[Cite as State v. Foster, 2017-Ohio-2987.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104883




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  NATHANIEL FOSTER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-98-370295-B

        BEFORE: Laster Mays, J., Stewart, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: May 25, 2017
                               -i-
FOR APPELLANT

Nathaniel Foster, pro se
Inmate No. A369-398
Richland Correctional Institution
P.O. Box 8107
1001 Olivesburg Road
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Diane Smilanick
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

          {¶1} Defendant-appellant, Nathaniel Foster (“Foster”), appeals his conviction and

sentence and asks this court to vacate his sentence. After a review of the record, we

affirm.

          {¶2} In 1999, Foster was found guilty of kidnapping (“Count 1”), in violation of

R.C. 2905.01; felonious assault (“Count 2”), in violation of R.C. 2903.11; aggravated

robbery (“Count 3”), in violation of R.C. 2911.01; and possession of criminal tools

(“Count 4”), in violation of R.C. 2923.24. Foster was sentenced to ten years in prison for

Count 1, plus nine additional years for the repeat violent offender specification;

concurrent terms of eight years in prison for Count 2, with an additional nine years for the

repeat violent offender specification; ten years in prison for Count 3, in addition to nine

years for the repeat violent offender specification; and 12 months in prison for Count 4.

The trial court ordered that Counts 2, 3, and 4 be served concurrent to each other but

consecutive to Count 1.

I.        Facts

          {¶3} In 2000, Foster appealed his conviction and sentence to this court. In State

v. Foster, 8th Dist. Cuyahoga No. 76383, 2000 Ohio App. LEXIS 6077 (Dec. 1, 2000),

Foster’s conviction and sentence were affirmed.           Foster filed an application for

reopening to this court and was denied in December 2000. In December 2001, Foster

filed a motion to dismiss the repeat violent offender specifications, and the trial court
denied that motion. He then filed an appeal with this court, which was dismissed. The

Ohio Supreme Court dismissed Foster’s appeal of this court’s dismissal. Foster then

filed a motion for correction of void sentence and order for resentencing in February

2008.        In addition, he filed a supplemental motion in support of his motion for

resentencing. The state also filed a motion for resentencing. In response, Foster filed a

motion for establishment of a date certain for oral hearing and appointment of counsel.

The trial court denied Foster’s motion for correction of void sentence, supplement in

support of appellant’s motion for resentencing, and motion for establishment of a date

certain for a oral hearing and appointment of counsel. However, the trial court granted

the state’s motion for correction of void sentence.

        {¶4} On February 25, 2009, the trial court held a resentencing hearing and

resentenced Foster to the same sentence he received in 1999, but also sentenced Foster to

five years of postrelease control and advised Foster of the consequences of violating

postrelease control. The trial court also made the necessary findings on the record for

sentencing Foster on the repeat violent offender specification. Foster then, on September

5, 2013, filed a motion for allied offense determination, and the trial court denied this

motion. In 2016, Foster filed a motion to vacate void judgment, and the trial court

denied that motion. Foster now appeals the trial court’s denial of his motion to vacate

void judgment, and assigns two errors for our review:

        I.       The trial court abused its discretion when it denied appellant’s
                 motion to vacate a void judgment;
      II.    The trial court erred or abused it discretion when it denied
             appellant’s motion as a postconviction petition.

II.   Motion to Vacate a Void Judgment

      {¶5} In Foster’s first assignment of error, he argues that the trial court abused its

discretion when it denied his motion to vacate void judgment.

      One instance of a void sentence is one in which the sentence is not in
      accordance with statutorily mandated terms. State v. Fischer, 128 Ohio
      St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 8. A trial court imposes a
      void sentence when it acts without authority by disregarding statutory
      sentencing requirements. State v. Beasley, 14 Ohio St.3d 74, 75, 471
      N.E.2d 774 (1984), quoting Colegrove v. Burns, 175 Ohio St. 437, 438, 195
      N.E.2d 811 (1964) (stating that “[a] court has no power to substitute a
      different sentence for that provided for by statute”); see also State v. Payne,
      114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 29, fn. 3 (noting
      that “[i]t is axiomatic that imposing a sentence outside the statutory range,
      contrary to the statute, is outside a court’s jurisdiction, thereby rendering the
      sentence void”); see also State v. Jordan, 104 Ohio St.3d 21,
      2004-Ohio-6085, 817 N.E.2d 864, ¶ 23 (holding that a sentence is void
      when it does not contain a statutorily mandated term).

State v. Willard, 8th Dist. Cuyahoga No. 101055, 2014-Ohio-5278, ¶ 12.

      {¶6} Foster contends that the trial court failed to comply with the statutory factors

identified in R.C. 2929.12 because it imposed additional time for the repeat violent

offender specification without making certain findings on the record.       “In order for the

trial court to properly impose this additional time, it must comply with the requirements

of R.C. 2929.14(D)(2)(b), compelling the court to make certain findings on the record.”

State v. Aziz, 8th Dist. Cuyahoga No. 84181, 2004-Ohio-6631, ¶ 39. Although R.C.

2929.14(D)(2)(b) has changed effective March 21, 2017, prior to the change it stated,

      “(b) If the court imposing a prison term on a repeat violent offender
      imposes the longest prison term from the range of terms authorized for the
       offense under division (A) of this section, the court may impose on the
       offender an additional definite prison term of one, two, three, four, five, six,
       seven, eight, nine, or ten years if the court finds that both of the following
       apply with respect to the prison terms imposed on the offender pursuant to
       division (D)(2)(a) of this section and, if applicable, divisions (D)(1) and (3)
       of this section: (I) The terms so imposed are inadequate to punish the
       offender and protect the public from future crime * * *. (ii) The terms so
       imposed are demeaning to the seriousness of the offense, because one or
       more of the factors under section 2929.12 of the Revised Code indicating
       that the offender’s conduct is more serious than conduct normally
       constituting the offense are present, and they outweigh the applicable
       factors under that section indicating that the offender’s conduct is less
       serious than conduct normally constituting the offense.”

