[Cite as State v. Morse, 2017-Ohio-9300.]


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

STATE OF OHIO                                         C.A. No.      28046

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
STEPHEN H. MORSE                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2013 08 2363

                                 DECISION AND JOURNAL ENTRY

Dated: December 29, 2017



        HENSAL, Presiding Judge.

        {¶1}     Defendant-Appellant, Stephen H. Morse, appeals his convictions and sentence

from the Summit County Court of Common Pleas. For the reasons set forth below, we affirm in

part and dismiss in part.

                                                 I.

        {¶2}     The Summit County Grand Jury indicted Morse on two counts of operating a

vehicle under the influence of alcohol or drugs (“OVI”) in violation of Revised Code Section

4511.19(A),1 both fourth-degree felonies, with prior-conviction specifications in violation of

Section 2941.1413, and one count of driving under suspension in violation of Section 4510.11, a

first-degree misdemeanor. Morse initially pleaded not guilty to the charges and the matter

proceeded through the pretrial process.




        1
            Section 4511.19(A)(1)(a) and Section 4511.19(A)(2), respectively.
                                                 2


       {¶3}    Morse subsequently entered into a plea agreement with the State and pleaded

guilty to one count of driving under suspension and one count of OVI in violation of Section

4511.19(A)(1)(a) along with the attendant prior-conviction specification. In return, the State

dismissed the second OVI count and its accompanying prior-conviction specification. The trial

court accepted Morse’s guilty pleas.

       {¶4}    At the sentencing hearing, the trial court sentenced Morse to one year in prison on

the OVI count, with 120 days of that sentence being mandatory time, and one year in prison on

the prior-conviction specification. The trial court ordered those sentences to run consecutively

for a total of two years in prison, with 120 days being mandatory. The trial court also sentenced

Morse to 180 days in the Summit County Jail on the driving-under-suspension count. The trial

court informed Morse that it would consider him for judicial release after he served six months

of his two-year sentence. The trial court also suspended Morse’s driver’s license and ordered

him to pay costs and fines.

       {¶5}    The trial court journalized its sentence on May 27, 2014. Contrary to the sentence

imposed at the sentencing hearing, the sentencing entry ordered Morse to serve one year in

prison, “120 days of which is not a mandatory term” for the OVI count. (Emphasis added.)

Despite this inconsistency, Morse did not pursue a direct appeal of the trial court’s judgment.

       {¶6}    Morse began serving his prison sentence on July 11, 2014. Months later, he filed

a pro se motion for judicial release. Thereafter, Morse’s attorney filed a supplemental motion for

judicial release. The trial court ultimately denied Morse’s motion for judicial release, noting that

Morse “is serving a mandatory term until June 21, 2015.” Morse then filed a pro se “motion to

withdraw guilty plea pursuant to Crim.R. 32.1 or in the alternative motion for judicial release

pursuant to R.C. 2929.20.” Morse’s attorney then filed a second motion for judicial release,
                                                 3


which the trial court granted on September 1, 2015, following a hearing on the matter. On

November 16, 2015, the trial court issued a nunc pro tunc entry correcting the May 27, 2014,

sentencing entry to reflect that 120 days of the one-year prison sentence on the OVI count was

indeed mandatory.

       {¶7}    Morse filed this timely appeal from the trial court’s nunc pro tunc entry and raises

seven assignments of error for our review. To facilitate our analysis, we elect to address some of

Morse’s assignments of error out of order, and together.

                                                 II.

                                      Assignment of Error I

       The trial court committed prejudicial error and denied Morse due process of
       law by accepting his guilty plea in [case number] CR 2013-08-2363 where the
       record does not demonstrate that he understood the nature of the charges
       against him. []

                                     Assignment of Error IV

       Mr. Morse was denied judicial release in February 2015 when the trial court
       unambiguously promised consideration for judicial release after six months
       in exchange for a guilty plea. This subsequent breach made Morse’s guilty
       plea involuntary, unknowing and unintelligent.

                                     Assignment of Error V

       The trial court abused its discretion and committed reversible error when it
       did not hold a hearing on Morse’s motion to withdraw his guilty plea[.] []

                                     Assignment of Error VI

       The trial court abused its discretion and committed reversible error when it
       did not hold a hearing on Morse’s Motion to Contest his three prio[r] DUIs
       out of then Cuyahoga Falls Municipal Court.

       {¶8}    In his first, fourth, fifth, and sixth assignments of error, Morse challenges the trial

court’s acceptance of his guilty plea, denial of judicial release in February 2015, failure to hold a

hearing on his motion to withdraw his guilty plea, and its failure to hold a hearing on his motion
                                                   4


to contest his three prior OVI convictions. As explained below, this Court lacks jurisdiction to

consider these assignments of error.

