[Cite as State v. Pierce, 2019-Ohio-467.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                MEIGS COUNTY

STATE OF OHIO,                 :
                               :    Case No. 18CA11
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
ISAAC J. PIERCE,               :
                               :
    Defendant-Appellant.       :    Released: 02/06/19
_____________________________________________________________
                         APPEARANCES:

Robert W. Bright, Middleport, Ohio, for Appellant.

James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Isaac J. Pierce appeals the November 3, 2015 judgment entry of

the Meigs County Common Pleas Court. Appellant had previously entered

guilty pleas to felonious assault, aggravated burglary, and violation of

protection order. On appeal, Appellant asserts that (1) the trial court erred in

imposing sentence because his sentence is void, in part; and (2) the trial

court erred by denying his motion for judgment on the pleadings. Upon

review, we find Appellant’s first assignment of error has merit.
Meigs App. No. 18CA11                                                                         2

Accordingly, we vacate the judgment of the trial court, as to the sentence,

and remand the matter for re-sentencing consistent with this opinion.

                                                  FACTS

           {¶2} On June 22, 2015, Appellant was indicted on five counts: (1)

felonious assault, R.C. 2903.11(A)(2); (2) aggravated burglary,

R.C. 2911.11(A)(2); (3) child endangering, R.C. 2919.22(A); (4) disrupting

public services, R.C. 2904.04(A)(1); and (5) violating a protection order,

R.C. 2919.26 or 3113.31. The indictment stemmed from events which

occurred on or about June 1, 2015, when Appellant was alleged to have

entered a dwelling where his ex-partner (the mother of his children) and

another male were sleeping and inflicted injury on the male. Appellant

subsequently entered pleas to felonious assault, aggravated burglary, and

violating a protection order.1

           {¶3} The October 30, 2015 sentencing transcript reflects the parties

presented the trial court with a plea agreement. The trial court explained to

Appellant that it was not bound by the sentencing recommendation and also

stated its intent to follow the Plea Agreement. The State then summarized

the Plea Agreement on the record and Appellant’s counsel acknowledged it

was set forth correctly.

1
    Counts three and four were dismissed without prejudice, pursuant to the plea agreement.
Meigs App. No. 18CA11                                                         3

      {¶4} The transcript also reflects the trial court engaged in required

colloquy as to Appellant’s constitutional rights and voluntariness of his

pleas. The court then announced its intention to procced to sentencing

unless there was an objection. Appellant’s counsel made no objection and

actually requested the court to proceed to sentencing. The judgment entry of

sentence is file-stamped November 3, 2015. The entry contains the

following language:

      “The Court has considered the record, any oral statements, any
      victim impact statement, any plea agreement, any victim
      approval, and any pre-sentence report prepared, as we as the
      principles and purposes or sentencing under Ohio Revised Code
      Section 2929.11, and has balanced the seriousness and
      recidivism factors Ohio Revised Code Section 2929.12.”
      (Emphasis added.)

The relevant portions of Appellant’s sentence are set forth as follows:

      “IT IS THEREFORE ORDERED, that the Defendant be
      sentenced to the Ohio Department of Rehabilitation and
      Correction for a period of thirty-six (36) months for Count Five,
      Violating a Protection Order, * * * a felony of the third degree.

      IT IS THEREFORE ORDERED, as to Count One, Felonious
      Assault * * * a felony of the second degree and Count Two,
      Aggravated Burglary, * * * a felony of the first degree, that the
      Defendant be sentenced to five (5) years of community control,
      with an underlying sentence of five (5) years on each count.
      Defendant is subject to the general supervision and control of
      the Meigs County Community Corrections Program * * *.
      Defendant is Ordered to report to the Adult Probation
      Department within seventy-two (72) hours of his release from
      prison to commence the community control sentence herein.
Meigs App. No. 18CA11                                                        4

      Said sentences, as to Counts One and Two, are ORDERED to
      run concurrent to one another but consecutive to the sentence
      imposed on Count Five. The Court makes the appropriate
      findings to impose said consecutive sentences as required by
      Section 2929.14(C )(4) of the Ohio Revised Code.

      The Court, additionally and specifically, finds that, pursuant to
      Revised Code Section 2953.08(D)(1) that said sentence is an
      agreed sentence and therefore is not appealable.

      It is further Ordered, as a special condition of community
      control, that the Defendant successfully complete the SEPTA
      Program. The Defendant shall enter the SEPTA program
      within thirty (30) days of his release from prison herein. * * *.

