State v. Payne

[Cite as State v. Payne, 2020-Ohio-1009.]
PIN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, : No. 19AP-248
(C.P.C. No. 01CR-3300)
Plaintiff-Appellee, : and
No. 19AP-250
v. : (C.P.C. No. 01CR-3339)
Scott E. Payne, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 17, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Scott E. Payne, pro se.
APPEALS from the Franklin County Court of Common Pleas
BRUNNER, J., authoring lead opinion.
{¶ 1} Defendant-appellant, Scott E. Payne, appeals a decision and judgment of the
Franklin County Court of Common Pleas entered on March 28, 2019, denying Payne's
motion to correct his sentence on the grounds that it was void as originally issued. Because
the trial court erred in construing Payne's motion to correct a void sentence as a
postconviction petition and because a number of errors exist in the judgment entry with
respect to Franklin C.P. No. 01CR-3300, the trial court's judgment is reversed and
remanded with instructions to issue a corrected judgment entry.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In 2001, under two separate case numbers, Payne was indicted for 6 counts
of aggravated robbery, 12 counts of robbery, 4 counts of kidnapping, and 1 count of assault.
(June 5, 2001 Indictment 01CR-3300; June 8, 2001 Indictment 01CR-3339.) All counts
except the assault were accompanied by firearm specifications. (June 5, 2001 Indictment
01CR-3300; June 8, 2001 Indictment 01CR-3339.) After a lengthy trial, the jury found
Nos. 19AP-248 and 19AP-250 2
Payne guilty of all counts and specifications except the assault charge. (Apr. 12, 2002
Verdict Forms.) We have previously recounted the factual underpinning of the charges in
detail in Payne's direct appeal. State v. Payne, 10th Dist. No. 02AP-723, 2003-Ohio-4891,
¶ 3-11. In short, the charges stemmed from the armed robberies of 2 flower shops and a
credit union and there was sufficient and persuasive evidence of Payne's guilt. Id. at ¶ 1, 3-
11, 74-76.
{¶ 3} On May 28, 2002, the trial court convened a sentencing hearing. (May 28,
2002 Sentencing Tr., filed Sept. 23, 2002.)1 At the hearing, the prosecution conceded and
the trial court agreed that the alternatively charged aggravated robberies should merge with
the robbery counts, leaving six aggravated robbery charges (one for each person victimized
in the course of the three robberies). Id. at 5, 10-12. The trial court then reasoned, over the
objection of the State, that the kidnappings essentially only occurred as part of the
aggravated robberies and therefore merged those charges also into the aggravated
robberies. Id. at 5-11.
{¶ 4} The court sentenced Payne on Franklin C.P. No. 01CR-3339 first. Id. at 12-
13. This case involved the robbery of a credit union and also of a bystander. Id. In that
case, the court sentenced Payne to serve consecutive terms of 10 years for each of the 2
aggravated robberies (Counts 1 and 4) plus 3 prior and consecutive years for each of the 2
associated firearm specifications. Id. Thus, on that case, the trial court imposed a total of
26 years and also determined that the sentence would run consecutively to the sentence it
was about to impose in case No. 01CR-3300. Id. at 13. Approximately one week later, it
journalized an entry memorializing the sentence it orally indicated it would impose.
(June 3, 2002 Jgmt. Entry 01CR-3339.)
{¶ 5} In case No. 01CR-3300, which was the case concerning the 2 flower shop
robberies (and the persons in the shops), the trial court sentenced Payne to serve 10 years
on each of the 4 aggravated robberies (Counts 1, 4, 8, and 12). (Sentencing Tr. at 14-15.) It
ordered Payne to serve 3 of the 10-year sentences concurrently with each other (Counts 1,
4, and 8), but consecutively to the remaining 10-year aggravated robbery sentence (Count
12). Id. at 15. It remarked that, as a consequence of its decision to run 3 of the aggravated
1Where identical documents are filed in both underlying criminal cases, we omit the case number from the
citation.
Nos. 19AP-248 and 19AP-250 3
robbery sentences concurrently, the 3 associated firearm specifications merged into one,
leaving just 2 of the original 4 firearm specifications. Id. Ultimately, the court imposed 2
consecutive 10-year sentences and 2 consecutive 3-year firearm specifications for a total of
26 years. Id. at 14-15. It issued an entry approximately one week later in which it generally
attempted to impose the same sentence it orally imposed.
{¶ 6} However, that judgment entry differed from its oral pronouncement.
Although the trial court noted that the specifications to the 3 concurrently sentenced
aggravated robbery counts "merge[d]," it stated that it was imposing 3-year sentences for
each of the 3 specifications concurrently. (June 3, 2002 Jgmt. Entry 01CR-3300 at 2.) It
is also noteworthy for the purposes of this appeal that, although the entry referenced the
firearm specification to Count 12 and indicated that the concurrent sentences imposed on
Counts 1, 4, and 8 would run consecutively to Count 12, it never actually imposed a sentence
for Count 12. Id. But, in a corrected judgment entry issued one week later, the trial court
rectified the clerical error with respect to Count 12. (June 11, 2002 Corr. Jgmt. Entry 01CR-
3300 at 2.) Finally, although the court properly noted that Count 11 merged into Count 8
in both the original and corrected entries, in the recitation of the Counts of which jury found
Payne to be guilty, both entries did not reference Count 11. (June 3, 2002 Jgmt. Entry
01CR-3300 at 1; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 at 1.)
{¶ 7} After making findings on the issue of jail-time credit, the trial court discussed
the reasons it had imposed consecutive terms of imprisonment. (Sentencing Tr. at 18-19.)
