[Cite as State v. Mack, 2020-Ohio-2951.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                 No. 19AP-730
v.                                                :          (C.P.C. No. 94CR-000201)

Levio D. Mack,                                    :     (ACCELERATED CALENDAR)

                 Defendant-Appellant.             :



                                           D E C I S I O N

                                      Rendered on May 14, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee.

                 On brief: Levio D. Mack, pro se.

                  APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
        {¶ 1} Defendant-appellant, Levio D. Mack, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion for sentencing. For the
reasons that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} The pertinent facts and procedural history of this case were set forth by this
court in our decision in State v. Mack, 10th Dist. No. 16AP-680, 2017-Ohio-7417, as follows:
                 On May 31, 1994, appellant entered guilty pleas to a stipulated
                 lesser included offense of Count 1 of the indictment,
                 aggravated murder without the capital specifications but with
                 the firearm specification, and Count 3 of the indictment,
                 aggravated robbery without the specification. The trial court's
                 judgment entry stated, in pertinent part:
No. 19AP-730                                                                           2


                       The Court finds that on May 31, 1994, the
                       Defendant entered pleas of guilty to the
                       stipulated lesser included offense of Count One
                       of the indictment, to wit: Aggravated Murder
                       without death specifications, but with firearm
                       specification in violation of R.C. 2903.01, a
                       Felony of the First degree; and to Count Three
                       of the indictment, to wit: Aggravated Robbery
                       without specification in violation of R.C.
                       2911.01, a Felony of the First degree, and was
                       found guilty of said charges by the Court.
                (Emphasis added.) (June 1, 1994 Jgmt. Entry at 1.)
                The trial court imposed a sentence of 20 years to life with
                respect to the aggravated murder charge, 3 additional years as
                to the firearm specification, and 6 to 25 years on the
                aggravated robbery charge. All prison terms were ordered to
                be served consecutively. Eventually, appellant filed a direct
                appeal and this court affirmed. State v. Mack, 10th Dist. No.
                94APA07-992, 1999 Ohio App. LEXIS 3651 (Aug. 10, 1999).
                In the years that followed appellant's conviction, he has filed
                a number of motions that the trial court has construed as
                petitions for postconviction relief. As relevant to this appeal,
                on September 13, 2013, appellant filed a "MOTION FOR
                ISSUANCE OF A FINAL APPEALABLE ORDER." On
                October 1, 2013, the trial court overruled the motion as
                untimely, barred by res judicata, and otherwise lacking merit.
                Appellant filed a timely notice of appeal and this court
                affirmed. State v. Mack, 10th Dist. No. 13AP-887, 2014-Ohio-
                1648.
                On October 22, 2015, appellant filed a motion for sentencing,
                arguing that the trial court's sentencing entry of June 1, 1994
                was void because the entry clearly and erroneously stated that
                aggravated murder was "a Felony of the First degree," and for
                failing to indicate the sequence in which the consecutive
                sentences were to be served.
                On September 12, 2016, the trial court denied appellant's
                motion.
Id. at ¶ 3-7.
        {¶ 3} Appellant appealed to this court from the trial court's September 12, 2016
judgment entry denying his motion for sentencing. We affirmed the trial court's decision.
Id. at ¶ 21.
No. 19AP-730                                                                              3


       {¶ 4} On July 10 and 11, 2019, appellant filed several related motions including a
second motion for sentencing, a motion for order of conveyance, and a motion for
establishment of a date certain for oral hearing. On October 8, 2019, the trial court issued
a decision and entry denying appellant's motions. Appellant timely appealed to this court
from the October 8, 2019 judgment.
II. ASSIGNMENT OF ERROR
       {¶ 5} Appellant assigns the following as trial court error:
                [W]here a criminal defendant enters into a specific
                performance contractual plea agreement which included an
                'agreed sentence' of 20 years to life for the offense of
                aggravated murder pursuant to: O.R.C. Section 2903.01( )
                and for which a prison term of 20 years to life was and is not
                authorized, defendant's plea was not made knowingly,
                intelligently and voluntarily and must be vacated or otherwise
                set aside pursuant to the mandatory language enumerated in:
                State v. Brunning, 2013 Ohio 930, to wit:
                We recognize that when the state breaches a plea agreement,
                the defendant has the option to withdraw his plea or seek
                specific performance. State ex rel. Seikbert v. Wilkinson, 69
                Ohio St.3d 489, 491, 1994 Ohio 39, 633 N.E.2d 1128 (1994).
                [a]nd that:
                A plea agreement is an essential part of the criminal justice
                system. State v. Vari, 7th Dist. No. 07MA142, 2010-Ohio-
                1300, ¶ 19, citing Santobello v. New York, 404 U.S. 257,
                261, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). A defendant
                has a contractual right to enforcement of the prosecutor's
                obligations under the plea agreement after the plea has
                been accepted by the court. see: State v. Adams, 2014
                Ohio 724 see also: State v. Smith, 2019 Ohio 155; and,
                State v. Houston. 2019 Ohio 355 (8th Dist.).
(Sic passim.)
III. LEGAL ANALYSIS
       {¶ 6} In appellant's assignment of error, he contends his sentence of 20 years to
life for aggravated murder was not authorized by statutory law and is void. We agree.
       {¶ 7} In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, the Supreme
Court of Ohio explained the rationale underlying the void sentence doctrine in Ohio:
                In Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811
                (1964), this court described the trial judge's role at sentencing:
No. 19AP-730                                                                               4


