State v. Grooms

[Cite as State v. Grooms, 2011-Ohio-6062.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25819
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PATRICK M. GROOMS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 97 02 0437
DECISION AND JOURNAL ENTRY
Dated: November 23, 2011
WHITMORE, Judge.
{¶1} Defendant-Appellant, Patrick Grooms, appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms.
I
{¶2} In 1997, a grand jury indicted Grooms on the following counts: (1) endangering
children, in violation of R.C. 2919.22(B)(2); (2) felonious assault, in violation of R.C.
2903.11(A)(1); and (3) two counts of domestic violence, in violation of R.C. 2919.25(A). The
indictment indicated that both the child endangering and felonious assault counts were second-
degree felonies. A jury acquitted Grooms on the domestic violence charges, but found him
guilty of endangering children and felonious assault. The trial court sentenced Grooms to a total
of sixteen years in prison, and this Court affirmed his convictions on direct appeal. See State v.
Grooms (Aug. 19, 1998), 9th Dist. No. 18558.
2
{¶3} In October 2010, Grooms filed two pro se motions for resentencing and/or
dismissal due to a defective post-release control notification. Grooms also argued in his motions
that the court committed plain error by convicting him of second-degree felony child
endangering when the jury’s verdict form did not contain either the degree of his offense level or
any aggravating element, as required by R.C. 2945.75. The court held a hearing on February 3,
2011, by which point Grooms had obtained counsel. His counsel argued that Grooms’ sentence
was actually void because the original trial judge had failed to follow R.C. 2945.75. The trial
court determined that its jurisdiction was limited to the issue of post-release control and that the
doctrine of res judicata barred any argument Grooms raised under R.C. 2945.75. On February
10, 2011, the court issued a sentencing entry that properly imposed post-release control.
{¶4} Grooms now appeals from the court’s sentencing entry and raises two
assignments of error for our review. For ease of analysis, we consolidate the assignments of
error.
II
Assignment of Error Number One
“THE TRIAL COURT ERRED BY REFUSING TO RESENTENCE
APPELLANT GROOMS BECAUSE HIS ORIGINAL SENTENCE FOR CHILD
ENDANGERING WAS VOID AS CONTRARY TO OHIO LAW AND HIS
RIGHT TO A JURY TRIAL UNDER THE UNITED STATES
CONSTITUTION[.]”
Assignment of Error Number Two
“THE TRIAL COURT ERRED BY RESENTENCING APPELLANT GROOMS
TO A TERM OF POST-RELEASE CONTROL WITHOUT FIRST
CONSIDERING THE LEVEL OF FELONY OF WHICH HE WAS FOUND
GUILTY, CONTRARY TO THE REQUIREMENTS OF R.C. 2945.75 AND
CRIM[.]R. 32(C).”
3
{¶5} In his assignments of error, Grooms argues that the trial court erred by refusing to
treat his original sentence as void due to the fact that it violated R.C. 2945.75. He further argues
that the court was obligated to verify the proper level of his felony offenses by examining the
jury verdict forms before imposing post-release control.
{¶6} In State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, the Ohio Supreme Court
held that a defective post-release control notification results in a partially void sentence in that
only the post-release control portion of the sentence is void. Fischer at ¶26. Because the
remainder of a defendant’s sentence is not void as a result of any post-release control defect, a
trial court’s jurisdiction in resentencing a defendant is limited. State v. West, 9th Dist. No.
25748, 2011-Ohio-4941, at ¶4-5. The trial court must conduct a new sentencing hearing, but the
hearing must be “limited to [the] proper imposition of post[-]release control.” Fischer at
paragraph two of the syllabus. “[A]ny additional action taken by the trial court with respect to
the sentence is a nullity.” State v. Stiggers, 9th Dist. No. 25486, 2011-Ohio-4225, at ¶6.
Moreover, “res judicata still applies to other aspects of the merits of a conviction, including the
determination of guilt and the lawful elements of the ensuing sentence.” Fischer at paragraph
three of the syllabus. An appeal from the resentencing will be “limited to issues arising at the
resentencing hearing.” Id. at paragraph four of the syllabus.