Then it discussed post-release control:
[Court]: This time that I have given you, you're going to do this
time day for day. If you live long enough and they finally run
out of time here and they release you from the prison, the Adult
Parole Authority will supervise your behavior out on the street
for five years after your release. During that period of time, if
you violate any condition of your release, they could return you
to the prison for up to nine months for each violation.
If there are multiple violations, these nine-month periods could
total up to 50 percent of whatever this sentence is, and to be
honest with you I haven't even totalled it up. But whatever
these numbers are, if they're 50, if you mess up repeatedly
when you get out, they could send you back for another 25 years
nine months at a time. Do you understand all of that?
[Payne]: Yes.
Nos. 19AP-248 and 19AP-250 4
Id. at 19-20. All of the sentencing entries stated that the court had notified the defendant
regarding "the possibility of the applicable periods of post-release control." (June 3, 2002
Jgmt. Entry 01CR-3300 at 3; June 3, 2002 Jgmt. Entry 01CR-3339 at 2; June 11, 2002
Corr. Jgmt. Entry 01CR-3300 at 3.)
{¶ 8} Payne appealed and this Court affirmed. Payne, 2003-Ohio-4891.
{¶ 9} Over the years that followed, Payne filed (among other petitions and
motions) a number of motions to correct his sentence, arguing that more of the counts
should have merged and that the trial court misapplied the sentencing statutes. (Aug. 10,
2006 Mot. to Corr. Sentence; Oct. 20, 2011 Mot. for Resentencing 01CR-3339; June 19,
2012 Mot. to Corr. Sentence; Dec. 6, 2012 Mot. to Corr. Sentence.) When the first of these
was denied, an appeal occurred. State v. Payne, 10th Dist. No. 07AP-104, 2007-Ohio-4594.
We affirmed the trial court's denial in 2007 based on the notion that a postconviction
petition was the "exclusive remedy by which a person may bring a collateral challenge to
the validity of a conviction or sentence in a criminal case" and that Payne's motion, if
construed as a petition, was untimely. Id. at ¶ 5, 7-9.
{¶ 10} After that appeal, the trial court denied one more of Payne's motions, noting
that his repetitive requests were barred by res judicata. (Dec. 3, 2012 Decision & Entry
01CR-3339.) Payne's motions appear generally to have gone unaddressed by the trial court
after that point until the denial of the motion which forms the basis of this appeal.
{¶ 11} Payne filed the latest motion to correct his sentence on July 9, 2018. (July 9,
2018 Mot. to Corr. Sentence.) When several months passed without action by the trial
court, Payne filed a notice on November 28, 2018 informing the trial court that, after our
previous decision in 2007, the law had changed as a result of the Supreme Court of Ohio's
decision in State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238. According to Fischer,
motions to correct void sentences were now considered a proper filing, were not to be
considered postconviction petitions, and were not to be denied on grounds of res judicata.
(Nov. 28, 2018 Notice, citing Fischer at ¶ 25.) Yet, on March 28, 2019, the trial court denied
Payne's motion, characterizing it as an untimely successive postconviction petition and
finding that it was unsuccessful in invoking the jurisdiction of the court. (Mar. 28, 2019
Decision & Entry at 2-3.)
{¶ 12} Payne now appeals.
Nos. 19AP-248 and 19AP-250 5
II. ASSIGNMENTS OF ERROR
{¶ 13} Payne presents six assignments of error for review:
[1.] The trial court abused its discretion when it denied
Defendant-appellant's Motion to Correct a facially illegal
sentence as a post-conviction motion.
[2.] A Judgment entry is not a final appealable order when its
judgment entry is in violation State v. Lester, 130 Ohio St. 3d
303, 2011-Ohio-5204, 958 N.E.2d 142, where the sentencing
entry fails to set forth the fact of conviction, and fails to set forth
the sentence to count twelve.
[3.] The trial court's sentence on Defendant-Appellant's
firearm specification is contrary to law and thus, void where it
failed to sentence the Defendant-Appellant on the one-year
firearm specifications in case No. CR 06 3300.
[4.] The trial court's sentence on Defendant-Appellant's
firearm specification is contrary to law and thus, void when it
failed to impose the firearm specification consecutively to and
prior to any prison term imposed in case No. CR 06 3300 and
CR 06 3339.
[5.] The trial court's sentence in CR 06 3300 is contrary to law
when it imposed sentence on the firearm specification as an
actual incarceration, and imposes individual sentences on
firearms specifications, then merges the sentences, and then
runs the sentence as concurrent sentences.
[6.] The trial court's judgment entry in CR 06 3330 and CR 06
3339 is contrary to law when it failed to properly impose post
release control.
(Sic passim.)
III. DISCUSSION
A. First Assignment of Error – Whether Payne's Motion to Correct a Void
Sentence Should have been Construed as a Post-Conviction Petition and
Denied as Untimely
{¶ 14} In general, the postconviction relief process is a collateral civil attack on a
criminal judgment. State v. Steffen, 70 Ohio St. 3d 399, 410 (1994). "It is a means to reach
constitutional issues which would otherwise be impossible to reach because the evidence
supporting those issues is not contained" in the trial court record. State v. Murphy, 10th
Dist. No. 00AP-233, 2000 WL 1877526, 2000 Ohio App. LEXIS 6129, *5 (Dec. 26, 2000);
Nos. 19AP-248 and 19AP-250 6
see also, e.g., State v. Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15. If Payne had
genuinely filed a postconviction petition rather than a motion to correct his sentence, he
would have been required to show "that there was such a denial or infringement of [his]
rights as to render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States." R.C. 2953.21(A)(1)(a). Since he had previously filed a
bona fide postconviction petition, he would also have had to demonstrate that he "was
unavoidably prevented from discovery of the facts upon which [he] must rely to present the
claim for relief" and that "but for constitutional error at trial, no reasonable factfinder
would have found [him] guilty of the offense of which [he] was convicted." R.C.
