State v. Terrell

[Cite as State v. Terrell, 2012-Ohio-1926.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
State of Ohio, :
:
Plaintiff-Appellee, :
: Case No. 10CA39
v. :
: DECISION AND
Jason W. Terrell, : JUDGMENT ENTRY
:
Defendant-Appellant. : Filed: April 27, 2012
______________________________________________________________________
APPEARANCES:
Jason W. Terrell, Lebanon, Ohio, pro se, Appellant.
James Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
______________________________________________________________________
Kline, J.:
{¶1} Jason Terrell appeals the judgment of the Washington County Court of
Common Pleas, which denied his petition for relief from judgment. Terrell contends that
he is entitled to a hearing on the merits of his petition. Terrell’s petition, however,
requests the trial court to reconsider its own valid, final judgment. Because a trial court
lacks jurisdiction to reconsider its own valid, final judgment, the petition is a nullity. As a
result, no appeal lies from the denial of the petition. Therefore, we must dismiss
Terrell’s appeal.
I.
{¶2} On March 27, 2009, a Washington County grand jury returned a five-count
indictment against Terrell. Terrell eventually pled guilty to three counts of drug
Washington App. No. 10CA39 2
trafficking in violation of R.C. 2925.03. The trial court filed its judgment entry of
conviction against Terrell on January 20, 2010. In its entry, the trial court sentenced
Terrell to one ten-month sentence and two fifteen-month sentences for the three counts
Terrell pled guilty to. Additionally, the trial court ordered Terrell to serve the sentences
consecutively to each other. Thus, Terrell’s aggregate prison sentence is forty months.
{¶3} The record indicates that Terrell did not file a direct appeal from the trial
court’s judgment. However, on October 20, 2010, Terrell filed a “Petition for Relief After
Judgment Pursuant to O.R.C. 5145.01.” In his petition, Terrell argued that the trial court
erred when it imposed consecutive prison sentences upon him. The trial court denied
Terrell’s petition on October 28, 2010.
{¶4} Terrell appeals and asserts the following assignment of error: I. “So
according to HOUSE BILL 130, the previous court has no standing and the Defendant-
Appellant, should be afforded the proper Concurrent Sentence, not Consecutive as was
Improperly Imposed upon this defendant.”
II.
{¶5} Terrell claims that the trial court erred by sentencing him to consecutive
prison sentences. For that reason, Terrell argues that he is entitled to a hearing on the
merits of the argument in his petition for relief from judgment.
{¶6} This opinion dismisses Terrell’s appeal for lack of jurisdiction. Specifically,
we find that Terrell cannot appeal from the denial of his motion for reconsideration. Our
jurisdictional finding necessarily includes a finding that Terrell’s January 20, 2010
judgment entry of conviction is a valid, final judgment.
Washington App. No. 10CA39 3
{¶7} On appeal, however, Terrell claims that the January 20, 2010 judgment
entry of conviction is void. (We note that Terrell argues that because of the trial court’s
alleged error, the trial court had “no standing” and “no right” to impose consecutive
sentences upon Terrell. “Generally, this Court affords considerable leeway to pro se
litigants.” State v. Headlee, 4th Dist. No. 08CA6, 2009-Ohio-873, ¶ 6. Accordingly, we
will infer from Terrell’s arguments that the trial court’s alleged error rendered the
judgment of conviction against him void.) Therefore, before addressing our jurisdiction
over Terrell’s appeal, we will analyze the validity of the January 20, 2010 judgment entry
of conviction.
A. The Validity of the January 20, 2010 Judgment Entry of Conviction
{¶8} Terrell contends that his judgment entry of conviction is void because the
trial court disregarded statutory requirements for the imposition of consecutive
sentences.
{¶9} First, Terrell argues that the trial court erred because R.C. 5145.01 requires
that he serve concurrent, not consecutive, sentences. R.C. 5145.01 provides, in
relevant part, as follows: “If a prisoner is sentenced for two or more separate felonies,
the prisoner’s term of imprisonment shall run as a concurrent sentence, except if the
consecutive sentence provisions of [R.C.] 2929.14 and [R.C.] 2929.41 * * * apply.”