{¶7} Grooms acknowledges that under Fischer the post-release control defect in his
sentence did not void the entirety of his sentence. He argues, however, that there is another
defect in his sentence that results in more than just the post-release control portion of his
sentence being void. He relies upon R.C. 2945.75 in support of his argument. That statute
provides, in part, as follows:
“When the presence of one or more additional elements makes an offense one of
more serious degree *** [a] guilty verdict shall state either the degree of the
4
offense of which the offender is found guilty, or that such additional element or
elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of
the least degree of the offense charged.” R.C. 2945.75(A)(2).
The Supreme Court has held that R.C. 2945.75(A)(2) is an express statutory requirement and
must be applied as written. State v. Pelfrey, 112 Ohio St. 3d 422, 2007-Ohio-256, at ¶11-14.
{¶8} Grooms was charged and convicted of second-degree felony child endangering,
which required proof of serious physical harm to the child involved. See Former R.C.
2919.22(E)(2)(d). Grooms argues that the jury verdict form for his child endangering count did
not contain either the degree of the offense or any aggravating element, so he only could have
been convicted of a third-degree felony. See R.C. 2954.75(A)(2) (requiring an offender to be
convicted of the least possible degree of the charged offense in the instance of a defective jury
verdict form); Former R.C. 2919.22(E)(3) (categorizing child endangering in violation of Former
R.C. 2919.22(B)(2) as a third-degree felony in the absence of serious physical harm to the child).
Nonetheless, the court convicted Grooms of second-degree felony child endangering. In doing
so, Grooms argues, the court violated R.C. 2945.75 and sentenced him to a greater maximum
prison term than he could have received for a first-degree misdemeanor. Grooms relies upon
State v. Beasley (1984), 14 Ohio St. 3d 74, in support of his argument that the court’s error
resulted in a void sentence.
{¶9} In Beasley, the Supreme Court held that “[a]ny attempt by a court to disregard
statutory requirements when imposing a sentence renders the attempted sentence a nullity or
void.” Beasley, 14 Ohio St. 3d at 75. In so holding, the Court concluded that the trial court had
no authority to deviate from the sentencing statute and impose a fine upon Beasley rather than
the statutorily required minimum sentence. Id. Because the trial court circumvented an express
5
statutory sentencing requirement, the Supreme Court concluded that Beasley’s sentence was void
and jeopardy could not attach to it. Id.
{¶10} The Supreme Court has never overruled Beasley and acknowledged the opinion in
Fischer when discussing the evolution of the void sentence doctrine in Ohio. Fischer at ¶8.
Fischer reaffirmed the principal set forth in Beasley that “[n]o court has the authority to impose a
sentence that is contrary to law.” Id. at ¶23. It also rejected the notion that res judicata could
apply to sentences that do not comply with statutory mandates, “as those sentences are illegal
and subject to collateral attack or direct appeal by any party.” Id. at ¶35. Even so, the Supreme
Court cautioned that a void sentence would not entitle a defendant to greater relief than the
sentencing error warranted. Specifically, the court held that a motion to correct a void sentence
“does not permit reexamination of all perceived errors at trial or in other proceedings prior to
sentencing.” Id. at ¶25. That construction is in accordance with Beasley’s mandate that courts
cannot “disregard statutory requirements when imposing a sentence.” (Emphasis added.)
Beasley, 14 Ohio St. 3d at 75.
{¶11} R.C. 2945.75 is not a sentencing statute. Chapter 2945 of the Revised Code
governs trials, not penalties, sentences, or other sanctions. See R.C. 2945, et seq. Compare R.C.
