State v. Harper (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Harper, Slip Opinion No. 2020-Ohio-2913.]
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-2913
THE STATE OF OHIO, APPELLANT, v. HARPER, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Harper, Slip Opinion No. 2020-Ohio-2913.]
Criminal law—A trial court must include notice to a defendant that any violation
of postrelease control will subject the defendant to the consequences for
such violation provided in R.C. 2967.28—Failure of a trial court to include
that notice in the sentencing entry does not render the postrelease-control
portion of a sentence void—If a sentencing court has jurisdiction to act,
sentencing errors in the imposition of postrelease control render the
sentence voidable, not void, and the sentence may be set aside if successfully
challenged on direct appeal—To the extent that prior cases held that the
failure to properly impose postrelease control in a sentence renders that
portion of the defendant’s sentence void, those cases are overruled—Court
of appeals’ judgment reversed in part.
(No. 2018-1144—Submitted November 13, 2019—Decided May 14, 2020.)
APPEAL from the Court of Appeals for Franklin County,
SUPREME COURT OF OHIO
No. 17AP-762, 2018-Ohio-2529.
_______________________
KENNEDY, J.
{¶ 1} In State v. Grimes, we held that a trial court does not properly impose
postrelease control if the sentencing entry does not notify the offender that any
violation of the conditions of postrelease control will subject the offender to the
consequences for a violation provided in R.C. 2967.28. 151 Ohio St. 3d 19, 2017-
Ohio-2927, 85 N.E.3d 700, ¶ 1. This discretionary appeal from the Tenth District
Court of Appeals asks us to clarify whether our decision in Grimes applies
retroactively and whether the failure to provide notice of the consequences of a
violation of postrelease control in the sentencing entry renders the imposition of
postrelease control void ab initio and subject to collateral attack at any time. Our
resolution of the second issue makes it unnecessary to address the first issue.
{¶ 2} Our jurisprudence on void sentences arose out of the recognition that
the General Assembly alone has the power to define offenses and prescribe
punishment and that a court therefore lacks authority to substitute a different
sentence for one provided by statute. In cases in which the trial court inadvertently
failed to properly impose postrelease control in the sentence, we provided a remedy
by holding that the failure rendered the sentence—or part of the sentence—void
and subject to correction at any time before the expiration of the original sentence.
See generally State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d
332.
{¶ 3} In attempting to apply this remedy, we have had to add additional
exceptions to the traditional rule that errors in sentencing are not jurisdictional and
that those errors render the resulting sentence voidable, not void. Our attempt to
bring clarity to the law, however, has burdened Ohio courts with unnecessary
litigation challenging errors in the imposition of postrelease control that could have
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been raised by the parties at sentencing or on direct appeal, undermining the finality
of criminal judgments.
{¶ 4} Today, we realign our precedent in cases involving the imposition of
postrelease control with the traditional understanding of what constitutes a void
judgment. When 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, permitting the
sentence to be set aside if the error has been successfully challenged on direct
appeal.
{¶ 5} In this case, the common pleas court had subject-matter jurisdiction
over the case and personal jurisdiction over the accused. Because the court had the
constitutional and statutory power to enter a finding of guilt and impose a sentence,
any error in the exercise of its jurisdiction in failing to properly impose postrelease
control rendered the judgment of conviction voidable, not void, and it is not subject
to collateral attack. Therefore, to the extent any prior case conflicts with our
holding today, it is overruled.
{¶ 6} Accordingly, we reject the notion that the failure to incorporate a
notice of the consequences of a violation of postrelease control in the sentencing
entry as required by Grimes renders the sentence void to the extent that it does not
properly impose postrelease control. We therefore reverse the appellate court’s
judgment remanding this case to the trial court for further proceedings to correct
the entry imposing postrelease control.
Facts and Procedural History
{¶ 7} In April 2012, the Franklin County grand jury indicted appellee,
Andre Dejuan Harper, on two counts of robbery, one charged as a second-degree
felony and the other charged as a third-degree felony. In February 2013, he pleaded
guilty to robbery as a third-degree felony, and the state agreed to dismiss the
second-degree-felony count of robbery. At the plea hearing, the trial court advised
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Harper in writing that he would be subject to postrelease control and notified him
of the consequences of violating it.
