State v. Morrison

[Cite as State v. Morrison, 2016-Ohio-1271.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 15 CAA 07 0059
JAMES F. MORRISON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 11 CRI 06 0302
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 24, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN JAMES F. MORRISON
PROSECUTING ATTORNEY PRO SE
DOUGLAS N. DUMOLT RICHLAND CORR. INSTITUTION
ASSISTANT PROSECUTOR 1001 Olivesburg Road
140 North Sandusky Street, 3rd Floor Post Office Box 8107
Delaware, Ohio 43015 Mansfield, Ohio 44901
Delaware County, Case No. 15 CAA 07 0059 2
Wise, J.
{¶1} Appellant James F. Morrison appeals the denial of his motion for felony
resentencing in the Court of Common Pleas, Delaware County. Appellee is the State of
Ohio. The relevant facts leading to this appeal are as follows:
{¶2} On June 3, 2010, the Delaware County Grand Jury returned a multiple-
count indictment against Appellant Morrison, charging him with six counts of pandering
sexually oriented material involving a minor, R.C. 2907.322(A)(1); nineteen counts of
illegal use of a minor in nudity oriented material, R.C. 2907.323(A)(3); eight counts of
attempted pandering sexually oriented material involving a minor, R.C. 2907.322(A)(1);
one count of identity fraud and falsification, R.C. 2913.49(B)(2) and 2921.13(A)(3); and
one count of illegal use of a minor in nudity oriented material, R.C. 2907.323(A)(2).
{¶3} On May 7, 2012, pursuant to a plea agreement, appellant entered an Alford
plea to four counts of attempted pandering sexually oriented material involving a minor,
each a third-degree felony. The remaining counts were dismissed. The trial court
thereafter sentenced appellant to thirty months in prison on each count to run
consecutively, for a total prison term of ten years. Appellant was also designated a Tier II
sex offender.
{¶4} Appellant thereafter appealed to this Court, contending the trial court had
erred in failing to merge the counts of attempted pandering sexually oriented material
involving a minor. We disagreed with appellant’s position and affirmed the trial court’s
decision via an opinion issued on May 24, 2013. See State v. Morrison, 5th Dist. Delaware
No. 12 CAA 08 0053, 2013-Ohio-2182. The Ohio Supreme Court did not thereafter accept
any appeals.
Delaware County, Case No. 15 CAA 07 0059 3
{¶5} On July 25, 2013, appellant filed a pro se motion to reopen his appeal, which
this Court denied on August 27, 2013.
{¶6} On July 1, 2015, appellant filed a collateral motion for resentencing with the
trial court. Appellant therein argued that the trial court had failed to consider the issue of
proportionality of sentencing and the purposes and principles of felony sentencing. The
State filed a memoranda contra on July 2, 2015, and the trial court on the same day
denied appellant’s motion for resentencing.1
{¶7} Appellant filed a notice of appeal on July 24, 2015. He herein raises the
following two Assignments of Error:
{¶8} “I. THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE THE
ABUSE OF DISCRETION EVIDENT BY THE GROSS DISPROPORTIONATE
SENTENCE APPELLANT RECEIVED.
{¶9} “II. THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE IT’S [SIC]
OWN BLATANT DISREGARD TO PROVIDE EVIDENCE TO SUPPORT THE IMPOSED
SENTENCE WHEN IT FAILED TO BE GUIDED BY THE OVERRIDING PURPOSES OF
FELONY SENTENCING.”
I., II.
{¶10} In his First Assignment of Error, appellant contends the trial court erred in
failing to impose a sentence consistent with sentences imposed for similar crimes by
similar offenders. In his Second Assignment of Error, appellant argues the trial court erred
in failing to consider the overriding purposes of felony sentencing.
1 Appellant fails to include or attach with his brief a copy of the judgment entry under
appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original trial court
judgment entry in the record.
Delaware County, Case No. 15 CAA 07 0059 4
{¶11} We reiterate that appellant filed his motion for resentencing in the trial court
more than two years after this Court issued its decision upon his unsuccessful direct
appeal. The Ohio Supreme Court has clearly indicated that trial courts lack authority to
reconsider their own valid final judgments in criminal cases. State ex rel. White v. Junkin,
80 Ohio St.3d 335, 338, 686 N.E.2d 267, 1997–Ohio–340. Similarly, as a general rule,
once a valid sentence has been executed, a trial court no longer has the power to modify
the sentence except as provided by the Ohio General Assembly. See State v. Hayes
(1993), 86 Ohio App.3d 110.
{¶12} There are two main exceptions to this general rule. See State v. Marshall,
5th Dist. Richland No. 14 CA 37, 2015-Ohio-1986, ¶ 26. The first is the void sentence
doctrine. See State ex rel. Cruzado, 111 Ohio St.3d 353, 2006–Ohio–5795, 856 N.E.2d
263, ¶ 19. The Ohio Supreme Court has thus recognized: “ * * * [I]n the normal course,
sentencing errors are not jurisdictional and do not render a judgment void. * * * But in the
modern era, Ohio law has consistently recognized a narrow, and imperative, exception to
that general rule: a sentence that is not in accordance with statutorily mandated terms is
void.” State v. Fischer, 128 Ohio St.3d 92, 94, 2010–Ohio–6238, ¶ 7–¶ 8. However, the
rule of Fischer was originally limited to “a discrete vein of cases: those in which a court
does not properly impose a statutorily mandated period of postrelease control.” See
Fischer at ¶ 31.
{¶13} The other main exception to the general rule is that a trial court has
jurisdiction to correct clerical errors in its judgments. See State ex rel. Cruzado, supra, ¶
19, citing Crim.R. 36. A nunc pro tunc order can be used to supply information which
Delaware County, Case No. 15 CAA 07 0059 5
existed but was not recorded, and to correct typographical or clerical errors. See Jacks v.
Adamson (1897), 56 Ohio St. 397, 47 N.E. 48.
{¶14} Neither exception applies in this instance. Thus, under the circumstances
of the case sub judice, we hold appellant’s motion for resentencing based on claims of
disproportionality and the overriding purposes of sentencing was properly rejected by the
trial court as outside the void sentence exception and thus not under said court’s
jurisdiction.
{¶15} Appellant’s First and Second Assignments of Error are therefore overruled.
{¶16} For the reasons stated in the foregoing opinion, the decision of the Court of
Common Pleas, Delaware County, is hereby affirmed.
By: Wise, J.
Baldwin, J., concurs.
Hoffman, P. J., concurs separately.
JWW/d 0222
Delaware County, Case No. 15 CAA 07 0059 6
Hoffman, P.J., concurring
{¶17} I agree with the majority’s conclusion Appellant’s claims of disproportionality
and improper application of the overriding purposes of sentencing are outside the void
sentence exception.
{¶18} Having so concluded, I find Appellant’s two assignments of error are barred
by application of res judicata.
Delaware County, Case No. 15 CAA 07 0059 7