2929, et seq. (governing penalties and sentencing); R.C. 2967, et seq. (governing other sanctions
such as post-release control). And while an error under R.C. 2945.75(A)(2) ultimately will
impact an offender’s sentence, the nature of the error is such that it gives rise to a defective
verdict, not a void sentence. The logical extension of any number of errors is that they
ultimately could impact the sentence imposed. The focal point of the analysis must be whether
the trial court disregarded an express statutory requirement in imposing the sentence. Fischer at
¶23; Beasley, 14 Ohio St. 3d at 75. R.C. 2945.75(A)(2) only speaks to the information that a
6
guilty verdict must contain. See Pelfrey at ¶12 (noting the content that R.C. 2945.75 requires “in
order to find a defendant guilty” of an offense of a higher degree). It does not impose any
statutory sentencing duty upon a court or set out a requirement that a court must follow “when
imposing a sentence.” Beasley, 14 Ohio St. 3d at 75. Compare R.C. 2929.14(A) (setting forth
felony prison terms and providing that, for felonies, a court “shall impose a definite prison term
that shall be” for a designated duration, depending on the felony level); R.C. 2967.28(B)-(C)
(mandating that a trial court impose post-release control in sentencing for designated offenses).
Thus, we must conclude that an error arising from a failure to apply R.C. 2945.75 does not give
rise to a void sentence.
“Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating
in any proceeding except an appeal from that judgment, any defense or any
claimed lack of due process that was raised or could have been raised by the
defendant at the trial, which resulted in that judgment of conviction, or on an
appeal from that judgment.” State v. Perry (1967), 10 Ohio St. 2d 175, paragraph
nine of the syllabus.
Even when a portion of a sentence is void due to a post-release control error, the doctrine of res
judicata still applies to other aspects of the conviction and prevents a defendant from arguing
issues that could have been raised on appeal. Fischer at paragraph three of the syllabus; Perry,
10 Ohio St.2d at paragraph nine of the syllabus. The error that Grooms raises is one that was
cognizable on direct appeal. The verdict form here was a part of the record and any defect in the
same was a matter that could have been litigated in State v. Grooms, supra. See State v. Evans,
9th Dist. No. 10CA0027, 2011-Ohio-1449, at ¶7-10; State v. Martin, 9th Dist. No. 25534, 2011-
Ohio-1781, at ¶5-7 (both applying res judicata to an error arising under R.C. 2945.75 where the
defendants previously had their convictions affirmed on appeal). Because the error did not result
7
in a void sentence, the doctrine of res judicata applies. Thus, the trial court did not err by
concluding that it lacked jurisdiction to consider Grooms’ argument under R.C. 2945.75.
{¶12} Grooms asserts that even if his sentence was not void because the court failed to
apply R.C. 2945.75 in imposing his original sentence, the issue was nonetheless properly before
the trial court at the time of resentencing. He argues that the resentencing court was obligated to
independently verify the degree of the offenses for which the jury convicted him because the
nature of an offender’s post-release control obligation depends upon the level of the offense at
issue. In reexamining his verdict forms, Grooms argues, the trial court then would have been
obligated to reduce the felony level of his child endangering conviction. Yet, that argument
overlooks the fact that this Court had affirmed Grooms’ conviction on direct appeal and our
doing so acted as law of the case on the trial court. See Fischer at paragraph three of the
syllabus; State v. Ortega, 9th Dist. No. 08CA009316, 2008-Ohio-6053, at ¶6-7. The trial court
here acted correctly by affording Grooms a new sentencing hearing “limited to [the] proper
imposition of post[-]release control.” Fischer at paragraph two of the syllabus. Grooms’ first
and second assignments of error are overruled.
III
{¶13} Grooms’ assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
8
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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(E). 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.
BETH WHITMORE
FOR THE COURT
MOORE, J.
CONCURS
BELFANCE, P. J.
CONCURS, SAYING:
{¶14} I concur. Mr. Grooms has not properly raised a challenge to the alleged R.C.
2945.75 error. See State v. Evans, 9th Dist. No. 10CA0027, 2011-Ohio-1449, at ¶12 (Belfance,
P.J. concurring in judgment only); State v. Martin, 9th Dist. No. 25534, 2011-Ohio-1781, at ¶9
(Belfance, P.J. concurring in judgment only).
APPEARANCES:
J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for
Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD KASAY, Assistant
Prosecuting Attorney, for Appellee.