State v. Burston

2012 Ohio 160

• Court: Ohio Court of Appeals
• Decided: January 19, 2012
• Docket: 96979
• Status: Published

Opinion

[Cite as State v. Burston, 2012-Ohio-160.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96979

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RICO BURSTON DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-504827, CR-506032, and CR-512011

BEFORE: E. Gallagher, J., Stewart, P.J., and Jones, J.

RELEASED AND JOURNALIZED: January 19, 2012 FOR APPELLANT 2

Rico Burston, pro se Inmate # 560-164 Richland Correctional Institution P.O. Box 8107 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Mary McGrath Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} This is an accelerated appeal brought pursuant to App.R. 11.1 and Local App.R.

11.1.

{¶ 2} Rico Burston appeals from the denial of his motion to correct a void sentence.

Burston argues the trial court’s failure to impose the statutorily mandated driver’s license

suspensions pursuant to R.C. 2925.03(G) and 2925.11(E)(2) renders his sentences in cases

CR-504827, CR-506032, and CR-512011 void. Finding merit to this appeal, we reverse and

remand for resentencing to address the Ohio driver’s license suspension.

{¶ 3} This appeal concerns three criminal cases in which Burston was convicted on 3

four counts of drug trafficking and one count of drug possession, all with forfeiture

specifications. The trial court sentenced Burston on or about November 10, 2008 to a

cumulative prison term of six years, with three years of postrelease control. Because the

initial sentencing entries did not address the forfeiture specifications, there was no final

appealable order. See State v. Byrd, 8th Dist. No. 91090, 2009-Ohio-1876, 2009 WL

1086812. As a result, Burston moved to correct the entries to comply with Crim.R. 32(C).

On June 25, 2009, the trial court entered nunc pro tunc journal entries that included the

forfeiture specifications.

{¶ 4} Burston appealed, seeking reversal of his guilty plea and the resulting six year

prison sentence. On October 21, 2010, this court overruled Burston’s appeal and affirmed

his guilty plea and sentence. See State v. Burston, 8th Dist. No. 93645, 2010-Ohio-5120,

2010 WL 4136981.

{¶ 5} On June 7, 2011, the defendant filed a motion to correct void sentences and lack

of a final appealable order, claiming that because the trial court failed to impose the mandatory

license suspension in all three of his cases, his sentences were void. The trial court denied

Burston’s motion. Burston appeals, raising a single assignment of error: 1

1 “[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.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. 4

The trial court abused its discretion when it denied Burston’s motion for sentencing to correct void sentences and lack of a final, appealable order, thereby denying his right to Due Process and Equal Protection in violation of the Fourteenth Amendment to the United States Constitution.

{¶ 6} Burston’s appeal is primarily based on State v. Harris, 190 Ohio App.3d 417,

2010-Ohio-5374, 942 N.E.2d 407 (8th Dist. 2010), in which this court held that a sentence is

void where the trial court failed to impose a mandatory driver’s license suspension. 2

{¶ 7} Similar to Harris, the trial court in Burston’s case failed to suspend Burston’s

driver’s license when it sentenced him on all three underlying cases. Pursuant to statute,

Burston’s four convictions all carry with them a mandatory driver’s license suspension of

between six months and five years. R.C. 2925.03(G), R.C. 2925.11(E)(2). As stated in

Harris, when a sentence fails to impose a mandated term such as a driver’s license suspension,

that sentence is void. See also, State v. Donahue, 8th Dist. No. 89111, 2007-Ohio-6825,

2007 WL 4442669. “When a sentence is void because it does not contain a statutory

mandated term, the proper remedy is to resentence the defendant.” Id., citing State v.

Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774 (1984).

{¶ 8} In view of the fact that appellant is currently serving a six year prison term, and

2 The Ohio Supreme Court certified that a conflict existed between this court’s decision in Harris and State v. Thomas, 1st Dist. Nos. C-090716 and C-090463, 2010-Ohio-4856 (1st Dist. 2010), in which the First Appellate District held that “a driver’s license suspension is not a ‘statutorily mandated term’ akin to postrelease control.” Ohio Supreme Court Case No. 2011-0010, which was argued on November 15, 2011. 5

the maximum license suspension that can be imposed is five years, this appeal is essentially

an exercise in futility and purely an academic exercise. However, in conjunction with this

court’s prior precedent, we reverse the judgment of the trial court and remand for resentencing

on Case Nos. CR-504827, CR-506032, and CR-512011.

This cause is reversed and remanded to the lower court for further proceedings

consistent with this opinion.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, J., CONCURS; and MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY