State v. Simpson , 2020 Ohio 6840 ( 2020 )

[Cite as State v. Simpson, 2020-Ohio-6840.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-866
v. : (C.P.C. No. 06CR-9351)
Corey D. Simpson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 22, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.
On brief: William T. Cramer, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
{¶ 1} Defendant-appellant, Corey D. Simpson, appeals from the judgment of the
Franklin County Court of Common Pleas denying his motion. For the reasons that follow,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 18, 2006, a Franklin County Grand Jury indicted appellant in
a 14-count indictment originating out of 2 separate incidents. Appellant was charged with
3 counts of aggravated robbery in violation of R.C. 2911.01, felonies of the first degree, 6
counts of robbery in violation of R.C. 2911.02, felonies the second and third degree, 4 counts
of kidnapping in violation of R.C. 2905.01, felonies of the first degree, and 1 count of having
No. 19AP-866 2
a weapon under disability in violation of R.C. 2923.13, a felony of the third degree. The
kidnapping and robbery charges all included firearm specifications.
{¶ 3} On May 21, 2007, appellant, represented by counsel, entered a guilty plea to
two counts of aggravated robbery with a firearm specification, one count of kidnapping with
a firearm specification, and one count of having a weapon under disability. The remaining
ten counts were dismissed nolle prosequi. At the hearing, the trial court orally conveyed to
appellant the potential terms of incarceration, maximum fines, and that he was subject to
five years of mandatory post-release control with a three-year optional term of post-release
control for the third-degree felony conviction. Appellant and counsel signed the entry
noting appellant's guilty plea. The trial court requested a presentence investigation and set
the matter for a sentencing hearing.
{¶ 4} On August 3, 2007, appellant filed, pro se, a "Motion/Request For Abeyance"
seeking to suspend all proceedings so that he may file a motion to withdraw his guilty plea.
On October 4, 2007, appellant filed a pro se motion to withdraw guilty plea arguing that
trial counsel failed to show him certain evidence, provided incorrect information regarding
his eligibility for judicial release, and misstated the sentencing recommendation of
plaintiff-appellee, State of Ohio.
{¶ 5} The sentencing hearing took place on October 5, 2007. At the hearing, the
trial court inquired into the claims alleged in appellant's pro se motions. Defense counsel
stated he discussed several different sentencing possibilities with appellant but offered no
guarantees as to the ultimate sentence or judicial release. Appellee denied discussing the
purported sentencing figures and opposed allowing appellant to withdraw his guilty plea.
The trial court ultimately denied appellant's motions and sentenced appellant to a 30-year
prison term subject to 5 years of parole on release from prison.
{¶ 6} Appellant filed a timely appeal arguing his plea was invalid, he should have
been allowed to withdraw his guilty plea, and trial counsel was ineffective. On May 22,
2008, we overruled appellant's three assignments of error and affirmed the judgment of
the trial court. State v. Simpson, 10th Dist. No. 07AP-929, 2008-Ohio-2460. We then
denied appellant's motion for reconsideration and motion to certify a conflict. State v.
Simpson, 10th Dist. No. 07AP-929 (July 8, 2008) (memorandum decision). The Supreme
No. 19AP-866 3
Court of Ohio declined to grant review. Simpson, 2008-Ohio-2460, appeal not accepted,
119 Ohio St.3d 1488, 2008-Ohio-5276.
{¶ 7} On March 29, 2016, appellant filed a motion to withdraw guilty plea arguing
his trial counsel was ineffective. Appellant alleged counsel failed to interview witnesses,
discuss the case with appellant, told appellant he would be found guilty and get more time
if it went to trial, and failed to explain the nature of the guilty plea. The trial court denied
appellant's motion on April 22, 2016. Appellant did not appeal.
{¶ 8} On July 17, 2019, appellant filed the pro se motion at issue. Appellee filed a
memorandum in opposition on July 29, 2019. On September 12, 2019, the trial court
addressed the motion and classified it as a successive post-sentence motion to withdraw
guilty plea. The trial court concluded appellant's arguments were precluded under res
judicata and denied the motion.
{¶ 9} Appellant filed a notice of appeal on October 25, 2019. On November 12,
2019, we determined the appeal was untimely, and it was dismissed for lack of jurisdiction.
On December 20, 2019, appellant filed a motion for leave to file a delayed appeal, which we
granted and appointed counsel to appellant.
II. ASSIGNMENTS OF ERROR
{¶ 10} Appellant assigns the following as trial court error:
[1.] The trial court erred by mischaracterizing appellant's
motion for resentencing as a motion to withdraw guilty pleas
and thereby limiting its review.
[2.] Appellant was entitled to a de novo resentencing because
his original sentence was rendered void by the trial court's
errors at sentencing.
III. LEGAL ANALYSIS
A. Appellant's Second Assignment of Error
{¶ 11} For ease of discussion, we will address appellant's assignments of error out
of order. In his second assignment of error, appellant argues he was entitled to de novo
resentencing alleging that his original sentence was rendered void by the trial court
imposing multiple counts as a package and failing to advise appellant of potential penalties
for violating post-release control. For the reasons that follow, we disagree.
