State v. Fann

2023 Ohio 4660

• Court: Ohio Court of Appeals
• Decided: December 21, 2023
• Docket: 112964
• Status: Published

Opinion

[Cite as State v. Fann, 2023-Ohio-4660.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112954 v. :

ELLINGTON FANN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 21, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-662470-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Zeleznikar, and Jamielle M. Lamson- Buscho, Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Michael V. Wilhelm, Assistant Public Defender, for appellant.

LISA B. FORBES, J.:

Ellington Fann (“Fann”) appeals the trial court’s journal entry

denying his “motion to terminate license suspension.” After reviewing the facts of

the case and pertinent law, we affirm the trial court’s decision. I. Facts and Procedural History

The trial court journalized an entry on December 17, 2021, sentencing

Fann to, among other things, a “driver’s license suspension until 12/17/2023.” Fann

did not file a direct appeal from this entry.

On March 7, 2023, Fann filed a “motion to terminate license

suspension.” Fann filed a “supplemental motion to terminate license suspension”

on June 2, 2023. In the supplemental motion, Fann asserted that he was subject to

a two-year license suspension and that “the proper starting point for the two-year

suspension should have begun on June 18, 2021, the day he was given his

administrative license suspension,” rather than December 17, 2021, when he was

sentenced.

Following a hearing, the trial court denied Fann’s motion in part

stating, “the defendant’s motion to terminate driver’s license suspension to run

retroactively from the date of sentencing is denied.” However, the court granted

Fann occupational-driving privileges as well as limited privileges for medical

appointments, grocery shopping, and to attend church.

It is from this order than Fann appeals, raising the following

assignment of error: “The trial court acted contrary to law by denying * * * Fann’s

motion to have his administrative license suspension be credited towards his driving

suspension pursuant to R.C. 4510.13(D).” II. Law and Analysis

“It is well settled that the doctrine of res judicata bars claims that were

raised or could have been raised on direct appeal.” State v. Brooks, 8th Dist.

Cuyahoga No. 108919, 2020-Ohio-3286, ¶ 10.

Pursuant to the Ohio Supreme Court’s decisions in State v. Harper,

160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and State v. Henderson, 161

Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, “the current void-sentence

jurisprudence of [Ohio] is clear: if the sentencing court has subject-matter

jurisdiction over the case and personal jurisdiction over the defendant, any

sentencing error renders the sentence voidable, not void.” State v. Stansell, 2021-

Ohio-2036, 173 N.E.3d 1273, ¶ 7 (8th Dist.). “The Ohio Supreme Court created no

exception to its realigned void-sentence jurisprudence for sentences that exceed

statutory limitations.” Id. at ¶ 8.

In the case at hand, both Fann and the state of Ohio agree that Fann

was entitled to credit for his administrative-license suspension when he was

sentenced by the court on December 17, 2021. Unfortunately, however, we are

constrained by the Ohio Supreme Court’s decisions in Haper, Henderson, and their

progeny to find that the court’s error in failing to credit him for the administrative-

license suspension was voidable rather than void and should have been raised in a

direct appeal from that sentence. Because Fann did not file a direct appeal of his

sentence, we reluctantly find that he is barred by res judicata from raising it now.

Judgment 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.

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

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and MICHAEL JOHN RYAN, J., CONCUR