State v. Hughes

[Cite as State v. Hughes, 2013-Ohio-1566.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99165
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH HUGHES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-398499
BEFORE: Boyle, J., Stewart, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: April 18, 2013
FOR APPELLANT
Kenneth Hughes, pro se
Inmate No. A406-858
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Kenneth Hughes, appeals the trial court’s decision
denying his “motion to correct void sentence.” Finding no merit to this appeal, we
affirm.
Procedural History and Facts
{¶2} In May 2001, Hughes pleaded guilty to two counts of aggravated murder,
each including a mass murder specification and one including a firearm specification.
The plea agreement included a sentence of life imprisonment with possibility of parole
after 63 years. A three-judge panel ultimately determined the evidence established
Hughes’s guilt beyond a reasonable doubt and sentenced Hughes in accordance with his
plea agreement. Hughes’s convictions and sentence were affirmed on direct appeal.
State v. Hughes, 8th Dist. No. 81019, 2003-Ohio-166, appeal not allowed, 99 Ohio St.3d
1436, 2003-Ohio-2902, 789 N.E.2d 1117. The federal district court subsequently denied
Hughes’s petition for habeas corpus. Hughes v. Haviland, N.D. Ohio No. 1:04CV593,
2007 U.S. Dist. LEXIS 102781 (Oct. 16, 2007).
{¶3} Hughes has filed several successive postconviction motions, including a
successive motion to vacate or set aside his sentence, all of which were denied by the trial
court and never appealed. He also filed motions to withdraw his guilty plea that were
denied and unsuccessfully appealed. See State v. Hughes, 8th Dist. No. 97311,
2012-Ohio-706. The instant appeal arises from Hughes’s filing of a motion to correct
void sentence on September 19, 2012. The trial court denied the motion and this appeal
now follows.
Void Sentence
{¶4} In his single assignment of error, Hughes argues that the trial court erred in
denying his motion to correct void sentence because the trial court failed to comply with
sentencing statutes with respect to the mandatory three years imposed on the firearm
specification.
{¶5} A void sentence is one imposed by a court that lacks subject-matter
jurisdiction or the authority to act. State v. Payne, 114 Ohio St.3d 502, 2007-
Ohio-4642, 873 N.E.2d 306, ¶ 27. As a general rule, sentencing errors are not
jurisdictional except where a sentence is not in accordance with statutorily-mandated
terms. State v. McCall, 7th Dist. No. 12MA57, 2012-Ohio-5604, citing State v. Fischer,
128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 8. Thus, a sentencing entry that
fails to properly impose postrelease control where it is statutorily required has been
labeled a void sentence to the extent of the failure. Id. at ¶ 26-27. Additionally,
“imposing a sentence outside the statutory range, contrary to the statute, is outside a
court’s jurisdiction, thereby rendering the sentence void ab initio.” Payne at fn. 3.
{¶6} Hughes first argues that “[h]aving been convicted of a firearm specification
under R.C. 2941.145(A),” he “was only subject to a sentence of three years of actual
incarceration, not the sentence of three years incarceration pronounced by the trial
court.” He contends that the trial court’s imposition of three years on the firearm
specification, without the specific reference to “actual incarceration” rendered his
sentence void. Hughes’s argument appears to be based on the theory that, if the trial
court had imposed “three years actual incarceration,” he would have been entitled to a
reduction of the sentence for good behavior. But this argument has no basis under the
law. Nor does Hughes rely on any authority in support of his claim. See App.R.
16(A)(7) and 12(A)(2).1 Contrary to Hughes’s assertion, former R.C. 2929.14 that
governed at the time of his offense, did not make this purported distinction between
“actual incarceration” and “incarceration.” Here, Hughes was subject to a mandatory
three-year prison term for his conviction of the firearm specification under R.C.
2941.145, which the trial court properly imposed.
{¶7} Hughes next contends that the trial court’s sentencing order failed to specify
that the three years on the firearm specification must be served “not only consecutively
but also prior to the terms of imprisonment imposed for the underlying felonies,” and
therefore his sentence is void. This argument, likewise, has no merit. Former R.C.
2929.14(E)(1) provided that Hughes shall serve the mandatory term on the firearm
specification “consecutively to and prior to the prison term imposed for the underlying
felony.” Here, the trial court properly ordered that Hughes’s firearm specification be
served consecutive to the underlying felony offense. We find no basis to conclude that
the trial court’s silence as to ordering it to be served prior to the underlying felony renders
the sentence void.
Although Ohio’s sentencing statutes recognized “actual incarceration” as a statutorily
1
defined term at one time and allowed for “good time” credit, this distinction was eliminated after the
passage of Am.Sub.S.B. No. 2 in 1996. See former R.C. 2929.01(C) — pre-S.B. 2.
{¶8} Lastly, Hughes argues that he has a “state created liberty interest in being
subject to no sentence other than a mandatory * * * three years of actual incarceration.”
Having already found that the trial court properly imposed the mandatory three-year
sentence on the firearm specification, we reject this argument as well.
{¶9} Hughes’s sole assignment of error is overruled.
{¶10} Judgment affirmed.
It is ordered that appellee recover of appellant 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MELODY J. STEWART, A.J., and
MARY EILEEN KILBANE, J., CONCUR