2953.23(A)(1)(a) and (b).
{¶ 15} Payne's arguments in his motion to correct his sentence are essentially that
the trial court imposed a sentence that was not in accordance with its statutory authority.
(July 9, 2018 Mot. to Corr. Sentence in passim.) Payne's motion does not attempt to argue
that his constitutional rights were violated, or that he was unavoidably prevented from
discovering facts essential to his claim, or that, but for the constitutional rights violation,
he would not have been convicted. See R.C. 2953.21(A)(1)(a); R.C. 2953.23(A)(1)(a) and
(b). In short, Payne's motion is not argued or substantively designed as a traditional
postconviction petition. Rather it is a claim that the judgment against him is void in part
because the trial court did not sentence in accordance with its statutory authority. (July 9,
2018 Mot. to Corr. Sentence at 1.)
{¶ 16} The Supreme Court has found that postconviction proceedings under
Chapter 2953 of the Ohio Revised Code are not the exclusive means by which a criminal
defendant may challenge his conviction after the judgment has become final:
The state urges us to conclude, however, that because the
General Assembly has provided a statutory remedy for
addressing claimed constitutional error, the postconviction
scheme is the exclusive avenue of redress. Thus, the state
asserts, courts must construe postsentence Crim.R. 32.1
motions that are based on constitutional violations to be
postconviction petitions. We disagree.
(Emphasis sic.) State v. Bush, 96 Ohio St. 3d 235, 2002-Ohio-3993, ¶ 12. The high court
has also recognized that one motion an offender may file, even after a conviction becomes
Nos. 19AP-248 and 19AP-250 7
final, is a motion arguing that his sentence is illegal because it was imposed beyond the
bounds of the sentencing court's statutory authority:
"A motion to correct an illegal sentence 'presupposes a valid
conviction and may not, therefore, be used to challenge alleged
errors in proceedings that occur prior to the imposition of
sentence.' " Edwards v. State (1996), 112 Nev. 704, 708, 918
P.2d 321, quoting Allen v. United States (D.C.1985), 495 A.2d
1145, 1149. It is, however, an appropriate vehicle for raising
the claim that a sentence is facially illegal at any time. Id. The
scope of relief based on a rule, like Fed.R.Crim.P. 35, is likewise
constrained to the narrow function of correcting only the illegal
sentence. It does not permit reexamination of all perceived
errors at trial or in other proceedings prior to sentencing. See,
e.g., Hill v. United States (1962), 368 U.S. 424, 430, 82 S. Ct.
468, 7 L. Ed. 2d 417.
(Emphasis added.) Fischer at ¶ 25; see also State v. Moore, 135 Ohio St. 3d 151, 2012-Ohio-
5479, ¶ 15.
{¶ 17} This Court and others have expressed concerns about the view that a
defendant should be permitted to challenge a sentence at any time as void (rather than
voidable) simply because a court erred in imposing the sentence and ignored or exceeded
some statutory requirement:
The Supreme Court previously recognized that "a void
judgment is one that has been imposed by a court that lacks
subject-matter jurisdiction over the case or the authority to act"
while a "voidable judgment is one rendered by a court that has
both jurisdiction and authority to act, but the court's judgment
is invalid, irregular, or erroneous." State v. Simpkins, 117 Ohio
St.3d 420, 2008-Ohio-1197, ¶ 12, 884 N.E.2d 568. The high
court has also recognized that "we commonly hold that
sentencing errors are not jurisdictional and do not necessarily
render a judgment void." Id. at ¶ 13. Yet, in cases such as
Williams, the Supreme Court has embraced exceptions that
threaten to swallow the rule and lead to a situation where
virtually any allegedly serious error in sentencing can be
revived time and time again without being foreclosed by res
judicata. This Court and others have expressed concerns about
the legal basis and limits of the "voidness" doctrine that the
Supreme Court has created in this context. State v. Banks, 10th
Dist. No. 15AP-653, 2015-Ohio-5372, ¶ 16, fn. 1; see also State
v. Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927, ¶ 34-39, 85
N.E.3d 700 (DeWine, J., concurring in judgment only); State
Nos. 19AP-248 and 19AP-250 8
v. Fischer, 128 Ohio St 3d 92, 2010-Ohio-6238, ¶ 41-57, 942
N.E.2d 332 (Lanzinger, J., dissenting).
State v. Steele, 10th Dist. No. 18AP-187, 2018-Ohio-3950, ¶ 11, fn. 1. This Court has
sometimes characterized motions seeking resentencing or to vacate a conviction as
postconviction petitions and considered them under the standards of review applied to
such petitions. State v. Draughon, 10th Dist. No. 18AP-709, 2019-Ohio-1461, ¶ 10; State
v. Jennings, 10th Dist. No. 17AP-248, 2018-Ohio-3871, ¶ 5; State v. Bankston, 10th Dist.
No. 13AP-250, 2013-Ohio-4346, ¶ 7.
