State v. Sage

2021 Ohio 2130

• Court: Ohio Court of Appeals
• Decided: June 25, 2021
• Docket: 28938 28939
• Status: Published

Opinion

[Cite as State v. Sage, 2021-Ohio-2130.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case Nos. 28938 and 28939 : v. : Trial Court Case No. 2004-CR-1574/4 : GORDON WILLIAM SAGE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 25th day of June, 2021.

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

GORDON WILLIAM SAGE, Inmate No. 458-271, Warren Correctional Institution, P.O. Box 120, Lebanon, Ohio 45036 Defendant-Appellant, Pro Se

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WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Gordon William Sage, appeals from the judgment of

the Montgomery County Court of Common Pleas overruling his pro se motions to correct

void sentence and the corresponding nunc pro tunc sentencing entry. In support of his

appeal, Sage claims that his sentence is void because the trial court erroneously imposed

separate sentences for two counts of aggravated murder that the trial court had merged

as allied offenses. Sage also claims that his sentence is void because the life sentence

imposed for aggravated murder was unauthorized by the governing statute, R.C.

2929.03(A)(1). Sage further claims that the trial court improperly used a nunc pro tunc

sentencing entry to modify his sentence for aggravated murder. For the reasons outlined

below, we find that Sage’s claims all lack merit. Accordingly, the judgment of the trial

court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On April 11, 2005, Sage pled guilty to two counts of aggravated murder, one

count of aggravated burglary, one count of aggravated robbery, and one count of having

weapons under disability. The trial court accepted Sage’s guilty pleas and then

sentenced him on April 26, 2005. During Sage’s sentencing hearing, the trial court

merged the two counts of aggravated murder for purposes of sentencing. The trial court

then imposed a sentence of life in prison for aggravated murder and noted that Sage

would be eligible for parole after 20 years. The trial court sentenced Sage to five years

in prison for aggravated burglary and five years for aggravated robbery, and it ordered

those two sentences to be served concurrently to one another, but consecutively to the

life sentence for aggravated murder. The trial court also sentenced Sage to one year in -3-

prison for having weapons under disability, to be served concurrently to all the other

sentences. Therefore, the trial court imposed an aggregate sentence of life in prison

plus five years.

{¶ 3} Sage appealed from his conviction and raised multiple arguments, including

that his sentence was unlawful under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470. After reviewing Sage’s appeal, we agreed that the trial court had

engaged in judicial factfinding that Foster held was unconstitutional. Therefore, we

vacated Sage’s sentence and remanded the matter to the trial court for resentencing.

State v. Sage, 2d Dist. Montgomery No. 21097, 2007-Ohio-442.

{¶ 4} Sage’s resentencing hearing was held on March 2, 2007. During the

resentencing hearing, the trial court sentenced Sage to the exact same sentence that it

had previously imposed. This time, however, the trial court explained that, although the

statute governing the penalty for aggravated murder provided that Sage’s life sentence

carried parole eligibility after 20 years, Sage would actually not be eligible for parole until

after 25 years given that his life sentence was consecutive to Sage’s aggregate five-year

sentence for aggravated burglary, aggravated robbery, and having weapons under

disability. Sage did not appeal from trial court’s resentencing decision.

{¶ 5} Over the next 13 years, Sage filed several pro se motions in the trial court,

including a pro se “Motion to Terminate April 11, 2005 Contract Plea Agreement.” Sage

filed the motion on June 25, 2019. The trial court construed the motion as a petition for

post-conviction relief and overruled it on grounds that it was untimely and barred by res

judicata. Sage appealed from that decision, and while the appeal was pending, Sage

filed three more pro se motions in January and February 2020. In those motions, Sage -4-

alleged that his sentence was void because the trial court imposed separate sentences

for the two counts of aggravated murder that had been merged as allied offenses. Sage

also argued that his sentence was void because the life sentence imposed for aggravated

murder was not authorized by the governing statute, R.C. 2929.03(A)(1).

{¶ 6} On March 4, 2020, the trial court found that it lacked jurisdiction to rule on the

three pro se motions due to the pending appeal on Sage’s “Motion to Terminate April 11,

2005 Contract Plea Agreement.” However, after we issued our decision on that appeal,

Sage filed a fourth pro se motion titled: “Renewed Motion to Correct Void Judgment.” In

that motion, Sage raised the same arguments that he had raised in his prior three pro se

motions. Sage filed the renewed motion on July 29, 2020.

{¶ 7} In the renewed motion, Sage admitted that the trial court had determined that

the two aggravated murder counts merged as allied offenses. Sage, however, claimed

that the trial court imposed separate sentences on those counts. Sage based this

argument on the language of the March 8, 2007 resentencing entry, which stated as

follows:

WHEREFORE, it is the JUDGMENT and SENTENCE of the Court that the

defendant herein be delivered to the CORRECTIONAL RECEPTION

CENTER, there to be imprisoned and confined for a term of:

***

COUNT # 16 [Aggravated Murder (while committing aggravated burglary)]:

LIFE;

COUNT # 17 [Aggravated Murder (while committing aggravated robbery)]:

LIFE, WHICH SENTENCE MERGES WITH COUNT #16; * * * -5-

Termination Entry (March 8, 2007).

