State v. Morrison

2017 Ohio 1240

• Court: Ohio Court of Appeals
• Decided: March 31, 2017
• Docket: 17 CAA 01 0003
• Status: Published

Opinion

[Cite as State v. Morrison, 2017-Ohio-1240.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : JAMES F. MORRISON : Case No. 17 CAA 01 003 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 11CR I 06 0302

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 31, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN JAMES F. MORRISON, pro se Delaware County Prosecuting Attorney Richland Correctional Institiution 1001 Olivesburg Road By: DOUGLAS DUMOLT Mansfield, Ohio 44905 Assistant County Prosecutor 140 N. Sandusky Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 17 CAA 01 0003 2

Baldwin, J.

{¶1} Appellant James F. Morrison appeals a judgment of the Delaware County

Common Pleas Court overruling his motion to vacate his sentence. Appellee is the State

of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 27, 2012, appellant was sentenced on four counts of Attempted

Pandering Sexually Oriented Matter Involving a Minor. He received a sentence of thirty

months incarceration on each of his convictions, to be served consecutively, for a total

term of 120 months.

{¶3} Following his convictions, appellant filed his first appeal wherein he argued

his sentences should have merged. We affirmed his convictions and sentences. State v.

Morrison, 5th Dist. Delaware No. 12 CAA 08 0053, 2013-Ohio-2182. Appellant appealed

to the Ohio Supreme Court, which declined to accept jurisdiction over the appeal.

{¶4} Appellant then filed a motion with the trial court requesting resentencing,

arguing that his sentence was grossly disproportionate and the trial court was not guided

by the purposes of felony sentencing. Another appeal followed, wherein we explained

that a trial court lacks authority to reconsider its own valid final judgment except where

the sentence is void or where a clerical error has occurred. State v. Morrison, 5th Dist.

Delaware No. 15CAA070059, 2016–Ohio–1271. We held that appellant’s sentence did

not fall within either exception.

{¶5} Appellant subsequently filed a writ of mandamus, arguing that the trial court

failed to make the requisite findings before imposing consecutive sentences. This Court

dismissed the writ, finding that the failure to make the requisite findings did not render Delaware County, Case No. 17 CAA 01 0003 3

appellant’s sentence void, and he had an adequate remedy at law by way of direct appeal

from his sentence. State ex rel. Morrison v. Gormley, 5th Dist. Delaware No. 15 CAD 11

0093, 2016-Ohio-7512.

{¶6} On December 14, 2016, appellant filed a motion asking the trial court to find

that his July, 2012 was void for three reasons: failure to properly impose post-release

control, failure to give requisite consideration to the purposes of felony sentencing, and

failure to make the appropriate findings for imposing consecutive sentences. On January

3, 2017, the trial court denied the motion on the first two grounds, but found that the trial

court (the predecessor of the current trial judge) failed to make appropriate findings before

imposing consecutive sentences. The court granted appellant a new sentencing hearing.

However, on January 5, 2017, the trial court vacated its January 3 order based on our

decision in State ex rel. Morrison v. Gormley, supra. The trial court noted that we rejected

appellant’s claim that his sentence was void because the trial court failed to make the

appropriate findings to impose consecutive sentences, and because the sentence was

not void, the trial court was without authority to revisit that sentence.

{¶7} Appellant assigns four errors on appeal to this Court:

{¶8} “I. THE TRIAL COURT ERRED AND EXCEEDED IT’S [SIC]

JURISDICTION WHEN IT RECONSIDERED A PREVIOUS FINAL ORDER.

{¶9} “II. THE TRIAL COURT ERRED IN NOT FINDING DEFENDANT-

APPELLANT’S SENTENCE VOID AND CONTRARY TO LAW PURSUANT TO THE

STATUTORY MANDATES TO PROPERLY IMPOSE POST-RELEASE CONTROL AND

NOTIFY DEFENDANT OF THE CONSEQUENCES OF VIOLATING POST-RELEASE

CONTROL AS REQUIRED BY R.C. 2967.28. Delaware County, Case No. 17 CAA 01 0003 4

{¶10} “III. THE TRIAL COURT ERRED IN NOT FINDING DEFENDANT-

APPELLANT’S SENTENCE CONTRARY TO LAW AND VOID DUE TO THE TRIAL

COURT’S NON-COMPLIANCE WITH THE STATUTORY MANDATES TO IMPOSE

CONSECUTIVE SENTENCES WHEN IT’S [SIC] SENTENCING ENTRY AND

SENTENCING TRANSCRIPTS ARE VOID OF R.C. 2929.14 RENDERING THAT

PORTION OF HIS SENTENCE VOID.

{¶11} “IV. THE TRIAL COURT ERRED IN NOT FINDING DEFENDANT-

APPELLANT’S SENTENCE CONTRARY TO LAW AND VOID DUE TO THE TRIAL

COURT NOT CONSIDERING THE PURPOSEES AND PRINCIPLES OF FELONY

SENTENCING SET FORTH IN R.C. 2929.11.”

