State v. Earl , 2020 Ohio 1202 ( 2020 )

[Cite as State v. Earl, 2020-Ohio-1202.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 18CA011303
18CA011281
Appellee
v.
APPEAL FROM JUDGMENT
ABDUL EARL ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF LORAIN, OHIO
CASE Nos. 15CR091866
16CR094318
DECISION AND JOURNAL ENTRY
Dated: March 31, 2020
TEODOSIO, Presiding Judge.
{¶1} Appellant, Abdul L. Earl, appeals from the judgment entries denying his two
motions to vacate void judgment in the Lorain County Court of Common Pleas. This Court
affirms.
I.
{¶2} Mr. Earl was sentenced in two separate cases and in two different trial courts. The
courts initially placed him on community control, but later sentenced him to prison after he violated
the terms and conditions of his community control. He never appealed any of the judgment entries
sentencing him to community control or prison. Mr. Earl eventually filed two motions to vacate
void judgment in each case almost a year after he was sentenced to prison, both of which were
denied.
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{¶3} Mr. Earl now appeals from the judgment entries denying his two motions to vacate
void judgment and raises one assignment of error for this Court’s review. Although he filed
separate appeals in each case, this Court has consolidated both appeals, as they involve
substantially similar judgment entries and merit briefs, as well as the same assignment of error.
II.
ASSIGNMENT OF ERROR
APPELLANT WAS SENTENCED TO A []LUMP SENTENCE OF 3 YEARS
COMMUNITY CONTROL. “LUMPING A SENTENCE IS A VIOLATION OF
OHIO SENTENCING GUIDELINE[S].” * * *.
{¶4} In his sole assignment of error, Mr. Earl argues that both trial courts erred in
denying his motions to vacate void sentence because the courts originally imposed “lump”
sentences of three years community control in each case. We disagree.
{¶5} Although Mr. Earl has appealed from the denials of his motions to vacate void
judgment, he is essentially challenging his original sentences in each case. See State v. Williams,
5th Dist. Stark No. 2018CA00060, 2018-Ohio-3458, ¶ 17. “Most sentencing challenges must be
brought by a timely direct appeal.” State v. Ibn-Ford, 9th Dist. Summit No. 27380, 2015-Ohio-
753, ¶ 7, citing State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014, ¶ 8. See also State v.
Slaughter, 9th Dist. Lorain No. 18CA011293, 2019-Ohio-2154, ¶ 5. “The doctrine of res judicata
‘bars the assertion of claims against a valid, final judgment of conviction that have been raised or
could have been raised on appeal.’” State v. O’Neal, 9th Dist. Medina No. 15CA0052-M, 2015-
Ohio-5181, ¶ 5, quoting State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, ¶ 59. It “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.” State v. Saxon,
109 Ohio St. 3d 176, 2006-Ohio-1245, ¶ 18. Res judicata applies to other aspects of the merits of
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a conviction as well, including the determination of guilt and the lawful elements of the ensuing
sentence, but does not preclude review of a void sentence. State v. Fischer, 128 Ohio St. 3d 92,
2010-Ohio-6238, paragraph three of the syllabus. In other words, unless Mr. Earl’s sentences are
void, his claim is barred by res judicata. See State v. Isa, 2d Dist. Champaign No. 2015-CA-44,
2016-Ohio-4980, ¶ 9; Ibn-Ford at ¶ 7.
{¶6} “A void sentence is one that a court imposes despite lacking subject-matter
jurisdiction or the authority to act.” State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, ¶ 27.
“‘Crimes are statutory, as are the penalties therefor, and the only sentence which a trial court may
impose is that provided for by statute.’” State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658,
¶ 20, quoting Colegrove v. Burns, 175 Ohio St. 437, 438 (1964). “‘A court has no power to
substitute a different sentence for that provided for by statute or one that is either greater or lesser
than that provided for by law.’” Id. Thus, “[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 (1984).
{¶7} “Conversely, a voidable sentence is one that a court has jurisdiction to impose, but
was imposed irregularly or erroneously.” Payne at ¶ 27. Therefore, when a trial court has
jurisdiction but erroneously exercises its jurisdiction, the sentence is not void, and the sentence
can be set aside only if successfully challenged on direct appeal. Id. at ¶ 28. Sentencing errors are
generally not jurisdictional and do not render a judgment void. State v. Simpkins, 117 Ohio St. 3d
420, 2008-Ohio-1197, ¶ 13. The Supreme Court of Ohio has, in fact, declined to find sentences
void based on the trial court’s failure to comply with certain sentencing statutes. See State v.
Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014, ¶ 8 (recognizing challenges to a trial court’s (1)
compliance with the purposes and principles of sentencing, (2) determination of allied offenses,
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and (3) consecutive sentencing must be brought on direct appeal); but see State v. Williams, 148
Ohio St. 3d 403, 2016-Ohio-7658, ¶ 28 (separates sentences imposed for allied offenses of similar
import, even if imposed concurrently, are void).
{¶8} Mr. Earl claims that his sentences are void because each trial court imposed a
“lump” sentence of community control for multiple counts in each case. He relies on the Supreme
Court of Ohio’s decision in Saxon, which addressed and rejected use of the federal sentencing-
package doctrine by Ohio courts:
Instead of considering multiple offenses as a whole and imposing one, overarching
sentence to encompass the entirety of the offenses as in the federal sentencing
regime, a judge sentencing a defendant pursuant to Ohio law must consider each
offense individually and impose a separate sentence for each offense. See R.C.
2929.11 through 2929.19. * * * Under the Ohio sentencing statutes, the judge lacks
the authority to consider the offenses as a group and to impose only an omnibus
sentence for the group of offenses.
Saxon at ¶ 9.
{¶9} This Court has consistently held that the Supreme Court of Ohio “‘has applied its
void-sentence analysis in limited circumstances’” and we “‘will not extend its reach without clear
direction from the Supreme Court.’” See, e.g., Slaughter, 2019-Ohio-2154, at ¶ 9, quoting State
v. Culgan, 9th Dist. Medina No. 09CA0060-M, 2010-Ohio-2992, ¶ 20. Notably, the high court
has identified several specific areas where it held that a sentence was void: “when the trial court
fails to impose a statutorily mandated term of post[-]release control,” “when it fails to include a
mandatory driver’s license suspension in the offender’s sentence[,]” and “when it fails to include
a mandatory fine in the sentence[.]” Williams, 2016-Ohio-7658, at ¶ 21. The Williams Court
further determined that separates sentences imposed for allied offenses of similar import, even if
imposed concurrently, are void. Id. at ¶ 28. Mr. Earl has not alleged that any of these specific
errors occurred in his cases. Although the Saxon Court determined sentencing courts lack the
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authority to consider multiple offenses as a group and err in imposing a single sentence for those
offenses, it did not explicitly state that such sentences are rendered “void.” See Saxon at ¶ 9. Thus,
“[c]onsistent with our precedent, we will not reach that result in this case.” State v. Occhipinti,
9th Dist. Lorain No. 15CA010787, 2016-Ohio-1286, ¶ 5.
{¶10} Mr. Earl is attempting to use his motions to vacate void judgment as a means to
obtain appellate review of alleged sentencing errors that he previously failed to appeal. See State
v. Fields, 9th Dist. Summit No. 28667, 2018-Ohio-1605, ¶ 12, citing State v. Church, 8th Dist.
Cuyahoga No. 68590, 1995 WL 643794, *1 (Nov. 2, 1995). “‘[T]he utilization of a subsequent
order to indirectly and untimely appeal a prior order (which was never directly appealed)’ or
‘bootstrapping’ is ‘procedurally anomalous and inconsistent with the appellate rules which
contemplate a direct relationship between the order from which the appeal is taken and the error
assigned as a result of that order.’” Id., quoting Church at *1. In other words, Mr. Earl cannot
now use a motion to vacate void judgment and its subsequent denial to present a belated attack on
his sentences. Because his sentences are not void and he could have raised his sentencing-package
argument on direct appeal, he is barred from doing so now by the doctrine of res judicata. See
State v. Hammock, 5th Dist. Richland No. 18CA27, 2018-Ohio-3914, ¶ 25-27; Isa, 2016-Ohio-
4980, at ¶ 9; Slaughter at ¶ 9.
{¶11} Accordingly, we conclude that the trial courts did not err in denying Mr. Earl’s two
motions to vacate void judgment.
{¶12} Mr. Earl’s sole assignment of error is overruled.
III.
{¶13} Mr. Earl’s sole assignment of error is overruled. The judgments of the Lorain
County Court of Common Pleas are affirmed.
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Judgments affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
CARR, J.
HENSAL, J.
CONCUR.
APPEARANCES:
ABDUL EARL, pro se, Appellant.
DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.