State v. Robey

2021 Ohio 3884

• Court: Ohio Court of Appeals
• Decided: November 1, 2021
• Docket: 2021 CA 00010
• Status: Published

Opinion

[Cite as State v. Robey, 2021-Ohio-3884.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2021-CA-00010 SHAWN L. ROBEY : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County Court of Common Pleas, Case No. 2012- CR-00480

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 1, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

R. KYLE WITT THOMAS R. ELWING Fairfield County Prosecutor 60 West Columbus Street MARK A. BALAZIK Pickerington, OH 43147 Assistant Prosecutor 239 West Main Street, Suite 101 Lancaster, OH 43130 Fairfield County, Case No. 2021-CA-00010 2

Gwin, J.,

{¶1} Appellant Shawn Robey appeals from the February 16, 2021 judgment

entry of the Fairfield County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} In October of 2012, the grand jury returned an eight-count indictment

charging appellant with the following: two counts of kidnapping, felonies of the first

degree, two counts of abduction, felonies of the third degree, one count of violating a

protection order, a felony of the third degree, two counts of domestic violence, felonies of

the fourth degree, and one count of harassment by a bodily substance, a felony of the

fifth degree.

{¶3} Appellee moved to dismiss the kidnapping and abduction counts in a plea

agreement whereby appellant would enter guilty pleas to the remaining five counts. In

addition, the trial court merged Count VI (domestic violence) with Count V (violating a

protection order) for purposes of sentencing.

{¶4} The trial court sentenced appellant as follows: Count IV (abduction) – thirty-

six months in prison, suspended for five years of community control; Count V (violating a

protection order), thirty-six months in prison; Count VII (domestic violence) – fourteen

months in prison; and Count VIII (harassment by a bodily substance) – twelve months in

prison. The trial court ordered that the prison terms on counts four, five, seven, and eight

be served consecutively. As to Count IV (abduction), the trial court suspended the prison

term and placed appellant on five years of community control to begin upon his release

from prison on counts five, seven, and eight. The sentence, including the split sentence

on Count IV, was a joint recommendation of the parties that the trial court imposed. Fairfield County, Case No. 2021-CA-00010 3

{¶5} The trial court issued a judgment entry of conviction and sentence on

December 10, 2013. Appellant did not appeal his conviction or sentence. On August 17,

2017, appellant completed his prison sentence and began his five-year community control

sentence.

{¶6} Appellant’s probation officer filed a motion to revoke his probation in August

of 2018 and listed the following violations: being charged with resisting arrest; failing to

report to his probation officer for three months; testing positive for methamphetamines;

and drinking alcohol. In September of 2018, the trial court found appellant violated the

terms and conditions of his community control, and ordered that community control be

continued with the new requirement that appellant complete a community-based

correctional facility program. Appellant did not appeal the trial court’s judgment entry.

{¶7} On June 1, 2020, appellant’s probation officer filed a motion to revoke his

probation and listed the following violations: failure to report for eighty days; failure to

report to his counselor; and refusal to complete a drug screen. Appellant’s probation

officer filed an amended motion on June 16, 2020 to include an additional violation for a

theft charge. Appellant’s probation officer filed a second amended motion to revoke in

August of 2020 to include the additional violations of failure to obey the law due to two

felony cases that included two counts of aggravated possession of drugs, one count of

possession of drug paraphernalia, and one count of resisting arrest.

{¶8} At a hearing conducted on January 19, 2021, appellant entered an

admission to the revocation allegations. The trial court found appellant violated the terms

and conditions of his community control. The trial court set a sentencing hearing for

February 16, 2021. With respect to the new charges, appellee agreed to dismiss one Fairfield County, Case No. 2021-CA-00010 4

count of aggravated possession of drugs, and a plea agreement was reached for the

remaining counts. Appellant would plead guilty to the remaining counts (aggravated

possession of drugs, possession of drug paraphernalia, and resisting arrest) and receive

a joint-sentence recommendation for a six-month prison term to be served consecutive

to any prison time imposed on this case for the violation of community control.