{¶ 8} The trial court then sentenced Harper to three years in prison and
imposed a mandatory three-year term of postrelease control. Neither party disputes
that the trial court gave the oral notices required by R.C. 2929.19(B) in imposing
postrelease control, and the trial court informed Harper of the consequences of
violating postrelease control—i.e., that the Adult Parole Authority (APA) may
impose a prison term of up to one-half of the stated prison term—in a separate
document. However, the court did not include the consequences of a violation of
postrelease control in the sentencing entry itself. Harper did not file a notice of
appeal to challenge his sentence, and he was released from prison on September 11,
2015, and placed on postrelease control.
{¶ 9} In July 2017, after Harper was charged with violating the conditions
of his postrelease-control sanction, he moved to vacate that portion of his sentence,
alleging that it was void because the sentencing entry failed to state the
consequences of violating postrelease control as required by this court’s recent
decision in Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927, 85 N.E.3d 700. The trial
court denied the motion, and Harper appealed.
{¶ 10} The Tenth District Court of Appeals rejected the state’s arguments
that our decision in Grimes did not apply retroactively to Harper’s case and that
Harper’s motion was barred by res judicata, explaining that “a failure to properly
impose post-release control renders a sentence void in relevant part and therefore
open to challenge at any time, irrespective of finality or other principles of res
judicata.” 2018-Ohio-2529, 115 N.E.3d 840, ¶ 15. Notwithstanding this holding,
however, the appellate court concluded that “although the imposition of post-
release control in the judgment entry was defective under Grimes, it stated enough
information * * * to impose post-release control and permit the APA to begin
administering it * * *. As a consequence, * * * Harper remains validly under
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sentence, even though it may not have been perfectly imposed.” Id. at ¶ 18. The
court of appeals affirmed the denial of Harper’s motion to vacate, but it also
remanded the matter to the trial court with instructions to enter a nunc pro tunc
entry to include the “consequences” language required by Grimes. Id. at ¶ 19-20.
{¶ 11} We accepted the state’s discretionary appeal on the following
propositions of law:
(1) This Court’s decision in State v. Grimes, 151 Ohio St. 3d
19, 2017-Ohio-2927, does not apply retroactively to convictions that
were already final when Grimes was decided.
(2) The absence of “consequences” language in a sentencing
entry as required by State v. Grimes, 151 Ohio St. 3d 19, 2017-Ohio-
2927, does not render the sentence void.
See 153 Ohio St. 3d 1503, 2018-Ohio-4285, 109 N.E.3d 1260.
Positions of the Parties
{¶ 12} The state maintains two positions. The first is that a new judicial
ruling does not apply retroactively to cases that are final—i.e., when all appellate
remedies have been exhausted—when the new rule is announced. It contends that
our decision in Grimes is a new judicial ruling because no earlier case had required
trial courts to include the consequences of a postrelease-control violation in the
sentencing entry in order to properly impose postrelease control, and the court was
neither construing a statute for the first time nor overruling prior caselaw.
According to the state, the court of appeals deviated from these principles when it
applied Grimes to Harper’s already final case based on the court’s view that the
failure to comply with Grimes rendered the postrelease-control sanction void. The
state’s second position is that contrary to the holding of the Tenth District, the
failure to include the consequences of a violation of postrelease control in the
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sentencing entry does not make the postrelease-control sanction void. The state
notes that there is no statute that imposes that requirement on trial courts and that
errors in the manner in which the trial court imposes postrelease control are not
jurisdictional errors. And even if the omission of consequences language in this
case fits within this court’s jurisprudence on void sentences, then the state urges
that we should overrule those cases and hold that errors in imposing postrelease
control do not render any part of a defendant’s sentence void.
{¶ 13} Harper asserts that this appeal should be dismissed as improvidently
allowed. He explains that the issues presented are moot because the court of
appeals affirmed the trial court’s denial of his motion to vacate his postrelease
control as void, and he had fully served his postrelease control before we accepted
the appeal. He also maintains that the trial court’s failure to include the
consequences of a postrelease-control violation in the sentencing entry could be
considered merely a clerical error that could have been corrected with a nunc pro
tunc order “without having made any reference to the Grimes opinion whatsoever.”
{¶ 14} On the merits of this case, Harper argues that the court of appeals
correctly rejected the state’s argument that Grimes does not apply retroactively. He
contends that Grimes did not announce a new judicial ruling because this court’s
caselaw had already required the consequences of a postrelease-control violation to
be included in the sentencing entry. But even if Grimes announced a new rule, he
asserts that it applies retroactively to cases that were final because this court was
interpreting a statute and explaining what it has always meant since its enactment.
He also urges that once he had claimed that a new decision from this court had
established that his postrelease-control sanction was void, the court of appeals was
obligated to apply that decision to his case, even if it was decided after his original
conviction and direct appeal. Harper contends that the state’s argument relating to
void sentences amounts to an improper request for an advisory opinion, because
although the court of appeals relied on Grimes in finding the sentencing entry to be
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defective, it nonetheless held that his postrelease-control sanction was not void. He
cautions the court against deciding whether to overrule its void-sentence
jurisprudence when doing so is not necessary to resolve this case, the issue is not
properly before the court, and it has not been fully briefed by the parties.
{¶ 15} We decline to dismiss this case as moot. As the state points out,
Harper’s unfavorable termination from his postrelease control is a collateral
consequence of his violation. Pursuant to R.C. 2929.12(D)(1), that designation
must be considered by a court if he is convicted of other crimes in the future.
{¶ 16} We also find, contrary to the argument of Harper, that the state’s
second proposition of law—that “[t]he absence of ‘consequences’ language in a
sentencing entry as required by State v. Grimes, 151 Ohio St. 3d 19, 2017-Ohio-
2927, does not render the sentence void”—is properly before us.
{¶ 17} The Tenth District Court of Appeals distilled the question before it
as “whether the trial court’s journal entry sufficiently and lawfully incorporated
notice of post-release control.” 2018-Ohio-2529, 115 N.E.3d 840, ¶ 10. As the
state properly recognizes, the appellate court then determined that the trial court’s
entry addressed only one of the Grimes requirements, the applicable years of
mandatory post-release control, id. at ¶ 11-12, and then, citing Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, observed that “the failure to properly
impose post-release control renders a sentence void in relevant part and therefore
open to challenge at any time, irrespective of finality or other principles of res
judicata,” id. at ¶ 15. In conclusion, the appellate court held:
Supreme Court of Ohio precedent renders judgment entries
partially void if post-release control is not appropriately imposed
and consequently enables the relevant parts of such entries to be
challenged at any time. Because challenge may occur at any time
concerning this issue, and because the judgment entry in this case
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imposes the appropriate term of mandatory post-release control but
does not at all mention the consequences to the offender for violating
post-release control, we remand * * * for the issuance of a nunc pro
tunc entry that complies with Grimes.
Id. at ¶ 20.
{¶ 18} A defendant’s ability to challenge an entry at any time is the very
essence of an entry being void, not voidable. See Grimes, 151 Ohio St. 3d 19, 2017-
Ohio-2927, 85 N.E.3d 700, at ¶ 35 (DeWine, J., concurring in judgment only). If
the entry were merely voidable, res judicata would apply. See State v. Simpkins,
117 Ohio St. 3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 30. Therefore, the
appellate court did hold the judgment entry below void.
{¶ 19} Lastly, because we can resolve this case by deciding the state’s
second proposition of law regarding whether the failure to include the consequences
of violating postrelease control in the sentencing entry renders the postrelease-
control sanction void, we decline to consider the state’s first proposition of law as
to whether Grimes applies retroactively.
Law and Analysis
{¶ 20} We agree with the state that “the void-sentence doctrine starts from
the premise that there are two types of sentencing errors: Errors that make the
sentence void, and errors that make the sentence merely voidable.”
{¶ 21} More than 150 years ago, Justice Swan, writing for the court in Ex
parte Shaw, confronted the question whether the trial court’s failure to impose a
statutorily mandated three-year term of imprisonment for the offense of horse-
stealing “render[ed] the sentence void, and the commitment of the relator
unlawful?” 7 Ohio St. 81, 82 (1857). Instead of the required three years, the trial
court had imposed a one-year prison term. The court answered that question easily:
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The question is one simply of jurisdiction.
The court had jurisdiction over the offense and its
punishment. It had authority to pronounce sentence; and while in
the legitimate exercise of its power, committed a manifest error and
mistake in the award of the number of years of the punishment. The
sentence was not void, but erroneous.
Id. The court noted that the writ of error is “for the correction of irregularities and
errors in proceedings which result in conviction and in sentences.” Shaw at 82. On
the other hand, the writ of habeas corpus is available “if the court has sentenced the
relator for an offense over which, by law, it had no jurisdiction whatever, so that
the proceedings and sentence were manifestly coram non judice, and void, the
imprisonment following such void sentence would have been unlawful.” Id. The
offender in Shaw had been “detained by virtue of the judgment of a court,
possessing general jurisdiction in criminal cases.” (Emphasis added.) Id.
Therefore, his sentence was not void, and he was not entitled to the writ of habeas
corpus.