{¶ 18} However, unless and until the Supreme Court revisits Fischer, when a
defendant such as Payne seeks only to claim that his sentence is void or partially void due
to the trial court sentencing outside its statutory authority, there seems little choice but to
evaluate it under Fischer and progeny. In light of that, this Court and the Supreme Court
have considered many motions to correct void sentences without construing them as
postconviction petitions. See, e.g., Moore at ¶ 15 & in passim; State v. Peoples, 10th Dist.
No. 18AP-850, 2019-Ohio-2141, ¶ 9-15; State v. Bridges, 10th Dist. No. 18AP-262, 2018-
Ohio-4844, in passim; State v. Melhado, 10th Dist. No. 15AP-960, 2016-Ohio-3346, ¶ 8;
State v. Maser, 10th Dist. No. 15AP-129, 2016-Ohio-211, in passim. Even the State's brief
in this appeal concedes that "a motion to correct a void sentence is distinct from a
postconviction petition." (State's Brief at 2, citing Fischer).
{¶ 19} In this case, Payne's motion was not filed as a postconviction petition. It was
a motion requesting that the trial court "correct its facially illegal sentence." (July 9, 2018
Mot. to Corr. Sentence at 1.) Yet, the trial court, citing a decision that pre-dates Fischer,
reasoned "regardless of how Defendant captions his motion, it is considered a petition for
post-conviction relief because Defendant filed it after his direct appeal and he seeks to have
this Court render the judgment against him void." (Mar. 28, 2019 Decision & Entry at 2.)
It then found that Payne had not met the statutory requirements of R.C. 2953.23(A) for
filing a postconviction petition. Id. at 2-3. Because Payne had not complied with the
requirements of R.C. 2953.23, the trial court concluded that Payne had not successfully
invoked its jurisdiction to consider the "untimely petition for post conviction relief." Id. at
2-3. This was error.
{¶ 20} Because Fischer and other cases of the Supreme Court make clear that
motions to correct void sentences are cognizable, the trial court erred in treating Payne's
Nos. 19AP-248 and 19AP-250 9
motion as a postconviction petition and dismissing it on timeliness grounds. Payne's first
assignment of error is sustained.
B. Second Assignment of Error – Whether the Judgment Entry was a Final
Appealable Order
{¶ 21} Payne argues that the original judgment entry in his case was not a final
appealable order because it omitted to state that the jury found him guilty of Count 11 and
because it failed to impose a sentence on Count 12. (Payne's Brief at 6-9, citing State v.
Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204.) Under Lester and Ohio Rule of Criminal
Procedure 32(C), a "judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's
signature, and (4) the time stamp indicating the entry upon the journal by the clerk." Lester
at paragraph one of the syllabus. However, this Court has also recognized that courts do
retain jurisdiction to correct clerical errors and clerical errors generally do not prevent
judgments from becoming final. Id. at paragraph two of the syllabus; State v. Raber, 134
Ohio St. 3d 350, 2012-Ohio-5636, ¶ 20.
{¶ 22} Although the trial court's original judgment entry referenced the firearm
specification to Count 12 and indicated that the concurrent sentences imposed on Counts
1, 4, and 8 would run consecutively to Count 12, it never actually imposed a sentence for
Count 12. (June 3, 2002 Jgmt. Entry 01CR-3300 at 2.) But the trial court corrected this
clerical omission approximately one week later. (June 11, 2002 Corr. Jgmt. Entry 01CR-
3300 at 2.) It is also true that, in listing the offenses of which jury found Payne to be guilty,
the trial court omitted mentioning Count 11 in both the original and corrected entries.
(June 3, 2002 Jgmt. Entry 01CR-3300 at 1; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 at
1.) However, in both entries, the court explained that Count 11 merged with Count 8 and,
thus, although Payne was found guilty of Count 11, he was not convicted and sentenced on
Count 11. (June 3, 2002 Jgmt. Entry 01CR-3300 at 1; June 11, 2002 Corr. Jgmt. Entry
01CR-3300 at 1.)
{¶ 23} Payne's second assignment of error is overruled.
C. Third Assignment of Error – Whether the Trial Court Ought to Have
Sentenced Payne on the One-Year Firearm Specifications
{¶ 24} Payne notes that, in case No. 01CR-3300, he was charged with one-year
firearm specifications in addition to the three-year firearm specifications and that, though
Nos. 19AP-248 and 19AP-250 10
the trial court sentenced him on the three-year specifications, it did not dispose of the one-
year firearm specifications. (Payne's Brief at 9-10.) However, in each of the verdict forms,
the jury indicated a finding that Payne had "displayed and/or brandished and or use[d] the
firearm to facilitate the offense." See, e.g., Apr. 12, 2002 Verdict Form 01CR-3300 Count
1. Under R.C. 2929.14(D)(1)(a)(i) through (iii), R.C. 2941.141(B) and 2941.145(B) as
constituted at the time of the offenses and sentencing, if a court imposed the three-year
term consistent with the finding that an offender "display[ed] the firearm, brandish[ed] the
firearm, indicat[ed] that the offender possessed the firearm, or us[ed] it to facilitate the
offense," it could not also impose a one-year term. See 2002 Am.Sub.H.B. No. 4852; 2001
Am.Sub.S.B. No. 179.3 Thus, the trial court could not have imposed the one-year
specifications and there was, therefore, nothing for the trial court to have disposed of.
{¶ 25} Payne's third assignment of error is overruled.
D. Fourth Assignment of Error – Whether the Trial Court Erred in
Imposing the Firearm Specifications
{¶ 26} Payne points out that R.C. 2929.14(E)(1)(a) provided at the time of the
offense and sentencing4 that mandatory prison terms imposed under division (D)(1)(a) of
the statute were to be served "consecutively to and prior to any prison term imposed for the
underlying felony." (Emphasis omitted.) (Payne's Brief at 11.) Because the trial court did
not mention in its entries that the specifications were to be served "prior to" Payne's
substantive prison terms, he alleges the entries are defective and void. Id. at 11-12.
