State v. Griffin

2016 Ohio 782

Ohio Court of Appeals·Decided March 2, 2016·No. C-150258 C-150005·Published·Cited by 4 cases

Opinion

[Cite as State v. Griffin, 2016-Ohio-782.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-150258 C-150005 Plaintiff-Appellee, : TRIAL NO. B-0409962

vs. : O P I N I O N. CHARLES GRIFFIN, :

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed as Modified and Cause Remanded in C-150258; Appeal Dismissed in C-150005

Date of Judgment Entry on Appeal: March 2, 2016

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Charles Griffin, pro se.

Please note: we have removed this case from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam.

{¶1} Defendant-appellant Charles Griffin has taken these appeals from his

convictions for murder and having weapons under a disability and the overruling of

his postconviction motion for resentencing. We dismiss for lack of jurisdiction his

appeal from his convictions and affirm, as modified, the overruling of his

postconviction motion. But we remand for resentencing in conformity with the

statutory mandates concerning postrelease control.

{¶2} Griffin was convicted in 2005 upon jury verdicts finding him guilty of

murder and having weapons under a disability. In his direct appeal, we affirmed his

convictions. State v. Griffin, 1st Dist. Hamilton No. C-050074 (Dec. 14, 2005).

{¶3} Ten years later, Griffin again challenged his convictions. In December

2014, in the appeal numbered C-150005, he filed a second notice of appeal from his

2005 convictions. And in February 2015, he filed with the common pleas court a

motion seeking resentencing on the grounds that the trial court, at sentencing, had

failed to notify him that he could be ordered to perform community service in lieu of

paying court costs and had provided inadequate and inaccurate notification

concerning postrelease control. The common pleas court overruled the motion, and

Griffin, in the appeal numbered C-150258, appealed.

Appeal No. C-150005

{¶4} App.R. 4(A)(1) requires that a notice of appeal be filed within 30 days

of the entry of the judgment or order appealed. An appeals court has no jurisdiction

to entertain an appeal that was not timely filed. State ex rel. Curran v. Brookes, 142

Ohio St. 107, 50 N.E.2d 995 (1943), paragraph seven of the syllabus. The appeal

numbered C-150005, filed in December 2014, is taken from Griffin’s 2005 judgment

2 OHIO FIRST DISTRICT COURT OF APPEALS

of conviction. Because it was filed well after the 30 days required by App.R. 4(A)(1),

we dismiss the appeal for lack of jurisdiction.

Appeal No. C-150258

{¶5} In the appeal numbered C-150258, Griffin appeals from the overruling

of his motion for resentencing. On appeal, he advances two assignments of error

challenging the denial of resentencing on each of the two grounds presented in his

motion.

{¶6} The common pleas court had no jurisdiction under the

postconviction statutes. In his motion, Griffin contended that his judgment of

conviction was void because the trial court had not provided at sentencing either

community-service-in-lieu-of-costs notification or proper postrelease-control

notification. Griffin did not designate in his motion a statute or rule under which the

relief sought might be granted. R.C. 2953.21 et seq., governing the proceedings on a

petition for postconviction relief, provide “the exclusive remedy by which a person

may bring a collateral challenge to the validity of a conviction or sentence in a

criminal case.” R.C. 2953.21(J). Therefore, Griffin’s motion was reviewable under

the standards provided by the postconviction statutes. See State v. Schlee, 117 Ohio

St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.

{¶7} But Griffin filed his motion well after the time prescribed by R.C.

2953.21(A)(2) had expired. R.C. 2953.23 closely circumscribes a common pleas

court’s jurisdiction to entertain a late or successive postconviction claim. The

petitioner must show either that he was unavoidably prevented from discovering the

facts upon which his claim depends, or that his claim is predicated upon a new,

retrospectively applicable federal or state right recognized by the United States

3 OHIO FIRST DISTRICT COURT OF APPEALS

Supreme Court since the time for filing his claim had expired. R.C. 2953.23(A)(1)(a).

And he must show “by clear and convincing evidence 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)(b).

{¶8} The record does not, as it could not, demonstrate that but for the

alleged sentencing errors, “no reasonable factfinder would have found [Griffin] guilty

of the offense[s] of which [he] was convicted.” See R.C. 2953.23(A)(1). Because he

satisfied neither the time strictures of R.C. 2953.21(A)(2) nor the jurisdictional

requirements of R.C. 2953.23(A), the postconviction statutes did not confer upon the

common pleas court jurisdiction to entertain his postconviction claims on their

merits.

{¶9} The common pleas court had jurisdiction to correct

postrelease control. A court always has jurisdiction to correct a void judgment.

See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d

263, ¶ 18-19. Griffin’s postconviction challenge to the lack of community-service-in-

lieu-of-costs notification was not reviewable by the common pleas court under the

jurisdiction to correct a void judgment, because the failure to provide that

notification did not render his sentences void. See State v. Wurzelbacher, 1st Dist.

Hamilton No. C-130011, 2013-Ohio-4009, ¶ 11.

{¶10} But Griffin’s sentences are void to the extent that the trial court failed

to properly impose postrelease control. The postrelease-control statutes in effect in

2005, when Griffin was sentenced, provided that a prison sentence imposed for a

felony that is classified by degrees must “include a requirement that the offender be

subject to a period of post-release control.” And the statutes required that the

4 OHIO FIRST DISTRICT COURT OF APPEALS

offender be notified, both at the sentencing hearing and in the judgment of

conviction, of the length and mandatory or discretionary nature of postrelease

control, of the consequences of violating postrelease control, and of the length of

confinement that could be imposed for a postrelease-control violation. See former

R.C. 2929.14(F), 2929.19(B)(3)(c) through (e), and 2967.28(B) and (C) (superseded

in 2011 by R.C. 2929.14(D), 2929.19(B)(2)(c) through (e), and 2967.28(B) and (C));

State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77-79; State

v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 69; State v.

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the

syllabus. Accord State v. Smith, 1st Dist. Hamilton No. C-120163, 2012-Ohio-5965, ¶

10-11. To the extent that a sentence is not imposed in conformity with the statutory

mandates concerning postrelease control, it is void, and the void portion of the

sentence is subject to review and correction at any time. State v.

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