{¶ 8} Sage also argued that the “LIFE” sentence imposed in the resentencing entry

was unauthorized by law because R.C. 2929.03(A)(1) provides that the penalty for

aggravated murder is not just “life,” but one of the following:

(a) Life imprisonment without parole;

(b) [L]ife imprisonment with parole eligibility after serving twenty

years of imprisonment;

(c) [L]ife imprisonment with parole eligibility after serving twenty-five

full years of imprisonment;

(d) [L]ife imprisonment with parole eligibility after serving thirty full

years of imprisonment[.]

(Emphasis added.) R.C. 2929.03(A)(1)

{¶ 9} On September 29, 2020, the trial court issued a decision overruling all four

of Sage’s pro se motions challenging his sentence as void. In so holding, the trial court

found that it indicated during the resentencing hearing that Sage would be serving one

sentence for the merged aggravated murder counts, i.e., life in prison with the possibility

of parole after 20 years. The trial court further found that the issues raised in Sage’s pro

se motions could be properly addressed by a nunc pro tunc entry. The trial court,

therefore, simultaneously issued a nunc pro tunc entry that amended the March 8, 2007

resentencing entry to include the following revised language:

WHEREFORE, it is the JUDGMENT and SENTENCE of the Court that the

CENTER, there to be imprisoned and confined for a term of: -6-

Count #16 [Aggravated Murder (while committing Aggravated Burglary)]:

LIFE with the possibility of parole after TWENTY (20) years;

Count # 17 [Aggravated Murder (while committing Aggravated Robbery)]:

Merges with Count #16[.]

Nunc Pro Tunc Termination Entry (Sept. 29, 2020).

{¶ 10} Sage thereafter filed two separate notices of appeal—one from the trial

court’s decision overruling his four pro se motions and the other from the trial court’s

corresponding nunc pro tunc entry. After receiving both of Sage’s notices of appeal, this

court issued an order consolidating the appeals. Once the appeals were consolidated,

Sage filed an appellate brief raising two assignments of error for review, which we have

addressed below.

First Assignment of Error

{¶ 11} Under his first assignment of error, Sage contends that the trial court erred

by overruling his four pro se motions that challenged his sentence as being void. In

support of this claim, Sage raises the same arguments that were raised in his pro se

motions, i.e., that his sentence was void as a result of the trial court’s imposing separate

sentences for the merged aggravated murder counts and for imposing an unauthorized

“life” sentence. However, upon review, we find that all of Sage’s arguments are barred

by the doctrine of res judicata.

{¶ 12} “The doctrine of res judicata bars a criminal defendant from raising and

litigating in any proceedings any defense or claimed lack of due process that was raised -7-

or could have been raised on direct appeal from the conviction. Res judicata applies to

the litigation of any post[-]conviction issues which were or could have been litigated on

direct appeal.” (Citations omitted.) State v. Young, 2d Dist. Montgomery No. 20813,

2005-Ohio-5584, ¶ 8. “A void sentence 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.’ ” State v. Covington, 2d Dist. Clark No. 2019-CA-50, 2020-Ohio-390,

¶ 13, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40.

However, “[a]rguments challenging the imposition of a sentence that is voidable are

barred by the doctrine of res judicata if not raised on direct appeal.” (Emphasis added.)

State v. Simons, 2d Dist. Champaign No. 2013-CA-5, 2013-Ohio-3654, ¶ 42, citing State

v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 30. (Other citation

omitted.) Therefore, “ ‘defendants with a voidable sentence are entitled to re-sentencing

only upon a successful challenge on direct appeal.’ ” Id. at ¶ 40, quoting State v. Payne,

114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 30.

{¶ 13} The Supreme Court of Ohio has recently clarified that “[a] sentence is void

only if the sentencing court lacks jurisdiction over the subject-matter of the case or

personal jurisdiction over the accused.” State v. Henderson, 161 Ohio St.3d 285, 2020-

Ohio-4784, 162 N.E.3d 776, ¶ 27. In turn, “sentences based on an error are voidable, if

the court imposing the sentence has jurisdiction over the case and the defendant,

including sentences in which a trial court fails to impose a statutorily mandated term.” Id.

With regard to allied-offense sentencing errors, the Supreme Court of Ohio has

specifically held that “[t]he imposition of compound sentences for allied offenses is an

error in the exercise of jurisdiction, to be challenged at sentencing and remedied on direct -8-

appeal.” State ex rel. Romine v. McIntosh, 162 Ohio St.3d 501, 2020-Ohio-6826, 165

N.E.3d 1262, ¶ 15.

{¶ 14} Here, there is no dispute that the trial court had subject matter jurisdiction

over Sage’s case, nor is there any dispute that the trial court had personal jurisdiction

over Sage. See Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131 N.E.3d 1, ¶ 8

(“a common pleas court has subject-matter jurisdiction over felony cases”); Johnson v.

