[Cite as State v. Bates, 2014-Ohio-3976.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.       13CA0080-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MARC A. BATES                                         COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   11-CR-0575

                                  DECISION AND JOURNAL ENTRY

Dated: September 15, 2014



        WHITMORE, Judge.

        {¶1}     Appellant, Marc Bates, appeals from the judgment of the Medina County Court of

Common Pleas. This Court affirms.

                                                  I

        {¶2}     In March 2012, Bates was convicted by jury of: (1) burglary, (2) theft of a motor

vehicle, (3) two counts of breaking and entering, and (4) arson. Subsequently, Bates was found

guilty by the court of a repeat violent offender specification that was attached to the burglary

count. The court sentenced Bates to an aggregate term of twelve years in prison, and Bates

appealed.

        {¶3}     In his direct appeal, Bates argued that his convictions for burglary and arson were

not supported by sufficient evidence and were against the manifest weight of the evidence. State

v. Bates, 9th Dist. Medina No. 12CA0046-M, 2013-Ohio-3565, ¶ 6. Bates further challenged the

court’s jury instructions. Id. at ¶ 45-50. While this Court affirmed Bates’ convictions for
                                                 2


burglary and arson, we reversed his conviction of felony arson because the record did not support

the enhancement from a misdemeanor. Id. at ¶ 36-37, 51. We remanded the case for Bates to be

resentenced on the arson count as a first degree misdemeanor. Id. at ¶ 51.

       {¶4}    On remand, the court held a new sentencing hearing. The court imposed 180 days

in jail for the misdemeanor arson and reissued the same sentences for the other counts. Bates’

total prison term of twelve years remained unchanged. Bates now appeals from his resentencing

and raises one assignment of error for our review.

                                                II

                                       Assignment of Error

       DOES THE FAILURE OF THE TRIAL COURT TO STATE FINDINGS
       EXPLAINING THE IMPOSED SENTENCE FOR A REPEAT VIOLENT
       OFFENDER SPECIFICATION IN A CRIMINAL CASE RENDER THAT
       PART OF THE SENTENCE VOID?

       {¶5}    In his sole assignment of error, Bates argues that the court erred in failing to make

the required statutory findings under R.C. 2929.14(B)(2)(e)1 when imposing his sentence on the

repeat violent offender specification. Specifically, Bates argues that the court’s failure to make

the required findings at his original sentencing hearing renders that part of his sentence void.2

We disagree.

       {¶6}    “A sentence may be void or voidable.” State v. Horton, 9th Dist. Lorain No.

12CA010271, 2013-Ohio-848, ¶ 9. Generally, “[a] void sentence is one that a court imposes


1
  R.C. 2929.14(B)(2)(e) states that “[w]hen imposing a sentence pursuant to division (B)(2)(a) or
(b) of this section, the court shall state its findings explaining the imposed sentence.”
2
   Bates does not argue that the scope of our prior remand was broader than resentencing Bates
on the arson count. See Bates, 2013-Ohio-3565, ¶ 51. Instead, Bates’ argument is premised
upon his contention that the original sanction for the repeat violent offender specification was
void because the trial court did not make the requisite findings under R.C. 2929.14(B)(2)(e).
Based upon that premise, upon remand, he maintains that the trial court had authority to revisit
the repeat violent offender penalty enhancement related to the burglary.
                                                  3


despite lacking subject-matter jurisdiction or the authority to act.” State v. Payne, 114 Ohio

St.3d 502, 2007-Ohio-4642, ¶ 27. Generally, sentencing errors are not jurisdictional and do not

render a judgment void. See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 13. The

Ohio Supreme Court has declined to find sentences void based on the court’s failure to comply

with certain sentencing statutes. See State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶

8. (challenges to a trial court’s: (1) compliance with the purposes and principles of sentencing,

(2) determination of allied offenses, and (3) consecutive sentencing must be brought on direct

appeal). However, when a judge fails to impose a statutorily mandated sentence, the Ohio

Supreme Court has held that that portion of the sentence is void. See id. at ¶ 7-8 (sentence void

when court fails to include mandated post-release control, mandatory driver’s license suspension,

or mandatory fines). A void judgment is a nullity and may be reviewed at any time. Lingo v.

State, 138 Ohio St.3d 427, 2014-Ohio-1052, ¶ 46.

       {¶7}    “Unlike a void judgment, a voidable judgment is one rendered by a court that has

both jurisdiction and authority to act, but the court’s judgment is invalid, irregular, or erroneous.”

State v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, ¶ 13 (9th Dist.), quoting Simpkins at ¶

12. “A voidable sentence may only be set aside if successfully challenged on direct appeal.”

State v. Jones, 9th Dist. Summit No. 26854, 2013-Ohio-3710, ¶ 6, quoting Horton at ¶ 10.

       {¶8}    Here, Bates challenges the trial court’s compliance with R.C. 2929.14(B)(2)(e)

which requires the court to “state its findings explaining the imposed sentence” at sentencing.

We conclude that a court’s failure to comply with R.C. 2929.14(B)(2)(e) is akin to a court’s

failure to comply with R.C. 2929.14(C)(4) (consecutive sentencing), R.C. 2929.11 and R.C.

2929.12 (purposes and principles of sentencing), and 2941.25 (allied offenses).            The Ohio

Supreme Court has declined to find that these errors constitute void sanctions. See Holdcroft at ¶
                                                 4


8 (“The Fischer rule applies only in a limited class of cases—all three cases to which we have

applied the Fischer rule have in common the crucial feature of a void sanction.”).

       {¶9}    Because Bates’ judgment is not void, his assignment of error is barred by res

judicata. “The doctrine of res judicata prevents repeated attacks on a final judgment and applies

to all issues that were or might have been previously litigated.” (Internal quotations and citation

omitted.) State v. Lowe, 9th Dist. Summit No. 27199, 2014-Ohio-1817, ¶ 6. Because Bates

could have challenged the trial court’s compliance with R.C. 2929.14(B)(2)(e) in his direct

appeal, it is now barred by res judicata.3

       {¶10} Bates’ sole assignment of error is barred by res judicata, and therefore, is

overruled.


                                                III

       {¶11} Bates’ sole assignment of error is overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.


                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.



3
  Pursuant to App.R. 26(B), Bates may be able to raise his assignment of error through an
application to reopen his direct appeal based on ineffective assistance of appellate counsel.
                                                5


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    BETH WHITMORE
                                                    FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

KELLY A. ONEST, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