               "Crimes are statutory, as are the penalties therefor, and the
               only sentence which a trial court may impose is that provided
               for by statute. A court has no power to substitute a different
               sentence for that provided for by statute or one that is either
               greater or lesser than that provided for by law." And applying
               this principle in State v. Beasley, 14 Ohio St.3d 74, 75, 14 Ohio
               B. 511, 471 N.E.2d 774 (1984), we stated that "[a]ny attempt
               by a court to disregard statutory requirements when imposing
               a sentence renders the attempted sentence a nullity or void."
               ***
               Our jurisprudence on void sentences "reflects a fundamental
               understanding of constitutional democracy" that the power to
               define criminal offenses and prescribe punishment is vested
               in the legislative branch of government and that courts may
               impose sentences only as provided by statute. State v.
               Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
               ¶ 21-22. Because "[n]o court has the authority to impose a
               sentence that is contrary to law," id. at ¶ 23, when the trial
               court disregards statutory mandates, "[p]rinciples of res
               judicata, including the doctrine of the law of the case, do not
               preclude appellate review. The sentence may be reviewed at
               any time, on direct appeal or by collateral attack." Id. at ¶ 30.
Id. at ¶ 20, 22.
       {¶ 8} In denying appellant's motion to void his sentence, the trial court concluded
as follows:
               Defendant argues that his sentence is void and as a result, he
               is entitled to be resentenced. Defendant's Motion appears to
               argue that Defendant's sentence is void on the grounds that it
               does not provide for parole eligibility. Defendant's Motion
               lacks merit. At the time Defendant was sentenced, an
               indefinite prison term of 20 years to life in prison was an
               authorized sentence for aggravated murder. Defendant's
               parole eligibility is provided under former R.C. 2967.13(C).
               Therefore, Defendant's argument that his sentence is void on
               the grounds that his sentence does not provide for parole
               eligibility lacks merit.
(Oct. 8, 2019 Decision at 3.)
       {¶ 9} Contrary to the trial court's conclusion, on the date of appellant's conviction,
R.C. 2929.03(A) mandated the following penalty for aggravated murder:
               If the indictment or count in the indictment charging
               aggravated murder does not contain one or more
               specifications of aggravating circumstances listed in division
No. 19AP-730                                                                                 5


              (A) of section 2929.04 of the Revised Code, then, following a
              verdict of guilty of the charge of aggravated murder, the trial
              court shall impose a sentence of life imprisonment with
              parole eligibility after serving twenty years of imprisonment
              on the offender.
(Emphasis added.)
       {¶ 10} Appellant contends the imposition of an indefinite sentence of "twenty years
to life" for aggravated murder was not authorized by statutory law and the trial court lacked
authority to impose such a sentence. In support of his argument, appellant relies on a
decision of the Eighth District Court of Appeals in State v. Smith, 8th Dist. No. 106893,
2019-Ohio-155.
       {¶ 11} In 1988, Smith pleaded guilty to aggravated murder pursuant to a plea
agreement with the state. The trial court imposed a sentence of "20 years to life in prison."
Id. at ¶ 12. In 2018, after the parole board denied parole and after the trial court refused to
permit Smith to withdraw his guilty plea, Smith filed a motion to void his sentence. The
trial court denied the motion. On appeal, Smith argued that the trial court erred when it
sentenced him to a prison term that was contrary to law. Specifically, Smith argued "his
prison term is contrary to law because a sentence of 'twenty (20) years to life' is not an
authorized sentence for aggravated murder." Id. at ¶ 18.
       {¶ 12} The Eighth District determined at the time of Smith's conviction, the only
sentence authorized by R.C. 2929.03(A) was a definite sentence of "life imprisonment with
parole eligibility after serving twenty years of imprisonment." Id. at ¶ 16. Though the state
conceded that Smith's sentence "[did] not precisely track the statutory language used in
R.C. 2929.03(A)," the state argued that defendant's sentence had the "same 'practical
effect' " because Smith was granted a parole hearing after he had served 20 years. Id. at ¶
18. In other words, the state maintained that Smith's argument on appeal raised " 'a
distinction without a difference.' " Id. The Eighth District was not persuaded by the state's
practicality argument and held that "[b]ecause the trial court imposed a sentence that does
not comport with the statutory language set forth in R.C. 2929.03(A), * * * the trial court
exceeded its authority in sentencing." Id. at ¶ 25. Accordingly, the court declared Smith's
sentence void, vacated his sentence, and remanded the matter to the trial court for
resentencing. Id. at ¶ 25-26.
No. 19AP-730                                                                                                6