      It is further Ordered that the Defendant have no contact with the
      victims * * * or their families, * * *.

      * * * Count One, post release control is mandatory for a period
      of five years.”

      {¶5} The record indicates on December 13, 2017, Appellant filed a

Motion to Vacate Void Judgment. In the motion, Appellant argued the

community control sanctions imposed in 2015 on counts one and two are

void pursuant to the Supreme Court of Ohio’s decision in State v. Anderson,

143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512. Anderson explicitly

held that a trial court is not authorized to impose a no-contact order in

addition to prison sentences. On February 8, 2018, Appellant filed a Motion

for Judgment on the Pleadings, asking the trial court to rule on his Motion to

Vacate Void Judgment. In a February 20, 2018 entry the trial court pointed
Meigs App. No. 18CA11                                                        5

out that Appellant voluntarily pleaded to all counts and ultimately concluded

the Motion to Vacate was time-barred. This timely appeal followed.

                         ASSIGNMENTS OF ERROR

      I.     “THE TRIAL COURT ERRED IN SENTENCING
             DEFENDANT/APPELLANT ISAAC J. PIERCE TO
             TERMS OF COMMUNITY CONTROL WITHOUT A
             PRE-SENTENCE INVESTIGATION REPORT AND
             CONSECUTIVE TO A PRISON SENTENCE, AS
             SUCH, PART OF APPELLANT’S SENTENCE IS
             VOID.

      II.    THE TRIAL COURT ERRED IN DENYING
             DEFENDANT/APPELLANT ISAAC J. PIERCE’S
             MOTION FOR JUDGMENT ON THE PLEADINGS.”

      {¶6} Because Appellant’s assignments of error are interrelated, we

consider them jointly.

                         STANDARD OF REVIEW

      {¶7} Appellant filed a Motion to Vacate Void Judgment. Courts may

recast irregular motions into whatever category they deem necessary to

identify and establish the criteria by which they should judge the motion.

State v. Rinehart, 4th Dist. Ross No. 17CA3606, 2018-Ohio-1261, ¶ 7 ; State

v. Burkes, 4th Dist. Scioto No. 13CA3582, 2014–Ohio–3311, ¶ 11, citing

State v. Schlee, 117 Ohio St.3d 153, 2008–Ohio–545, 882 N.E.2d 431, ¶ 12.

In State v. Reynolds, 79 Ohio St.3d 158, 160, 773 N.E.2d 1131 (1997), the

Supreme Court of Ohio held that a motion styled as a “Motion to Correct or
Meigs App. No. 18CA11                                                            6

Vacate Sentence” met the definition of a petition for post-conviction relief

pursuant to R.C. 2953.21(A)(1) because it was “(1) filed subsequent to [the

defendant's] direct appeal, (2) claimed a denial of constitutional rights, (3)

sought to render the judgment void, and (4) asked for vacation of the

judgment and sentence.” See Rinehart at ¶ 6. See also Schlee at ¶ 12.

      {¶8} In this case, Appellant did not file a direct appeal of his sentence.

Although he seeks to render his sentence void, his “Motion to Vacate Void

Judgment” does not claim denial of constitutional rights and thus we do not

consider it under the standard of review appropriate for post-conviction

motions for relief. Appellant argues his sentence is void because the trial

court failed to obtain and consider a pre-sentence investigation report,

pursuant to R.C. 2951.03(A)(1), which provides that “[N]o person who has

been convicted of or pleaded guilty to a felony shall be placed under a

community control sanction until a written presentence investigation report

has been considered by the court.” The determination of whether a

judgment is void is a question of law. State v. McNamara, 4th Dist.

Pickaway No. 17CA13, 2018-Ohio-2880, at ¶ 4; Blaine v. Blaine, 4th Dist.

Jackson No. 10CA15, 2011-Ohio-1654, ¶ 19; see also State v. Jones, 9th

Dist. Summit No. 26854, 2013-Ohio-3710, ¶ 6 (quoting Blaine ). Appellate

courts review questions of law under the de novo standard of review. See
Meigs App. No. 18CA11                                                                                      7

State v. Blake, 10th Dist. Franklin No. 10AP–992, 2011-Ohio-3318, ¶ 17.

But see State v. Klein, 4th Dist. Adams No. 15CA12, 2016-Ohio-5315, at

¶15.2

                                       LEGAL ANALYSIS

         {¶9} In the first assignment of error, Appellant argues his sentence of

five years of community control on each of counts one and two is void

because no pre-sentence investigation report was prepared or considered.