       {¶9}    It is well-settled that an appellate court lacks jurisdiction to consider the merits of

an untimely appeal. State v. Myers, 9th Dist. Wayne No. 08CA0041, 2009-Ohio-2082, ¶ 7. As it

relates to nunc pro tunc entries, this Court has stated that “[t]he general rule is that a nunc pro

tunc order does not operate to extend the period within which an appeal may be prosecuted.”

State v. Senz, 9th Dist. Wayne No. 02CA0016, 2002-Ohio-6464, ¶ 19, citing Perfection Stove

Co. v. Scherer, 120 Ohio St. 445, 448-449 (1929). Exceptions exist, however, “where the nunc

pro tunc entry creates additional rights, denies an existing right, or the appeal stems from the

nunc pro tunc entry, as distinguished from the original judgment entry.” Id., citing Perfection

Stove Co. at 449.

       {¶10} Here, Morse has appealed from the trial court’s November 16, 2015, nunc pro

tunc entry, which corrected its May 27, 2014, judgment entry to reflect that Morse’s OVI

sentence included 120 days of mandatory, as opposed to not mandatory, time. The rest of the

trial court’s judgment entry remained unchanged. This Court, therefore, lacks jurisdiction to

consider the issues raised in Morse’s first, fourth, fifth, and sixth assignments of error because

they do not relate to the correction the trial court made in its nunc pro tunc entry, nor do they

relate to issues that are otherwise appealable at any time. We, therefore, dismiss Morse’s first,

fourth, fifth, and sixth assignments of error for lack of jurisdiction.

                                       Assignment of Error II

       The trial court sentenced Morse to a sentence that was contrary to what was
       statutorily required, mandating reversal and a new sentencing hearing.

       {¶11} In his second assignment of error, Morse argues that his sentence is void because

the trial court did not sentence him to mandatory time for his prior-conviction specification.
                                                   5


Initially, we note that a criminal defendant may challenge a void sentence at any time. State v.

Dawson, 9th Dist. Summit No. 26500, 2013-Ohio-1767, ¶ 6. Thus, the fact that this assignment

of error does not relate to the correction the trial court made in its nunc pro tunc entry does not

affect this Court’s jurisdiction to consider this issue.

        {¶12} The State concedes that the trial court was required to sentence Morse to a

mandatory term of one year for his prior-conviction specification because Morse pleaded guilty

to an OVI offense under Section 4511.19(A)(1)(a), and because he has five or more prior OVI

convictions within the past 20 years. We agree. See R.C. 4511.19(G)(1)(d)(i). The trial court,

however, sentenced Morse to a definite term of one year, which is not a mandatory term. The

trial court, therefore, erred in this regard. See State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-

7658, ¶ 2 (“A court only has authority to impose a sentence that conforms to law[.]”).

        {¶13} The law is clear that “[w]hen a trial court makes an error in sentencing a

defendant, the usual procedure is for an appellate court to remand to the trial court for

resentencing.” State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 33. The Ohio Supreme

Court, however, has held that “[n]either [its] jurisprudence nor Ohio’s criminal-sentencing

statutes allow a trial court to resentence a defendant for an offense when the defendant has

already completed the prison sanction for that offense.” State v. Holdcroft, 137 Ohio St.3d 526,

2013-Ohio-5014, ¶ 19; see State v. Mockbee, 4th Dist. Scioto No. 14CA3601, 2015-Ohio-3469, ¶

29 (acknowledging that Holdcroft addressed a post-release control issue, but stating that the

general rule the Court relied upon was not limited to post-release control); State v. Metcalf, 12th

Dist. Warren No. CA2015-03-022, 2016-Ohio-4923, ¶ 20 (stating same). This applies even

when the underlying sentence is void. See Holdcroft at paragraphs two and three of the syllabus.
                                                 6


       {¶14} Despite the trial court’s error, there is no dispute that Morse received judicial

release, and that the trial court subsequently terminated its supervision of him on the basis that he

completed the terms of his community control. Morse, therefore, has completed his sentence.

Holdcroft at ¶ 6, 18 (stating that “incarceration and postrelease control are types of sanctions that

may be imposed and combined to form a sentence” and that “a sentence served is a sentence

completed.”). Thus, while Morse asks this Court to order a new sentencing hearing, the trial

court lacks authority to re-sentence him. Holdcroft at ¶ 19. Accordingly, Morse’s second

assignment of error is overruled.