        {¶ 13} In reaching its decision, the Eighth District acknowledged "legislatively
constructed differences between the sentence permitted for aggravated murder and the
sentence permitted for murder," id. at ¶ 24, and found "the legislature's construction of the
[two sentencing provisions], and its decision to use different statutory language in each
sentencing statute, was intentional. One expressly sets forth parole eligibility by statute,
the other does not." Id. at ¶ 25, citing State v. Duncan, 2d Dist. No. 2016-CA-77, 2017-
Ohio-8103, ¶ 14.1 In concluding Smith's sentence was void rather than voidable, the Smith
court relied on its previous decision in State v. Kemp, 8th Dist. No. 97913, 2013-Ohio-167,
and the decision of the Second District Court of Appeals in Duncan.
        {¶ 14} In Kemp, the appellant, Kemp, was convicted of murder in violation of R.C.
2903.02(A) and sentenced to "[l]ife in prison, with eligibility of parole after 15 years." Id.
at ¶ 23. The relevant statute in effect at that time, R.C. 2929.02(B)(1), provided "whoever
is convicted of or pleads guilty to murder in violation of section 2903.02 of the Revised
Code shall be imprisoned for an indefinite term of fifteen years to life." Id. at ¶ 75. Kemp
filed a direct appeal from his conviction and sentence arguing his sentence was contrary to
law.
        {¶ 15} The Eighth District agreed with Kemp, finding the sentence imposed by the
trial court was contrary to R.C. 2929.02(B)(1) because he was sentenced to a definite term
of imprisonment when he should have been sentenced to "an indefinite term of fifteen years
to life." Id. at ¶ 75. The court reversed, vacated the trial court's judgment, and remanded
the matter to the trial court for resentencing. Id. at ¶ 76.2
        {¶ 16} In Duncan, the appellant, Duncan, filed a motion in 2016 to vacate his 2006
sentence for felony murder arguing the trial court "entered a sentence not provided for by
statute thereby rendering the sentence void." Id. at ¶ 4. Duncan maintained the sentence
imposed by the trial court, life with the possibility of parole after 15 years, was contrary to

1The decision in Smith has been followed by the Eighth District in several subsequent cases. See State v.

Loyed, 8th Dist. No. 108385, 2019-Ohio-5346; State v. Dowdy, 8th Dist. No. 107844, 2019-Ohio-3570,
discretionary appeal accepted, 2020-Ohio-122; State v. Reed, 8th Dist. No. 108498, 2019-Ohio-4471,
discretionary appeal accepted, 2020-Ohio-122. As of the date of this decision, the Supreme Court has yet to
rule on the merits in Dowdy or Reed.
2 In a subsequent appeal following remand, the Eighth District held the trial court erred when it resentenced

Kemp pursuant to a video teleconference because Crim.R. 43(A) requires a defendant to be physically present
at " 'every stage of the criminal proceedings and trial, * * * including the imposition of sentence, except as
otherwise provided by these rules.' " State v. Kemp, 8th Dist. No. 100426, 2014-Ohio-3414, ¶ 6, quoting
Crim.R. 43(A).
No. 19AP-730                                                                                7