{¶9} On the date of the sentencing hearing, counsel for appellant filed a

“memorandum asserting lack of authority to impose term of imprisonment,” arguing the

trial court did not have the statutory authorization to revoke appellant’s community control

and impose a prison term because appellant’s original community control term was not

authorized by law.

{¶10} The trial court issued an entry on February 16, 2021 revoking appellant’s

community control and imposing the balance of the sentence (thirty-six-month prison

term) from Count IV.

{¶11} Appellant appeals from the February 16, 2021 judgment entry of the

Fairfield County Court of Common Pleas and assigns the following as error:

{¶12} “I. THE TRIAL COURT ERRED IN FINDING THAT IT HAD AUTHORITY

TO CONDUCT REVOCATION PROCEEDINGS AND IMPOSE A PRISON TERM FOR

APPELLANT’S VIOLATIONS OF COMMUNITY CONTROL.”

I.

{¶13} Appellant argues the trial court committed error in finding it had the authority

to conduct revocation proceedings and impose a prison term for appellant’s violations of

community control because appellant’s original sentence violated the Ohio Supreme

Court’s ruling in State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d Fairfield County, Case No. 2021-CA-00010 5

164, that a trial court lacks the statutory authority to impose a community control sanction

on one felony count to run consecutive to a prison term on another felony count.

{¶14} Appellee concedes appellant’s sentence was contrary to Hitchcock, but

contends appellant’s argument is barred by the doctrine of res judicata because he did

not raise the error in a direct appeal. We agree.

{¶15} Prior to the Ohio Supreme Court’s recent rulings 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, and in accordance with the Ohio Supreme

Court’s jurisprudence at the time, this Court vacated sentences imposed for violations of

community control when the State of Ohio conceded the original sentences were void

because they imposed community control sanctions consecutive to a term of

imprisonment. State v. Ellinger, 5th Dist. Fairfield Nos. 2019 CA 00015 and 2019 CA

00016, 2020-Ohio-555; State v. Grabovich, 5th Dist. Fairfield No. 2019 CA 00042, 2020-

Ohio-2730; State v. Bernhardt, 5th Dist. Richland No. 2019 CA 0022, 2020-Ohio-1639.

{¶16} However, in Harper, the Ohio Supreme Court “realigned” its void versus

voidable jurisprudence, overruled numerous cases, and held that “when a case is within

the court’s subject matter jurisdiction and the accused is properly before the court, any

error in the exercise of that jurisdiction in imposing post-release control renders the court’s

judgment voidable, permitting the sentence to be set aside if the error has been

successfully challenged on direct appeal.” 160 Ohio St.3d 480, 2020-Ohio-2913, 159

N.E.3d 248. The Supreme Court reaffirmed its position in Henderson, specifically stating

that Harper applied to cases in which a trial court deviates from a statutory mandate, not

just cases involving the imposition of post-release control. Id. The Court stated it was Fairfield County, Case No. 2021-CA-00010 6

time to return to a “clear, traditional” understanding of what constitutes a void sentence in

order to “remove confusion” and “restore predictability and finality to trial court judgments

and criminal sentences.” State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162

N.E.3d 776. Thus, “a judgment or sentence is void only if it is rendered by a court that

lacks subject matter jurisdiction over the case or personal jurisdiction over the defendant.

If the court has jurisdiction over the case and the person, any sentence based on an error

in the court’s exercise of jurisdiction is voidable.” Id.

{¶17} After Harper and Henderson, this Court decided a case with facts analogous

to those in this case. In State v. Christy, the appellant was previously sentenced to a

community control term to run consecutive to a prison term. 5th Dist. Fairfield No. 20-

CA-29, 2021-Ohio-1470. The appellant did not file a direct appeal of his conviction or

sentences. Id. The appellant completed his prison term and was placed on community

control. Id. The appellant admitted to violating community control, but argued he could

not be sentenced to prison time for violating community control because his original

sentence was not authorized by statute. Id. We found that, pursuant to Harper and

Henderson, the appellant’s sentence was voidable, not void. Id. Further, that because

the appellant did not raise his argument in a direct appeal, his argument was barred by

the doctrine of res judicata. Id. The appellant appealed to the Ohio Supreme Court. The

Supreme Court declined jurisdiction in State v. Christy, 164 Ohio St.3d 1405, 2021-Ohio-

2742, 172 N.E.3d 162.