{¶ 22} In 1967, more than a century after Shaw, we applied the same rule:
“a judgment of conviction is void if rendered by a court having either no jurisdiction
over the person of the defendant or no jurisdiction of the subject matter, i.e.,
jurisdiction to try the defendant for the crime for which he was convicted.” State
v. Perry, 10 Ohio St. 2d 175, 178, 226 N.E.2d 104 (1967). “Conversely, where a
judgment of conviction is rendered by a court having jurisdiction over the person
of the defendant and jurisdiction of the subject matter, such judgment is not void,
and the cause of action merged therein becomes res judicata as between the state
and the defendant.” Id. at 178-179.
{¶ 23} Subject-matter jurisdiction refers to the constitutional or statutory
power of a court to adjudicate a particular class or type of case. Pratts v. Hurley,
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102 Ohio St. 3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11-12, 34. “It is a
‘condition precedent to the court’s ability to hear the case. If a court acts without
jurisdiction, then any proclamation by that court is void.’ ” Id. at ¶ 11, quoting
State ex rel. Tubbs Jones v. Suster, 84 Ohio St. 3d 70, 75, 701 N.E.2d 1002 (1998).
“A court’s subject-matter jurisdiction is determined without regard to the rights of
the individual parties involved in a particular case.” Bank of Am., N.A. v. Kuchta,
141 Ohio St. 3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19. Rather, the focus is on
whether the forum itself is competent to hear the controversy. See 18A Wright,
Miller & Cooper, Federal Practice and Procedure, Section 4428, at 6 (3d Ed.2017)
(“Jurisdictional analysis should be confined to the rules that actually allocate
judicial authority among different courts”).
{¶ 24} Article IV, Section 4(A) of the Ohio Constitution provides that
“[t]here shall be a court of common pleas and such divisions thereof as may be
established by law serving each county of the state,” and Article IV, Section 4(B)
establishes that “[t]he courts of common pleas and divisions thereof shall have such
original jurisdiction over all justiciable matters * * * as may be provided by law.”
As we explained in State v. Aalim, “Article IV, Section 4(B) of the Ohio
Constitution grants exclusive authority to the General Assembly to allocate certain
subject matters to the exclusive original jurisdiction of specified divisions of the
courts of common pleas.” 150 Ohio St. 3d 489, 2017-Ohio-2956, 83 N.E.3d 883,
¶ 2.
{¶ 25} The General Assembly exercised that power in enacting R.C.
2931.03, which provides that “[t]he court of common pleas has original jurisdiction
of 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.”
Accordingly, “[j]urisdiction over all crimes and offenses is vested in the court of
common pleas, general division, unless such jurisdiction specifically and
exclusively is vested in other divisions of the court of common pleas or in the lower
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courts.” State ex rel. McMinn v. Whitfield, 27 Ohio St. 3d 4, 5, 500 N.E.2d 875
(1986). We have therefore recognized that pursuant to R.C. 2931.03, “a common
pleas court has subject-matter jurisdiction over felony cases.” Smith v. Sheldon,
157 Ohio St. 3d 1, 2019-Ohio-1677, 131 N.E.3d 1, ¶ 8.
{¶ 26} “ ‘Once a tribunal has jurisdiction over both the subject matter of an
action and the parties to it, “* * * the right to hear and determine is perfect; and the
decision of every question thereafter arising is but the exercise of the jurisdiction
thus conferred * * *.” ’ ” (Ellipses in Pizza.) Pratts, 102 Ohio St. 3d 81, 2004-
Ohio-1980, 806 N.E.2d 992, at ¶ 12, quoting State ex rel. Pizza v. Rayford, 62 Ohio
St.3d 382, 384, 582 N.E.2d 992 (1992), quoting Sheldon’s Lessee v. Newton, 3 Ohio
St. 494, 499 (1854). And 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 ¶ 12, 21. Generally, a voidable judgment may
only be set aside if successfully challenged on direct appeal. See State v. Payne,
114 Ohio St. 3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28.
{¶ 27} By outlining the history of our jurisprudence and the “modern
expansion” of the void-sentence doctrine, the state demonstrates that our caselaw
has not always limited the understanding of void judgments to those that are entered
by a court lacking subject-matter or personal jurisdiction. Rather, we have
concluded that the traditional view of void judgments “does not adequately address
the constitutional infirmities of a sentence imposed without statutory authority.”
Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 20. Our void-
sentence jurisprudence arose out of a respect for the separation of powers in our
tripartite system of government and our recognition that the General Assembly
alone has the authority to define offenses and prescribe the punishment for
violations. State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658, 71 N.E.3d 234,
¶ 22.