Geauga Cty. Court of Common Pleas, 11th Dist. Geauga No. 2014-G-3206, 2015-Ohio-

210, ¶ 11 (“personal jurisdiction exists when the defendant has been properly served with

the indictment”). Therefore, Sage’s claim that the trial court erroneously imposed separate

sentences for the merged aggravated murder counts only amounted to voidable error.

The same holds true for Sage’s claim that the trial court imposed an unauthorized “life”

sentence for aggravated murder. Because Sage’s claims assert error that would merely

render Sage’s sentence voidable, the claims were barred by the doctrine of res judicata,

as they should have been raised in a direct appeal from the trial court’s resentencing

decision.

{¶ 15} Regardless, even if the doctrine of res judicata did not apply, the record as

a whole indicates that the trial court sentenced Sage to a single life sentence for both

counts of aggravated murder and also advised Sage that he was eligible for parole after

serving 20 years as authorized by R.C. 2929.03(A)(1). To the extent that the March 8,

2007 resentencing entry reflects otherwise, the trial court correctly determined that it

could issue a nunc pro tunc entry to address that issue. See State v. Pacific, 2d Dist.

Montgomery No. 28804, 2021-Ohio-973, ¶ 55 (“where a judgment entry does not

accurately reflect the sentence imposed at a sentencing hearing, the judgment entry -9-

generally may be corrected by means of a nunc pro tunc entry”). Therefore, for the

reasons outlined above, the trial court did not err in overruling Sage’s four pro se motions

that challenged his sentence as being void.

{¶ 16} In reaching this decision, we note that Sage also tangentially argues that

the State relied on inadmissible evidence in its memorandum opposing Sage’s pro se

motions. Specifically, Sage contends that the State improperly cited to the video

transcript of his March 2, 2007 resentencing hearing. The online docket, however,

indicates that the video transcript at issue was filed with the trial court on March 27, 2007,

and was part of the trial court’s record. Because the video transcript was part of the trial

court’s record, it was not inappropriate for the State to reference it while contesting Sage’s

pro se motions.

{¶ 17} Sage’s first assignment of error is overruled.

Second Assignment of Error

{¶ 18} Under his second assignment of error, Sage contends that the trial court

erroneously modified his sentence for aggravated murder using a nunc pro tunc entry and

violated Crim.R. 43(A)(1) by modifying his sentence outside his presence. We disagree.

{¶ 19} “ ‘Crim.R. 36(A) permits trial courts to correct clerical mistakes in judgments

or orders arising from oversight or omissions, using a nunc pro tunc entry.’ ” State v.

Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, 26983, 2016-Ohio-4897, ¶ 11, quoting

State v. Roach, 2d Dist. Montgomery No. 23317, 2010-Ohio-566, ¶ 3. “ ‘The term

“clerical mistake” refers to a mistake or omission, mechanical in nature and apparent on

the record, which does not involve a legal decision or judgment.’ ” State v. Arnold, 2d -10-

Dist. Montgomery No. 22856, 2009-Ohio-3636, ¶ 57, quoting State v. Brown, 136 Ohio

App.3d 816, 820, 737 N.E.2d 1057 (3d Dist.2000). “The use of a nunc pro tunc entry is

limited to reflecting what the court actually decided but failed to properly include in its

judgment.” Wolfe at ¶ 11, citing State v. Ritchie, 2d Dist. Montgomery No. 24088, 2011-

Ohio-2566, ¶ 8. Thus, “ ‘[t]he function of nunc pro tunc [entries] is not to change, modify,

or correct erroneous judgments, but merely to have the record speak the truth.’ ” Ritchie

at ¶ 10, quoting Ruby v. Wolf, 39 Ohio App. 144, 147, 177 N.E. 240 (8th Dist.1931). “A

nunc pro tunc entry cannot be used to change something that was deliberately done.”

(Citation omitted.) Id.

{¶ 20} Contrary to Sage’s claim otherwise, the nunc pro tunc entry in this case did

not modify his sentence for aggravated murder. Rather, the nunc pro tunc entry

amended the language in the March 8, 2007 resentencing entry to reflect the trial court’s

actions at the resentencing hearing, i.e., merging Sage’s two counts of aggravated

murder and sentencing Sage to a single life sentence with parole eligibility after 20 years.

Simply put, the nunc pro tunc entry merely corrected the record to reflect what actually

occurred at the resentencing hearing when the court resentenced Sage for aggravated

murder. Thus, the nunc pro tunc entry was proper. Moreover, because the nunc pro

tunc entry did not modify Sage’s sentence, the requirement under Crim.R. 43(A)(1)—that

a defendant be physically present at sentencing—was not implicated.

{¶ 21} Sage’s second assignment of error is overruled.

Conclusion

{¶ 22} Having overruled both assignments of error raised by Sage, the judgment -11-

of the trial court is affirmed.

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Lisa M. Light Gordon William Sage Hon. Dennis J. Adkins