I.

{¶12} In his first assignment of error, appellant argues that the court lacked

jurisdiction to reconsider its January 3, 2017, order granting his motion for a new

sentencing hearing on the issue of consecutive sentencing.

{¶13} In appellant’s 2016 appeal, he argued that the trial court erred in overruling

his motion for resentencing on the grounds that his sentence was grossly disproportionate

and the trial court was not guided by the purposes of felony sentencing. In rejecting this

claim, we found that the trial court was without jurisdiction to resentence appellant on

these grounds:

We reiterate that appellant filed his motion for resentencing in the

trial court more than two years after this Court issued its decision upon his

unsuccessful direct appeal. The Ohio Supreme Court has clearly indicated

that trial courts lack authority to reconsider their own valid final judgments Delaware County, Case No. 17 CAA 01 0003 5

in criminal cases. State ex rel. White v. Junkin, 80 Ohio St.3d 335, 338, 686

N.E.2d 267, 1997–Ohio–340. Similarly, as a general rule, once a valid

sentence has been executed, a trial court no longer has the power to modify

the sentence except as provided by the Ohio General Assembly. See State

v. Hayes (1993), 86 Ohio App.3d 110, 619 N.E.2d 1188.

There are two main exceptions to this general rule. See State v.

Marshall, 5th Dist. Richland No. 14 CA 37, 2015–Ohio–1986, ¶ 26. The first

is the void sentence doctrine. See State ex rel. Cruzado, 111 Ohio St.3d

353, 2006–Ohio–5795, 856 N.E.2d 263, ¶ 19. The Ohio Supreme Court has

thus recognized: “ * * * [I]n the normal course, sentencing errors are not

jurisdictional and do not render a judgment void. * * * But in the modern era,

Ohio law has consistently recognized a narrow, and imperative, exception

to that general rule: a sentence that is not in accordance with statutorily

mandated terms is void.” State v. Fischer, 128 Ohio St.3d 92, 94, 942

N.E.2d 332, 2010–Ohio–6238, ¶ 7–¶ 8. However, the rule of Fischer was

originally limited to “a discrete vein of cases: those in which a court does

not properly impose a statutorily mandated period of postrelease control.”

See Fischer at ¶ 31.

The other main exception to the general rule is that a trial court has

jurisdiction to correct clerical errors in its judgments. See State ex rel.

Cruzado, supra, ¶ 19, citing Crim.R. 36. A nunc pro tunc order can be used

to supply information which existed but was not recorded, and to correct Delaware County, Case No. 17 CAA 01 0003 6

typographical or clerical errors. See Jacks v. Adamson (1897), 56 Ohio St.

397, 47 N.E. 48.

Neither exception applies in this instance. Thus, under the

circumstances of the case sub judice, we hold appellant's motion for

resentencing based on claims of disproportionality and the overriding

purposes of sentencing was properly rejected by the trial court as outside

the void sentence exception and thus not under said court's jurisdiction.

{¶14} State v. Morrison, 2016-Ohio-1271, ¶¶ 11-14.

{¶15} “Alleged errors in consecutive sentencing do not render a sentence void.

The Supreme Court ‘has declined to find sentences void based on the court's failure to

comply with certain sentencing statutes, including the consecutive sentencing statute.’

State v. Butcher, 4th Dist. Meigs No. 14CA7, 2015–Ohio–4249, ¶ 27; State v. Holdcroft,

137 Ohio St.3d 526, 2013–Ohio–5014, 1 N.E.2d 382, ¶ 8 (challenges to consecutive

sentences must be brought on direct appeal).” State ex rel. Morrison v. Gormley, supra,

at ¶11, citing State v. Wilson, 11th Dist. Lake No.2015L–067, 2015–Ohio–5465, ¶ 19.

{¶16} Because errors in consecutive sentencing do not render a sentence void,

the trial court was without jurisdiction to grant appellant’s motion for a new sentencing

hearing on the issue of consecutive sentences. As such, the court’s January 3, 2017,

judgment was void insofar as it granted appellant’s request to vacate his consecutive

sentences and hold a new hearing. A trial court has inherent authority to vacate its own

void judgments. Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶

48 (2014), citing Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph Delaware County, Case No. 17 CAA 01 0003 7

four of the syllabus. The trial court therefore had the authority to vacate its January 3,

2017, judgment on January 5, 2017.

{¶17} The first assignment of error is overruled.

II.

{¶18} In his second assignment of error, appellant argues that the court erred in

not finding his sentence void for failure to notify him of the consequences of violating post-

release control. He argues that he was not informed that a violation of post-release

control could result not only in receiving a prison sentence for the violation, but also that

such sentence would necessarily be served consecutively to any prison term he received

for committing a new crime.