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{¶ 28} Our caselaw provided a remedy for the failure to impose a statutorily
mandated term in the sentence: “[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). In Beasley,
the trial court had imposed only a fine on the offender when the statute mandated a
2-to-15-year prison term. We held that “the trial court exceeded its authority and
this sentence must be considered void,” id., and because jeopardy did not attach to
the void sentence, “the trial court’s correction of a statutorily incorrect sentence did
not violate appellant’s right to be free from double jeopardy,” id. at 76.
{¶ 29} Beasley remained largely an outlier until it gained new life as we
grappled with trial courts’ failure to adhere to the General Assembly’s specific
statutory requirements for imposing postrelease control. In State v. Jordan, we held
that the trial court’s failure to comply with its statutory duty to provide notice of
postrelease control at the sentencing hearing rendered the resulting sentence
“contrary to law” and “void.” 104 Ohio St. 3d 21, 2004-Ohio-6085, 817 N.E.2d
864, ¶ 23. We also concluded that the trial court’s duty to comply with the notice
provisions “is the same as any other statutorily mandated term of a sentence.” Id.
at ¶ 26.
{¶ 30} Although Jordan was a direct appeal and not a collateral attack,
cases following Jordan adhered to the view that the failure to properly impose
postrelease control rendered the sentence void and permitted it to be corrected at
any time prior to the expiration of the journalized sentence. E.g., State ex rel.
Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 28;
Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at ¶ 6; State v.
Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶ 8.
{¶ 31} Because we treated a void sentence as if no sentence had been
entered, we held that a void sentence could only be corrected with a de novo
sentencing hearing on any offense for which postrelease control was not properly
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imposed. State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, 868 N.E.2d 961,
syllabus, overruled in part, Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942
N.E.2d 332, at ¶ 36. As a logical consequence, offenders began to argue that an
appeal from a void sentence was itself a nullity because of the lack of a final
appealable order and, therefore, that an appeal from a de novo sentencing hearing
to properly impose postrelease control constituted “ ‘[the] first direct appeal’ in
which [the offender] may raise any and all issues relating to his conviction.”
Fischer at ¶ 4, quoting State v. Fischer, 181 Ohio App. 3d 758, 2009-Ohio-1491,
910 N.E.2d 1083, ¶ 4. We rejected that argument in Fischer, overruling Bezak, id.
at ¶ 36, and holding that although a postrelease-control sanction is void if not
properly imposed, id. at 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.
{¶ 32} In State v. Singleton, we acknowledged “the General Assembly’s
authority to alter our caselaw’s characterization of a sentence lacking postrelease
control as a nullity and to provide a mechanism to correct the procedural defect by
adding postrelease control at any time before the defendant is released from prison.”
124 Ohio St. 3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 26. We suggested that
the legislature had displaced our void-sentence jurisprudence and provided that
statutory remedy when it passed Am.Sub.H.B. No. 137, 151 Ohio Laws, Part IV,
7622, 7659-7661, which, among other changes, enacted R.C. 2929.191, effective
July 11, 2006. See Singleton at ¶ 25. We held that “[f]or 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.” Id. at paragraph two of the syllabus. Nonetheless, we have continued
to permit collateral attacks on sentences imposed on or after July 11, 2006. E.g.,
Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927, 85 N.E.3d 700, at ¶ 2 (sentence
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entered in 2011); State v. Johnson, 155 Ohio St. 3d 441, 2018-Ohio-4957, 122
N.E.3d 126, ¶ 2 (sentence entered in 2013).
{¶ 33} In Fischer, we also proclaimed that our void-sentence jurisprudence
was “limited to a discrete vein of cases: those in which a court does not properly
impose a statutorily mandated period of postrelease control.” 128 Ohio St. 3d 92,
2010-Ohio-6238, 942 N.E.2d 332, at ¶ 31. But rather than contain it to cases
involving postrelease control, we have expanded it to other sentencing errors—i.e.,
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; the failure to include a mandatory fine in the sentence, State v. Moore,
135 Ohio St. 3d 151, 2012-Ohio-5479, 985 N.E.2d 432, syllabus; and the failure to
merge counts found by the court to be allied offenses of similar import, Williams,
148 Ohio St. 3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 28.
{¶ 34} Our void-sentence jurisprudence has resulted in seemingly endless
litigation asking us to determine which sentencing errors must be raised on direct
appeal and which may be raised at any time. And we have not managed to contain
it to “a discrete vein of cases.” It is therefore time for this court to reevaluate the
basic premise of our void-sentence jurisprudence and the remedy for the failure to
properly impose postrelease control.
