State v. Stevens

[Cite as State v. Stevens, 2020-Ohio-825.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28474
:
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 6th day of March, 2020.
...........
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, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
JEFFREY E. STEVENS, #A339-120, P.O. Box 57, Marion, Ohio 43302
Defendant-Appellant, Pro Se
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Jeffrey E. Stevens appeals from an order of the
Montgomery County Court of Common Pleas overruling his “Motion to Void/Vacate
Sentencing Judgment.” Stevens filed a timely notice of appeal with this Court on July
19, 2019.
{¶ 2} In 1996, Stevens was convicted of three counts of aggravated robbery, one
count of attempted aggravated murder, one count of aggravated murder, and one count
of having weapons under disability, with multiple firearm and prior-offense-of-violence
specifications. The trial court sentenced Stevens to an aggregate term of life in prison
plus an indefinite prison term of 36 to 58 years. Stevens filed a direct appeal from his
conviction raising several assignments of error, none of which challenged the validity of
his sentence or the trial court’s failure to merge any of his sentences. On April 3, 1998,
this court affirmed Stevens’s conviction. State v. Stevens, 2d Dist. Montgomery No.
16509, 1998 WL 151107 (Apr. 3, 1998) (hereinafter “Stevens I ”).
{¶ 3} In 2014, Stevens filed two successive motions for resentencing, in which he
argued, in part, that 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. Thereafter,
Stevens filed a motion requesting a re-entry of judgment asking the trial court to re-issue
one of its entries overruling his motion for resentencing on grounds that he was not served
a copy of the entry. The trial court overruled the motion for re-entry of judgment.
{¶ 4} Stevens appealed, again arguing 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
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eligible for parole after 20 years. Upon review, we 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 (hereinafter “Stevens II ”). We held that this
Court lacked jurisdiction to address Stevens’s argument since it related to 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. Additionally, we 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. Since 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.
We also held that because Stevens failed to raise an allied offense issue in his direct
appeal, res judicata barred him from raising it as well. Id. at ¶ 12.
{¶ 5} On December 13, 2017, Stevens filed another motion for resentencing,
wherein he 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 overruled Stevens's motion for
resentencing. Stevens appealed, arguing that the trial court erred in overruling the
motion for resentencing he filed in 2017 because it 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 his argument, Stevens relied upon the
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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.” R.C. 2929.03(A).
{¶ 6} In State v. Stevens, 2d Dist. Montgomery No. 27872, 2018-Ohio-4439
(hereinafter “Stevens III”), we affirmed the judgment of the trial court, stating the following:
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. 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.
Id. at ¶ 10.
{¶ 7} We also held that even if Stevens's argument were not barred by res judicata,
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. Id. at ¶ 12.
“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.”
Id.
{¶ 8} On April 8, 2019, Stevens filed a “Motion to Void/Vacate Sentencing
Judgment.” Just as he argued unsuccessfully in Stevens II and Stevens III, Stevens
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again asserted 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. Additionally, as he did in Stevens II, Stevens argued that the trial court
erred when it failed to merge his three aggravated robbery offenses for the purpose of
sentencing. In a decision issued on June 19, 2019, the trial court overruled Stevens’s
motion, holding that both of the arguments advanced by Stevens in his motion were
barred by res judicata.
{¶ 9} It is from this judgment that Stevens now appeals.
{¶ 10} Because they are interrelated, Stevens’s first and second assignments of
error will be discussed together as follows:
WHERE NO STATUTORY AUTHORITY EXISTS [PURSUANT TO
R.C. 2929.03] FOR A SENTENCE OF ‘A LIFE TERM,’ SUCH A
SENTENCE IS CONTRARY TO LAW; AND NON-COMPLIANCE WITH
STATUTORY (SENTENCING) REQUIREMENTS RENDERS THE
JUDGMENT VOID, FOR LACK OF AUTHORITY TO ACT *** [sic].
THE AGGRAVATED ROBBERY SENTENCES [HEREIN] ARE
CONTRARY TO LAW, AS THEY ARE ALLIED OFFENSES *** [sic] AND
MUST BE MERGED PURSUANT TO NONDISCRETIONARY
STATUTORY REQUIREMENTS /AUTHORITY.
{¶ 11} In his first assignment, Stevens contends that 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. In his second
assignment, Stevens argues that the trial court erred when it failed to merge the
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aggravated robberies for sentencing.
{¶ 12} In his first assignment, Stevens is arguing exactly what he argued in
Stevens II and Stevens III: 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. Again, 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. Stevens II, 2d Dist. Montgomery No. 26328, 2015-Ohio-2971,
at ¶ 11, citing State v. Johnston, 2d Dist. Montgomery No. 25652, 2013-Ohio-4401, at
¶ 13-16; see also Stevens III, 2d Dist. Montgomery No. 27872, 2018-Ohio-4439, at ¶ 10.
{¶ 13} Stevens’s second assignment, that the trial court failed to consider whether
the aggravated robberies merged as allied offenses, is also barred by res judicata. It is
well-established that “ ‘[t]he issue of merger of allied offenses of similar import must be
raised in an appellant's direct appeal or it is barred by res judicata.’ ” State v. Bowman,
2d Dist. Montgomery No. 26162, 2015-Ohio-1162, ¶ 11, quoting State v. Martin, 7th Dist.
Mahoning No. 13 MA 178, 2014-Ohio-5723, ¶ 20; see also State v. Johnson, 2d Dist.
Montgomery No. 25711, 2013-Ohio-4946, ¶ 7. Therefore, because Stevens failed to
raise the allied offenses issue in his direct appeal, res judicata bars him from raising it
here. See Stevens II at ¶ 12.
{¶ 14} Stevens’s First and Second Assignments of Error are overruled.
{¶ 15} Both of Stevens’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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TUCKER, P.J. and WELBAUM, J., concur.
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Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Jeffrey E. Stevens
Hon. Michael W. Krumholtz