         [Cite as State v. Foster, 2017-Ohio-9318.]




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



STATE OF OHIO,                                        :   APPEAL NO. C-160337
                                                          TRIAL NO. B-0408159A
        Plaintiff-Appellee,                           :

  vs.                                                 :       O P I N I O N.

DAVID FOSTER,                                         :

    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: December 29, 2017




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bryan R. Perkins and Michael K. Allen, for Defendant-Appellant.
                  OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.
       {¶1}    Defendant-appellant David Foster appeals from the Hamilton County
Common Pleas Court’s judgment overruling his “Motion to Vacate, Set-Aside, and
Resentence Due to Void Judgment.” We affirm the court’s judgment as modified,
but remand for correction of the sentencing entry.
       {¶2}    Foster was convicted in 2005 of conspiracy, drug possession, and drug
trafficking.   In his direct appeal, we vacated his sentences and remanded for

resentencing in light of the Ohio Supreme Court’s decision in State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. State v. Foster, 1st Dist. Hamilton

No. C-050378, 2006-Ohio-1567, appeal not accepted, 110 Ohio St.3d 1439, 2006-

Ohio-3862, 852 N.E.2d 188. Then, in his appeal from his 2006 resentencing, we
vacated his sentences and remanded for merger consistent with R.C. 2941.25. State

v. Foster, 1st Dist. Hamilton No. C-060720 (June 27, 2007), aff’d, 118 Ohio St.3d
265, 2008-Ohio-2542, 888 N.E.2d 411.         The trial court resentenced Foster on
September 4, 2008, merging the possession and conspiracy charges into the

trafficking charge and imposing consecutive prison terms of ten years for trafficking
and seven years for the major-drug-offender specification accompanying that charge.
We affirmed that conviction on appeal. State v. Foster, 1st Dist. Hamilton No. C-

080929 (Aug. 8, 2009), appeal not accepted, 123 Ohio St.3d 1511, 2009-Ohio-6210,

917 N.E.2d 812.
       {¶3}    Foster   unsuccessfully   challenged   his   trafficking   conviction   in
postconviction motions filed with the common pleas court in 2006, 2007, 2013, and

2015. See State v. Foster, 1st Dist. Hamilton No. C-130369 (Feb. 26, 2014), appeals
not accepted, 139 Ohio St.3d 1419, 2014-Ohio-2487, 10 N.E.3d 738; State v. Foster, 1st

Dist. Hamilton No. C-070518 (June 11, 2008), appeal not accepted, 119 Ohio St.3d
1488, 2008-Ohio-5273, 894 N.E.2d 1245; State v. Foster, 1st Dist. Hamilton Nos. C-
060065 and C-060121 (Jan. 10, 2007). In this appeal from the overruling of his 2015




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                  OHIO FIRST DISTRICT COURT OF APPEALS



“Motion to Vacate, Set-Aside, and Resentence Due to Void Judgment,” he advances

two assignments of error.
                            Early-Release Exclusions
       {¶4}   In his first assignment of error, Foster contends that the common
pleas court erred in failing to afford him the relief sought in his motion.         The
assignment of error is well taken in part.
       {¶5}   In his motion, Foster sought correction of that part of the 2008
judgment of conviction that stated that he was “not eligible for intensive prison
program, transitional control, judicial release, or any other early release program
and is to serve this sentence in its entirety.” He argued that those portions of his

sentence were void, because the trial court was not authorized by law to effectively
“require him to serve * * * as if it were a mandatory sentence” the seven-year prison
term imposed for the major-drug-offender specification, because the court,

prematurely and without findings, disapproved transitional control, and because the
court acted without statutory authority when it effectively excluded him from

eligibility for any present or future early-release program, such as the earned-days-

of-credit program under R.C. 2967.193, by expressly declaring him “not eligible” for
early release and by ordering him “to serve his prison sentence in its entirety.”
       {¶6}   Judgment of conviction not correctable under any
statute or criminal rule. Foster did not specify in his postconviction motion a
statute or rule under which the relief sought might have been afforded, leaving the

common pleas court free to “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 relief, when the motion
alleged statutory, rather than constitutional, violations. See R.C. 2953.21(A)(1). The
motion was not reviewable under Crim.R. 32.1, as a motion to withdraw a guilty plea,


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                    OHIO FIRST DISTRICT COURT OF APPEALS



or under Crim.R. 33, as a motion for a new trial, when Foster had been convicted of

trafficking following a jury trial, and the motion sought resentencing rather than 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 common pleas court
to review pursuant to the procedures provided under Civ.R. 60(B) the challenges
advanced in the motion, because Foster’s judgment of conviction had been
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. Accordingly,
the postconviction statutes and rules did not confer upon the common pleas court
jurisdiction to entertain the challenges advanced in Foster’s motion.
        {¶7}    Jurisdiction to correct void portions of the judgment of
conviction. But a court always has 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. And we conclude that the common pleas court had jurisdiction to
correct as void that portion of Foster’s judgment of conviction that excluded him

from “any * * * early release program” and ordered him “to serve his prison sentence
in its entirety.”
        {¶8}    In State v. Livingston, 2014-Ohio-1637, 9 N.E.3d 1117 (1st Dist.), the
trial court had included the following language in the judgment of conviction entered

upon Livingston’s guilty plea to voluntary manslaughter:          “Pursuant to a plea
agreement between the parties, the defendant herein is not eligible for risk

reduction, intensive prison programs, earned days of credit, transitional control,
judicial release, or any other early release program and is to serve this sentence in its
entirety.” Id. at ¶ 2. In his direct appeal, Livingston argued that the trial court had

lacked the authority to limit his eligibility to earn credit against his prison term


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                  OHIO FIRST DISTRICT COURT OF APPEALS



under R.C. 2967.193 for participating in approved prison programs. Livingston at ¶

3. Because the earned-credit statute identified eligible offenders and conferred upon
the department of rehabilitation and correction, not the trial court, the authority to

determine and award the credit, we concluded that that portion of Livingston’s
sentence declaring him ineligible for earned days of credit was not authorized by law
and was thus subject to review on direct appeal.           Id. at ¶ 4-7, citing R.C.

