[Cite as State v. Graham, 2014-Ohio-1785.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 5-13-31

        v.

NATHAN A. GRAHAM,                                        OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 1999 CR 00025

                                     Judgment Affirmed

                             Date of Decision: April 28, 2014




APPEARANCES:

        Nathan A. Graham, Appellant

        Mark C. Miller for Appellee
Case No. 5-13-31


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Nathan Graham brings this appeal from the

judgment of the Common Pleas Court in Hancock County, Ohio, denying his

Motion for Final Appealable Order. For the reasons that follow, we affirm the

trial court’s judgment.

       {¶2} The procedural facts relevant to this appeal are as follows.         On

November 22, 2000, Graham was sentenced to an aggregate term of fifty-five

years in prison for, inter alia, rape, in violation of R.C. 2907.02—a sexually

oriented offense. (R. at 389; See R.C. 2950.01.) Graham timely appealed his

sentence on January 3, 2001, on the basis that he was not properly warned of the

consequences of his waiver of counsel at trial and that his motion to suppress was

improperly denied. We affirmed. See State v. Graham, 3d Dist. Hancock No. 5-

01-01, 2001 WL 1516582. Since then, Graham has filed multiple other motions

and appeals.

       {¶3} Recently, we remanded Graham’s case to the trial court for

resentencing due to the trial court’s failure to properly impose postrelease control.

State v. Graham, 3d Dist. Hancock No. 5-12-02, 2013-Ohio-218. As a result,

Graham was resentenced on July 31, 2013. The July 31, 2013, Judgment Entry

only addressed the requirement that Graham be notified about the postrelease




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control. (R. at 559.) In all other respects, the original sentencing entry from

November 22, 2000, is relevant to this appeal.

        {¶4} On the date of his resentencing hearing, on July 31, 2013, Graham

filed his Motion for Final Appealable Order, in which he argued that his sentence

was void because the trial court failed to conduct a hearing to determine whether

he was a sexual predator pursuant to R.C. 2929.19(A)(2) and 2950.09(B), and

failed to inform him of his duty to register as a sexually oriented offender pursuant

to R.C. 2929.13(I), as effective at the time of his sentencing. (R. at 549.) He

demanded that the trial court hold a hearing and issue a new sentencing entry

accordingly, in order to “give the defendant a final appealable order.” (Id.)

        {¶5} The trial court denied Graham’s motion. The trial court recognized

that no hearing was conducted to determine whether Graham was a sexually

oriented offender or a sexual predator. (R. at 558.) It held, however, that failure

to conduct such a hearing did not render the sentence void. (Id.) Likewise, the

trial court held that the failure to provide Graham with “the mandatory reporting

notices regarding sexually oriented offenders at the time of sentencing” did not

render his sentence void and that Graham’s argument is barred by res judicata.

(Id. at 2.)

        {¶6} Graham appeals raising two assignments of error.




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                       ASSIGNMENT OF ERROR NO. I

      A TRIAL COURT ABUSES ITS DISCRETION IN DENYING
      A DEFENDANT’S MOTION FOR FINAL APPEALABLE
      ORDER IN THIS MATTER FOR NOT COMPLYING WITH
      THE MANDATORY STATUTORY LANGUAGE AS SET
      FORTH IN R.C. 2929.13(I), R.C. 2929.19(A)(2) AND R.C.
      2950.09 (UNDER THE LAW IN EFFECT AT THE TIME
      DEFENDANT COMMITTED THE OFFENSE)

                      ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT ABUSED ITS DISCRETION AND
      COMMITTED REVERSIBLE ERROR BY FAILING TO
      FOLLOW THE MANDATORY LANGUAGE AND THE
      LEGISLATIVE INTENT OF HOUSE BILL 180

      {¶7} Although Graham separates his arguments into two assignments of

error, he raises the same issues in both. In essence, in his discussion of the first

assignment of error Graham alleges that the trial court erred when it failed to

conduct a hearing to determine whether he was a sexual predator, failed to advise

him about the duty to register, and further erred by denying his Motion for Final

Appealable Order, which requested a remedy for the alleged violation. In his

discussion of the second assignment of error Graham alleges that the trial court

erred by failing to follow H.B. 180, which mandated the hearing and the

notification about the duty to register. For the clarity of analysis, this opinion

separately addresses the issue of final appealable order in discussion of the first

assignment of error, and the issues related to the trial court’s alleged failure to

follow the statutory requirements in discussion of the second assignment of error.

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                            First Assignment of Error

      {¶8} The first assignment of error alleges that the trial court erred by

denying Graham’s Motion for Final Appealable Order, which requested a remedy

for the purported failures to comply with mandatory statutory requirements.

Graham’s reasoning in claiming that his sentence was not a final appealable order

appears to be similar to the one of the defendant in State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 38:

      Fischer’s theory is that because the trial court did not properly apply
      postrelease-control sanctions, his sentence was void under Bezak.
      Because his sentence was void, he contends, there was no sentence,
      and without a sentence, no conviction and no final order. See State v.
      Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182 (“a
      ‘conviction’ consists of a guilty verdict and the imposition of a
      sentence or penalty” [emphasis sic]); State v. Baker, 119 Ohio St.3d
      197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus (to be a final,
      appealable order, a judgment of conviction must include the
      sentence). In Fischer’s view, the absence of a conviction means the
      absence of a final, appealable order, and the absence of such an
      order deprived the court of appeals of its jurisdiction over the initial
      appeal, thereby rendering that appeal invalid. The argument, though
      creative, fails.

      {¶9} In a similar fashion, Graham claims that the trial court in this case did

not properly follow the mandatory statutory language and his sentence was void,

resulting in a lack of final appealable order. He reasons that he is not able to

“appeal a finding that the court refused to make.” (App’t Br. at 4.) We follow the

Ohio Supreme Court’s reasoning in Fischer and reject Graham’s assertion.



