State v. Sage ( 2021 )

[Cite as State v. Sage, 2021-Ohio-2130.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 28938 and 28939
:
v. : Trial Court Case No. 2004-CR-1574/4
:
GORDON WILLIAM SAGE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 25th day of June, 2021.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
GORDON WILLIAM SAGE, Inmate No. 458-271, Warren Correctional Institution, P.O.
Box 120, Lebanon, Ohio 45036
Defendant-Appellant, Pro Se
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Gordon William Sage, appeals from the judgment of
the Montgomery County Court of Common Pleas overruling his pro se motions to correct
void sentence and the corresponding nunc pro tunc sentencing entry. In support of his
appeal, Sage claims that his sentence is void because the trial court erroneously imposed
separate sentences for two counts of aggravated murder that the trial court had merged
as allied offenses. Sage also claims that his sentence is void because the life sentence
imposed for aggravated murder was unauthorized by the governing statute, R.C.
2929.03(A)(1). Sage further claims that the trial court improperly used a nunc pro tunc
sentencing entry to modify his sentence for aggravated murder. For the reasons outlined
below, we find that Sage’s claims all lack merit. Accordingly, the judgment of the trial
court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On April 11, 2005, Sage pled guilty to two counts of aggravated murder, one
count of aggravated burglary, one count of aggravated robbery, and one count of having
weapons under disability. The trial court accepted Sage’s guilty pleas and then
sentenced him on April 26, 2005. During Sage’s sentencing hearing, the trial court
merged the two counts of aggravated murder for purposes of sentencing. The trial court
then imposed a sentence of life in prison for aggravated murder and noted that Sage
would be eligible for parole after 20 years. The trial court sentenced Sage to five years
in prison for aggravated burglary and five years for aggravated robbery, and it ordered
those two sentences to be served concurrently to one another, but consecutively to the
life sentence for aggravated murder. The trial court also sentenced Sage to one year in
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prison for having weapons under disability, to be served concurrently to all the other
sentences. Therefore, the trial court imposed an aggregate sentence of life in prison
plus five years.
{¶ 3} Sage appealed from his conviction and raised multiple arguments, including
that his sentence was unlawful under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470. After reviewing Sage’s appeal, we agreed that the trial court had
engaged in judicial factfinding that Foster held was unconstitutional. Therefore, we
vacated Sage’s sentence and remanded the matter to the trial court for resentencing.
State v. Sage, 2d Dist. Montgomery No. 21097, 2007-Ohio-442.
{¶ 4} Sage’s resentencing hearing was held on March 2, 2007. During the
resentencing hearing, the trial court sentenced Sage to the exact same sentence that it
had previously imposed. This time, however, the trial court explained that, although the
statute governing the penalty for aggravated murder provided that Sage’s life sentence
carried parole eligibility after 20 years, Sage would actually not be eligible for parole until
after 25 years given that his life sentence was consecutive to Sage’s aggregate five-year
sentence for aggravated burglary, aggravated robbery, and having weapons under
disability. Sage did not appeal from trial court’s resentencing decision.
{¶ 5} Over the next 13 years, Sage filed several pro se motions in the trial court,
including a pro se “Motion to Terminate April 11, 2005 Contract Plea Agreement.” Sage
filed the motion on June 25, 2019. The trial court construed the motion as a petition for
post-conviction relief and overruled it on grounds that it was untimely and barred by res
judicata. Sage appealed from that decision, and while the appeal was pending, Sage
filed three more pro se motions in January and February 2020. In those motions, Sage
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alleged that his sentence was void because the trial court imposed separate sentences
for the two counts of aggravated murder that had been merged as allied offenses. Sage
also argued that his sentence was void because the life sentence imposed for aggravated
murder was not authorized by the governing statute, R.C. 2929.03(A)(1).
{¶ 6} On March 4, 2020, the trial court found that it lacked jurisdiction to rule on the
three pro se motions due to the pending appeal on Sage’s “Motion to Terminate April 11,
2005 Contract Plea Agreement.” However, after we issued our decision on that appeal,
Sage filed a fourth pro se motion titled: “Renewed Motion to Correct Void Judgment.” In
that motion, Sage raised the same arguments that he had raised in his prior three pro se
motions. Sage filed the renewed motion on July 29, 2020.
{¶ 7} In the renewed motion, Sage admitted that the trial court had determined that
the two aggravated murder counts merged as allied offenses. Sage, however, claimed
that the trial court imposed separate sentences on those counts. Sage based this
argument on the language of the March 8, 2007 resentencing entry, which stated as
follows:
WHEREFORE, it is the JUDGMENT and SENTENCE of the Court that the
defendant herein be delivered to the CORRECTIONAL RECEPTION
CENTER, there to be imprisoned and confined for a term of:
***
COUNT # 16 [Aggravated Murder (while committing aggravated burglary)]:
LIFE;
COUNT # 17 [Aggravated Murder (while committing aggravated robbery)]:
LIFE, WHICH SENTENCE MERGES WITH COUNT #16; * * *
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Termination Entry (March 8, 2007).
