State v. Griffin

[Cite as State v. Griffin, 2016-Ohio-782.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150258
C-150005
Plaintiff-Appellee, : TRIAL NO. B-0409962
vs. :
O P I N I O N.
CHARLES GRIFFIN, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed as Modified and Cause Remanded in
C-150258; Appeal Dismissed in C-150005
Date of Judgment Entry on Appeal: March 2, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Charles Griffin, pro se.
Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Defendant-appellant Charles Griffin has taken these appeals from his
convictions for murder and having weapons under a disability and the overruling of
his postconviction motion for resentencing. We dismiss for lack of jurisdiction his
appeal from his convictions and affirm, as modified, the overruling of his
postconviction motion. But we remand for resentencing in conformity with the
statutory mandates concerning postrelease control.
{¶2} Griffin was convicted in 2005 upon jury verdicts finding him guilty of
murder and having weapons under a disability. In his direct appeal, we affirmed his
convictions. State v. Griffin, 1st Dist. Hamilton No. C-050074 (Dec. 14, 2005).
{¶3} Ten years later, Griffin again challenged his convictions. In December
2014, in the appeal numbered C-150005, he filed a second notice of appeal from his
2005 convictions. And in February 2015, he filed with the common pleas court a
motion seeking resentencing on the grounds that the trial court, at sentencing, had
failed to notify him that he could be ordered to perform community service in lieu of
paying court costs and had provided inadequate and inaccurate notification
concerning postrelease control. The common pleas court overruled the motion, and
Griffin, in the appeal numbered C-150258, appealed.
Appeal No. C-150005
{¶4} App.R. 4(A)(1) requires that a notice of appeal be filed within 30 days
of the entry of the judgment or order appealed. An appeals court has no jurisdiction
to entertain an appeal that was not timely filed. State ex rel. Curran v. Brookes, 142
Ohio St. 107, 50 N.E.2d 995 (1943), paragraph seven of the syllabus. The appeal
numbered C-150005, filed in December 2014, is taken from Griffin’s 2005 judgment
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OHIO FIRST DISTRICT COURT OF APPEALS
of conviction. Because it was filed well after the 30 days required by App.R. 4(A)(1),
we dismiss the appeal for lack of jurisdiction.
Appeal No. C-150258
{¶5} In the appeal numbered C-150258, Griffin appeals from the overruling
of his motion for resentencing. On appeal, he advances two assignments of error
challenging the denial of resentencing on each of the two grounds presented in his
motion.
{¶6} The common pleas court had no jurisdiction under the
postconviction statutes. In his motion, Griffin contended that his judgment of
conviction was void because the trial court had not provided at sentencing either
community-service-in-lieu-of-costs notification or proper postrelease-control
notification. Griffin did not designate in his motion a statute or rule under which the
relief sought might be granted. R.C. 2953.21 et seq., governing the proceedings on a
petition for postconviction relief, provide “the exclusive remedy by which a person
may bring a collateral challenge to the validity of a conviction or sentence in a
criminal case.” R.C. 2953.21(J). Therefore, Griffin’s motion was reviewable under
the standards provided by the postconviction statutes. See State v. Schlee, 117 Ohio
St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.
{¶7} But Griffin filed his motion well after the time prescribed by R.C.
2953.21(A)(2) had expired. R.C. 2953.23 closely circumscribes a common pleas
court’s jurisdiction to entertain a late or successive postconviction claim. The
petitioner must show either that he was unavoidably prevented from discovering the
facts upon which his claim depends, or that his claim is predicated upon a new,
retrospectively applicable federal or state right recognized by the United States
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OHIO FIRST DISTRICT COURT OF APPEALS
Supreme Court since the time for filing his claim had expired. R.C. 2953.23(A)(1)(a).
And he must show “by clear and convincing evidence that, but for constitutional
error at trial, no reasonable factfinder would have found [him] guilty of the offense of
which [he] was convicted.” R.C. 2953.23(A)(1)(b).