He also asserts that, pursuant to Anderson, supra, his consecutive sentence

of community control after the completion of his prison sentence is void.

We begin with his first argument.

         {¶10} In this case, although the judgment entry of sentence states

Appellant’s sentence was considered pursuant to “any pre-sentence

investigation report prepared,” the transcript itself does not indicate a pre-

sentence investigation was ordered or considered by the trial court. Indeed,

the transcript reflects that Appellant’s counsel did not object to proceeding

to sentencing on the same day that Appellant entered his pleas. In State v.

Klein, supra, this court held that Klein’s community control sentence on an

attempted tampering with evidence conviction was contrary to law and not
2
  Outside the context of a direct appeal, R.C. 2953.08(G)(2) governs our review of his sentence. R.C.
2953.08(G)(2) specifies that an appellate court may increase, reduce, modify, or vacate and remand a
challenged felony sentence if the court clearly and convincingly finds that “the record does not support the
sentencing court's findings” under the specified statutory provisions or “the sentence is otherwise contrary
to law.”
Meigs App. No. 18CA11                                                             8

authorized by law, rendering the sentence void, where the trial court did not

consider a presentence investigation report before imposing sentence. Id. at

¶ 21, 26.

      {¶11} “ ‘In general, a void judgment is one that has been imposed by

a court that lacks subject-matter jurisdiction over the case or the authority to

act. 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. Cupp, 2016-Ohio-8462, 75

N.E.3d 940 (4th Dist.), at ¶ 14; (Internal citation omitted.) State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6, quoting State v.

Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12.

Typically, “sentencing errors are not jurisdictional and do not render a

judgment void.” Id. at ¶ 7. However, “a sentence that is not in accordance

with statutorily mandated terms is void.” Id. at ¶ 8. A void sentence “is not

precluded from appellate review by principles of res judicata, and may be

reviewed at any time, on direct appeal or by collateral attack.” Id. at

paragraph one of the syllabus. Appellant’s original sentence was imposed

on November 3, 2015.

      {¶12} Appellant has directed our attention to State v. Amos, 140 Ohio

St.3d 238, 2014–Ohio–3160, 17 N.E.3d 528, ¶ 16, wherein the Supreme
Meigs App. No. 18CA11                                                           9

Court of Ohio held: “A trial court acts contrary to law when it imposes a

sentence of one or more community-control sanctions on a felony offender

without first ordering and reviewing a presentence investigation report.”

The Amos decision guided our analysis in our own decision in Klein, supra.

Klein had entered into a plea agreement wherein he would be placed on

community control for an attempted tampering with evidence conviction.

Klein did not file a direct appeal. We reviewed his case on an appeal of the

sentencing entry from his revocation hearing. Appellant similarly did not

file a direct appeal.

       {¶13} In Klein, our review of the sentencing transcript revealed that

the trial court stated at Klein’s sentencing hearing that it had considered a

presentence investigation report. We observed at ¶ 16:

       “The Supreme Court of Ohio has recently held in State v. Amos,
       140 Ohio St.3d 238, 2014–Ohio–3160, 17 N.E.3d 528, ¶ 16: ‘A
       trial court acts contrary to law when it imposes a sentence of
       one or more community-control sanctions on a felony offender
       without first ordering and reviewing a presentence investigation
       report.’ Therefore, according to Supreme Court precedent, it is
       clear that the trial court acted contrary to law.”

       {¶14} In Klein, we noted that although Klein’s sentence was contrary

to law, we must also consider whether or not the sentence was authorized by

law. The Supreme Court of Ohio and this Court have held that if an

imposed sentence is not authorized by law, it is void. Id. at ¶17; State v.
Meigs App. No. 18CA11                                                             10

Pippen, 4th Dist. Scioto No. 14CA3595, 2014–Ohio–4454, ¶ 11, citing State

v. Billiter, 134 Ohio St.3d 103, 2012–Ohio–5144, 980 N.E.2d 960, ¶ 10.

“[S]entences not authorized by statute are void and subject to being

vacated.” Klein at ¶ 17, quoting State v. Stump, 4th Dist. Athens No.

13CA10, 2014–Ohio–1487, ¶ 15, citing State v. Rohda, 135 Ohio App.3d

21, 25, 732 N.E.2d 1018 (3rd Dist.1999); State v. Hooks, 135 Ohio App.3d

746, 735 N.E.2d 523 (10th Dist.2000); State v. Lee, 1st Dist. Hamilton No.