{¶10} Here, we find no merit in Terrell’s argument. R.C. 5145.01 governs state
correctional institutions and does not instruct sentencing courts. See State v. Ramsey,
7th Dist. No. 10 CO 29, 2011-Ohio-2640, ¶ 12. Furthermore, Ohio courts have
uniformly held that “R.C. 5145.01 does not impose a concurrent sentencing requirement
on sentencing courts[.]” Ramsey at ¶ 18. See also State v. Johnson, 8th Dist. No.
Washington App. No. 10CA39 4
93004, 2010-Ohio-2214, ¶ 7 fn. 3; State v. Castle, 6th Dist. No. OT-08-029, 2008-Ohio-
6388, ¶ 2-8; State v. Paugh, 12th Dist. No. CA2008-11-144, 2009-Ohio-4682, ¶ 5-9;
State v. Smith, 5th Dist. Nos. 08 CA 42 & 08 CA 43, 2009-Ohio-1684, ¶ 55-58.
{¶11} Terrell also asserts that H.B. 130, effective April 7, 2009, revived the
portions of R.C. 2929.14 that were severed in State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856, 845 N.E.2d 470. Consequently, Terrell argues that the trial court should have
followed the pre-Foster requirements for imposing consecutive sentences. Because the
trial court failed to do so, Terrell contends that his sentence is void.
{¶12} Again, we find no merit in Terrell’s argument. We have recognized that
H.B. 130 did not constitute an affirmative reenactment of the severed provisions of R.C.
2929.14(E)(4). See State v. Keck, 4th Dist. No. 09CA50, 2011-Ohio-1643, ¶ 34; see
also State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶ 27, fn.7.
(We acknowledge that the General Assembly recently enacted H.B. 86, effective
September 30, 2011, which amends R.C. 2929.14 and requires fact finding for
consecutive sentences. This amendment, however, does not apply to Terrell, who was
sentenced on January 20, 2010, prior to the effective date of H.B. 86. See State v. Du,
2d Dist. No. 2010-CA-27, 2011-Ohio-6306, ¶ 23.) Thus, the trial court did not have to
follow the pre-Foster requirements for imposing consecutive sentences, and the
January 20, 2010 judgment entry of conviction is not void.
B. Our Jurisdiction
{¶13} Next, we will address our jurisdiction over Terrell’s appeal. In his October
20, 2010 petition, Terrell asked the trial court to reconsider the sentence imposed in the
January 20, 2010 judgment entry of conviction. However, “[t]here is no provision in
Washington App. No. 10CA39 5
Ohio law for reconsideration of a valid, final judgment. Motions for reconsideration of a
valid, final judgment of a trial court are a nullity.” State v. Steele, 10th Dist. 05AP-92,
2005-Ohio-4786, ¶ 9; see also State v. Joy, 4th Dist. Nos. 08CA10 & 08AP10, 2009-
Ohio-2211, ¶ 8; State v. Moon, 8th Dist. No. 93673, 2010-Ohio-4483, ¶ 19. Therefore,
Terrell’s petition is a nullity. And because “[m]otions for reconsideration of a sentence
are a nullity[, they] are not judgments from which a party can appeal.” State v. Johnson,
6th Dist. No. L-07-1338, 2008-Ohio-1298, ¶ 2, fn. 1; Joy at ¶ 8; Steele at ¶ 11.
Accordingly, we lack jurisdiction over Terrell’s appeal.
C. Conclusion
{¶14} In conclusion, Terrell’s petition is a nullity because it asks the trial court to
reconsider a valid, final judgment. Accordingly, Terrell cannot appeal from the trial
court’s denial of his petition, and we dismiss this appeal for lack of jurisdiction.
APPEAL DISMISSED.
Washington App. No. 10CA39 6
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.