2953.08(D)(1). And we vacated and remanded for correction that portion of his
sentence. Id. at ¶ 10.
       {¶9}   Our holding in Livingston was based on principles, recently reaffirmed

by the Ohio Supreme Court in State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-
7658, 71 N.E.3d 234, that the Ohio General Assembly is vested with the power to
define criminal offenses and prescribe punishment, and that the only sentence that a

trial court may impose is that authorized by statute. Id. at ¶ 20 and 22, citing

Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964), and State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21-22.               See

Livingston at ¶ 6. The court in Williams also reaffirmed principles pertinent to our
review here of Foster’s collateral attacks on his sentence, that a sentence that is not
authorized by statute is void and thus reviewable at any time, but a sentence imposed

by a trial court with jurisdiction and the statutory authority to act is not rendered
void by an error in imposing the sentence and may only be challenged on direct
appeal. Williams at ¶ 20-23, citing State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d

774 (1984), Fischer at ¶ 6-7, 21–23 and 30, and State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, 873 N.E.2d 306, ¶ 28.
       {¶10} In Livingston, we noted for purposes of contrast that while the General
Assembly had provided no role for the judiciary in determining eligibility for earned

credit under R.C. 2967.193, it had expressly conferred upon trial courts the authority
under R.C. 5120.032(B)(1)(a) to determine eligibility for placement in an intensive

prison program and under R.C. 2967.26 to disapprove a transfer into a transitional


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                  OHIO FIRST DISTRICT COURT OF APPEALS



control program. Livingston at ¶ 7-9. For those same reasons, in the reopened

appeal in State v. Brown, 1st Dist. Hamilton No. C-130120, 2016-Ohio-310, we
sustained an assignment of error challenging the trial court’s authority to include in

Brown’s judgment of conviction an earned-credit restriction, but overruled
assignments of error challenging restrictions on his eligibility for transitional control
and judicial release. Brown at ¶ 13-19. We further note that the version of R.C.

2925.03(C)(6)(g) effective in 2008, when Foster was resentenced, conferred upon
the trial court the discretion to impose “an additional mandatory prison term” for
Foster’s major-drug-offender specification. Because the trial court was authorized by
statute to impose upon Foster the seven-year prison term for the major-drug-

offender specification and to restrict his eligibility for the intensive prison program,
transitional control, and judicial release, those portions of his sentence were not
void, and the common pleas court had no jurisdiction to entertain the collateral

challenges to them presented in his 2016 motion.
       {¶11} But the trial court had no statutory authority to declare Foster “not
eligible for * * * any other early release program” or to order that he “serve [his]
sentence in its entirety.” Those parts of his sentence were, therefore, void, and the
common pleas court had jurisdiction to review and correct them.
       {¶12} Accordingly, we sustain in part the first assignment of error.
                                        Merger

       {¶13} In his second assignment of error, Foster asserts that the 2008
judgment of conviction entered on remand from our 2007 decision in Foster, 1st Dist.

Hamilton No. C-060720, is void, because the trial court failed to “clearly indicat[e]
which counts were merged as allied offenses of similar import, on which count [Foster]

is serving a sentence, and that [he] only has a single conviction.”          We have no
jurisdiction to entertain this challenge in this appeal from the overruling of Foster’s
2015 motion, because he did not present this challenge in that motion. See State v.



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                   OHIO FIRST DISTRICT COURT OF APPEALS



Gipson, 1st Dist. Hamilton Nos. C-960867 and C-960881, 1997 WL 598397 (Sept. 26,

1997).

         {¶14} Nor was that portion of the 2008 judgment demonstrably void. The
judgment plainly shows that the trial court, pursuant to our order on remand, merged

the possession and conspiracy charges into the trafficking charge and sentenced Foster
for trafficking only, along with that offense’s major-drug-offender specification. We
said as much in our 2009 decision in Foster’s direct appeal, affirming the 2008

judgment of conviction. See Foster, 1st Dist. Hamilton No. C-080929.

         {¶15} This court does not have, nor did the common pleas court have,
jurisdiction to entertain Foster’s merger challenge to the judgment of conviction.
Accordingly, we overrule the second assignment of error.

                      Affirmed as Modified, but Remanded
         {¶16}   Because Foster’s sentence was not correctable under any criminal

rule or statutory procedure, his 2015 “Motion to Vacate, Set-Aside, and Resentence
Due to Void Judgment” was subject to dismissal. 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.
         {¶17} But the common pleas court had jurisdiction to correct those
unauthorized portions of his sentence declaring that he was “not eligible for * * * any
other early release program” and ordering that he “serve [his] sentence in its
entirety.” We, therefore, remand this cause for correction of the offending portions

of the sentencing entry, in accordance with the law and this opinion.
                                                                 Judgment accordingly.
CUNNINGHAM, P.J., MYERS and MILLER, JJ.


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


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