[Cite as State v. Peoples, 2019-Ohio-2141.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                        No. 18AP-850
v.                                                  :                (C.P.C. No. 01CR-4150)

David A. Peoples,                                   :           (ACCELERATED CALENDAR)

                 Defendant-Appellant.               :



                                              D E C I S I O N

                                       Rendered on May 30, 2019


                 On brief: Ron O'Brien, Prosecuting               Attorney,   and
                 Kimberly M. Bond, for appellee.

                 On brief: David A. Peoples, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

        {¶ 1} Defendant-appellant, David A. Peoples, appeals a decision from the Franklin

County Court of Common Pleas, issued October 10, 2018, denying his renewed motion to

vacate void sentence. For the following reasons we reverse the trial court's decision and

remand this matter to the to the trial court with instructions.

I. FACTS AND PROCEDURAL HISTORY

        {¶ 2} On July 20, 2001, Peoples was indicted on one count of aggravated murder,
in violation of R.C. 2903.01, a felony in the first degree, with two firearm specifications in
violation of R.C. 2941.145 and 2941.146, and one count of having a weapon while under
disability. With respect to the first firearm specification, R.C. 2941.145, Plaintiff-appellee,
State of Ohio, alleged that Peoples displayed, brandished, indicated possession of, or used
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a firearm to commit the offense. With respect to the second firearm specification, R.C.
2941.146, the state alleged that Peoples discharged a firearm from a motor vehicle when he
committed the underlying offense.
       {¶ 3} The case was tried to a jury on June 27, 2002, and the jury found Peoples
guilty of aggravated murder and the two firearm specifications. The court sentenced
Peoples to a term of 25 years to life imprisonment on the aggravated murder charge, plus 6
years for R.C. 2941.146 firearm specification, and three years on the R.C. 2941.145 firearm
specification, for a total of 34 years. The trial court imposed consecutive sentences on the
counts.
       {¶ 4} The conviction and sentence were affirmed on appeal. See State v. Peoples,
10th Dist. No. 02AP-925, 2003-Ohio-4680.
       {¶ 5} On April 16, 2008, the trial court issued a corrected judgment entry because
the original judgment entry erroneously indicated that prison was not mandatory. In the
corrected judgment entry, the court imposed the same sentence, including a six-year
sentence for the drive-by firearm specification.
       {¶ 6} Since that time, Peoples has filed various pleadings in the trial court.
Relevant to this appeal, however, on March 20, 2017, Peoples filed a motion to vacate his
sentence, arguing that the trial court improperly imposed a period of post-release control
on his aggravated murder conviction. The court denied that motion on April 6, 2017.
Peoples then filed another motion on June 26, 2017, requesting to amend his March
motion, which had already been denied. Peoples sought to amend the motion to argue that
the six-year term for the drive-by specification was invalid. In its response to the motion to
amend, the state agreed that the drive-by specification, R.C. 2941.146, mandated a five-year
term, not a six-year term. On August 3, 2017, the trial court denied the motion.
       {¶ 7} Peoples filed a motion to vacate void sentence on August 7, 2017, again
arguing that the six-year term imposed for the drive-by specification was void. Peoples filed
a supplemental memorandum in support of this motion on September 1, 2017.
       {¶ 8} On October 10, 2018, the trial court denied the motion. Peoples now appeals
the trial court's denial of that motion.
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        {¶ 9} The state concedes that a limited remand is appropriate because R.C.
2941.146 provides that the prison time for a drive-by specification is five years. The state
argues that Peoples is not entitled to a de novo resentencing, though.
II. ASSIGNMENT OF ERROR

        {¶ 10} Peoples argues one assignment of error:

                The trial court erred when it sentenced the appellant to a void
                sentence of (6) six years on a drive by shooting gun
                specification in violation of Ohio Revised Code
                2929.14(B)(1)(c)(i) that is void and contrary to law.

III. LAW AND ANALYSIS

        {¶ 11} R.C. 2941.146 and 2929.14(B)(1)(c)(i) both provide for the imposition of a

"mandatory five-year prison term" where an offender has committed a "felony that

includes, as an essential element, purposely or knowingly causing or attempting to cause

the death of or physical harm to another and that was committed by discharging a firearm

from a motor vehicle other than a manufactured home." R.C. 2941.146(A). This includes

aggravated murder because a person is guilty of aggravated murder under R.C. 2903.01 if

he "purposely, and with prior calculation and design, cause[s] the death of another." At the

time of the offense, and at all times since the enactment of the legislation, R.C. 2941.146

and 2929.14(B)(1)(c)(i)1 have imposed a five-year prison term for a drive-by specification.