However, though consecutive specification sentences are, as a matter of statute, to be
served prior to the prison term for the underlying offense, there is no requirement that the
trial court specifically state that statutory rule in its entries. Such failure to do so does not
render the entries erroneous or void.
{¶ 27} Payne's fourth assignment of error is overruled.
E. Fifth Assignment of Error – Whether the Trial Court Erred by Merging
the Firearm Specifications, Imposing Multiple Sentences, or Referring
to the Sentences as "Actual Incarceration"
{¶ 28} Payne argues that the trial court erred in referring to the terms imposed for
Payne's firearm specifications as "actual incarceration" because that was a term of art used
2 Archived online at 2001 Ohio HB 485.
3 Archived online at 1999 Ohio SB 179.
4 This requirement is now found in division (C)(1)(a) of R.C. 2929.14.
Nos. 19AP-248 and 19AP-250 11
in statutes predating Payne's sentencing. (Payne's Brief at 13-15.) Payne is correct both
that the trial court referred to the imprisonment imposed in connection with the
specifications as "actual" rather than "mandatory" and that the term "actual" had been
replaced by the term "mandatory" by the time of his sentencing. See 1995 Am.Sub.S.B. No.
25; June 3, 2002 Jgmt. Entry 01CR-3300 at 2; June 11, 2002 Corr. Jgmt. Entry 01CR-3300
at 2; June 3, 2002 Jgmt. Entry 01CR-3339 at 2. It is not clear that this error in terminology
has had any practical effect on Payne. Nevertheless, an incorrect term was used to describe
the mandatory three-year sentences imposed for the firearm specifications.
{¶ 29} Payne also argues that the trial court imposed multiple sentences for firearm
specifications relating to a single act or transaction and despite having merged the
specifications. (Payne's Brief at 15-17.) He is again correct.
{¶ 30} At the time Payne was sentenced, a court was not permitted to "impose more
than one prison term on an offender [for a firearm specification in relation to] felonies
committed as part of the same act or transaction." See R.C. 2929.14(D)(1)(b) (2007).
Senate Bill No. 184 added an exception to that rule in 2008 which is now found in division
(B)(1)(g) of the definite sentencing statute:
If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated
murder, murder, attempted aggravated murder, attempted
murder, aggravated robbery, felonious assault, or rape, and if
the offender is convicted of or pleads guilty to a specification of
the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing
court shall impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of the two most
serious specifications of which the offender is convicted or to
which the offender pleads guilty and, in its discretion, also may
impose on the offender the prison term specified under that
division for any or all of the remaining specifications.
R.C. 2929.14(B)(1)(g); see also 2008 Am.Sub.S.B. No. 184.6 This exception did not exist at
the time of Payne's sentencing. But still the trial court sentenced Payne to serve terms of
imprisonment (albeit concurrent ones) as to the specifications on Counts 1, 4, and 8 (all of
which concerned the robbery of a single flower shop and persons therein). (June 5, 2001
5 Archived online at 1995 Ohio SB 2.
6 Archived online at 2007 Ohio SB 184.
Nos. 19AP-248 and 19AP-250 12
Indictment 01CR-3300 at 1-8; June 3, 2002 Jgmt. Entry 01CR-3300 at 2; June 11, 2002
Corr. Jgmt. Entry 01CR-3300 at 2.)
{¶ 31} In addition, the trial court merged these specifications both by oral recitation
and in writing in the judgment entry. (Sentencing Tr. at 15; June 3, 2002 Jgmt. Entry
01CR-3300 at 2; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 at 2.) Yet, despite having
merged the specifications, it imposed concurrent sentences for each of the specifications
accompanying Counts 1, 4, and 8. (June 3, 2002 Jgmt. Entry 01CR-3300 at 2; June 11,
2002 Corr. Jgmt. Entry 01CR-3300 at 2.) This was error and rendered the judgment entry
void in relevant part such that modification or correction is now appropriate. State v.
Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658, ¶ 2, 31-34.
{¶ 32} Payne's fifth assignment of error is sustained.
F. Sixth Assignment of Error – Whether the Trial Court Properly Imposed
Post-Release Control in its Entry
{¶ 33} "[A] trial court has a statutory duty to provide notice of postrelease control at
the sentencing hearing" and "any sentence imposed without such notification is contrary to
law." State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, ¶ 23.7 "[S]tatutorily compliant
notification" includes "notifying the defendant of the details of the postrelease control and
the consequences of violating postrelease control." State v. Qualls, 131 Ohio St. 3d 499,
2012-Ohio-1111, ¶ 18. The "preeminent purpose" of such notice is that "offenders subject
to postrelease control know at sentencing that their liberty could continue to be restrained
after serving their initial sentences." Watkins v. Collins, 111 Ohio St. 3d 425, 2006-Ohio-
5082, ¶ 52. However, because a court is generally said to speak only through its journal,
the trial court, in addition to oral notification at the sentencing hearing, is "required to
incorporate that notice into its journal entry imposing sentence." Jordan at ¶ 6, 17,
paragraph one of the syllabus.