{¶ 12} Until the Supreme Court's decision in State v. Harper, __ Ohio St.3d __,
2020-Ohio-2913 (slip opinion), the imposition of a sentence that conflicts with statutory
No. 19AP-866 4
requirements, such as post-release control, could render the sentence void and subject to
review at any point prior to the completion of the sentence. State v. Crawford, 1st Dist. No.
C-190497, 2020-Ohio-4897, ¶ 6, citing Harper at ¶ 27-40, citing State v. Jordan, 104 Ohio
St.3d 21, 2004-Ohio-6085, and State v. Beasley, 14 Ohio St.3d 74, 75 (1984). The Harper
court "reevaluate[d] the basic premise of [its] void-sentence jurisprudence" "with the
traditional understanding of what constitutes a void judgment." Harper at ¶ 34, 4.
{¶ 13} The Harper court wrote "[a] sentence is void when a sentencing court lacks
jurisdiction over the subject-matter of the case or personal jurisdiction over the accused."
Id. at ¶ 42. A judgment is voidable, not void, when the court has jurisdiction to act and may
be successfully challenged on direct appeal. Id. at ¶ 26. If a voidable claim is challenged
after a direct appeal, it is subject to res judicata. "In criminal cases res judicata generally
bars a defendant from litigating claims in a proceeding subsequent to the direct appeal 'if
he or she raised or could have raised the issue at the trial that resulted in that judgment of
conviction or on an appeal from that judgment.' " (Emphasis omitted.) State v. Davic, 10th
Dist. No. 18AP-569, 2019-Ohio-1320, ¶ 9, quoting State v. Jackson, 141 Ohio St.3d 171,
2014-Ohio-3707, ¶ 92.
{¶ 14} Here, as in Harper, the trial court had subject-matter jurisdiction over the
case and personal jurisdiction over appellant. Because appellant could have raised these
arguments in his original motion to withdraw, the judgment is voidable, not void, and is
barred under the doctrine of res judicata. State v. Jennings, 10th Dist. No.18AP-139, 2020-
Ohio-5154, ¶ 8, citing Harper at ¶ 34, 42. Accordingly, we conclude the trial court did not
err in finding appellant's motion was precluded under res judicata.
{¶ 15} Appellant argues the sentence is void based on the trial court's alleged failure
to inform appellant of the potential penalties for violating post-release control. We
disagree.
{¶ 16} In Harper, the Supreme Court determined the trial court's purported failure
to provide notice of penalties associated with violating post-release control was voidable,
not void, and must be brought as a direct appeal. The Harper court "overrule[d] [its]
precedent to the extent that it holds that the failure to properly impose postrelease control
in the sentence renders that portion of a defendant's sentence void," concluding
"noncompliance with requirements for imposing postrelease control is best remedied the
No. 19AP-866 5
same way as other trial and sentencing errors—through timely objections at sentencing and
an appeal of the sentence." Id. at ¶ 40; see also State v. Hudson, __ Ohio St.3d __, 2020-
Ohio-3849 (slip opinion) (finding the trial court's failure to include notice of the
consequences for violating post-release control rendered the sentence voidable, not void,
and subject to res judicata). As such, since appellant could have raised the argument that
the trial court failed to correctly impose post-release control on direct appeal, the issue is
barred under the doctrine of res judicata.
{¶ 17} Similarly, appellant's claim the trial court impermissibly applied the sentence
packaging doctrine is also precluded by res judicata. The realignment of the void/voidable
case law in Harper broadly held that "when a specific action is within a court's subject-
matter jurisdiction, any error in the exercise of that jurisdiction renders the court's
judgment voidable, not void." Id. at ¶ 26, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-
Ohio-1980, ¶ 12, 21. In State v. Henderson, __ Ohio St.3d __, 2020-Ohio-4784 (slip
opinion), the Supreme Court considered whether to pronounce a sentence void and permit
the state to correct a sentencing error through a postconviction motion for resentencing.
The Henderson court determined, in light of Harper, the state could not challenge the
voidable sentence through a motion for resentencing, writing "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." Henderson at ¶ 1. The Henderson court concluded since the sentencing error
rendered the sentence voidable, the state's postconviction motion for resentencing to
remedy the error was improper. Given the language of Harper and Henderson, we find
appellant's argument the trial court impermissibly applied the sentencing package doctrine
voidable error and barred by res judicata.