{¶ 8} Sage also argued that the “LIFE” sentence imposed in the resentencing entry
was unauthorized by law because R.C. 2929.03(A)(1) provides that the penalty for
aggravated murder is not just “life,” but one of the following:
(a) Life imprisonment without parole;
(b) [L]ife imprisonment with parole eligibility after serving twenty
years of imprisonment;
(c) [L]ife imprisonment with parole eligibility after serving twenty-five
full years of imprisonment;
(d) [L]ife imprisonment with parole eligibility after serving thirty full
years of imprisonment[.]
(Emphasis added.) R.C. 2929.03(A)(1)
{¶ 9} On September 29, 2020, the trial court issued a decision overruling all four
of Sage’s pro se motions challenging his sentence as void. In so holding, the trial court
found that it indicated during the resentencing hearing that Sage would be serving one
sentence for the merged aggravated murder counts, i.e., life in prison with the possibility
of parole after 20 years. The trial court further found that the issues raised in Sage’s pro
se motions could be properly addressed by a nunc pro tunc entry. The trial court,
therefore, simultaneously issued a nunc pro tunc entry that amended the March 8, 2007
resentencing entry to include the following revised language:
WHEREFORE, it is the JUDGMENT and SENTENCE of the Court that the
Defendant herein be delivered to the CORRECTIONAL RECEPTION
CENTER, there to be imprisoned and confined for a term of:
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***
Count #16 [Aggravated Murder (while committing Aggravated Burglary)]:
LIFE with the possibility of parole after TWENTY (20) years;
Count # 17 [Aggravated Murder (while committing Aggravated Robbery)]:
Merges with Count #16[.]
Nunc Pro Tunc Termination Entry (Sept. 29, 2020).
{¶ 10} Sage thereafter filed two separate notices of appeal—one from the trial
court’s decision overruling his four pro se motions and the other from the trial court’s
corresponding nunc pro tunc entry. After receiving both of Sage’s notices of appeal, this
court issued an order consolidating the appeals. Once the appeals were consolidated,
Sage filed an appellate brief raising two assignments of error for review, which we have
addressed below.
First Assignment of Error
{¶ 11} Under his first assignment of error, Sage contends that the trial court erred
by overruling his four pro se motions that challenged his sentence as being void. In
support of this claim, Sage raises the same arguments that were raised in his pro se
motions, i.e., that his sentence was void as a result of the trial court’s imposing separate
sentences for the merged aggravated murder counts and for imposing an unauthorized
“life” sentence. However, upon review, we find that all of Sage’s arguments are barred
by the doctrine of res judicata.
{¶ 12} “The doctrine of res judicata bars a criminal defendant from raising and
litigating in any proceedings any defense or claimed lack of due process that was raised
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or could have been raised on direct appeal from the conviction. Res judicata applies to
the litigation of any post[-]conviction issues which were or could have been litigated on
direct appeal.” (Citations omitted.) State v. Young, 2d Dist. Montgomery No. 20813,
2005-Ohio-5584, ¶ 8. “A void sentence is ‘not precluded from appellate review by
principles of res judicata, and may be reviewed at any time, on direct appeal or by
collateral attack.’ ” State v. Covington, 2d Dist. Clark No. 2019-CA-50, 2020-Ohio-390,
¶ 13, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40.
However, “[a]rguments challenging the imposition of a sentence that is voidable are
barred by the doctrine of res judicata if not raised on direct appeal.” (Emphasis added.)
State v. Simons, 2d Dist. Champaign No. 2013-CA-5, 2013-Ohio-3654, ¶ 42, citing State
v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 30. (Other citation
omitted.) Therefore, “ ‘defendants with a voidable sentence are entitled to re-sentencing
only upon a successful challenge on direct appeal.’ ” Id. at ¶ 40, quoting State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 30.
{¶ 13} The Supreme Court of Ohio has recently clarified that “[a] sentence is void
only if the sentencing court lacks jurisdiction over the subject-matter of the case or
personal jurisdiction over the accused.” State v. Henderson, 161 Ohio St.3d 285, 2020-
Ohio-4784, 162 N.E.3d 776, ¶ 27. In turn, “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.” Id.With regard to allied-offense sentencing errors, the Supreme Court of Ohio has
specifically held that “[t]he imposition of compound sentences for allied offenses is an
error in the exercise of jurisdiction, to be challenged at sentencing and remedied on direct
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appeal.” State ex rel. Romine v. McIntosh, 162 Ohio St.3d 501, 2020-Ohio-6826, 165
N.E.3d 1262, ¶ 15.
{¶ 14} Here, there is no dispute that the trial court had subject matter jurisdiction
over Sage’s case, nor is there any dispute that the trial court had personal jurisdiction
over Sage. See Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131 N.E.3d 1, ¶ 8
(“a common pleas court has subject-matter jurisdiction over felony cases”); Johnson v.