{¶ 34} Notification and incorporation in the judgment entry of the post-release
control sanction are necessary to "empower[] the executive branch of government to
exercise its discretion." Jordan at ¶ 22. Thus, "to validly impose postrelease control, a
minimally compliant entry must provide the APA [Adult Parole Authority] the information
7 See also State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, ¶ 35-36 (Pfeifer, J., concurring/dissenting),
which notes that, rather than provide a de novo sentencing hearing, courts may apply corrective procedures
as set forth in R.C. 2929.191.
Nos. 19AP-248 and 19AP-250 13
it needs to execute the postrelease-control portion of the sentence." State v. Grimes, 151
Ohio St. 3d 19, 2017-Ohio-2927, ¶ 13. The Supreme Court has clarified that a "sentencing
entry must contain the following information: (1) whether postrelease control is
discretionary or mandatory, (2) the duration of the postrelease-control period, and (3) a
statement to the effect that the Adult Parole Authority ("APA") will administer the
postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the
conditions of postrelease control will subject the offender to the consequences set forth in
that statute." Id. at ¶ 1.
{¶ 35} In this case, despite the fact that the trial court provided Payne with a detailed
oral notification, the judgment entry only provided that it had notified the defendant
regarding "the possibility of the applicable periods of post-release control." (June 3, 2002
Jgmt. Entry 01CR-3300 at 3; June 3, 2002 Jgmt. Entry 01CR-3339 at 2; Sentencing Tr. at
19-20.) This Court has held, in cases where oral notification is sufficient but written
notification is not, that the judgment entry may be corrected nunc pro tunc. State v.
Harper, 10th Dist. No. 17AP-762, 2018-Ohio-2529, ¶ 16-19.
{¶ 36} The State argues that the Grimes requirements should not be applied
retroactively. (State's Brief at 11-12.) Under typical circumstances, the Supreme Court has
recognized that "[a] new judicial ruling may be applied only to cases that are pending on
the announcement date." Ali v. State, 104 Ohio St. 3d 328, 2004-Ohio-6592, ¶ 6, citing
State v. Evans, 32 Ohio St. 2d 185, 186 (1972). In other words, 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." Ali at ¶ 6, citing Transamerica Ins. Co. v.
Nolan, 72 Ohio St. 3d 320, 323 (1995); Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio
St.3d 128 (1986), paragraph one of the syllabus; Evans at 186; State v. Lynn, 5 Ohio St. 2d
106, 108 (1966); State v. Gonzalez, 138 Ohio App. 3d 853, 859 (1st Dist.2000).
{¶ 37} However, the Supreme Court has also embraced the view that not properly
imposing post-release control renders a sentence void in relevant part and therefore open
to challenge at any time, irrespective of finality or other principles of res judicata. Fischer,
2010-Ohio-6238, at paragraphs one and two of the syllabus; Harper at ¶ 15. When post-
release control is not appropriately imposed in a trial court's judgment entry, the sentence
is partially void and never becomes final in that limited respect. Harper at ¶ 15. Thus, it is
Nos. 19AP-248 and 19AP-250 14
appropriate to correct it now under Grimes. Id.; see also Grimes at ¶ 1. The dissent in
Harper correctly observed that this argument may appear circular in the sense that the trial
court's judgment is only void when it issued if its deficiencies under Grimes could be
considered to have been deficiencies before the Grimes decision was published. Harper at
¶ 23 (Sadler, J., dissenting). But the view of Grimes this court adopted in Harper was that
Grimes was not judicially legislating a new set of requirements but, rather, clarifying
requirements that always existed. Thus, entries that failed to meet such requirements (even
prior to Grimes) and were void in consequence of that failure should be subject to later
correction.
{¶ 38} As this Court recognized when it decided Harper, this ruling is problematic
in that it encourages filings to obtain retroactive compliance with the clarification
enunciated by Grimes. Yet, the problem is not with Grimes or Harper. Rather, there are
problems with the line of cases that have promoted sentencing errors from mere errors that
render a judgment voidable, to breaches of statutory authority which render the judgment
void ab initio.
{¶ 39} Payne's sixth assignment of error is sustained.
IV. CONCLUSION
{¶ 40} The trial court erred in construing Payne's motion to correct a void sentence
as a postconviction petition and dismissing it as untimely. As Payne argued in his motion,
the original and corrected judgment entries with respect to case No. 01CR-3300 contain a
number of errors. The original entry (corrected, however) omitted imposition of a sentence
on Count 12, both entries impose concurrent sentences on the three merged firearm
specifications, and neither entry explained (1) whether post-release control was
discretionary or mandatory, (2) the duration of the post-release-control period, or included
(3) a statement to the effect that the Adult Parole Authority would administer post-release
control pursuant to R.C. 2967.28 and that any violation by Payne of the conditions of post-
release control would subject the offender to the consequences set forth in that statute.
{¶ 41} Therefore, Payne's first, fifth, and sixth assignments of error are sustained
and this case is remanded to the trial court with instructions to issue a corrected judgment
entry that provides only a single three-year sentence for the three merged firearm
specifications and notes that Payne will be subject to a five-year mandatory period of post-
release control to be administered by the Adult Parole Authority pursuant to R.C. 2967.28
Nos. 19AP-248 and 19AP-250 15
with the understanding that any violation by Payne of the conditions of post-release control
will subject him to the consequences set forth in that statute. Payne's second, third, and
fourth assignments of error are overruled.
Judgment reversed and
cause remanded with instructions.
NELSON, J., concurs in judgment only.
DORRIAN, J., concurs in judgment only in part and dissents in part.
DORRIAN, J., concurring in judgment only in part and dissenting in part.
{¶ 42} I respectfully dissent in part and concur in judgment only in part.
