State v. Cotton

2015 Ohio 180

• Court: Ohio Court of Appeals
• Decided: January 22, 2015
• Docket: 101865
• Status: Published

Opinion

[Cite as State v. Cotton, 2015-Ohio-180.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101865

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

MILTON COTTON

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-92-281730-A

BEFORE: E.A. Gallagher, J., Celebrezze, A.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: January 22, 2015 FOR APPELLANT

Milton Cotton, pro se Inmate No. 234-317 2500 South Avon-Belden Road Grafton Camp Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Mary McGrath Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:

{¶1} Appellant Milton Cotton appeals the Cuyahoga County Court of Common Pleas

denial of his motions to correct a void sentence. Finding no merit to the appeal, we affirm.

{¶2} In 1992 Cotton was convicted of seven counts of receiving stolen property, two

counts of concealing motor vehicle identification, four counts of possession of criminal tools,

three counts of drug trafficking, having a weapon while under disability and two counts of title

law violations. Cotton’s convictions were affirmed by this court on direct appeal in State v.

Cotton, 8th Dist. Cuyahoga Nos. 64361 and 64378, 1994 Ohio App. LEXIS 3134 (July 14,

1994).

{¶3} On April 17, 2014, Cotton filed, pro se, a motion to correct void sentence. Cotton

filed a second motion to correct void sentence on May 12, 2014. Cotton argued that the trial

court erred in sentencing him to definite prison terms of four years on each of his convictions for

violating title law pursuant to R.C. 4505.19. The crux of Cotton’s argument was that his

four-year sentences for violating R.C. 4505.19 were void because a violation of that section was

a fourth-degree felony at the time of his offenses in September of 1990 and the trial court should

have imposed an indefinite prison sentence consisting of a minimum of six months, one year or

eighteen months and a maximum of five years. The trial court denied Cotton’s motions on

August 21, 2014. Cotton appeals and his sole assignment of error provides:

The trial court abused its discretion and erred to the prejudice of appellant and violated his due course and due process rights guaranteed to him by the Fourteen [sic] Amendment to the United States Constitution and Article I, Section Sixteen of the Ohio Constitution, when the trial court had denied appellant’s motion’s to correct void sentence / judgment entry based solely upon the fact that the trial court had imposed an unauthorized and void term to-wit four years definite sentence upon appellant for a fourth degree felony to which [sic] term had exceeded the minimum and maximum term that could have been imposed upon the appellant for a fourth- degree felony. {¶4} Cotton correctly notes that a sentence that is not in accordance with statutorily

mandated terms, such as a sentence outside the statutory range and contrary to the statute, is

outside a court’s jurisdiction, thereby rendering the sentence void. State v. Willard, 8th Dist.

Cuyahoga No. 101055, 2014-Ohio-5278, ¶ 12, citing State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332; State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873

N.E.2d 306, ¶ 29, fn. 3. A void sentence can be attacked at any time, and thus issues

surrounding it are not barred by the doctrine of res judicata. Fischer at ¶ 30.

{¶5} However, in this instance we do not find Cotton’s sentence to be void. Cotton’s

legal theory is predicated upon his argument that a violation of R.C. 4505.19 in 1990 was a

felony of the fourth degree and he should have been sentenced pursuant to the indeterminate

sentencing provisions for a fourth degree felony found in R.C. 2929.11 as they existed at that

time.

{¶6} After reviewing the relevant statutory authority we do not find that R.C. 4505.19

was a felony of the fourth degree in 1990. In referencing R.C. 4505.19 in passing, courts in

Ohio have been inconsistent in describing its classification. See, e.g., Office of Disciplinary

Counsel v. Rothermel, 15 Ohio St.3d 121, 472 N.E.2d 1072 (1984) (referring to a violation of

R.C. 4505.19(C) as a fourth-degree felony); State v. O'Black, 3d Dist. Allen No. 1-10-25,

2010-Ohio-4812, ¶ 6 (describing a violation of R.C. 4505.19 as a felony of the fifth degree);

State v. Napier, 12th Dist. Clermont No. CA91-10-089, 1992 Ohio App. LEXIS 3738 (July 20,

1992) (describing a violation of R.C. 4505.19 as a fourth-degree felony); State v. Jodrey, 12th

Dist. Clermont No. CA99-04-038, 1999 Ohio App. LEXIS 5922 (Dec. 13, 1999) (finding a

violation of R.C. 4505.19 to be an unclassified offense because its penalty is not related to a degree of felony or a degree of misdemeanor); State v. Hughley, 8th Dist. Cuyahoga No. 90323,

2009-Ohio-3274, ¶ 10 (finding R.C. 4505.19 to be an unspecified felony due to the potential

penalties ranging from six months to five years); State v. Cuevas, 8th Dist. Cuyahoga No.

97832, 2012-Ohio-3156, ¶ 2 (referring to a violation of R.C. 4505.19 as an unspecified felony).

{¶7} None of the decisions that have referenced R.C. 4505.19 in passing as a particular

degree of felony explain how they reached that conclusion. In fact, the Twelth District’s 1992

decision in Napier specifically cited R.C. 4505.99(D) in support of its description of R.C.

4505.19 as a fourth-degree felony. However, R.C. 4505.99(D) as it existed at the time of

Cotton’s offenses provided as follows:

(D) Whoever violates section 4505.19 of the Revised Code shall be fined not more than five thousand dollars or imprisoned in the county jail or workhouse not less than six months nor more than one year, or both, or in the penitentiary not less than one nor more than five years.

{¶8} As noted by the state, R.C. 4505.99 specifically classified certain other violations of

R.C. Chapter 4505 as felonies and misdemeanors subject to those sentencing guidelines but did

not choose to impose a classification on violations of R.C. 4505.19. Instead, at the time of

Cotton’s offenses R.C. 4505.99(D) specifically delineated a range of potential penalties for a

violation of R.C. 4505.19 that did not directly match any particular felony classification.

Therefore, we agree with the above cited authorities that have treated R.C. 4505.19 as an

unclassified offense.

{¶9} Because R.C. 4505.19 was not a felony of the fourth degree subject to an indefinite

sentence under R.C. 2929.11 at the time of Cotton’s offenses and the trial court imposed

four-year prison terms within the statutory range provided by R.C. 4505.99(D) we do not find

Cotton’s sentences to be void. {¶10} Cotton’s sole assignment of error is overruled.

{¶11} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant 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 common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, A.J., and SEAN C. GALLAGHER, J., CONCUR