{¶19} In State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, the Ohio Supreme

Court held, in pertinent part, “A sentence that does not include the statutorily mandated

term of post-release control is void, is not precluded from appellate review by principles

of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.”

Id., at paragraph one of the syllabus.

{¶20} R.C. 2929.141(A) (1) provides:

(A) Upon the conviction of or plea of guilty to a felony by a person on

post-release control at the time of the commission of the felony, the court

may terminate the term of post-release control, and the court may do either

of the following regardless of whether the sentencing court or another court

of this state imposed the original prison term for which the person is on post-

release control: Delaware County, Case No. 17 CAA 01 0003 8

(1) In addition to any prison term for the new felony, impose a prison

term for the post-release control violation. The maximum prison term for the

violation shall be the greater of twelve months or the period of post-release

control for the earlier felony minus any time the person has spent under

post-release control for the earlier felony. In all cases, any prison term

imposed for the violation shall be reduced by any prison term that is

administratively imposed by the parole board as a post-release control

sanction. A prison term imposed for the violation shall be served

consecutively to any prison term imposed for the new felony. The imposition

of a prison term for the post-release control violation shall terminate the

period of post-release control for the earlier felony.

{¶21} Although there is a split of authority among the appellate districts as to

whether a court is required to advise a defendant that a violation of post-release control

by commission of a new felony could not only result in an additional prison sentence for

the violation, but that such sentence would be served consecutively to any prison term

imposed for the new felony, this Court has previously held that such notification is

required. State v. Johnson, 5th Dist. Muskingum No. CT2016–0035, 2016-Ohio-7931,

¶24.

{¶22} In the instant case, the trial court notified appellant as follows:

If you violate post-release control, you could be returned to prison for

up to nine months, with a maximum for repeated violations to equal 50

percent of the original stated prison term, and if the violation is a new felony,

you could be returned to prison for the remaining period of control or 12 Delaware County, Case No. 17 CAA 01 0003 9

months, whichever is greater, plus receive a new prison term for the new

felony.

{¶23} Tr. (Sent.) 116-117.

{¶24} Likewise, the sentencing entry used the word “plus” in describing the nature

of the term of incarceration for the new felony. Judgment, July 21, 2012, page 4.

{¶25} The trial court found the court’s language sufficient to notify appellant that

the sentences would be served consecutively:

To be sure, Judge Whitney used the word “plus” rather than the word

“consecutive” when explaining to the defendant that his commission of a

new felony offense during the post-release-control period could lead to the

imposition of whatever penalties might apply to that new felony offense as

well as the imposition of more prison time in this case. I find, though, that

the word “plus” in that context properly conveyed the possibility that those

penalties could be imposed consecutively, so I am not willing to dub the

defendant’s sentence a void one because of any alleged defect in

connection with the information given to him about post-release control.

{¶26} Judgment, January 3, 2017, page 2.

{¶27} This Court has previously found that the phrase “could be added” is

tantamount to “consecutive to,” and such notification complies with the requirement that

a defendant be notified of the consecutive nature of the sentences set forth in R.C.

2929.141(A)(1). State v. Wills, 5th Dist. Muskingum No. CT2015–0009, 2015-Ohio-4599,

¶13. Accord, State v. Nicholson, 5th Dist. Muskingum No. CT2015–0016, 2016-Ohio-50.

We find no qualitative difference between use of the phrase “could be added” and the use Delaware County, Case No. 17 CAA 01 0003 10

of the word “plus,” and agree with the trial court that the language used conveyed that the

sentences would run consecutively.

{¶28} The second assignment of error is overruled.

III.

{¶29} In his third assignment of error, appellant argues that the trial court erred in

failing to find the sentence void based on the trial court’s failure to make the statutory

findings required to impose consecutive sentences. In dismissing appellant’s writ, we

recognized that alleged errors in consecutive sentencing do not render a sentence void,

and appellant had an adequate remedy at law by way of direct appeal from his sentence.

State ex rel. Morrison v. Gormley, supra. Appellant’s argument regarding consecutive

sentencing is therefore barred by res judicata, as it could have been raised on direct

appeal. State v. Szefcyk, 77 Ohio St.3d 93, 1996–Ohio–337, 671 N.E.2d 233, syllabus.

{¶30} The third assignment of error is overruled.

IV.

{¶31} In his fourth assignment of error, appellant argues that the trial court erred

in not finding the sentence void based on the court’s failure to consider the purposes and

principles of felony sentencing.

{¶32} Appellant is barred by application of res judicata from raising this issue,

which could have been raised on direct appeal. As in appellant’s earlier appeal in State

v. Morrison, 2016-Ohio-1271, this issue falls outside the void sentence exception.

{¶33} The fourth assignment of error is overruled. Delaware County, Case No. 17 CAA 01 0003 11

{¶34} The judgment of the Delaware County Common Pleas Court is affirmed.

Costs are assessed to appellant.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.