{¶ 43} I concur with the majority's conclusion that the original and corrected
original judgment entries were final and appealable orders and would overrule the second
assignment of error. This court has stated that "[i]f a direct appeal from the underlying
sentencing entry has previously been taken in and decided by the court of appeals, the
sentencing entry is implicitly a final order through application of the law of the case
doctrine." State v. Bates, 10th Dist. No. 17AP-869, 2019-Ohio-1172, ¶ 19.8 In Bates, we
8 Bates further explains at paragraphs 19-20:
[T]his court has found a consistent manner of dealing with sentencing
entries that are allegedly deficient under Crim.R. 32(C), after the trial court
has denied (rather than refused to rule upon) a motion to correct such an
entry. If a direct appeal from the underlying sentencing entry has previously
been taken in and decided by the court of appeals, the sentencing entry is
implicitly a final order through application of the law of the case doctrine. A
subsequent order from the trial court denying the defendant's motion to
correct the sentencing entry is itself a final appealable order, rather than
interlocutory, and may be addressed by this court on appeal. If, to the
contrary, no direct appeal was taken from the noncompliant sentencing
entry, that entry remains a non-final order and no direct appeal may be
taken from the subsequent order from the court denying a motion to correct
the sentencing entry. At that point, as in [State v.] Bonner, [10th Dist. No.
14AP-461, 2015-Ohio-1010], the defendant's remedy (once the trial court
has denied his motion to correct the sentencing entry) lies in a writ of
procedendo ordering the trial court to grant him the correct sentencing
entry to which he is entitled.
In contrast, if the defendant has pursued a legal remedy through a motion
before the trial court, and the court has simply declined to rule on the
motion, the defendant's remedy is through a writ of procedendo, and the
appealability of the underlying sentencing entry is not determinative. If the
defendant has yet to bring a motion before the trial court to correct the
underlying sentencing entry, neither an appeal nor a writ is ripe. Dunn [v.
Smith, 119 Ohio St. 3d 364, 2008-Ohio-4565].
Nos. 19AP-248 and 19AP-250 16
followed our precedent set forth in State v. I'Juju, 10th Dist. No. 15AP-692, 2016-Ohio-
3078, and State v. Monroe, 10th Dist. No. 13AP-598, 2015-Ohio-844. In I'Juju, we stated:
Initially, as we found in Monroe, the purpose of Crim.R. 32(C)
is to ensure that a defendant is on notice concerning when a
final judgment has been entered and the time for filing an
appeal has begun to run. Like the defendant in Monroe, in the
present case, appellant filed a direct appeal of the judgment;
thus, appellant cannot credibly argue that he was not on notice
regarding when a final judgment was entered. Furthermore,
consistent with our reasoning in Monroe, by reviewing and
affirming the trial court's judgment in I'Juju, this court
implicitly found the trial court's judgment was a final
appealable order, and the doctrine of law of the case would
preclude both the trial court and this court from concluding it
was not a final appealable order.
Although we indicated in Monroe that an appellate court may
choose to re-examine the law of the case it has itself previously
created if that is the only means to avoid injustice, appellant
has failed to demonstrate that any injustice would be prevented
by granting his motion. Appellant filed his motion to correct
judgment entry 30 years after the trial court filed the original
judgment, and appellant has failed to convince us that the trial
court's issuing a new entry at this very late juncture would
alleviate any prejudice or prevent an injustice.
Id. at ¶ 10-11.
{¶ 44} As in Bates, I'Juju, and Monroe, appellant in the consolidated cases before
us filed a direct appeal and this court took the appeal and decided the case 17 years ago.
State v. Payne, 10th Dist. No. 02AP-723, 2003-Ohio-4891. Therefore, pursuant to law of
the case doctrine, the original and corrected original sentencing entries were final and
appealable. Furthermore, appellant in this case has failed to demonstrate that any injustice
would be prevented if we were to accept his argument that the original and corrected
original judgment entries were not final and appealable. Therefore, I would decline to re-
examine the law of the case that the original and corrected original sentencing entries were
final and appealable.
{¶ 45} I concur in judgment only as to the first assignment of error. For this limited
reason, I would reverse and remand to the trial court to determine which, if any, of the
alleged errors set forth in the motion to correct a void sentence, if established, would render
Nos. 19AP-248 and 19AP-250 17
the sentence void in part or in its entirety and therefore would not be subject to res judicata
or the time constraints and criteria outlined at R.C. 2953.21 through 2953.23. In the event
an alleged error, if established, would not render the sentence void in part or in its entirety,
the court should apply the principles of res judicata and the time constraints and criteria
outlined in R.C. 2953.21 through 2953.23 to that particular error.
{¶ 46} I write separately regarding the first assignment of error to express caution
regarding the broad conclusion set forth in the lead opinion at paragraphs 17-18 and
suggested in footnote one of State v. Steele, 10th Dist. No. 18AP-187, 2018-Ohio-3950,
quoted in paragraph 17 of the lead opinion. While I recognize the concern of appellate
courts regarding the "swelling" of the Supreme Court of Ohio's "void-versus-voidable-
sentence jurisprudence," State v. Straley, __ Ohio St.3d __, 2019-Ohio-5206, ¶ 26, I think
it is important to note that the labeling of a motion as one "to correct or vacate a void
sentence" does not necessarily require a trial court to assume the petitioner has in fact
raised an issue that would render part or all of a sentence void and accordingly require the
trial court to evaluate the motion under State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-
6238, and its progeny.9 Such a motion does, however, require a trial court to carefully
examine the motion, and each separate alleged error raised therein, to determine whether
the alleged error, if established, would render part or all of the sentence void. Sometimes
this analysis involves a fine line. But, to be clear, not every sentencing error results in a
void sentence, even if a petitioner labels it as such. Furthermore, if such an error exists, it
may render the sentence void only in part, leaving the remainder of the sentence unaffected.
9 It is well-recognized that the caption or title of a motion is not controlling and that a court should consider
the content of the motion in determining how to treat it. Cooke v. United Dairy Farmers, Inc., 10th Dist. No.
05AP-1307, 2006-Ohio-4365, ¶ 29 ("Courts of this state have recognized that the name given to a pleading or
motion is not controlling. Rather, it is the substance of the pleading or motion that determines the operative
effect thereof."). (Internal citation omitted.) See also Carter-Jones Lumber Co. v. JCA Rentals, LLC, 7th Dist.
No. 12 MA 56, 2013-Ohio-863, ¶ 19 ("A court is entitled to rely on the caption of a motion when ruling on it,
but also has the discretion to construe the motion based on the contents in the body of the motion, itself.");
State ex rel. Browning v. Browning, 5th Dist. No. CT2011-CA-55, 2012-Ohio-2158, ¶ 43 ("Courts of this state
have recognized that the name given to a pleading or motion is not controlling. Rather, the substance of the
pleading or motion determines the operative effect thereof.") (Internal citation omitted.); State v. Workman,
12th Dist. No. CA2002-12-302, 2003-Ohio-4242, ¶ 6 ("It is not a motion's designation or title that is
controlling. Rather, a motion should be considered for what it is and its content rather than how it is
designated.") (Internal citation omitted.); Lungard v. Bertram, 86 Ohio App. 392, 395 (1st Dist.1949) ("We
are fully conscious that the name given to a pleading or motion is not controlling. It is the substance and not
the caption that determines the operative effect of a pleading or motion under the Code.").
Nos. 19AP-248 and 19AP-250 18
{¶ 47} Even post-Fischer and State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-
7658, some motions which purport to correct or vacate a void sentence are, simply,
petitions for postconviction relief—subject to the time constraints and criteria outlined at
R.C. 2953.21 through 2953.23 and subject to res judicata. Moreover, within the same
motion, some of the issues raised could be subject to res judicata and the criteria outlined
at R.C. 2953.21 through 2953.23, whereas others might not. See Fischer at ¶ 36-40 ("[T]he
court of appeals in this case correctly found that Fischer's remaining claims, which did not
involve a[] void sentence or judgment, were barred by res judicata. * * * [R]es judicata still
applies to other aspects of the merits of a conviction, including the determination of guilt
and the lawful elements of the ensuing sentence."). (Emphasis added.) Therefore, res
judicata10 may still apply to part or all of a motion captioned as a motion to vacate or correct
a void sentence. Thus, the trial court must engage in careful examination of such a motion
issue by issue. The trial court here did not engage in an issue-by-issue examination.
{¶ 48} I respectfully dissent from the lead opinion's analysis of the third, fourth,
fifth, and sixth assignments of error, and I would find them to be rendered moot pursuant
to reversal and remand on the first assignment of error. If, upon remand, the trial court
determines that some or all of the issues raised in appellant's motion would, if established,
render part or all of the sentence void, and thus are not subject to res judicata or the criteria
outlined at R.C. 2953.21 through 2953.23, the trial court should address these issues in the
first instance. I would not opine on issues not yet decided by the trial court.
{¶ 49} For these reasons, I respectfully dissent in part and concur in judgment only
in part. I concur in judgment only and would sustain the first assignment of error. I would
10It is also important to remember that this court has applied the doctrines of res judicata and law of the case
to previous determinations, within the same case, that an alleged error did not render a sentence void.
Accordingly, I would disagree with the statement in footnote 1 of Steele that an alleged sentencing error, even
one which claims to render a sentence void, could be "revived time and time again without being foreclosed
by res judicata." That is not the case. See State v. Haynes, 10th Dist. No. 14AP-276, 2015-Ohio-183, ¶ 14 ("We
believe that once an appellate court has ruled that a judgment is not void, that ruling binds the case for
purposes of future consideration."); State v. Anderson, 10th Dist. No. 15AP-897, 2016-Ohio-1089, ¶ 12-13
("Moreover, we have previously decided these issues in Anderson's previous appeal. We again find Anderson's
assignments of error to be without merit and we specifically hold that his sentence is not void. Therefore, his
claim is barred by res judicata."); see also State v. Sowell, 8th Dist. No. 107153, 2019-Ohio-701, ¶ 13 ("Sowell's
arguments are barred by res judicata. This court has repeatedly found that the sentence on the [repeat violent
offender] specification is not void; thus, any argument regarding sentencing should have been raised on direct
appeal."); State v. Burns, 2d Dist. No. 27374, 2018-Ohio-1419, ¶ 19 ("In [the appellant's] second appeal, we
found that the trial court properly imposed an aggregate sentence of 44 years to life. * * * Hence, we have
already determined that the sentence is not void, implicating the doctrine of res judicata.").
Nos. 19AP-248 and 19AP-250 19
reverse and remand and instruct the trial court to determine, alleged error by alleged error,
set forth in the motion to correct a void sentence, which, if any, of the alleged errors, if
established, would render the sentence void in part or in its entirety and therefore are not
subject to res judicata or the time constraints and criteria outlined at R.C. 2953.21 through
2953.23. I concur with the majority overruling the second assignment of error. I dissent
from the majority addressing the third, fourth, fifth, and sixth assignments of error and
would find the same to be rendered moot.