law because the relevant sentencing statute, R.C. 2903.02(B), provided " 'whoever is
convicted of or pleads guilty to murder in violation of section 2903.02 of the Revised Code
shall be imprisoned for an indefinite term of fifteen years to life.' " Duncan at ¶ 7, quoting
R.C. 2929.02(B)(1).
       {¶ 17} The Second District, relying on Kemp, held Duncan's sentence was void,
rather than merely voidable, reversed the trial court, and remanded the matter for
resentencing. In so holding, the court stated:
              "When construing a statute, [a reviewing] court's paramount
              concern is the legislative intent in enacting the statute."
              Yonkings v. Wilkinson, 86 Ohio St. 3d 225, 227, 1999-Ohio-
              98, 714 N.E.2d 394 (1999), citing State v. S.R., 63 Ohio St.3d
              590, 594, 589 N.E.2d 1319 (1992). "Furthermore, 'words must
              be taken in their usual, normal or customary meaning.' " Id.,
              quoting S.R. at 595. "A 'definite' sentence is just what its name
              implies: a specific number of years of imprisonment rather
              than a range defined by minimum and maximum terms.
              Referring to a minimum or maximum term of imprisonment
              makes sense only when speaking of an indefinite sentence."
              Id.
              We reject the State's argument that the sentence imposed has
              no practical consequence because it has the same outcome for
              purposes of parole. Regardless of whether the two sentences
              permit parole at the same time, they are two different
              sentences. One is set forth by statute, the other is not. The
              trial court converted an indefinite sentence required by
              statute into a de facto definite sentence. Thus, we conclude
              that the trial court exceeded its authority in sentencing,
              rendering void the sentence imposed.
Duncan at ¶ 13-14.
       {¶ 18} In both Kemp and Duncan, the appellants were sentenced to life in prison
with the possibility of parole after 15 years, when the relevant statutory law at the time of
conviction mandated "an indefinite term of fifteen years to life." Kemp at ¶ 75; Duncan at
¶ 7. In both Kemp and Duncan, the courts of appeal held the sentences were void because
the trial court in each case imposed definite prison terms on appellants when the relevant
statutory law mandated indefinite sentences.
       {¶ 19} Here, as was the case in Smith, appellant was sentenced to an indefinite term
of 20 years to life for aggravated murder when R.C. 2929.03(A) required a definite prison
term of "life imprisonment with parole eligibility after serving twenty years of
No. 19AP-730                                                                                 8


imprisonment." Contrary to the trial court's conclusion, the applicable statutory law did
not authorize an indefinite term of imprisonment for aggravated murder. Thus, the trial
court erred when it denied appellant's motion for sentencing.
       {¶ 20} We acknowledge that the sentencing error in this case may have no effect on
the length of appellant's prison term or appellant's parole eligibility. We also acknowledge
that a trial court's failure to precisely track the statutory language when imposing a prison
term does not result in a void sentence in every instance. For example, a prison term of
"fifteen years to life" for murder is not a void sentence even though the applicable statute
requires an "indefinite" term of 15 years to life because an indefinite sentence is, "by its
nature, * * * a prison range defined by minimum and maximum terms." State v. Johnson,
8th Dist. No. 108419, 2020-Ohio-191, ¶ 18. In such a case, "the omission of the term
'indefinite' is inconsequential." Id. See also State v. Reddick, 8th Dist. No. 108747, 2020-
Ohio-925, ¶ 23 (sentence for aggravated murder of life in prison with no parole eligibility
"[until] 20 full years are served" is not a void sentence because "the trial court did not
impose an indefinite prison term of 20 years to life" (emphasis added and omitted)); State
v. Sabbah, 6th Dist. No. E-19-051, 2020-Ohio-1050, ¶ 2, 7 (sentence for aggravated murder
of "life in prison with the possibility of parole after 20 years" instead of "life imprisonment
with parole eligibility after serving twenty years of imprisonment" is not a void sentence,
as the terms "eligibility" and "possibility" are synonymous (emphasis added)).
Nevertheless, the appellate authority in Ohio holds that a sentence is void when the
applicable statutory law requires a definite term of imprisonment but the trial court
imposes an indefinite prison term. Here, the trial court changed the essential character of
appellant's sentence for aggravated murder by imposing an indefinite prison term of 20
years to life, rather than the statutorily mandated, definite term of "life imprisonment with
parole eligibility after serving twenty years of imprisonment." R.C. 2929.03(A). Such a
sentence is not authorized by law and is void.
       {¶ 21} For the foregoing reasons, we hold the trial court erred when it denied
appellant's motion for sentencing. Accordingly, we sustain appellant's assignment of error
and reverse the judgment of the trial court. This case shall be remanded to the trial court
for resentencing but only as to the aggravated murder charge. State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, ¶ 28 ("[W]hen an appellate court concludes that a sentence
No. 19AP-730                                                                                               9


imposed by a trial court is in part void, only the portion that is void may be vacated or
otherwise amended."). See also R.C. 2953.08(G)(2). To the extent that appellant's
assignment of error seeks withdrawal of his guilty plea, the case law provides no support
for such relief.3
IV. CONCLUSION
        {¶ 22} Having sustained appellant's sole assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas and vacate appellant's sentence
for aggravated murder. The case is remanded to the trial court to resentence appellant on
the charge of aggravated murder.
                                                                             Judgment reversed;
                                                                 cause remanded with instructions.
                        DORRIAN and LUPER SCHUSTER, JJ., concur.
                                          _____________




3Because  we are remanding the case for resentencing, we need not specifically address appellant's contention
that the trial court erred by refusing to issue an order of conveyance and schedule an oral hearing on his
motion for sentencing.
