         [Cite as State v. Roberts, 2017-Ohio-1060.]




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



STATE OF OHIO,                                     :   APPEAL NO. C-150528
                                                       TRIAL NO. B-0405710
        Plaintiff-Appellee,                        :

  vs.                                              :      O P I N I O N.

MALLON ROBERTS,                                    :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified and Cause Remanded

Date of Judgment Entry on Appeal: March 24, 2017




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

Mallon Roberts, pro se.
                 OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}   Defendant-appellant Mallon Roberts appeals the Hamilton County

Common Pleas Court’s judgment overruling his “Motion to Correct Judgment Entry

Pursuant to Criminal Rule 36.” We affirm the court’s judgment as modified, but

remand for resentencing in conformity with the statutory mandates concerning

postrelease control.

       {¶2}   Roberts was convicted of murder in 2005. He unsuccessfully challenged

his conviction on direct appeal, State v. Roberts, 1st Dist. Hamilton No. C-050279,

2007-Ohio-856, appeal not accepted, 115 Ohio St.3d 1424, 2007-Ohio-5056, 874

N.E.2d 539, and in postconviction motions filed with the common pleas court in 2010,

2011, 2012, 2014, and 2015. See State v. Roberts, 1st Dist. Hamilton No. C-150293

(May 27, 2016); State v. Roberts, 1st Dist. Hamilton No. C-120781 (July 3, 2013); State

v. Roberts, 1st Dist. Hamilton No. C-110669 (Apr. 18, 2012); State v. Roberts, 1st Dist.

Hamilton No. C-100456 (June 3, 2011).

       {¶3}   In his 2015 “Motion to Correct Judgment Entry Pursuant to Criminal

Rule 36,” Roberts sought “correct[ion]” of his judgment of conviction on the grounds

that the judgment did not comport with Crim.R. 32(C), and that his sentence was not

imposed in conformity with the statutes governing repeat violent offenders, indefinite

sentences, jail-time credit, court costs, and postrelease control. In this appeal, he

presents four assignments of error, challenging the common pleas court’s judgment

denying resentencing based on his repeat-violent-offender, indefinite-sentence, jail-

time-credit, and postrelease-control claims. We overrule assignments of error one,

three, and four, because the common pleas court had no jurisdiction to entertain

Roberts’s repeat-violent-offender, indefinite-sentence, and jail-time-credit claims. But




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we sustain his second assignment of error, because the trial court imposed an

unauthorized term of postrelease control.

           {¶4}   Sentence was not correctable under Crim.R. 36. Roberts

was not entitled to relief under Crim.R. 36. The rule authorizes a court to “correct[] *

* * at any time” “clerical mistakes in judgments.” Thus, a trial court may, pursuant to

Crim.R. 36, enter a judgment, nunc pro tunc to the date of conviction, correcting an

error of fact in a judgment of conviction. See State v. Weaver, 1st Dist. Hamilton No.

C-050923, 2006-Ohio-5072, ¶ 12.

           {¶5}   Roberts’s     repeat-violent-offender,     indefinite-sentence,     and

postrelease-control claims alleged errors of law, not fact. Therefore, his judgment of

conviction was not subject to correction under Crim.R. 36 on those grounds. See id.

at ¶ 16.

           {¶6}   In his jail-time-credit claim, Roberts sought correction of his judgment

of conviction under Crim.R. 36 on the ground that the judgment’s grant of “credit for

time served” did not include a calculation of that time. We note that in 2005, when

Roberts was sentenced, R.C. 2949.08(B) and 2949.12 required a sentencing court to

calculate jail-time credit, and that Crim.R. 36 permitted the court to “correct” any

miscalculation of jail-time credit. See Heddleston v. Mack, 84 Ohio St.3d 213, 213,

702 N.E.2d 1198 (1988); Weaver at ¶ 12. In 2012, the General Assembly enacted

R.C. 2929.19(B)(2)(g)(i), codifying the sentencing court’s duty to “[d]etermine, notify

the offender of, and include in the sentencing entry” the offender’s jail-time credit.

And it enacted R.C. 2929.19(B)(2)(g)(iii), permitting the offender to move at any

time for correction of, and conferring upon the sentencing court “continuing

jurisdiction to correct[,] any error not previously raised at sentencing in making a

[jail-time-credit] determination under [R.C. 2929.19(B)(2)(g)(i)].”



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       {¶7}   But Roberts was sentenced before R.C. 2929.19(B)(2)(g) was enacted.

Thus, because his jail-time credit could not have been “determin[ed] under [R.C.

2929.19(B)(2)(g)(i)],” R.C. 2929.19(B)(2)(g)(iii) did not confer upon the common

pleas court “continuing jurisdiction to correct” any jail-time-credit error in his

judgment of conviction. See State v. Morgan, 1st Dist. Hamilton No. C-140146,

2014-Ohio-5325, ¶ 5–7.

