State v. Elkins ( 2021 )

[Cite as State v. Elkins, 2021-Ohio-4231.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-21-010
Appellee Trial Court No. 08 CR 203
v.
Daniel A. Elkins DECISION AND JUDGMENT
Appellant Decided: December 3, 2021
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Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.
Daniel A Elkins, pro se.
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ZMUDA, P.J.
{¶ 1} This matter is before the court upon the pro se appeal of appellant, Daniel
Elkins, challenging the denial by the Sandusky County Court of Common Pleas of his
motion to correct “an erroneous entry.” Appellant sought a decision finding the sentence,
entered in 2008, is a void sentence requiring correction pursuant to State v. Beasley, 14
Ohio St.3d 74, 471 N.E.2d 774 (1984).
{¶ 2} On May 14, 2008, appellant entered a guilty plea to three counts of
complicity to aggravated robbery, violations of R.C. 2911.01(A)(1) and 2923.03, each a
felony of the first degree. Pursuant to his plea, the state dismissed the remaining counts
and firearm specifications in the 17-count indictment, and the trial court proceeded to
sentencing. The trial court imposed a prison term of 8 years as to each count, and
ordered the terms to run consecutively, for an aggregate prison sentence of 24 years. The
original entry failed to note dismissal of the firearm specifications.
{¶ 3} Appellant filed a timely appeal, and among his assigned errors he challenged
the imposition of consecutive sentences as excessive and contrary to law. In State v.
Elkins, 6th Dist. Sandusky No. S-08-014, 2009-Ohio-2602, ¶ 30, we affirmed the trial
court’s judgment, including the consecutive sentences.
{¶ 4} On December 10, 2009, appellant filed a motion to withdraw his guilty plea,
which the trial court denied. We affirmed that judgment on appeal in State v. Elkins, 6th
Dist. Sandusky No. S-10-018, 2010-Ohio-5170, ¶ 1, 27.
{¶ 5} On May 3, 2010, while his 2010 appeal was pending, appellant filed a
motion to vacate void judgment. On December 15, 2010, appellant filed an amended
motion to vacate void judgment, seeking a judgment entry that fully complied with
Crim.R. 32(C). In support, appellant argued his sentencing entry containing consecutive
terms was void, and the trial court failed to dispose of the firearm specifications attached
2.
to Counts 1, 2, and 3. On December 20, 2010, the trial court granted the motion, in part,
and issued a nunc pro tunc entry correctly noting dismissal of the firearm specifications
to reflect the dismissal stated on the record at hearing, and denied the motion as it
pertained to “void” sentences. Appellant did not appeal this judgment.
{¶ 6} On November 28, 2011, appellant filed a subsequent motion to correct void
sentence, which the trial court summarily denied by entry on December 28, 2011. We
affirmed the trial court’s judgment in State v. Elkins, 6th Dist. Sandusky No. S-12-001,
2013-Ohio-127. In that decision, we noted our prior consideration of the consecutive
sentencing issue in his direct appeal, and found his sole assignment of error “barred by
the doctrine of res judicata.” Id. at ¶ 3, citing State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967), paragraph one of the syllabus and State v. Ishmail, 67 Ohio St.2d 16,
423 N.E.2d 1068 (1981).
{¶ 7} Appellant filed his latest motion on June 14, 2021, renewing his claims of a
void sentence for failure to comply with R.C. 2929.14 and Beasley. Appellant raises the
same argument, previously rejected as barred by res judicata. See Elkins, 2013-Ohio-127,
at ¶ 3. Additionally, we note that the judgment at issue is not a void judgment, as
recently clarified by the Ohio Supreme Court in State v. Henderson, 161 Ohio St.3d 285,
2020-Ohio-4784, 162 N.E.3d 776, which defined a void judgment as judgment rendered
by a court proceeding without jurisdiction. (Citation omitted) Henderson at ¶ 16. “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.’” (Citation
3.
omitted). Id. Simply put, a sentencing error is not a jurisdictional error. Id., citing In re
Winslow, 91 Ohio St.328, 330, 110 N.E.539 (1915).
{¶ 8} We already determined there was no sentencing error in appellant’s direct
appeal. Furthermore, had an error existed but appellant failed to raise the issue in his
direct appeal, the error would result in merely a voidable judgment, not subject to
collateral attack that could jeopardize the “finality of judgments.” (Citation omitted.)
Henderson at ¶ 17. The “void sentence” analysis of Beasley, moreover, addressed a
“procedurally unique case,” and in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913,
159 N.E.3d 248, the Ohio Supreme Court expressly overruled Beasley, realigning
precedent “with the traditional understanding of what constitutes a void judgment.” Id. at
¶ 26, citing Harper at ¶ 4.
{¶ 9} Appellant raised this same issue as error in his direct appeal, and the present
appeal represents only the latest attempt to collaterally attack his sentence as void. We
found no error in the imposition of consecutive sentences in the direct appeal, we
previously rejected a collateral attack as barred by res judicata, and we now clarify that
appellant’s sentence is not void, based on recent precedent. Accordingly, we find
appellant’s sole assignment of error not well-taken.
{¶ 10} Finding substantial justice has been done, we affirm the judgment of the
Sandusky County Court of Common Pleas. Appellant is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
4.
S-21-010
State v. Elkins
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, P.J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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