C–120307, 2013–Ohio–1811, ¶ 26. “This rule cannot be circumvented.”

Stump at ¶ 15.

      {¶15} In Klein, we also recognized that if the sentence was merely

voidable, then principles of res judicata would apply, and since Klein did not

file a direct appeal on the original community control sentence, he would be

barred by principles of res judicata from raising his arguments regarding the

lack of a pre-sentence investigation report. Id. at ¶ 18. See State v. Literal,

4th Dist. Scioto No. 12CA3479, 2012–Ohio–6298, ¶ 6. On the other hand,

we noted that if the original community control sentence was void, then the

principles of res judicata would not apply; and the sentence may be reviewed

at any time even by collateral attack. State v. Fischer, 128 Ohio St.3d 92,

2010–Ohio–6238, 942 N.E.2d 332, ¶ 40.
Meigs App. No. 18CA11                                                           11

      {¶16} In Klein, ¶ 19, we also looked to Amos’s language to guide our

reasoning, where the Supreme Court of Ohio found:

      “[W]e are not the legislature, and our pursuit of a logical
      understanding of the sentencing scheme cannot overlook the
      plain language of the statute and rule that govern these cases.
      The state has argued that based on R.C. 2951.03(A)(1) and
      Crim.R. 32.2, a community-control sentence is always subject
      to a presentence investigation and that a trial court that fails to
      order a presentence investigation is not authorized to place an
      offender on a community-control sentence. Reluctantly, we
      must agree. R.C. 2951.03(A)(1) specifically states that “[n]o
      person who has been convicted of or pleaded guilty to a felony
      shall be placed under a community control sanction until a
      written presentence investigation report has been considered by
      the court,” and Crim.R. 32.2 states that “[i]n felony cases the
      court shall * * * order a presentence investigation and report
      before imposing community control sanctions or granting
      probation.” These provisions are simply too clear to ignore.”
      (Emphasis added.) Id. at ¶ 14.

      {¶17} Therefore, in Klein, we concluded that the Supreme Court Ohio

“evidently agrees with the argument that ‘a trial court that fails to order a

presentence investigation is not authorized to place an offender on a

community-control sentence.’ ” Klein, at ¶ 19; Amos, at ¶ 14. Citing both

R.C. 2951.03(A)(1) and Crim.R. 32.2, we held at ¶ 21:

      “Both the statute and the criminal rule of procedure mandate
      that a trial court shall order and consider a presentence
      investigation report prior to imposing community control
      sanctions. Here, the trial court did not consider a presentence
      investigation report before imposing sentence, and thus the
      sentence was not authorized by law. The original community
      control sentence is consequently void.”
Meigs App. No. 18CA11                                                          12

      {¶18} In Appellant’s case, the State has argued that Appellant’s

sentence of community control without the benefit of a pre-sentence

investigation report is not subject to review because it is an agreed sentence.

The State in Cupp, supra, argued similarly. In the context of a post-release

control issue, Cupp argued his sentence of post-release control was void

because when the trial court originally imposed post-release control, it did

not provide a proper notification in the final judgment. The State argued

that pursuant to R.C. 2953.08(D)(1), Cupp was not permitted by law to

challenge his sentence because (1) the sentence was jointly recommended by

the parties, and (2) the sentence was authorized by law. We disagreed and

held at ¶ 27:

      “Our recent cases illustrate that sentences that do not comport
      with mandatory provisions are subject to total resentencing.
      See, e.g., State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250,
      868 N.E.2d 961, ¶ 11. Nor can agreement to such sentences
      insulate them from appellate review, for they are not authorized
      by law. We hold that a sentence is “authorized by law” and is
      not appealable within the meaning of R.C. 2953.08(D)(1) only
      if it comports with all mandatory sentencing provisions. A trial
      court does not have the discretion to exercise its jurisdiction in
      a manner that ignores mandatory statutory provisions. See State
      v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d
      568, ¶ 27 (“Every judge has a duty to impose lawful
      sentences”). Id. at ¶¶ 20–21.”

      {¶19} Furthermore, we reiterated a void “sentence may be reviewed at

any time, on direct appeal or by collateral attack.” Cupp, supra, at ¶ 28,
Meigs App. No. 18CA11                                                         13

quoting Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 at

paragraph one of the syllabus. “Accordingly, Cupp cannot waive his right to

appeal his sentence on those grounds. See State v. Middleton, 8th Dist.