{¶ 35} Neither 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. Carmelo v. Maxwell, 173 Ohio St. 569, 570, 184 N.E.2d 405 (1962)
(“even if a sentence is given for a definite term (contrary to the provisions of
[former R.C. 5145.01, Sub.H.B. 180, Section 1, 129 Ohio Laws, 1193, 1194]), such
fact does not void the sentence”); Stahl v. Currey, 135 Ohio St. 253, 20 N.E.2d 529
(1939) (sentence imposed by a justice of the peace who exceeded statutory
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authority was voidable); In re Winslow, 91 Ohio St. 328, 330, 110 N.E. 539 (1915)
(“If the court in sentencing [Winslow] did not act under [the burglary] statute, but
sentenced him under another statute, which for the purposes of this case may be
conceded to have been invalid, the sentence was erroneous and voidable but not
void”); Ex parte Van Hagan, 25 Ohio St. 426, 432 (1874) (“The punishment
inflicted by the sentence, in excess of that prescribed by the law in force, was
erroneous and voidable, but not absolutely void”).
{¶ 36} As seen in the lineage of our caselaw, the same year we decided
Jordan, we explained in Pratts that “[a]lthough R.C. 2945.06 mandates the use of
a three-judge panel when a defendant is charged with a death-penalty offense and
waives the right to a jury, the failure to convene such a panel does not divest a court
of subject-matter jurisdiction so that a judgment rendered by a single judge is void
ab initio.” 102 Ohio St. 3d 81, 2004-Ohio-1980, 806 N.E.2d 992, at ¶ 24. Rather,
we held that the failure to adhere to the statute’s requirements “constitutes an error
in the court’s exercise of jurisdiction over a particular case, for which there is an
adequate remedy at law by way of direct appeal.” Id.
{¶ 37} The current state of our void-sentence jurisprudence also runs
counter to the doctrine of res judicata and disrupts the finality of judgments of
conviction. We have recognized that “ ‘ “[p]ublic policy dictates that there be an
end of litigation; that those who have contested an issue shall be bound by the result
of the contest, and that matters once tried shall be considered forever settled as
between the parties.” ’ ” State v. Szefcyk, 77 Ohio St. 3d 93, 95, 671 N.E.2d 233
(1996), quoting Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S. Ct.
2424, 69 L. Ed. 2d 103 (1981), quoting Baldwin v. Iowa State Traveling Men’s Assn.,
283 U.S. 522, 525, 51 S. Ct. 517, 75 L. Ed. 1244 (1931). 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.” State v.
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Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. But contrary
to these time-honored principles, our void-sentence jurisprudence has invited
continued relitigation of the validity of a sentence—sometimes more than a decade
after sentencing, e.g., State v. Billiter, 134 Ohio St. 3d 103, 2012-Ohio-5144, 980
N.E.2d 960, ¶ 6.
{¶ 38} We do not reach today’s decision lightly. We acknowledge that the
doctrine of stare decisis dictates adherence to prior judicial decisions. “Stare
decisis, however, was not intended ‘to effect a “petrifying rigidity,” but to assure
the justice that flows from certainty and stability. If, instead, adherence to
precedent offers not justice but unfairness, not certainty but doubt and confusion, it
loses its right to survive, and no principle constrains us to follow it.’ ” Clark v.
Southview Hosp. & Family Health Ctr., 68 Ohio St. 3d 435, 438, 628 N.E.2d 46
(1994), quoting Bing v. Thunig, 2 N.Y.2d 656, 667, 143 N.E.2d 3 (1957).
{¶ 39} For more than 15 years, we have attempted to manage, distinguish,
and hold the line of our “discrete vein of cases” to no avail. Our void-sentence
jurisprudence attempted to bring clarity, but instead has sown doubt over the
finality of criminal sentences and confused litigants and jurists alike. Continued
adherence to this jurisprudence for errors in the imposition of postrelease control
excepts a narrow class of our cases from established, fundamental principles of law
without providing any sound basis for departing from those principles. We
conclude that this is no longer tenable and agree with the state and amicus curiae
the Ohio Attorney General that now is the time to realign our void-sentence
jurisprudence.
{¶ 40} For all of the reasons stated above, we overrule our 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. We do this not
because we reject the precept that courts lack authority to substitute a different
sentence for that provided by statute, but because noncompliance with requirements
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for imposing postrelease control is best remedied the same way as other trial and
sentencing errors—through timely objections at sentencing and an appeal of the
sentence.
