State v. Gravely

[Cite as State v. Gravely, 2022-Ohio-2153.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 22AP-17
Plaintiff-Appellee, : (C.P.C. No. 08CR-3601)
&
v. : No. 22AP-18
(C.P.C. No. 09CR-275)
Michael T. Gravely, :
(ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 23, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and
Darren M. Burgess, for appellee. Argued: Darren M.
Burgess.
On brief: Moore & Yaklevich, W. Jeffrey Moore, Fitrakis &
Gadell-Newton, LLC, and Constance A. Gadell-Newton, for
appellant. Argued: W. Jeffrey Moore.
APPEALS from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Michael T. Gravely, appeals from an order of the
Franklin County Court of Common Pleas denying his motion to vacate his sentences. For
the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The facts leading to Gravely's convictions and sentences are described in our
decision affirming his convictions on direct appeal. State v. Gravely, 188 Ohio App.3d 825,
2010-Ohio-3379, ¶ 2-20.1 To briefly summarize, on April 30, 2008, officers of the
1Gravely filed a pro se application for reopening of his direct appeal, which this court denied by memorandum
decision. State v. Gravely, 10th Dist. No. 09AP-440 (Dec. 14, 2010) (memorandum decision).
Nos. 22AP-17 & 22AP-18 2
Columbus Police Department attempted to serve a search warrant at a house on East Rich
Street in Columbus, Ohio, where an informant had purchased crack cocaine. Id. at ¶ 2-3.
Gunshots were fired at the officers serving the warrant. Id. at ¶ 3-4. Ultimately, police
officers were able to enter the house and conduct a search. Gravely was found in a second-
floor apartment that had a different street number from the first-floor portion of the house.
Id. at ¶ 8-9. After obtaining an additional search warrant, officers found drugs and drug
paraphernalia in the second-floor apartment. Id. at ¶ 10.
{¶ 3} Based on the incident, Gravely was indicted on multiple charges in two
criminal cases, which were joined for a jury trial conducted over two days in February 2009.
Id. at ¶ 11-12, 16. The state presented evidence linking Gravely to drugs found in the house
and to a firearm recovered from the basement of the house. Id. at ¶ 18. The jury found
Gravely guilty of two counts of felonious assault with firearm specifications, one count of
trafficking in cocaine, one count of possession of cocaine, one count of possession of cocaine
with a major drug offender specification, and one count of possession of heroin. Id. at ¶ 20.
The trial court also found Gravely guilty of one count of having a weapon while under
disability. Id. As relevant to this appeal, at a sentencing hearing on April 1, 2009, the trial
court imposed a four-year sentence on the major drug offender specification. The trial
court also imposed consecutive sentences on the felonious assault convictions and imposed
the sentences in one case consecutive to the sentences in the other case.
{¶ 4} Gravely timely appealed, asserting four assignments of error. Id. at ¶ 21. He
challenged the denial of a motion to suppress evidence and a motion to sever the two
indictments. Id. He also challenged the sufficiency of the evidence and claimed his
convictions were against the manifest weight of the evidence. Id. at ¶ 21. This court
affirmed the trial court's judgment. Id. at ¶ 51.
{¶ 5} In November 2017, Gravely moved for a nunc pro tunc order in one of his
cases, seeking clarification of the mandatory portion of his sentence in that case. The state
did not oppose Gravely's motion and the trial court granted the motion, issuing a nunc pro
tunc order clarifying the mandatory portion of the sentence.
{¶ 6} In August 2021, Gravely moved to vacate the consecutive sentences imposed
on him and the four-year sentence imposed on his major drug offender specification.
Gravely argued the consecutive sentences were void because the trial court did not make
Nos. 22AP-17 & 22AP-18 3
findings of fact relative to the necessity of consecutive sentences. He also argued the four-
year sentence for the major drug offender specification was void because the Supreme
Court of Ohio had held the portion of the statute authorizing that penalty to be
unconstitutional. The trial court denied Gravely's motion to vacate, concluding the
sentencing errors he alleged, if true, would render his sentences voidable and therefore his
claims were barred by res judicata because he did not assert them on direct appeal.
II. ASSIGNMENT OF ERROR
{¶ 7} Gravely assigns the following as trial court error:
[1] THE TRIAL COURT BELOW ERRED TO THE
PREJUDICE OF APPELLANT MICHAEL T. GRAVELY BY
OVERRULING HIS MOTION TO VACATE HIS SENTENCE.