{¶18} Other districts addressing this issue have also found a defendant must raise

this argument in a direct appeal; otherwise, res judicata bars the claim. State v.

Thompson, 10th Dist. Franklin No. 19AP-359, 2020-Ohio-6756; State v. Hedges, 11th Fairfield County, Case No. 2021-CA-00010 7

Dist. Lake No. 2019-L-135, 2020-Ohio-4528, appeal not allowed 160 Ohio St.3d 1509,

2020-Ohio-6835, 159 N.E.3d 1158; State v. Hall, 11th Dist. Trumbull No. 2020-T-0031,

2021-Ohio-791; State v. Pettus, 1st Dist. Hamilton No. C-190678, 2020-Ohio-4449.

{¶19} Appellant contends that Christy is not dispositive in this case, despite the

similarities in the factual scenarios, because the appellant in Christy failed to assert the

argument appellant in this case asserts: that his appeal is not a collateral attack on the

sentence imposed in 2013, but is a timely direct appeal of the thirty-six-month prison term

imposed by the trial court on February 16, 2021; thus, res judicata does not apply.

{¶20} However, courts have recognized that an appeal from a community-control-

revocation hearing “is not a direct appeal from a defendant’s original conviction” and that

“res judicata precludes appellate review in such an appeal of issues that could have been

raised in a direct appeal.” State v. Turner, 8th Dist. Cuyahoga No. 106123, 2018-Ohio-

2730; State v. Allbaugh, 4th Dist. Athens No. 12CA23, 2013-Ohio-2031; State v. Fields,

5th Dist. Richland No. 2012-CA-011, 2012-Ohio-4808, appeal not allowed, 134 Ohio

St.3d 1471, 2013-Ohio-553, 983 N.E.2d 369.

{¶21} Appellant cites the Ohio Supreme Court’s decision in State v. Howard, 162

Ohio St.3d 314, 2020-Ohio-3195, 165 N.E.3d 1088, in support of his argument. In the

Howard case, the Supreme Court cited State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-

7110, 821 N.E.2d 995, which stated a court sentencing an offender at a revocation

hearing sentences the offender “anew.” Appellant argues that because the Supreme

Court used this language in Howard, his appeal is a direct appeal rather than a collateral

attack. Fairfield County, Case No. 2021-CA-00010 8

{¶22} However, Howard addressed only whether a trial court was required to

make consecutive-sentences findings at a hearing at which it revoked a defendant’s

community control and whether a trial court was required to notify an appellant of the

potential prison term before it imposed this term at a revocation hearing. Id. The

Supreme Court held the trial court was required to make consecutive sentence findings

when it revoked community control. Id. Thus, the defendant was not required to

challenge the lack of consecutive sentences findings on direct appeal from the initial

sentencing. Id.

{¶23} In Howard, the Supreme Court did not consider whether a defendant can

argue at a revocation hearing, for the first time, that he could not be sentenced to prison

time for violating community control because his original sentence was not authorized by

law. The context of the use of the quote from Fraley was for the sole purpose of

addressing when a defendant has been given sufficient notice of the specific prison terms

a trial court could impose before a trial court revoked community control and imposed a

prison term. There is nothing in the record in this case, nor does appellant argue, that

the trial court failed to provide him with such notice. See also State v. McClurg, 5th Dist.

Richland No. 2017 CA 0098, 2020-Ohio-4228 (stating Howard addressed the issue of

whether appellant “received sufficient notice of the specific prison terms that the trial court

could impose before the court revoked his community control sentence and imposed the

prison terms”).