        {¶ 12} The current version of R.C. 2929.14(B)(1)(c)(i) provides:

                *** if an offender who is convicted of or pleads guilty to *** a
                felony that includes, as an essential element, purposely or
                knowingly causing or attempting to cause the death of or
                physical harm to another, also is convicted of or pleads guilty
                to a specification of the type described in division (A) of section
                2941.146 of the Revised Code that charges the offender with
                committing the offense by discharging a firearm from a motor

1At the time of the offense and original sentence, this provision was R.C. 2929.14(D)(1)(c). It has been
amended several times, but it has always provided for a mandatory five-year term on a drive-by firearm
specification. In 2011 H.B. No. 86, this provision became 2929.14(B)(1)(c). In 2015 S.B. No. 97, this
provision became 2929.14(D)(1)(c)(i).
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No. 18AP-850
              vehicle other than a manufactured home, the court, after
              imposing a prison term on the offender for the violation of
              section 2923.161 of the Revised Code or for the other felony
              offense under division (A), (B)(2), or (B)(3) of this section, shall
              impose an additional prison term of five years upon the
              offender that shall not be reduced pursuant to section 2929.20,
              section 2967.19, section 2967.193, or any other provision of
              Chapter 2967. or Chapter 5120. of the Revised Code.

       {¶ 13} Neither party disputes that Peoples was sentenced to a term of six years on

the drive-by firearm specification, R.C. 2941.146, and that such a sentence is unlawful.

Thus, the six-year sentence for a violation of R.C. 2941.146 is void. See State v. Harris, 132

Ohio St.3d 318, 2012-Ohio-1908, ¶ 7 ("Where a trial court fails to impose a sentence in

accordance with statutorily mandated terms, it is void.") (citations omitted); State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 8 ("[A] sentence that is not in accordance

with the statutorily mandated terms is void."); State v. Moore, 135 Ohio St.3d 151, 2012-

Ohio-5479, ¶ 14 ("It is a longstanding principle that an offender's sentence that does not

properly include a statutorily mandated term is contrary to law."), citing Colegrove v.

Burns, 175 Ohio St.3d 437 (1964); State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197,

¶ 14 ("[T]his court has held consistently that a sentence that does not contain a statutorily

mandated term is a void sentence."), citing State v. Beasley, 14 Ohio St.3d 74 (1984),

superceded by statute on other grounds.

       {¶ 14} Pursuant to R.C. 2929.14(C)(1)(a), Peoples has already served his term for

both firearm specifications. That provision states:

              Subject to division (C)(1)(b) of this section, if a mandatory
              prison term is imposed upon an offender pursuant to division
              (B)(1)(a) of this section for having a firearm on or about the
              offender’s person or under the offender’s control while
              committing a felony, if a mandatory prison term is imposed
              upon an offender pursuant to division (B)(1)(c) of this section
              for committing a felony specified in that division by
              discharging a firearm from a motor vehicle, or if both types of
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No. 18AP-850
              mandatory prison terms are imposed, the offender shall serve
              any mandatory prison term imposed under either division
              consecutively to any other mandatory prison term imposed
              under either division or under division (B)(1)(d) of this section,
              consecutively to and prior to any prison term imposed for the
              underlying felony pursuant to division (A), (B)(2), or (B)(3) of
              this section or any other section of the Revised Code, and
              consecutively to any other prison term or mandatory prison
              term previously or subsequently imposed upon the offender.

Nonetheless, Peoples has not completed his overall prison sanction. Pursuant to State v.

Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 18, "when the prison-sanction portion of

a sentence that also includes a void sanction has not been completely served, the void

sanction may be modified." It is of no consequence that Peoples raises this argument by

way of a collateral attack. As Supreme Court of Ohio has confirmed "void sentences are not

precluded from appellate review by principles of res judicata and may be reviewed at any

time, on direct appeal or by collateral attack." Fisher at ¶ 40. Nonetheless, this principle

applies narrowly, only to the void sentence. The Fisher Court went on to "hold that although

the doctrine of res judicata does not preclude review of a void sentence, res judicata still

applies to other aspects of the merits of a conviction, including the determination of guilt

and the lawful elements of the ensuing sentence." Id.

       {¶ 15} Peoples has appealed from a decision denying his motion to vacate a void

sentence. Because we agree that Peoples' sentence under R.C. 2941.146 is void, we sustain

his sole assignment of error. We reverse the trial court's denial of Peoples' August 7, 2017

motion to vacate, and we remand this matter to the trial court with instructions to vacate

Peoples' six-year sentence on the R.C. 2941.146 firearm specification and resentence

Peoples to the statutorily mandated five-year term for that specification. Peoples' three-

year sentence on the R.C. 2941.145 firearm specification and his sentence on the underlying

aggravated murder conviction remain unchanged. The computation of the start of his
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No. 18AP-850
sentence on the aggravated murder conviction should be adjusted to reflect the one-year

reduction in his sentence on the R.C. 2941.146 firearm specification.

                                    Judgment reversed and remanded with instructions.


                         BRUNNER and NELSON, JJ., concur.
