State v. D.M.

[Cite as State v. D.M., 2022-Ohio-108.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 21AP-118
v. : (C.P.C. No. 09CR-5355)
[D.M.], : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on January 18, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: D.M., pro se.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, D.M., appeals the decision of the Franklin County
Court of Common Pleas denying his Motion to Correct Partially Void Sentence.
{¶ 2} Following a jury trial, D.M. was convicted of rape, sexual battery, and two
counts of gross sexual imposition, and given a total aggregate sentence of 15 years to life
incarceration. On June 30, 2011, this court affirmed his conviction and sentence. See State
v. D.M., 10th Dist. No. 10AP-337, 2011-Ohio-3301. D.M. subsequently filed multiple
motions in the trial court seeking relief from his conviction and sentence, all of which have
been denied. See, e.g., State v. D.M., 10th Dist. No. 19AP-512, 2019-Ohio-5086.
{¶ 3} On February 18, 2020, D.M. filed a "Motion to Correct Partially Void
Sentence" in the common pleas court, arguing that he was entitled to resentencing pursuant
to State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671. He observed
that even though his rape sentence had a life tail (and thus he would be placed on parole
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No. 21AP-118
prior to any release), postrelease control was still statutorily required to be imposed as part
of his original sentence and had not been so imposed by the sentencing court. On its initial
review of his motion, the state admitted that the sentencing court had erred and stated it
would acquiesce to a new sentencing hearing to correct this error.
{¶ 4} But on May 14, 2020, the Supreme Court of Ohio issued its decision in State
v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, overruled its prior caselaw regarding
voidness of sentences for lack of post release control, and held that "sentencing errors in
the imposition of postrelease control render the sentence voidable, not void, and the
sentence may be set aside if successfully challenged on direct appeal." Id. at ¶ 42. Following
the release of Harper, the state filed a supplemental response arguing that it controlled
D.M.'s case, and that therefore his motion to correct partially void sentence should be
denied. The trial court subsequently denied his motion based on Harper. D.M. now asserts
two assignments of error with the trial court’s judgment, both of which challenge the trial
court’s reliance on Harper to deny his motion.
{¶ 5} In his first assignment of error, D.M. argues that Harper is distinguishable
from his case, in that "Harper involved a situation where the trial court improperly
imposed something it was allowed to—postrelease control—whereas, here, the court
completely failed to impose something it was statutorily required to impose." (Emphasis
sic.) (Appellant's Brief at 6-7.) He argues that the complete failure to impose postrelease
control is not governed either by Harper or by the Supreme Court’s subsequent decision in
State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784. Henderson specifically held:
A judgment or sentence is void only if it is rendered by a court
that lacks subject-matter jurisdiction over the case or personal
jurisdiction over the defendant. If the 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. Neither the
state nor the defendant can challenge the voidable sentence
through a postconviction motion.
Id. at ¶ 43.
{¶ 6} In Henderson, the Supreme Court clarified the reach of its decision in Harper
and reversed a trial court’s post-sentencing addition of a life tail to a sentence, where a life
tail was statutorily required but had not been originally imposed. In so holding, the court
concluded that "sentences based on an error, including sentences in which a trial court
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fails to impose a statutorily mandated term, are voidable if the court imposing the
sentence has jurisdiction over the case and the defendant." (Emphasis added.) Id. at ¶ 1.
D.M.’s argument under his first assignment of error is that Harper is distinguishable from
his case because it involved an error in the imposition of a term of postrelease control rather
than the complete failure to impose postrelease control. But the rule of Henderson resolves
any confusion on this point—pursuant to Henderson, even a trial court’s "fail[ure] to
impose a statutorily mandated term" is merely voidable and must be challenged on direct
appeal so long as the trial court had jurisdiction to issue the underlying judgment. When
taken together, Harper and Henderson dispose of D.M.’s argument. Id. See also State v.
Jennings, 10th Dist. No. 18AP-139, 2020-Ohio-5154 ¶ 8 (Citing Harper and Henderson
and holding that "[b]ecause the trial court had subject-matter jurisdiction in the case and
personal jurisdiction over Jennings, any sentencing error committed by the trial court
relating to the imposition of a post-release control sanction would have made the judgment
voidable, not void.").
{¶ 7} In his second assignment of error, D.M. argues that under Ali v. State, 104
Ohio St.3d 328, 2004-Ohio-6592, ¶ 6, a "new judicial ruling may not be applied
retroactively to a conviction that has become final, i.e., where the accused has exhausted all
of his appellate remedies." He argues that for this reason, the court improperly applied
Harper and Henderson to deny his motion (as his conviction was already final), and
contends that the trial court's ruling violated the retroactive laws provision of the state
constitution the principles animating the Ex Post Facto Clause of the United States
Constitution. See Ohio Constitution, Article II, Section 28, and Bouie v. Columbia, 378 U.S.
347, 354 (1964) (addressing prohibition of ex post facto application of judicial decisions
under Fourteenth Amendment Due Process Clause).
{¶ 8} But D.M. has misunderstood how intervening judicial decisions usually
function. "The general rule is that a decision of a court of supreme jurisdiction overruling a
former decision is retrospective in its operation, and the effect is not that the former was
bad law, but that it never was the law." Peerless Elec. Co. v. Bowers, 164 Ohio St.209, 210
(1955). We note that the sentence the state sought to have declared void in Henderson
became final before D.M.'s own sentence did—if D.M.’s retroactivity argument were correct,
Henderson would have been decided differently. Moreover, D.M.’s argument that his
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sentence is void rests on Carnail, which was not decided until three months after he was
sentenced. Compare Carnail, 2010-Ohio-2671 (decided June 16, 2010) with State v. D.M.,
Franklin C.P. No. 09CR-5355, (March 15, 2010) (Jgmt. Entry of Sentencing.). Accordingly,
for D.M.’s argument to prevail this court must conclude that Carnail applies retrospectively
but that Harper and Henderson do not. Even if we were to ignore the plain fact that Harper
and Henderson have overruled Carnail in all but name, we cannot adopt such a tortured
understanding of jurisprudence and precedent.
{¶ 9} D.M.’s reliance on Ali, 2004-Ohio-6592, is equally unpersuasive. In Ali, the
criminal defendant attempted to use an intervening Supreme Court decision issued after
his conviction became final to reopen and vacate his sentencing. Ali at ¶ 3-5. D.M.’s motion
is directly analogous—it attempts to use an intervening Supreme Court decision to obtain a
resentencing on an already final conviction. And as the Supreme Court concluded in Ali,
he "has no legal right to the application of [the intervening decision] to his case." Id. at ¶ 7.
{¶ 10} In short, we conclude that the trial court did not err in denying D.M.’s motion
based on State v. Harper. D.M.’s two assignments of error lack merit and are overruled,
and the judgment of the Franklin County Court of Common Pleas denying D.M.’s motion
for resentencing is affirmed.
Judgment affirmed.
DORRIAN and JAMISON, JJ., concur.