                                     Assignment of Error III

       The trial court announced a different sentence in its two journal entries than
       it did during Morse’s sentencing hearing violating his right to due process
       and mandating reversal and a new sentencing hearing. []

       {¶15} In his third assignment of error, Morse asserts that his due-process rights were

violated because the trial court’s original sentencing entry and subsequent nunc pro tunc entry

differ from the sentence pronounced at the sentencing hearing. Morse’s assignment of error,

however, fails to indicate how the two sentencing entries differ from the pronouncements at the

sentencing hearing. Indeed, his argument does not contain a single citation to the record. To the

extent that an argument exists in this regard, it is not this Court’s duty to root it out. See

Cardone v. Cardone, 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App. LEXIS 2028, *22

(May 6, 1998), citing App.R. 12(A)(2) and 16(A)(7). Morse’s third assignment of error is

overruled.

                                    Assignment of Error VII

       The trial court lacks subject matter jurisdiction because the indictment was
       not supported by the evidence needed for a charge of felony 4 prior
       conviction, (5 or more in 20 years).
                                                  7


       {¶16} In his seventh assignment of error, Morse asserts that the trial court lacked subject

matter jurisdiction because the indictment failed to contain “a plain, concise and definite written

statement of the essential facts constituting the events charged[.]” More specifically, Morse

asserts that the indictment failed to set forth the precise dates of his prior OVI convictions for

purposes of the prior-conviction specification. Initially, we note that while this assignment of

error does not relate to the correction the trial court made in its nunc pro tunc entry, a challenge

to subject matter jurisdiction “goes to the power of the court to adjudicate the merits of a case,

[and] can never be waived and may be challenged at any time.” Pratts v. Hurley, 102 Ohio St.3d

81, 2004-Ohio-1980, ¶ 11.

       {¶17} Aside from asserting that the indictment failed to comply with Rule 7 of the

Federal Rules of Criminal Procedure, which is inapplicable here, Morse has cited no authority in

support of his position that the lack of precise dates relative to the prior-conviction specification

renders the indictment defective, nor has he cited any authority indicating that such a defect

would deprive the trial court of subject matter jurisdiction. Consistent with our precedent, we

will not develop an argument on his behalf. Cardone at *22. Even if this Court were to take

Morse’s unsupported assertions as true, his assignment of error would still fail because the

alleged deficiencies in the indictment would render the charge voidable, not void, which does not

deprive the trial court of subject matter jurisdiction. State v. Bragwell, 7th Dist. Mahoning No.

06-MA-140, 2008-Ohio-3406, ¶ 14 (“A defective indictment renders the charge voidable, not

void. * * * The error does not deprive the trial court of subject matter jurisdiction[.]”).

       {¶18} Morse’s seventh assignment of error is overruled.
                                                 8


                                                III.

       {¶19} Morse’s second, third, and seventh assignments of error are overruled. Morse’s

first, fourth, fifth, and sixth assignments of error are dismissed based upon this Court’s lack of

jurisdiction. The Judgment of the Summit County Court of Common Pleas is affirmed in part,

and dismissed in part.

                                                                        Judgment affirmed in part,
                                                                            and dismissed in part.




       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 Summit, 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.

       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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
                                               9


CARR, J.
CONCURS.

SCHAFER, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶20} I concur as to the majority’s resolution of assignments of error one, three, four,

five, and six. However, I respectfully dissent as to the majority’s resolution of the second

assignment of error. This Court has recognized that a criminal defendant may challenge a void

sentence at any time. Accordingly, I would conclude that Mr. Morse does not have a reasonable,

legitimate expectation of finality in his sentence when he unambiguously argues on appeal that

his sentence was void because the trial court imposed a prison sentence that was contrary to law

and then unambiguously requests this Court to reverse and remand for resentencing. Moreover,

Mr. Morse acknowledged at oral argument that he understood such an action would not reopen

the case below. Therefore, under the specific circumstances of this case, I would sustain Mr.

Morse’s second assignment of error, reverse the trial court’s judgment, and remand for the trial

court to impose a valid sentence for the prior conviction specification. See State v. Ware, 141

Ohio St.3d 160, 2014-Ohio-5201, ¶ 20 (noting that although some courts may find the result

inequitable, “[c]lemency is a function of the Executive branch and the courts are without

authority to free guilty defendants absent a specific legislative enactment.”), quoting State v.

Beasley, 14 Ohio St.3d 74, 76 (1984); see also State v. Tackett, 11th Dist. Ashtabula No. 2012-

A-0015, 2013-Ohio-4286, ¶ 15.


APPEARANCES:

STEPHEN H. MORSE, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