{¶ 41} In this case, Harper was indicted on two counts of robbery in
violation of R.C. 2911.02(A)(2) and 2911.02(A)(3), which are second- and third-
degree felonies, respectively, pursuant to R.C. 2911.02(B). It was therefore within
the subject-matter jurisdiction of the common pleas court to accept his plea of guilty
and sentence him. Any error in imposing the postrelease-control sanction in his
sentence was an error in the exercise of the trial court’s jurisdiction that could have
been objected to at trial and that may have been reversible error on direct appeal.
However, such an error did not render any part of Harper’s sentence void. And
because Harper could have raised his argument that the trial court failed to properly
impose postrelease control on appeal, it is now barred by the doctrine of res
judicata. State v. Were, 120 Ohio St. 3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 7;
Szefcyk, 77 Ohio St. 3d at 95, 671 N.E.2d 233.
Conclusion
{¶ 42} 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 sentence voidable, not void, and the sentence may be
set aside if successfully challenged on direct appeal.
{¶ 43} Having realigned our jurisprudence with the traditional
understanding of void and voidable sentences, we caution prosecuting attorneys,
defense counsel, and pro se defendants throughout this state that they are now on
notice that any claim that the trial court has failed to properly impose postrelease
control in the sentence must be brought on appeal from the judgment of conviction
or the sentence will be subject to res judicata. See R.C. 2953.02 (providing for
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appeals in criminal cases); 2954.08 (providing for prosecution and defense appeals
of felony sentences); 2945.67 (providing when the prosecution may appeal).
{¶ 44} Accordingly, we reverse the judgment of the Tenth District Court of
Appeals to the extent that it remanded the case to the trial court to correct the entry
imposing postrelease control.
Judgment accordingly.
TRAPP, DEWINE, DONNELLY, and STEWART, JJ., concur.
O’CONNOR, C.J., concurs in judgment only.
FISCHER, J., concurs in judgment only, with an opinion.
MARY JANE TRAPP, J., of the Eleventh District Court of Appeals, sitting for
FRENCH, J.
_________________
FISCHER, J., concurring in judgment only.
{¶ 45} Although I generally agree with the analysis set forth in the majority
opinion regarding the need to realign our jurisprudence with the traditional
understanding of void and voidable sentences, I would defer addressing that issue
until it has been presented in a case free of the significant procedural defects present
here. Thus, I respectfully concur in judgment only.
I. This is not the ideal case in which to consider the continued
viability of the void-sentence doctrine
{¶ 46} As noted in the majority opinion, appellee, Andre D. Harper, takes
the position that this court should not decide whether to overrule our void-sentence
doctrine when doing so is not necessary to resolve the case, as the issue has neither
been properly presented to this court nor fully briefed by the parties. Majority
opinion at ¶ 14. I find this argument to be compelling in this case.
{¶ 47} More significantly, appellant, the state of Ohio, did not raise a facial
challenge to the void-sentence doctrine below before filing its jurisdictional appeal.
“A first principle of appellate jurisdiction is that a party ordinarily may not present
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an argument on appeal that it failed to raise below.” State v. Wintermeyer, ___
Ohio St.3d ___, 2019-Ohio-5156, ___ N.E.3d ___, ¶ 10, citing Goldfuss v.
Davidson, 79 Ohio St. 3d 116, 121, 679 N.E.2d 1099 (1997). It has been noted that
“ ‘the most measured sense of judicial restraint confines this court to passing upon
only those issues developed below.’ ” State ex rel. Parisi v. Dayton Bar Assn.
Certified Grievance Commt., ___ Ohio St.3d ___, 2019-Ohio-5157, ___ N.E.3d
___, ¶ 35 (Kennedy, J., concurring in part and concurring in judgment only in part),
quoting Fulmer v. Insura Property & Cas. Co., 94 Ohio St. 3d 85, 100, 760 N.E.2d
392 (2002) (Cook, J., dissenting). Thus, in cases in which parties have failed to
raise certain issues before the court of appeals, “[o]ur review should * * * be
confined to the issue actually litigated by the parties and decided by the court of
appeals in the first instance.” Id. at ¶ 36 (Kennedy, J., concurring in part and
concurring in judgment only in part).
{¶ 48} The parties’ decision not to raise the viability of the void-sentence
doctrine prior to the appeal to this court thus presents a significant procedural hurdle
to our consideration of the issue addressed by the majority in this case. Given the
great importance of that issue, I would wait to address it until we have a more
suitable case in which we can give it our full consideration unfettered by any
arguable procedural concerns. Notably, this court has ordered briefing in other
pending cases involving issues related to the void-sentence doctrine. See State v.