{¶24} We additionally note that the holding by the Ohio Supreme Court regarding

the reversion to the “traditional” understanding of void versus voidable jurisprudence in

Henderson was issued in October of 2020, several months after the Howard decision. Fairfield County, Case No. 2021-CA-00010 9

Further, Howard was issued six months prior to our decision in Christy, the case

analogous to the instant case. The Ohio Supreme Court declined jurisdiction of Christy

in August of 2021. Accordingly, we find Henderson and Christy are controlling in this

case.

{¶25} As the Supreme Court stated in Henderson, “a voidable judgment has the

force of a valid legal judgment, regardless of whether it was right or wrong. The failure to

timely – at the earliest opportunity – assert an error in a voidable judgment, even if that

error is constitutional in nature, amounts to the forfeiture of any objection.” 161 Ohio St.3d

285, 2020-Ohio-4784, 162 N.E.3d 776. As held by this Court in Christy, the “earliest

opportunity” for appellant to assert his argument that the original sentence imposing

community control sanctions was not authorized by statute and thus contrary to law was

in a direct appeal from the December 10, 2013 judgment entry. 164 Ohio St.3d 1405,

2021-Ohio-2742, 172 N.E.3d 162.

{¶26} Appellant also cites the Ohio Supreme Court case of State v. Rue, 164 Ohio

St.3d 270, 2020-Ohio-6706, 172 N.E.3d 917, for the proposition that the Supreme Court

makes a distinction between “authority” and “jurisdiction.” Thus, appellant contends that

even if the trial court had jurisdiction in this case, it did not have the “authority” to sentence

him because the sentence deviates from a statutory mandate. However, in Rue, the

Supreme Court considered and ruled on the narrow issue of whether a trial court lacks

the authority to revoke a defendant’s community control and sentence when the

revocation proceedings are not commenced before the expiration of his or her community

control term. Id. Though appellant attempts to frame his challenge as a challenge to the

trial court’s “authority” rather than its “jurisdiction,” the Supreme Court has previously Fairfield County, Case No. 2021-CA-00010 10

stated that “the revocation of community control is an exercise of the sentencing court’s

criminal jurisdiction.” State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d

965.

{¶27} Further, in Rue, the Supreme Court specifically cited and reaffirmed its

ruling in Harper that so long as the sentencing court had jurisdiction over the subject

matter of the case and the defendant, any error in the court’s exercise of its judicial power

would render the judgment voidable under appellate review. Id.

{¶28} We conclude the trial court possessed subject-matter jurisdiction over

appellant’s case and personal jurisdiction over appellant. See State v. Harper, 160 Ohio

St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, quoting Smith v. Sheldon, 157 Ohio St.3d

1, 2019-Ohio-1677, 131 N.E.3d 1 (stating that “a common pleas court has subject-matter

jurisdiction over felony cases”); State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-

4784, 162 N.E.3d 776, citing Tari v. State, 117 Ohio St. 481, 159 N.E. 594 (1927) (noting

that “[i]n a criminal matters, the court acquires jurisdiction over a person by lawfully issued

process, followed by the arrest and arraignment of the accused and his plea to the

charge”). Accordingly, any error in the exercise of the trial court’s jurisdiction rendered

appellant’s sentence voidable, not void. State v. Thompson, 10th Dist. Franklin No.

19AP-359, 2020-Ohio-6756.

{¶29} In this case, appellant could have, but did not, raise his argument in a direct

appeal. See State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997); State v.

Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996); State v. Braden, 10th Dist. No. 17AP-

321, 2018-Ohio-1807. As appellant’s sentence was voidable, res judicata bars

appellant’s claims in the present appeal. State v. Christy, 5th Dist. Fairfield No. 20-CA- Fairfield County, Case No. 2021-CA-00010 11

29, 2021-Ohio-1470, appeal not allowed, 164 Ohio St.3d 1405, 2021-Ohio-2742, 172

N.E.3d 162.

{¶30} Based on the foregoing, appellant’s assignment of error is overruled.

{¶31} The February 16, 2021 judgment entry of the Fairfield County Court of

Common Pleas is affirmed.

By Gwin, J.,

Baldwin, P.J., and

Wise, John, J. concur