III. LEGAL ANALYSIS
{¶ 8} Both of Gravely's claims implicate changes during the past three decades to
Ohio law governing judicial fact-finding in sentencing. The Supreme Court summarized
those changes as follows:
In 1996, the General Assembly limited trial court discretion to
impose consecutive sentences by directing courts to make
statutorily enumerated findings and to give supporting reasons
for doing so at the time of sentencing. Am.Sub.S.B. No. 2, 146
Ohio Laws, Part IV, 7136. However, in accordance with
decisions from the United States Supreme Court, this court
held in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, that requiring judicial fact-finding prior to
imposing consecutive sentences violated the Sixth Amendment
guarantee of trial by jury. We therefore severed the
requirement of judicial fact-finding from the statute, struck the
presumption in favor of concurrent sentences and held that
judges had discretion to impose consecutive sentences.
Subsequent to our decision in Foster, however, the United
States Supreme Court issued Oregon v. Ice, 555 U.S. 160, 129
S.Ct. 711, 172 L.Ed.2d 517 (2009), holding that a statutory
requirement for judges in a jury trial to find certain facts before
imposing consecutive sentences is constitutional. Accordingly,
in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941
N.E.2d 768, we held that Ice did not automatically revive the
consecutive-sentencing provisions held unconstitutional and
severed from the statute in Foster, and as a result, we stated
that judicial fact-finding would not be required prior to
imposing consecutive sentences unless the General Assembly
Nos. 22AP-17 & 22AP-18 4
enacted new legislation requiring the court to make findings
when imposing consecutive sentences.
Subsequent to Hodge, the General Assembly enacted
Am.Sub.H.B. No. 86, effective September 30, 2011, reviving
some of the statutory language we severed in Foster. That
legislation created a statutory presumption in favor of
concurrent sentences and further directed courts to make
statutorily enumerated findings prior to imposing consecutive
sentences, but it did not require courts to give reasons in
support of its findings.
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 2-4. Regarding the penalty that
could be imposed for a major drug offender specification, Foster declared that
R.C. 2929.14(D)(3)(b), which permitted a trial court to impose an additional prison term of
up to ten years based on certain conditions, was unconstitutional because it required
judicial fact-finding before the additional term could be imposed. State v. Chandler, 109
Ohio St.3d 223, 2006-Ohio-2285, ¶ 17 ("As the statute now stands, a major drug offender
still faces the mandatory maximum ten-year sentence that the judge must impose and may
not reduce. Only the add-on that had required judicial fact finding has been severed.").
{¶ 9} Gravely argues the consecutive sentences imposed by the trial court in his
case were unconstitutional because the court failed to make the findings required for
consecutive sentences. Gravely asserts Am.Sub.H.B. No. 86 overruled Foster and had the
effect that judicial fact-finding for consecutive sentences "was never deemed
unconstitutional." (Appellant's Brief at 10.) Gravely claims that even if the General
Assembly did not intend Am.Sub.H.B. No. 86 to be retroactive, by overruling the Foster
decision, the legislation "mean[t] that Foster was never the law, and that judicial fact-
finding * * * for consecutive sentencing was never deemed unconstitutional." (Appellant's
Brief at 10.) In support of this claim, Gravely cites the dissenting opinion in Hodge. Gravely
also argues the four-year sentence imposed by the trial court for the major drug offender
specification was unconstitutional because Foster had severed the portion of the statute
providing for that penalty.
{¶ 10} We need not reach the merits of Gravely's claims, however, because they are
barred by res judicata. " 'Res judicata bars a defendant who was represented by counsel
from asserting in a post-conviction petition an issue that could have been raised at trial or
Nos. 22AP-17 & 22AP-18 5
on appeal.' " State v. Chafin, 10th Dist. No. 20AP-361, 2021-Ohio-1383, ¶ 20, quoting State
v. Dixon, 10th Dist. No. 10AP-75, 2010-Ohio-3894, ¶ 8. The doctrine "also applies to bar
claims that could or should have been raised in an earlier petition for postconviction relief."
Id. Gravely asserts the major drug offender specification penalty was found
unconstitutional by Foster, which was decided in 2006; therefore, he could have raised this
argument in his direct appeal filed in 2009. Similarly, Gravely argues Am.Sub.H.B. No. 86
made his consecutive sentences unconstitutional. Because Am.Sub.H.B. No. 86 became
effective in 2011, Gravely could have raised this argument in the postconviction motion he
filed in 2017.2
{¶ 11} To avoid the effect of res judicata, Gravely asserts his sentences are void.
"[A]n exception to the application of res judicata applies to void judgments." State v. Davis,
10th Dist. No. 19AP-419, 2019-Ohio-4956, ¶ 10. See also State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, ¶ 40 ("[V]oid sentences are not precluded from appellate review by
principles of res judicata and may be reviewed at any time, on direct appeal or by collateral
attack.") However, Gravely's argument misconstrues the distinction between void and
voidable sentences. The Supreme Court recently clarified this issue, returning to a
"traditional understanding of the distinction between void and voidable sentences." State
v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 1; see also State v. Robinson, 10th
Dist. No. 20AP-562, 2021-Ohio-2572, ¶ 9 (discussing realignment of void-sentence
doctrine). The Henderson decision held that "[a] judgment or sentence is void only if it is
2 Notwithstanding res judicata, Gravely's arguments are not well-taken. Gravely was sentenced in April 2009,
after Foster had severed the judicial fact-finding requirement for consecutive sentences and before that
requirement was revived by Am.Sub. H.B. No. 86. We have previously held that Am.Sub.H.B. No. 86 did not
apply retroactively to defendants like Gravely, who were sentenced prior to the effective date of the legislation.
See State v. Hughes, 10th Dist. No. 12AP-165, 2012-Ohio-4513, ¶ 13, quoting State v. King, 5th Dist. No. CT12-
0018, 2012-Ohio-4070, ¶ 26 ("As found by the trial court, however, appellant was sentenced prior to the
effective date of H.B. No. 86, and the provisions of H.B. No. 86 are 'not to be applied retroactively.' "); State
v. Greenberg, 10th Dist. No. 12AP-11, 2012-Ohio-3975, ¶ 9 ("Because defendant's sentence was already
imposed at the time H.B. No. 86 became effective on September 30, R.C. 1.58(B) does not assist defendant in
making H.B. No. 86 apply to his sentence."). As noted above, Gravely cites the dissenting opinion in Hodge
to support his theory that Am.Sub.H.B. No. 86 had retroactive effect even if not intended by the General
Assembly, but he offers no controlling authority to support that argument, which a majority of the Supreme
Court of Ohio rejected. With respect to the major drug offender specification, we have "rejected the argument
that Foster severed former R.C. 2929.14(D)(3)(b) in its entirety." State v. Reed, 10th Dist. No. 11AP-792,
2012-Ohio-1612, ¶ 10. Our decision in Reed held that only the portion 0f the statute requiring judicial fact-
finding was severed and that " 'trial courts could continue to impose the add-on sentence where the jury had
found the defendant to be a major drug offender as defined by statute.' " Id., quoting State v. Pena, 10th Dist.
No. 06AP-688, 2007-Ohio-4516, ¶ 20.
Nos. 22AP-17 & 22AP-18 6
rendered by a court that lacks subject-matter jurisdiction over the case or personal
jurisdiction over the defendant." Id. at ¶ 43. "If [a] court has jurisdiction over the case and
the person, any sentence based on an error in the court's exercise of that jurisdiction is
voidable." Id.
{¶ 12} Common pleas courts are vested with subject-matter jurisdiction over felony
cases. Henderson at ¶ 35. A court acquires personal jurisdiction in a criminal matter "by
lawfully issued process, followed by the arrest and arraignment of the accused and his plea
to the charge." Id. at ¶ 36. In this case, it is undisputed that the trial court had subject-
matter jurisdiction over the charges against Gravely and personal jurisdiction over him.
Accordingly, any error in the exercise of the trial court's jurisdiction rendered Gravely's
sentence voidable, not void.3 See Robinson at ¶ 10. The errors Gravely alleges, if true,
would render his sentences voidable, not void. Gravely could have raised these claims on
direct appeal or in his earlier postconviction motion; because he did not, they are barred by
res judicata, and the trial court did not err by denying his motion to vacate. Accordingly,
we overrule Gravely's sole assignment of error.
IV. CONCLUSION
{¶ 13} For the foregoing reasons, we overrule Gravely's sole assignment of error and
affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and MENTEL, JJ., concur.
_____________
3 We note that even before the Supreme Court's realignment of the void-sentence doctrine, courts held that
errors in imposition of consecutive sentences did not render those sentences void. See State v. Smith, 8th
Dist. No. 108499, 2020-Ohio-1026, ¶ 14 ("Any issues regarding Smith's consecutive sentence are not properly
before this court because Smith failed to raise them in the trial court. Moreover, errors in law, including the
erroneous imposition of consecutive sentences, that were raised or could have been raised on a direct appeal,
are barred by res judicata."); State v. Price, 10th Dist. No. 17AP-314, 2017-Ohio-7496, ¶ 5 ("Appellant first
argues that his sentences should be vacated because the trial court did not make the required findings in order
to impose consecutive sentences. We disagree, as res judicata bars appellant from making this argument.");
State v. Krisha, 11th Dist. No. 2015-L-125, 2016-Ohio-3512, ¶ 21 ("Errors in the imposition of consecutive
sentences, such as the failure to make the required statutory findings, render the sentences voidable, rather
than void.").