Geauga Cty. Court of Common Pleas, 11th Dist. Geauga No. 2014-G-3206, 2015-Ohio-
210, ¶ 11 (“personal jurisdiction exists when the defendant has been properly served with
the indictment”). Therefore, Sage’s claim that the trial court erroneously imposed separate
sentences for the merged aggravated murder counts only amounted to voidable error.
The same holds true for Sage’s claim that the trial court imposed an unauthorized “life”
sentence for aggravated murder. Because Sage’s claims assert error that would merely
render Sage’s sentence voidable, the claims were barred by the doctrine of res judicata,
as they should have been raised in a direct appeal from the trial court’s resentencing
decision.
{¶ 15} Regardless, even if the doctrine of res judicata did not apply, the record as
a whole indicates that the trial court sentenced Sage to a single life sentence for both
counts of aggravated murder and also advised Sage that he was eligible for parole after
serving 20 years as authorized by R.C. 2929.03(A)(1). To the extent that the March 8,
2007 resentencing entry reflects otherwise, the trial court correctly determined that it
could issue a nunc pro tunc entry to address that issue. See State v. Pacific, 2d Dist.
Montgomery No. 28804, 2021-Ohio-973, ¶ 55 (“where a judgment entry does not
accurately reflect the sentence imposed at a sentencing hearing, the judgment entry
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generally may be corrected by means of a nunc pro tunc entry”). Therefore, for the
reasons outlined above, the trial court did not err in overruling Sage’s four pro se motions
that challenged his sentence as being void.
{¶ 16} In reaching this decision, we note that Sage also tangentially argues that
the State relied on inadmissible evidence in its memorandum opposing Sage’s pro se
motions. Specifically, Sage contends that the State improperly cited to the video
transcript of his March 2, 2007 resentencing hearing. The online docket, however,
indicates that the video transcript at issue was filed with the trial court on March 27, 2007,
and was part of the trial court’s record. Because the video transcript was part of the trial
court’s record, it was not inappropriate for the State to reference it while contesting Sage’s
pro se motions.
{¶ 17} Sage’s first assignment of error is overruled.
Second Assignment of Error
{¶ 18} Under his second assignment of error, Sage contends that the trial court
erroneously modified his sentence for aggravated murder using a nunc pro tunc entry and
violated Crim.R. 43(A)(1) by modifying his sentence outside his presence. We disagree.
{¶ 19} “ ‘Crim.R. 36(A) permits trial courts to correct clerical mistakes in judgments
or orders arising from oversight or omissions, using a nunc pro tunc entry.’ ” State v.
Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, 26983, 2016-Ohio-4897, ¶ 11, quoting
State v. Roach, 2d Dist. Montgomery No. 23317, 2010-Ohio-566, ¶ 3. “ ‘The term
“clerical mistake” refers to a mistake or omission, mechanical in nature and apparent on
the record, which does not involve a legal decision or judgment.’ ” State v. Arnold, 2d
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Dist. Montgomery No. 22856, 2009-Ohio-3636, ¶ 57, quoting State v. Brown, 136 Ohio
App.3d 816, 820, 737 N.E.2d 1057 (3d Dist.2000). “The use of a nunc pro tunc entry is
limited to reflecting what the court actually decided but failed to properly include in its
judgment.” Wolfe at ¶ 11, citing State v. Ritchie, 2d Dist. Montgomery No. 24088, 2011-
Ohio-2566, ¶ 8. Thus, “ ‘[t]he function of nunc pro tunc [entries] is not to change, modify,
or correct erroneous judgments, but merely to have the record speak the truth.’ ” Ritchie
at ¶ 10, quoting Ruby v. Wolf, 39 Ohio App. 144, 147, 177 N.E. 240 (8th Dist.1931). “A
nunc pro tunc entry cannot be used to change something that was deliberately done.”
(Citation omitted.) Id.{¶ 20} Contrary to Sage’s claim otherwise, the nunc pro tunc entry in this case did
not modify his sentence for aggravated murder. Rather, the nunc pro tunc entry
amended the language in the March 8, 2007 resentencing entry to reflect the trial court’s
actions at the resentencing hearing, i.e., merging Sage’s two counts of aggravated
murder and sentencing Sage to a single life sentence with parole eligibility after 20 years.
Simply put, the nunc pro tunc entry merely corrected the record to reflect what actually
occurred at the resentencing hearing when the court resentenced Sage for aggravated
murder. Thus, the nunc pro tunc entry was proper. Moreover, because the nunc pro
tunc entry did not modify Sage’s sentence, the requirement under Crim.R. 43(A)(1)—that
a defendant be physically present at sentencing—was not implicated.
{¶ 21} Sage’s second assignment of error is overruled.
Conclusion
{¶ 22} Having overruled both assignments of error raised by Sage, the judgment
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of the trial court is affirmed.
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TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Gordon William Sage
Hon. Dennis J. Adkins