Cuyahoga No. 99979, 2013-Ohio-5591, 2013 WL 6730881, ¶ 15.” Cupp, at

¶ 28. As in Cupp, the State’s contention about the agreed nature of

Appellant’s sentence has no merit. Appellant’s sentences to community

control with first obtaining and considering a pre-sentence investigation

report renders his community control sentences void. Appellant cannot

agree to waive his right to appeal a void sentence.

      {¶20} Here, the State also points out that Appellant did not voice any

objection to proceeding to sentencing without having a pre-sentence

investigation report prepared and considered. Therefore, the State argues,

Appellant has waived any issue as to the lack of a pre-sentence report.

Similarly, in Klein, defense counsel did not object to the trial court’s failure

to consider a presentence investigation report prior to sentencing him to

community control. However, we found no merit to the waiver argument in

that context as well. We concluded: “Nonetheless, “[a] sentence not

authorized by statute * * * cannot be imposed because it is included in a plea
Meigs App. No. 18CA11                                                                                   14

agreement, or because defense counsel failed to object at the sentencing

hearing.” Klein, at ¶ 20, quoting Stump, 2014–Ohio–1487, at ¶ 15.3

         {¶21} For the foregoing reasons, Appellant’s first and second

assignments of error are sustained. Appellant’s sentences of community

control on count one, felonious assault, and of community control on count

two, aggravated burglary, are contrary to law and are also not authorized by

law because the trial court failed to consider a pre-sentence investigation

report prior to imposing community control. Therefore, the sentences are

void and must be vacated.4 The judgment of the trial court imposing

community control sentences on those counts is also vacated. As such, this

matter is remanded for re-sentencing consistent with this opinion.5

         {¶22} We have considered Appellant’s assignments of error jointly.

Our resolution of Appellant’s first assignment of error as to the issue of the

3
  See also State v. Brewer, 2nd Dist. Montgomery No. 21653, 2015-Ohio-693, at ¶ 13: “If the presentence
investigation is waived by the defendant, R.C. 2951.03 would prohibit the trial court from imposing
community control sanctions. (Citation omitted.) State v. Preston, 155 Ohio App.3d 367, 2003–Ohio–6187,
801 N.E.2d 501, ¶ 7 (10th Dist.); Accord Disciplinary Counsel v. O'Neill, 103 Ohio St.3d 204, 2004–Ohio–
4704, 815 N.E.2d 286, ¶ 15 (to avoid the necessity of a prison term, a presentence investigation report must
be requested before community control sanctions can be considered); State v. Ferbrache, 6th Dist. Wood
No. WD–06–042, 2007–Ohio–746, ¶ 12 (‘since appellant elected to proceed directly to sentencing without
a presentence investigation, community control was not an option’). ‘Therefore, regardless of whether there
[is] a waiver, the trial court [cannot] impose community control sanctions without considering a PSI.’
Preston at ¶ 7.”
4
  But see State v. Knuckles, 9th Dist. Summit No. 27571, 2015–Ohio–2840, wherein the Ninth District
Court of Appeals resolved the same issue as in this case with the opposite result. Klein, supra, at ¶ 22-24.
The Knuckles court reasoned that the Supreme Court’s finding that the court’s action was contrary to law
“does not suggest that the sentence is void.” Id. ¶¶ 9 and 10. However, Judge Hoover pointed out that
void/voidability was not the issue in Amos. Klein, supra, at ¶ 23.
5
  Appellant has made additional voidness arguments as to terms of his community control, such as the “no
contact” order and the SEPTA (Southeastern Probationary Treatment Alternative) requirements. However,
having found the community control sentences are void, we need not address his arguments as to specific
terms.
Meigs App. No. 18CA11                                                      15

pre-sentence investigation report is dispositive of this matter. We need not

address his second argument regarding the consecutive nature of his

sentence as that issue has been rendered moot. We therefore decline to

address the second assignment of error. Accordingly, we vacate the

sentence as stated herein and remand this matter for re-sentencing.

                                       JUDGMENT VACATED IN PART
                                       AND REMANDED FOR RE-
                                       SENTENCING.
Meigs App. No. 18CA11                                                          16

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE VACATED IN PART AND
REMANDED FOR RE-SENTENCING. Costs shall be divided equally
between the parties.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Meigs County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment Only.

                                 For the Court,

                          BY: __________________________________
                              Matthew W. McFarland

NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this
document constitutes a final judgment entry and the time period for
further appeal commences from the date of filing with the clerk.