Aziz at ¶ 40-42.

       {¶7} In Aziz, this court vacated the trial court’s sentence and remanded for

resentencing.      In Foster’s case, the trial court resentenced Foster and made the findings

on the record.     Further, the journal entry stated, “the court considered all of the required

factors of the law. The court finds that prison is consistent with the purpose of R.C.

2929.11.”    Therefore, Foster’s assertion that the trial court did not make the necessary

findings on the record to sentence him on the repeat violent offender specification is

incorrect.   We overrule Foster’s first assignment of error.

III.   Postconviction Petition

       A.       Standard of Review

       {¶8} In reviewing a trial court’s denial of a motion as a postconviction petition,

       [a] reviewing court will not overrule a trial court’s finding on a petition for
       postconviction relief absent a showing of an abuse of discretion. State v.
       Davis (1999), 133 Ohio App. 3d 511, 515, 728 N.E.2d 1111. “An abuse
       of discretion connotes more than an error of law or judgment; it implies
       conduct that is unreasonable, arbitrary, or unconscionable.” State v.
       Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.
State v. Vasquez, 8th Dist. Cuyahoga No. 82156, 2004-Ohio-53, ¶ 10.

       B.     Law and Analysis

       {¶9} In Foster’s second assignment of error, he argues that the trial court erred or

abused its discretion when it denied his motion as a postconviction petition.             He

contends that because his sentence is void, his motion was not a postconviction petition,

and the time period to file an appeal has not begun because a valid sentence has not been

imposed.    However, in the first assignment of error, it has already been decided that

Foster’s sentence was not void.        Therefore, Foster’s motion was a postconviction

petition.

       There are strict time limits for seeking postconviction relief under R.C.
       2953.21. Under R.C. 2953.21(A)(2), a petition for postconviction relief
       must be filed no later than 180 days after the date on which the trial
       transcript is filed in the court of appeals in the direct appeal of the
       conviction or, if no appeal is taken, no later than 180 days after the
       expiration of time for filing the appeal.

State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 19. Foster is over

the time limit of filing a postconviction petition. However,

       [i]f a defendant’s petition is untimely under R.C. 2953.21(A)(2), then it
       must comport with R.C. 2953.23(A). Under R.C. 2953.23(A)(1), the trial
       court may not consider a delayed petition for postconviction relief unless
       the petitioner satisfies two requirements. First, the petitioner must
       demonstrate either that he was unavoidably prevented from discovering the
       facts on which he relies in the petition or that the United States Supreme
       Court has, since his last petition, recognized a new federal or state right that
       applies retroactively to the petitioner. R.C. 2953.23(A)(1)(a). Second,
       the petitioner must show by clear and convincing evidence that a reasonable
       factfinder would not have found him guilty but for constitutional error at
       trial. R.C. 2953.23(A)(1)(b); State v. Thomas, 8th Dist. Cuyahoga
       No. 99972, 2014-Ohio-1512, ¶ 6-7.
Id. at ¶ 20.

         {¶10} Foster does not demonstrate either circumstance.         Nor does he establish

that a reasonable factfinder would not have found him guilty but for constitutional error at

trial.   Therefore, the trial court did not err, and Foster’s second assignment of error is

overruled.

IV.      Res Judicata

         {¶11} Although we reviewed Foster’s assignments of error, his claims are barred

by res judicata.    “Res judicata bars the relitigation of an issue already decided. State v.

Peterson, 8th Dist. Cuyahoga No. 103503, 2016-Ohio-4698, ¶ 6, citing Russell v.

Mitchell, 84 Ohio St.3d 328, 329, 703 N.E.2d 1249 (1999).”          State v. Bridges, 8th Dist.

Cuyahoga No. 104723, 2017-Ohio-539, ¶ 14.

         Under the doctrine of res judicata, a valid, final judgment rendered upon the

         merits bars all subsequent actions based upon any claim arising out of the

         same transaction or occurrence that was the subject matter of a previous

         action. The Ohio Supreme Court has identified four elements necessary to

         bar a claim under the doctrine of res judicata:     (1) there is a final, valid

         decision on the merits by a court of competent jurisdiction; (2) the second

         action involves the same parties or their privies as the first; (3) the second

         action raises claims that were or could have been litigated in the first action;

         and (4) the second action arises out of the transaction or occurrence that

         was the subject matter of the previous action.
State v. Shearer, 8th Dist. Cuyahoga No. 103848, 2016-Ohio-7302, ¶ 5, quoting Lenard v.

Miller, 8th Dist. Cuyahoga No. 99460, 2013-Ohio-4703, ¶ 27.

       {¶12} The sentencing errors that Foster asserts should and could have been raised

when he appealed in 2000. “[M]ost sentencing errors are generally attacked by way of a

postconviction petition, pursuant to R.C. 2953.21, and must be raised on direct appeal.”

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28.

“Sentencing errors not raised on direct appeal are generally barred by the doctrine of res

judicata.” Willard, 8th Dist. Cuyahoga No. 101055, 2014-Ohio-5278, ¶ 10.

       {¶13} Judgment is affirmed.

       It is ordered that the appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________
ANITA LASTER MAYS, JUDGE

LARRY A. JONES, SR., J., CONCURS;
MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY
