State v. Stevens

[Cite as State v. Stevens, 2018-Ohio-4439.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27872
:
v. : Trial Court Case No. 1996-CR-395/1
:
JEFFREY E. STEVENS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of November, 2018.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JEFFREY E. STEVENS, Inmate No. 339-120, Marion Correctional Institution, P.O. Box
57, Marion, Ohio 43302
Defendant-Appellant, Pro Se
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WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Jeffrey E. Stevens, appeals pro se from a judgment of
the Montgomery County Court of Common Pleas overruling his motion for resentencing.
For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} In 1996, Stevens was convicted of three counts of aggravated robbery, one
count of attempted aggravated murder, one count of aggravated murder, one count of
having weapons under disability, and multiple firearm and prior-offense-of-violence
specifications. As a result of his conviction, the trial court sentenced Stevens to an
aggregate term of life in prison plus an indefinite prison term of 36 to 58 years. Following
his sentencing, Stevens filed a direct appeal from his conviction raising several
assignments of error, none of which challenged the validity of his sentence. On April 3,
1998, this court issued an opinion affirming Stevens’s conviction. State v. Stevens, 2d
Dist. Montgomery No. 16509, 1998 WL 151107 (Apr. 3, 1998) (“Stevens I”).
{¶ 3} Approximately 16 years later in 2014, Stevens filed two successive motions
for resentencing. As part of these motions, Stevens claimed his sentence for aggravated
murder was void because the judgment entry did not state that he would be eligible for
parole after 20 years. The trial court overruled both of Stevens’s motions for
resentencing in separate entries.
{¶ 4} After Stevens’s resentencing motions were overruled, Stevens filed a motion
requesting a re-entry of judgment. In that motion, Stevens moved the trial court to re-
issue one of its entries overruling his motion for resentencing on grounds that he was not
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served a copy of the entry. The trial court overruled the motion for re-entry of judgment,
and Stevens appealed.
{¶ 5} On appeal, Stevens challenged the merits of the trial court’s decision
overruling his motion for resentencing as opposed to the decision he appealed from—the
trial court’s decision overruling his motion for re-entry of judgment. Specifically, Stevens
argued that the life sentence he received for aggravated murder was void because the
sentencing entry failed to comply with R.C. 2929.03(A)(1) in that the entry imposed a life
sentence without stating that he would be eligible for parole after 20 years.
{¶ 6} After reviewing the matter, this court affirmed the trial court’s judgment
overruling Stevens’s motion for re-entry of judgment. State v. Stevens, 2d Dist.
Montgomery No. 26328, 2015-Ohio-2971 (“Stevens II”). We affirmed the trial court on
grounds that this court lacked jurisdiction to address Stevens’s argument since it
concerned the trial court’s judgment overruling Stevens’s motion for resentencing, which
was not the judgment designated in Stevens’s notice of appeal. Id. at ¶ 8-9.
{¶ 7} We also held that even if we had jurisdiction to address Stevens’s argument
on appeal, the argument was barred by res judicata. Id. at ¶ 10. Specifically, we found
that the trial court’s failure to state in its judgment entry that Stevens would become
eligible for parole after 20 years only rendered Stevens’s sentence voidable, and that
voidable sentences may only be challenged on direct appeal. Id. at ¶ 11, citing State v.
Johnston, 2d Dist. Montgomery No. 25652, 2013-Ohio-4401, ¶ 15. Because Stevens did
not raise this argument in his direct appeal, we found that res judicata barred him from
raising it in his subsequent appeal. Id.{¶ 8} On December 13, 2017, two years after this court’s decision in Stevens II,
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Stevens filed another motion for resentencing. In that motion, Stevens argued that his
life sentence for aggravated murder was contrary to law and void because the version of
R.C. 2929.03(A) in effect at the time of his sentencing did not authorize a definite term of
life in prison. The trial court found otherwise and overruled Stevens’s motion for
resentencing. The instant appeal followed, in which Stevens raises a single assignment
of error for review.
Assignment of Error
{¶ 9} Under his sole assignment of error, Stevens contends the trial court erred in
overruling the motion for resentencing he filed in 2017. Specifically, Stevens claims the
trial court incorrectly determined that the version of R.C. 2929.03(A) in effect at the time
he was sentenced authorized a definite term of life in prison for aggravated murder. In
support of this claim, Stevens relies on the language of R.C. 2929.03(A), which states:
“the trial court shall impose a sentence of life imprisonment with parole eligibility after
serving twenty years of imprisonment on the offender.” (Emphasis added.) R.C.
2929.03(A). According to Stevens, this language does not authorize a definite life term.
Therefore, Stevens claims the trial court failed to comply with the statute when it
sentenced him to life in prison without specifying his eligibility for parole.
{¶ 10} In essence, Stevens is arguing exactly what he argued in Stevens II, namely
that his life sentence for aggravated murder was void because the trial court sentenced
him to life in prison without specifying that he was eligible for parole after serving 20 years.
We find that this argument fails for the same reasons discussed in Stevens II, as the
argument should have been raised on direct appeal and is barred by res judicata.
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Stevens II, 2d Dist. Montgomery No. 26328, 2015-Ohio-2971 at ¶ 11, citing Johnston, 2d
Dist. Montgomery No. 25652, 2013-Ohio-4401, at ¶ 13-16.
{¶ 11} Regardless, even if Stevens’s argument were not barred by res judicata, it
otherwise lacks merit. As previously noted, the version of R.C. 2929.03(A) in effect at
the time of Stevens’s sentencing provided that, for a charge of aggravated murder, “the
trial court shall impose a sentence of life imprisonment with parole eligibility after serving
twenty years of imprisonment on the offender.” The substance of former R.C.
2929.03(A) has been codified in Ohio Adm.Code 5120-2-10(B), which provides, in
relevant part, as follows:
A sentence of life imprisonment imposed pursuant to section 2929.03 of the
Revised Code for the offense of aggravated murder shall be presumed to
be a sentence of life imprisonment with parole eligibility after twenty years,
subject to diminution under rules 5120-2-05, 5120-2-06 and 5120-2-07 of
the Administrative Code, unless the journal entry of the court specifies that
parole eligibility is to be after twenty full years or thirty full years.
{¶ 12} Pursuant to the plain language of Ohio Adm.Code 5120-2-10(B), Stevens’s
parole eligibility on the aggravated murder charge is presumed under the law. See State
v. Perry, 11th Dist. Trumbull No. 2016-T-0098, 2017-Ohio-1515, ¶ 23 (appellant’s 1994
life sentence for aggravated murder “carries a presumption of parole eligibility after twenty
years despite the [sentencing entry’s] silence regarding parole eligibility”); State v. Brown,
7th Dist. Mahoning No. 14 MA 37, 2014-Ohio-5832, ¶ 36 (appellant’s 1996 life sentence
for aggravated murder “must necessarily read as life with [parole] eligibility after twenty
years and cannot be read in any other manner under the applicable statutes [including
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Ohio Adm.Code 5120-2-10(B)]”). Therefore, even though the trial court did not indicate
at sentencing that Stevens would become eligible for parole on his aggravated murder
conviction after serving 20 years in prison, such eligibility is presumed since the
sentencing entry did not indicate otherwise.
{¶ 13} Because Stevens’s argument is barred by res judicata and otherwise lacks
merit, Stevens’s sole assignment of error is overruled.
Conclusion
{¶ 14} Having overruled Stevens’s sole assignment of error, the judgment of the
trial court overruling his motion for resentencing is affirmed.
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DONOVAN, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Jeffrey E. Stevens
Hon. Michael W. Krumholtz