatis test, “given the muddied history of our
jurisprudence on void sentences, the sheer number of cases implicating the void-
sentence doctrine, and the importance of stare decisis, some of the considerations
we outlined in Galatis help to illustrate why we feel compelled to abandon our
precedent in this area.” Majority opinion at ¶ 30. Rather than applying Galatis or
its principles, I would hold that there is no binding test for overruling precedent in
criminal cases.
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January Term, 2020
{¶ 82} In Galatis, the court adopted a three-pronged test for determining
whether to overrule prior precedent: “A prior decision of the [Ohio] Supreme Court
may be overruled where (1) the decision was wrongly decided at that time, or
changes in circumstances no longer justify continued adherence to the decision, (2)
the decision defies practical workability, and (3) abandoning the precedent would
not create an undue hardship for those who have relied upon it.” Galatis at
paragraph one of the syllabus.
{¶ 83} We adopted the Galatis test in the context of civil litigation
involving the interpretation of insurance policies, and we are obliged to limit our
holding to other cases that reflect a similar constellation of law and facts. See
Cohens v. Virginia, 19 U.S. 264, 399, 5 L. Ed. 257 (1821) (“It is a maxim not to be
disregarded, that general expressions, in every opinion, are to be taken in
connection with the case in which those expressions are used”); Payne, 114 Ohio
St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 12 (“we are not bound by any
perceived implications that may have been inferred from” a prior decision).
{¶ 84} After deciding Galatis, it did not take this court long to limit the
reach of that test. We did not apply it when we reviewed legislation similar to prior
statutes that we had struck down as unconstitutional. Arbino v. Johnson & Johnson,
116 Ohio St. 3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 23, 93. We held that the
Galatis test did not apply in deciding whether to overrule precedent interpreting
procedural and evidentiary rules. State v. Silverman, 121 Ohio St. 3d 581, 2009-
Ohio-1576, 906 N.E.2d 427, ¶ 33. Then, approximately one year later, this court
decided Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753. The lead
opinion in Bodyke explained that Galatis arose in the context of insurance and
contract law, Bodyke at ¶ 35, and suggested that the three-pronged test applies “in
cases presenting questions on the law of contracts, property, and torts, but it is not
controlling in cases presenting a constitutional question,” id. at ¶ 37.
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{¶ 85} Moreover, we have previously overruled criminal-law precedent
“with nary a mention of Galatis.” State v. Cook, 128 Ohio St. 3d 120, 2010-Ohio-
6305, 942 N.E.2d 357, ¶ 69 (Pfeifer, J., dissenting). We did not employ the Galatis
test in Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 36, in
which this court overruled the part of the holding in State v. Bezak, 114 Ohio St. 3d
94, 2007-Ohio-3250, 868 N.E.2d 961, that requires a de novo sentencing hearing
to correct a trial court’s failure to impose a statutorily mandated term of postrelease
control. And that case is not an outlier. We also did not mention Galatis in State
v. Horner, 126 Ohio St. 3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 45, when we
overruled State v. Colon, 118 Ohio St. 3d 26, 2008-Ohio-1624, 885 N.E.2d 917, and
overruled in part State v. Colon, 119 Ohio St. 3d 204, 2008-Ohio-3749, 893 N.E.2d
169, regarding the sufficiency of an indictment when it fails to allege a culpable
mental state. Nor did the lead opinion or any of the separate opinions in State v.
Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, abrogation
recognized by State v. Jackson, 149 Ohio St. 3d 55, 2016-Ohio-5488, 73 N.E.3d
414, rely on Galatis in overturning the test from State v. Rance, 85 Ohio St. 3d 632,
710 N.E.2d 699 (1999), for identifying allied offenses of similar import. Most
recently, we overruled the test from State v. Lott, 97 Ohio St. 3d 303, 2002-Ohio-
6625, 779 N.E.2d 1011, ¶ 18, 21, for determining whether an offender is
intellectually disabled without applying Galatis. State v. Ford, 158 Ohio St. 3d 139,
2019-Ohio-4539, 140 N.E.3d 616, ¶ 100.
{¶ 86} The protection of individual liberty, which is at stake in a criminal
proceeding, should never depend on a party’s ability to prove that the three prongs
of the Galatis test have been met. We should not uphold a wrongly decided case
simply because a criminal defendant is unable to establish that an erroneous holding
has become unworkable and no one (or some undefined number of people) has
relied on it. Our precedent in criminal cases can chill the behavior of law-abiding
Ohioans while sometimes literally rising to a matter of life or death. If a decision
38
January Term, 2020
in a criminal case is wrong, it should be overruled without resort to a binding test.
Instead, deciding the workability of criminal law in light of the people’s reliance
on it is the prerogative of the legislative branch of government.
{¶ 87} Accordingly, I would not apply the Galatis test—or any variant of
it—in deciding whether to overrule our decisions in criminal cases.
Conclusion
{¶ 88} For the reasons set forth above, I concur in the court’s judgment to
reverse the court of appeals and agree that the sentence entered in 1999 must be
reinstated.
_________________
DONNELLY, J., concurring.
{¶ 89} I concur in the majority’s judgment and agree with its determination
that the state cannot challenge Henderson’s voidable sentence through a
postconviction motion for resentencing.
{¶ 90} I write separately to note that the majority reaches its decision
without expressly applying the doctrine of res judicata against the state for its
failure to file a direct appeal from the trial court’s sentencing error. Of course,
declaring that Henderson’s sentence was “voidable” necessarily implies that it was
capable of being voided, i.e., corrected, by means of an available legal process. A
direct appeal is the available legal process to address a trial court’s alleged
sentencing error, and the failure to challenge a sentencing error on direct appeal
operates as res judicata to any later collateral attack on the judgment. See State v.
Harper, ___Ohio St.3d___, 2020-Ohio-2913, ___N.E.3d___, ¶ 41 (because Harper
failed to raise alleged postrelease-control sentencing error on direct appeal, the
argument was barred by doctrine of res judicata).
{¶ 91} Regardless of whether res judicata is implicit in today’s decision, I
agree with the majority that “[n]either the state nor the defendant can challenge the
voidable sentence through a postconviction motion,” majority opinion at ¶ 43.
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Nothing said in today’s decision should cause anyone to doubt that res judicata
applies equally to the state and the defendant. See Harper at ¶ 43 (cautioning
prosecuting attorneys, defense counsel, and pro se defendants throughout the state
that they are now “on notice” that claims of postrelease-control sentencing errors
“must be brought on appeal from the judgment of conviction or the sentence will
be subject to res judicata”); see also State v. Straley, 159 Ohio St. 3d 82, 2019-Ohio-
5206, 147 N.E.3d 623, ¶ 53 (Donnelly, J., concurring in judgment only).
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Gregory Ochocki, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellant.
_________________
40