State v. Stewart

2020 Ohio 6743

Opinion

[Cite as State v. Stewart, 2020-Ohio-6743.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109498 v. :

LARRY STEWART, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 17, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-96-340429-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine E. Mullin, Assistant Prosecuting Attorney, for appellee.

Larry Stewart, pro se.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Larry Stewart, appeals the trial court’s decision

denying his motion to vacate a void sentence. For the reasons that follow, we affirm.

In 1997, Stewart was sentenced to prison for “30 years to life” for

aggravated murder with capital and firearm specifications. In his direct appeal, Stewart did not raise that his sentence was void for failing to follow the statutory

language when sentencing for aggravated murder or that the court imposed a

sentence outside of his presence in violation of Crim.R. 43. State v. Stewart, 8th

Dist. Cuyahoga No. 73255, 1998 Ohio App. LEXIS 5462 (Nov. 19, 1998).

In June 2019, Stewart filed a motion to vacate void sentence,

contending that the trial court’s sentence was contrary to law because it did not

follow the statutory language of R.C. 2929.03(D)(2), i.e., his sentence should be “life

imprisonment with parole eligibility after serving thirty full years of imprisonment.”

The trial court denied the motion, finding that the sentence was lawful because the

trial court advised Stewart at sentencing that it was imposing a sentence of “life

imprisonment with parole eligibility after thirty years.”

Stewart now appeals, raising the following three assignments of error:

[I.] The trial court erred as a matter of law in sentencing [him] to an unauthorized term of thirty years to life for aggravated murder with specifications instead of the statutorily mandated term of life imprisonment with parole eligibility after thirty full years.

[II]. The trial court erred as a matter of law in denying [his] motion to vacate a void sentence where the sentence for aggravated murder does not contain the correct prison term mandated by R.C. 2929.03(D)(2), and State ex rel. Stewart v. Russo, 2016-Ohio-421.

[III.] The trial court erred as a matter of law by imposing one sentence in open court and journalized a different sentence outside [his] presence in violation of Crim.R. 43(A), and his right to due process.

The Ohio Supreme Court recently held that “sentences based on an

error, including sentences in which a trial court fails to impose a statutorily

mandated term, are [not void], but voidable if the court imposing the sentence has jurisdiction over the case and the defendant.” State v. Henderson, Slip Opinion No.

2020-Ohio-4784, ¶ 1; see also State v. Harper, Slip Opinion No. 2020-Ohio-2913,

¶ 4. If the sentencing error rendered the defendant’s sentence voidable, the error

cannot be corrected through a postconviction proceeding. Henderson at ¶ 43.

Recently in State v. Walker, 8th Dist. Cuyahoga Nos. 108752 and

108884, 2020-Ohio-5261, the defendant argued that his sentence was contrary to

law and void because the version of R.C. 2929.03 in effect at the time he was

sentenced required a sentence of “an indefinite term of fifteen years to life” and the

trial court omitted the word “indefinite” when sentencing him. Based on Henderson

and Harper, this court held that even if the trial court had improperly omitted the

word “indefinite,” the sentencing error would render Walker’s sentence voidable,

not void; thus, Walker’s sentence only could be challenged by objecting at

sentencing or on direct appeal, not through a postconviction motion. Id. at ¶ 30; see

also State v. Starks, 8th Dist. Cuyahoga No. 109444, 2020-Ohio-4306 (when the

trial court imposed sentences of “life” imprisonment instead of sentences of “life

imprisonment with parole eligibility after serving twenty years of imprisonment,”

the sentences were merely voidable; thus, not reviewable in postconviction

proceedings).

Based on the authority of Henderson, Walker, and Starks, we find no

merit to Stewart’s first and second assignments of error. Even if the trial court

improperly imposed a sentence of “30 years to life,” the error would render Stewart’s

sentence voidable, not void; thus, it cannot be challenged in a postconviction proceedings. Accordingly, the trial court did not err in denying his motion to correct

a void sentence.1

Stewart’s third assignment of error, raising a Crim.R. 43 violation, is

also without merit because he could have raised this issue in his direct appeal and

res judicata now prevents him from doing so in this appeal. See State v. Davis, 119

Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 6.

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.

KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and MARY EILEEN KILBANE, J., CONCUR

1We note that Stewart concedes that the trial court imposed the proper sentence in open court at the time of sentencing. See Appellant’s Reply Brief, p. 3. Accordingly, the trial court could issue a nunc pro tunc sentencing entry to reflect the sentence the court imposed in open court. See State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15; State v. Sandidge, 8th Dist. Cuyahoga No. 109277, 2020-Ohio-1629.