         [Cite as State v. Walker, 2013-Ohio-1967.]




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



STATE OF OHIO,                                        :    APPEAL NO. C-120549
                                                          TRIAL NO. B-9207726-A
        Plaintiff-Appellee,                           :

  vs.                                                 :       O P I N I O N.

LEONARD WALKER,                                       :

    Defendant-Appellant.                              :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: May 15, 2013


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

Leonard Walker, pro se.




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



HENDON, Presiding Judge.

       {¶1}    Defendant-appellant Leonard Walker appeals from the Hamilton

County Common Pleas Court’s judgment overruling his “Motion for Modification of

Sentence and for Resentencing Based on Void Judgment Entry * * * in Violation of

R.C. 2941.25 (Allied Offense).” We affirm the court’s judgment.

       {¶2}    Walker was convicted in 1993 upon jury verdicts finding him guilty of

aggravated murder, aggravated robbery, and kidnapping.            He unsuccessfully

challenged his convictions in direct appeals to this court and the Ohio Supreme

Court, State v. Walker, 1st Dist. Nos. C-930461 and C-930465, 1994 Ohio App.

LEXIS 3451 (Aug. 10, 1994), appeal dismissed, 73 Ohio St.3d 1434, 653 N.E.2d 393

(1995), and collaterally, in a petition pursuant to R.C. 2953.21 et seq. for

postconviction relief, filed in 1996.

       {¶3}    In his “Motion for Modification of Sentence * * *,” filed in 2012, he

contended that because his offenses are allied offenses of similar import committed

with the same conduct, the trial court could not, consistent with R.C. 2941.25, have

imposed a sentence for each offense.      In this appeal, Walker presents a single

assignment of error, challenging the overruling of his motion. The challenge is

untenable.

       {¶4}    Walker did not specify in his motion the statute or rule under which he

sought postconviction relief. R.C. 2953.21 et seq., governing the proceedings upon a

postconviction petition, 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, Walker’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.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}    But Walker filed his postconviction motion well after the expiration of

the time prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the

jurisdiction of a common pleas court to entertain a late 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 or

retrospectively applicable federal or state right recognized by the United States

Supreme Court since the expiration of the time prescribed by R.C. 2953.21(A)(2) or

since the filing of his last postconviction claim; 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.”

       {¶6}   The record before us does not, as it could not, demonstrate that, but

for the claimed sentencing errors, no reasonable factfinder would have found Walker

guilty of the offenses of which he was convicted. Because Walker satisfied neither

the time restrictions of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.

2953.23, the postconviction statutes did not confer upon the common pleas court

jurisdiction to entertain Walker’s postconviction motion. See R.C. 2953.23(A).

       {¶7}   A court nevertheless 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. But the Ohio Supreme Court has not held that the imposition of a

sentence in violation of R.C. 2941.25 renders a judgment of conviction void. See

State v. Lee, 1st Dist. No. C-120307, 2013-Ohio-1811, ¶ 8.

       {¶8}   Upon our determination that the common pleas court properly denied

Walker the relief sought in his postconviction motion, we overrule the assignment of

error. Because the court had no jurisdiction to entertain Walker’s motion on its

merits, the motion was subject to dismissal. Accordingly, upon the authority of




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                  OHIO FIRST DISTRICT COURT OF APPEALS



App.R. 12(A)(1)(a), we modify the judgment from which Walker has appealed to

reflect the dismissal of the motion. And we affirm the judgment as modified.

                                                                  Affirmed as modified.



HILDEBRANDT, J., concurs.
CUNNINGHAM, J., concurs in part and dissents in part.

CUNNINGHAM, J., concurring in part and dissenting in part.
       {¶9}    I concur in the majority’s holding that the postconviction statutes did

not confer upon the common pleas court jurisdiction to entertain Walker’s “Motion

for Modification of Sentence * * * .” But I respectfully dissent from its determination

that the court lacked jurisdiction to entertain his allied-offenses claim because a

sentence imposed in violation of R.C. 2941.25 is not void. For the reasons set forth in

my concurring and dissenting opinion in State v. Lee, 1st Dist. No. C-120307, 2013-

Ohio-1811, ¶ 21-30, I would instead hold that the common pleas court had

jurisdiction to entertain the claim because a sentence imposed in contravention of

R.C. 2941.25 is void and thus subject to review at any time. But I would ultimately

affirm the denial of the relief sought, because R.C. 2941.25 authorized the trial court

to impose a sentence for each offense, when the record shows that the offenses were

committed separately.

       {¶10} And based on the conflict noted in Lee, I would, upon the authority

conferred by the Ohio Constitution, Article IV, Section 3(B)(4), certify to the Ohio

Supreme Court the following question: “Are sentences imposed in violation of R.C.

2941.25 void and thus subject to review at any time?” See Lee at ¶ 31.



Please note:

       The court has recorded its entry on the date of the release of this opinion.



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