       {¶8}   Nor does Crim.R. 36 provide a remedy for the error alleged in

Roberts’s jail-time-credit claim.     The Ohio Department of Rehabilitation and

Correction’s Notice of Commitment and Calculation of Sentence filed in Roberts’s

case shows an Aggregate Jail Time Credit of 13 days. In seeking Crim.R. 36 relief,

Roberts contended not that his jail-time credit had been miscalculated, but that the

sentencing court erred in failing to make the statutorily mandated calculation and

include it in his judgment of conviction. Because the claim alleged neglect of the

court’s duty under the law to calculate jail-time credit, rather than an error of fact in

that calculation, Roberts’s judgment of conviction was not subject to correction

under Crim.R. 36 on that ground. See Weaver at ¶ 16.

       {¶9}   Claims were not reviewable under Crim.R. 57(B), 33, or

32.1 or under the postconviction, mandamus, declaratory-judgment,

or habeas statutes.          Because Roberts did not specify in his postconviction

motion a statute or rule under which the relief sought might have been afforded, the

common pleas court could have “recast” the motion “into whatever category

necessary to identify and establish the criteria by which the motion should be

judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12

and syllabus. But the motion was not reviewable under the standards provided by

R.C. 2953.21 et seq., governing the proceedings upon a petition for postconviction




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relief, when the motion alleged statutory, rather than constitutional, violations. See

R.C. 2953.21(A)(1). Because Roberts’s conviction followed a jury trial, and he did not

seek a new trial, the motion was not reviewable under either Crim.R. 32.1 as a

motion to withdraw a guilty plea or Crim.R. 33 as a motion for a new trial. Nor was

the motion reviewable under R.C. Chapter 2731 as a petition for a writ of mandamus,

under R.C. Chapter 2721 as a declaratory judgment action, or under R.C. Chapter

2725 as a petition for a writ of habeas corpus, when the motion did not satisfy those

statutes’ procedural requirements. See R.C. 2731.04, 2721.12(A), and 2725.04. And

Crim.R. 57(B) did not require the court to review under Civ.R. 60(B) the challenges

advanced in the motion, because Roberts’s conviction was reviewable under the

procedures provided for a direct appeal. See State v. Smith, 1st Dist. Hamilton Nos.

C-150445 and C-150446, 2016-Ohio-3521, ¶ 19.

       {¶10} Postrelease         control     was      correctable       under     the

jurisdiction to correct a void judgment.                 Finally, courts always have

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. The alleged repeat-

violent-offender, indefinite-sentence, and jail-time-credit errors in Roberts’s

sentence were not subject to correction under the jurisdiction to correct a void

judgment, when those errors, even if demonstrated, would not have rendered his

sentence void. See Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d

1111, ¶ 14-15 (holding that a guilty plea is voidable, not void, when a trial court has

subject-matter jurisdiction, but errs in the exercise of that jurisdiction); State v.

Wurzelbacher, 1st Dist. Hamilton No. C-130011, 2013-Ohio-4009, ¶ 8; State v.

Grant, 1st Dist. Hamilton No. C-120695, 2013-Ohio-3421, ¶ 9-16 (holding that a

judgment of conviction is void only to the extent that a sentence is unauthorized by




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                  OHIO FIRST DISTRICT COURT OF APPEALS



statute or does not include a statutorily mandated term or if the trial court lacks

subject-matter jurisdiction or the authority to act).

       {¶11} But the trial court included in Roberts’s murder sentence a period of

postrelease control.    And the postrelease-control statutes then in effect did not

authorize postrelease control for a special felony like murder. See State v. Clark, 119

Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36; accord State v. Baker, 1st

Dist. Hamilton No. C-050791, 2006-Ohio-4902, ¶ 4-6. To the extent that Roberts’s

sentence was not imposed in conformity with the statutory mandates concerning

postrelease control, it is void, and the common pleas court had jurisdiction to review

and correct the offending portion of the sentence. See State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus and ¶ 26-

27.

       {¶12} Affirmed as modified, but remanded.                   Because Roberts’s

sentence was not correctable under Crim.R. 36 on any ground advanced in his

motion, the motion should have been dismissed. Accordingly, upon the authority of

App.R. 12(A)(1)(a), we modify the judgment appealed from to reflect the dismissal of

the motion. And we affirm the judgment as modified.

       {¶13} But that part of Roberts’s murder sentence that included an

unauthorized period of postrelease control was void. We, therefore, remand this

cause for correction of the offending portion of his sentence, in accordance with the

law and this opinion.

                                                               Judgment accordingly.

MOCK, P.J., CUNNINGHAM and ZAYAS, JJ.

Please note:

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




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