{¶8} The record does not, as it could not, demonstrate that but for the
alleged sentencing errors, “no reasonable factfinder would have found [Griffin] guilty
of the offense[s] of which [he] was convicted.” See R.C. 2953.23(A)(1). Because he
satisfied neither the time strictures of R.C. 2953.21(A)(2) nor the jurisdictional
requirements of R.C. 2953.23(A), the postconviction statutes did not confer upon the
common pleas court jurisdiction to entertain his postconviction claims on their
merits.
{¶9} The common pleas court had jurisdiction to correct
postrelease control. A court always has jurisdiction to correct a void judgment.
See State ex rel. Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-Ohio-5795, 856 N.E.2d
263, ¶ 18-19. Griffin’s postconviction challenge to the lack of community-service-in-
lieu-of-costs notification was not reviewable by the common pleas court under the
jurisdiction to correct a void judgment, because the failure to provide that
notification did not render his sentences void. See State v. Wurzelbacher, 1st Dist.
Hamilton No. C-130011, 2013-Ohio-4009, ¶ 11.
{¶10} But Griffin’s sentences are void to the extent that the trial court failed
to properly impose postrelease control. The postrelease-control statutes in effect in
2005, when Griffin was sentenced, provided that a prison sentence imposed for a
felony that is classified by degrees must “include a requirement that the offender be
subject to a period of post-release control.” And the statutes required that the
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OHIO FIRST DISTRICT COURT OF APPEALS
offender be notified, both at the sentencing hearing and in the judgment of
conviction, of the length and mandatory or discretionary nature of postrelease
control, of the consequences of violating postrelease control, and of the length of
confinement that could be imposed for a postrelease-control violation. See former
R.C. 2929.14(F), 2929.19(B)(3)(c) through (e), and 2967.28(B) and (C) (superseded
in 2011 by R.C. 2929.14(D), 2929.19(B)(2)(c) through (e), and 2967.28(B) and (C));
State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77-79; State
v. Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 69; State v.
Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the
syllabus. Accord State v. Smith, 1st Dist. Hamilton No. C-120163, 2012-Ohio-5965, ¶
10-11. To the extent that a sentence is not imposed in conformity with the statutory
mandates concerning postrelease control, it is void, and the void portion of the
sentence is subject to review and correction at any time. State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus and ¶ 26-
27.
{¶11} The trial court notified Griffin at sentencing that, upon his release, he
would be subject to a mandatory period of postrelease control of five years. But the
postrelease-control statutes authorized a mandatory five-year period of postrelease
control only for a first-degree felony or a felony sex offense. See former R.C.
2929.19(B)(3)(c) and 2967.28(B)(1) (superseded by R.C. 2929.19(B)(2)(c) and
2967.28(B)(1)). The statutes did not authorize postrelease control for a special
felony like murder. State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893 N.E.2d
462, ¶ 36; accord State v. Baker, 1st Dist. Hamilton No. C-050791, 2006-Ohio-4902,
¶ 4-6. And for the third-degree felony of having weapons under a disability, the
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OHIO FIRST DISTRICT COURT OF APPEALS
statutes authorized only a discretionary three-year period of postrelease control. See
former R.C. 2929.19(B)(3)(d) and 2967.28(C) (superseded by R.C. 2929.19(B)(2)(d)
and 2967.28(C)). Moreover, the trial court failed to incorporate postrelease-control
notification in the judgment of conviction.
{¶12} To the extent that Griffin’s sentences were not imposed in conformity
with the postrelease-control statutes, they are void. And the common pleas court
had jurisdiction to review and correct the offending portions of the sentences. State
v. Long, 1st Dist. Hamilton No. C-100285, 2010-Ohio-6115.
{¶13} We affirm the judgment as modified, but remand for
correction of postrelease control. Because the postconviction statutes did
not confer on the common pleas court jurisdiction to entertain Griffin’s
postconviction claims on their merits, the motion was subject to dismissal.
Accordingly, upon the authority of App.R. 12(A)(1)(a), we modify the judgment
appealed from to reflect the dismissal of the motion. And we affirm the judgment as
modified.
{¶14} But Griffin’s sentences are void to the extent that postrelease control
was not properly imposed. We, therefore, remand this cause for correction of the
offending portions of his sentences, in accordance with the law and this opinion.
Judgment accordingly.
FISCHER, P.J., HENDON and CUNNINGHAM, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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