Henderson, 155 Ohio St. 3d 1421, 2019-Ohio-1421, 120 N.E.3d 867; State v.
Hudson, 156 Ohio St. 3d 1452, 2019-Ohio-2780, 125 N.E.3d 947. Because we
consider cases involving the void-sentence doctrine relatively frequently, I believe
it would be more prudent to address this issue in a more fitting case.
{¶ 49} Since I would not reach the issue regarding the continued viability
of the void-sentence doctrine, I would proceed to consider the issues raised by the
state in this appeal.
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II. The absence of “consequences” language does not render a sentence void
{¶ 50} With its second proposition of law, the state asks this court to hold
that a trial court’s failure to include in a sentencing entry language about the
consequences of violating the conditions of postrelease control, as required by State
v. Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 1, does not render
a sentence void. I would adopt this proposition of law and, on that basis, reverse
the portion of the Tenth District’s decision finding error and remanding the case to
the trial court to correct the entry with a nunc pro tunc entry in compliance with
Grimes.
{¶ 51} The state correctly acknowledges that the void-sentence doctrine
was premised on the notion that “a sentence that is not in accordance with
statutorily mandated terms is void.” State v. Fischer, 128 Ohio St. 3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, ¶ 8. In other words, “ ‘[a]ny attempt by a court to
disregard statutory requirements * * * renders the attempted sentence a nullity or
void.’ ” (Ellipsis sic.) Id. at ¶ 9, quoting State v. Beasley, 14 Ohio St. 3d 74, 75, 471
N.E.2d 774 (1984). Accordingly, this court has held that certain failures by trial
courts to comply with statutory requirements, even those beyond the context of
postrelease control, constitute errors that render the sentence void. See State v.
Harris, 132 Ohio St. 3d 318, 2012-Ohio-1908, 972 N.E.2d 509, paragraph one of
the syllabus (mandatory driver’s-license suspensions); State v. Moore, 135 Ohio
St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, syllabus (mandatory fines); Beasley
at 75 (statutorily-required minimum prison sentence).
{¶ 52} In contrast to those cases, which involved a trial court’s failure to
follow statutory requirements, there is no statutory requirement mandating that trial
courts set forth in the sentencing entry the consequences of violating postrelease
control. Rather, that requirement was imposed solely by this court in Grimes.
Because there is no statutory requirement to include “consequences” language,
there is no concern about the trial court imposing a sentence without statutory
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January Term, 2020
authority when not including that language, and thus no concern about a trial court
violating its “statutory duty” by imposing a sentence unauthorized by statute, see
State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23 (holding
that a trial court’s failure to fulfill its statutory duty of providing notice of
postrelease control at sentencing renders the sentence void).
{¶ 53} This court has stated its intention to limit the void-sentence doctrine
to only cases in which a trial court violates a sentencing statute, see Fischer at
¶ 8-9, and it should not expand the doctrine in this case. Because a court that fails
to comply with the Grimes “consequences” requirement does not act without
statutory authority, a sentence imposing postrelease control without setting forth
the consequences for violating postrelease control in the sentencing entry is not
void but, rather, is voidable and subject to correction on direct appeal.
{¶ 54} I accordingly would hold that the absence of “consequences”
language in a sentencing entry as required by Grimes does not render a sentence
void. Because I would reverse the portion of the court of appeals’ judgment finding
error and remanding the case to the trial court to correct the entry in accordance
with Grimes, I would decline to address the state’s first proposition of law in this
appeal.
III. Conclusion
{¶ 55} I would defer considering whether we will continue to adhere to the
void-sentence doctrine until that issue has been presented in a case in which we can
give it our full consideration unfettered by any arguable procedural concerns. In
considering the issues raised by the state in this appeal, I would hold that the
absence of “consequences” language as required in Grimes does not render a
sentence void. I accordingly concur only in the court’s judgment.
_________________
Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert,
Assistant Prosecuting Attorney, for appellant.
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Yeura R. Venters, Franklin County Public Defender, and George M.
Schumann, Assistant Public Defender, for appellee.
Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, and Zachery P. Keller and Samuel
C. Peterson, Deputy Solicitors, urging reversal for amicus curiae Attorney General
Dave Yost.
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett,
Assistant Prosecuting Attorney, urging reversal for amicus curiae Lucas County
Prosecutor Julia R. Bates.
_________________
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