{¶ 18} Appellant next contends that "[a] sentencing package violation can be
challenged at any time without regard to res judicata because it results in a void sentence,"
citing State v. Hernandez-Torres, 11th Dist. No. 2019-L-028, 2019-Ohio-5310, to support
this proposition. (Appellant's Brief at 8.) We find appellant's argument unpersuasive as its
supporting case law predates Harper.1
1 We note that subsequent to Harper, the Eleventh District Court of Appeals considered whether a sentencing
package violation constituted void or voidable error. See State v. Hedges, 11th Dist. No. 2019-L-135, 2020-
Ohio-4528. In Hedges, the Eleventh District concluded, in light of Harper, that defendant's claim alleging
No. 19AP-866 6
{¶ 19} This court has repeatedly cited Harper for the proposition that when a court
has jurisdiction to act, sentencing errors would render the judgment voidable, not void, and
subject to res judicata if raised after direct appeal. Jennings, 2020-Ohio-5154, at ¶ 8; State
v. Stewart, 10th Dist. No. 19AP-458, 2020-Ohio-4709, fn. 4; State v. Cockroft, 10th Dist.
No. 19AP-738, 2020-Ohio-4436, ¶ 10; State v. Welch, 10th Dist. No. 19AP-753, 2020-Ohio-
5447, ¶ 16; State v. Allen, 10th Dist. No. 19AP-285, 2020-Ohio-5155, fn. 1. As such, we find
appellant's contention that a sentencing package violation can be challenged at any time
regardless of res judicata to be without merit.
{¶ 20} Finally, appellant argues Harper should not be applied as it was decided
while the instant case was pending. We disagree. The Supreme Court in Henderson, as
well as this court, has applied Harper to cases that were pending at the time it was decided.
See, e.g., Henderson at ¶ 40; Stewart at fn. 4; Cockroft at ¶ 10; Jennings at ¶ 8; Welch at
¶ 16; Allen at fn. 1. Moreover, the Supreme Court's critique of the prior line of void/voidable
jurisprudence was clear. The Harper court wrote the previous void-sentence case law "runs
counter to the doctrine of res judicata and disrupts the finality of judgments of conviction.
* * * This public policy is reflected in the doctrine of res judicata, which 'promotes the
principles of finality and judicial economy by preventing endless relitigation of an issue on
which a defendant has already received a full and fair opportunity to be heard.' " Harper,
2020-Ohio-2913, at ¶ 37, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18.
We see no merit to appellant's argument that Harper should not be applied. Accordingly,
as appellant was provided a full and fair opportunity for review on direct appeal, we
conclude appellant's arguments constitute voidable error and are precluded by res judicata.
{¶ 21} Based on the forgoing, we overrule appellant's second assignment of error.
B. Appellant's First Assignment of Error
{¶ 22} In his first assignment of error, appellant argues the trial court erred by
mischaracterizing his motion for resentencing as a motion to withdraw his guilty plea.
{¶ 23} Pursuant to App.R. 12(A)(1)(b) and (c), we shall "[d]etermine the appeal on
its merits on the assignments of error set forth in the briefs * * * [u]nless an assignment of
sentence packaging was voidable error, not void, barred under res judicata. Hedges at ¶ 11. The Hedges court
wrote "[t]hough the error discussed in Harper concerned erroneously imposed post-release control, on the
whole it represents a realignment with the traditional understanding of what constitutes a void judgment."
Hedges at ¶ 11.
No. 19AP-866 7
error is made moot by a ruling on another assignment of error." An action is rendered moot
when it " ' "involve[s] no actual genuine, live controversy, the decision of which can
definitely affect existing legal relations." ' " Ridgeway v. State Med. Bd. of Ohio, 10th Dist.
No. 06AP-1197, 2007-Ohio-5657, ¶ 11, quoting Lingo v. Ohio Cent. RR., Inc., 10th Dist. No.
05AP-206, 2006-Ohio-2268, ¶ 20, quoting Grove City v. Clark, 10th Dist. No. 01AP-1369,
2002-Ohio-4549, ¶ 11.
{¶ 24} In ruling on appellant's second assignment of error, we concluded that
because appellant failed to bring these arguments on direct appeal, his claims constitute
voidable error subject to res judicata. Consequently, since the arguments asserted in
appellant's motion are barred, the trial court's characterization of the motion is immaterial
to our analysis as the substance of the errors are precluded by res judicata.2 Accordingly,
our resolution of the second assignment of error renders appellant's first assignment of
error moot.
{¶ 25} As such, appellant's first assignment of error is rendered moot.
IV. CONCLUSION
{¶ 26} Having rendered appellant's first assignment of error moot and overruling
appellant's second assignment of error, we affirm the judgment of the Franklin County
Court of Common Pleas.
Judgment affirmed.
NELSON, J., concurs.
DORRIAN, J., concurs in judgment only.
_____________
2 It is well-established that the title or caption of a motion does not control, but the contents of the motion
determines how the court should treat it. State v. Payne, 10th Dist. No. 19AP-248, 2020-Ohio-1009, fn. 9,
citing Cooke v. United Dairy Farmers, Inc., 10th Dist. No. 05AP-1307, 2006-Ohio-4365, ¶ 29 ("Courts of this
state have recognized that the name given to a pleading or motion is not controlling. Rather, it is the substance
of the pleading or motion that determines the operative effect thereof.").