State v. Elkins

2021 Ohio 4231

Opinion

[Cite as State v. Elkins, 2021-Ohio-4231.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-21-010

Appellee Trial Court No. 08 CR 203

v.

Daniel A. Elkins DECISION AND JUDGMENT

Appellant Decided: December 3, 2021

*****

Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.

Daniel A Elkins, pro se.

ZMUDA, P.J.

{¶ 1} This matter is before the court upon the pro se appeal of appellant, Daniel

Elkins, challenging the denial by the Sandusky County Court of Common Pleas of his

motion to correct “an erroneous entry.” Appellant sought a decision finding the sentence, entered in 2008, is a void sentence requiring correction pursuant to State v. Beasley, 14

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

{¶ 2} On May 14, 2008, appellant entered a guilty plea to three counts of

complicity to aggravated robbery, violations of R.C. 2911.01(A)(1) and 2923.03, each a

felony of the first degree. Pursuant to his plea, the state dismissed the remaining counts

and firearm specifications in the 17-count indictment, and the trial court proceeded to

sentencing. The trial court imposed a prison term of 8 years as to each count, and

ordered the terms to run consecutively, for an aggregate prison sentence of 24 years. The

original entry failed to note dismissal of the firearm specifications.

{¶ 3} Appellant filed a timely appeal, and among his assigned errors he challenged

the imposition of consecutive sentences as excessive and contrary to law. In State v.

Elkins, 6th Dist. Sandusky No. S-08-014, 2009-Ohio-2602, ¶ 30, we affirmed the trial

court’s judgment, including the consecutive sentences.

{¶ 4} On December 10, 2009, appellant filed a motion to withdraw his guilty plea,

which the trial court denied. We affirmed that judgment on appeal in State v. Elkins, 6th

Dist. Sandusky No. S-10-018, 2010-Ohio-5170, ¶ 1, 27.

{¶ 5} On May 3, 2010, while his 2010 appeal was pending, appellant filed a

motion to vacate void judgment. On December 15, 2010, appellant filed an amended

motion to vacate void judgment, seeking a judgment entry that fully complied with

Crim.R. 32(C). In support, appellant argued his sentencing entry containing consecutive

terms was void, and the trial court failed to dispose of the firearm specifications attached

2. to Counts 1, 2, and 3. On December 20, 2010, the trial court granted the motion, in part,

and issued a nunc pro tunc entry correctly noting dismissal of the firearm specifications

to reflect the dismissal stated on the record at hearing, and denied the motion as it

pertained to “void” sentences. Appellant did not appeal this judgment.

{¶ 6} On November 28, 2011, appellant filed a subsequent motion to correct void

sentence, which the trial court summarily denied by entry on December 28, 2011. We

affirmed the trial court’s judgment in State v. Elkins, 6th Dist. Sandusky No. S-12-001,

2013-Ohio-127. In that decision, we noted our prior consideration of the consecutive

sentencing issue in his direct appeal, and found his sole assignment of error “barred by

the doctrine of res judicata.” Id. at ¶ 3, citing State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967), paragraph one of the syllabus and State v. Ishmail, 67 Ohio St.2d 16,

423 N.E.2d 1068 (1981).

{¶ 7} Appellant filed his latest motion on June 14, 2021, renewing his claims of a

void sentence for failure to comply with R.C. 2929.14 and Beasley. Appellant raises the

same argument, previously rejected as barred by res judicata. See Elkins, 2013-Ohio-127,

at ¶ 3. Additionally, we note that the judgment at issue is not a void judgment, as

recently clarified by the Ohio Supreme Court in State v. Henderson, 161 Ohio St.3d 285,

2020-Ohio-4784, 162 N.E.3d 776, which defined a void judgment as judgment rendered

by a court proceeding without jurisdiction. (Citation omitted) Henderson at ¶ 16. “If the

court pronouncing the sentence had jurisdiction to do so, a sentence imposed in excess of

that permitted by law was ‘erroneous and voidable, but not absolutely void.’” (Citation

3. omitted). Id. Simply put, a sentencing error is not a jurisdictional error. Id., citing In re

Winslow, 91 Ohio St.328, 330, 110 N.E.539 (1915).

{¶ 8} We already determined there was no sentencing error in appellant’s direct

appeal. Furthermore, had an error existed but appellant failed to raise the issue in his

direct appeal, the error would result in merely a voidable judgment, not subject to

collateral attack that could jeopardize the “finality of judgments.” (Citation omitted.)

Henderson at ¶ 17. The “void sentence” analysis of Beasley, moreover, addressed a

“procedurally unique case,” and in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913,

159 N.E.3d 248, the Ohio Supreme Court expressly overruled Beasley, realigning

precedent “with the traditional understanding of what constitutes a void judgment.” Id. at

¶ 26, citing Harper at ¶ 4.

{¶ 9} Appellant raised this same issue as error in his direct appeal, and the present

appeal represents only the latest attempt to collaterally attack his sentence as void. We

found no error in the imposition of consecutive sentences in the direct appeal, we

previously rejected a collateral attack as barred by res judicata, and we now clarify that

appellant’s sentence is not void, based on recent precedent. Accordingly, we find

appellant’s sole assignment of error not well-taken.

{¶ 10} Finding substantial justice has been done, we affirm the judgment of the

Sandusky County Court of Common Pleas. Appellant is ordered to pay the costs of this

appeal pursuant to App.R. 24.

Judgment affirmed.

4. S-21-010 State v. Elkins

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, P.J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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