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       Nothing in Baker discusses void or voidable sentences. Rather, the
       syllabus speaks only to the requirement that the judgment of
       conviction set forth “the sentence” in addition to the other necessary
       aspects of the judgment. The judgment in this case did set forth the
       sentence. The fact that the sentence was illegal does not deprive the
       appellate court of jurisdiction to consider and correct the error. In
       fact, R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court
       to modify or vacate any sentence that is “contrary to law.” Clearly,
       no such authority could exist if an unlawful sentence rendered a
       judgment nonfinal and unappealable.

Fischer, 2010-Ohio-6238, at ¶ 39.

       {¶10} Because a void sentence does not render the resulting judgment entry

“nonfinal,” Graham’s request for a final appealable order was properly denied.

Furthermore, although he is not able to appeal a finding the trial court has not

made, he may appeal (and is currently appealing) the trial court’s failure to make a

finding. The first assignment of error is thus overruled.

       {¶11} Nevertheless, in so far as Graham’s motion requested resentencing,

the analysis of the second assignment of error applies.

                           Second Assignment of Error

       {¶12} Under the second assignment of error Graham alleges that the trial

court erred by failing to follow H.B. 180, which mandated the hearing and the

notification requirements. He demands that the trial court “hold a hearing in

accordance with R.C. 2929.13(I), R.C. 2929.19(A)(2) and R.C. 2950.09” and

incorporate “registration requirements into its original sentence.” (App’t Br. at 7,

15.)

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       {¶13} The trial court held that Graham’s arguments are barred by res

judicata. Res judicata would require denial of Graham’s claims because

       a final judgment of conviction bars a convicted defendant who was
       represented by counsel from raising and litigating in any proceeding,
       except an appeal from that judgment, any defense or any claimed
       lack of due process that was raised or could have been raised by the
       defendant at the trial, which resulted in that judgment of conviction,
       or on an appeal from that judgment.

State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus. Nevertheless,

res judicata does not apply to a void judgment. See Fischer, 2010-Ohio-6238, at ¶

30. Therefore, Graham based his request for resentencing, filed almost thirteen

years after his sentencing and after his direct appeal, upon a premise that the trial

court’s failure to follow the statutory requirements made the resulting sentence

void. (App’t Br. at 5.)

       {¶14} In his brief, Graham quotes Beasley for the proposition that “[a]ny

attempt by a court to disregard statutory requirements when imposing a sentence

renders the attempted sentence a nullity or void.” State v. Beasley, 14 Ohio St.3d

74, 75, 471 N.E.2d 774 (1984), superseded by statute on other grounds as stated

in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958. But

the quoted language from Beasley does not apply to Graham’s reasoning because

it concerns a situation where the trial court disregarded a statute that mandated a

specified prison term and failed to impose any prison term upon the defendant. Id.



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at 75.    “In doing so the trial court exceeded its authority” and the resulting

sentence was void. Id.

         {¶15} As the Ohio Supreme Court later explained,

         The crux of our debate arises from the fact that in the normal course,
         sentencing errors are not jurisdictional and do not render a
         judgment void. Rather, void sentences are typically those in which a
         court lacked subject-matter jurisdiction over the defendant.

         But in the modern era, Ohio law has consistently recognized a
         narrow, and imperative, exception to that general rule: a sentence
         that is not in accordance with statutorily mandated terms is void.

         Although our case law on void judgments was rooted in cases in
         which courts lacked subject-matter jurisdiction, it evolved beyond
         those roots over the years. By the time we decided Beasley, it had
         developed into the principle that “[a]ny attempt by a court to
         disregard statutory requirements * * * renders the attempted
         sentence a nullity or void.”

(Emphasis added.)      (Citations omitted.)    Fischer, 2010-Ohio-6238, at ¶¶ 7-9,

citing Beasley, 14 Ohio St.3d at 75. The Ohio Supreme Court further affirmed

that the rule requiring voiding a sentence where “a trial court fails to impose a

sentence in accordance with statutorily mandated terms,” is a “a narrow exception

to the general rule that sentencing errors are not jurisdictional.” State v. Harris,

132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 7. Beasley, therefore,

stands for a proposition that a sentence is void if it imposes a sentence different

than the one mandated by the statute. In other respects, sentencing errors remain

“not jurisdictional.” Here, there are no allegations that the trial court imposed a


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sentence different than the one mandated by statute. Therefore, the holding of

Beasley does not operate to void Graham’s sentence.

        {¶16} Other appellate courts addressing the issue of allegedly defective

sentencing based on violations of R.C. 2950 came to similar conclusions. For

example, the Fourth District Court of Appeals recognized and followed the

holding of the Ninth District Court of Appeals that any failure to follow a

provision of the statute made the judgment voidable, rather than void.1 State v.

Glover, 4th Dist. Washington No. 12CA7, 2012-Ohio-6006, ¶ 7, quoting State v.

Harris, 9th Dist. Lorain No. 07CA009130, 2007-Ohio-4915, ¶ 5. See also Harris,

2007-Ohio-4915, at ¶ 5 (rejecting a defendant’s argument “that the trial court’s

failure to comply with the notice provision of R.C. 2950.09(B)(1) somehow voids

his adjudication,” and citing the Ohio Supreme Court’s decision in State v. Gowdy,

88 Ohio St.3d 387, 398-399, 727 N.E.2d 579 (2000), where the trial court’s failure

to follow R.C. 2950.09(B)(1), was found to “only cause[] the trial court’s

judgment to be voidable, not void”).

        {¶17} Graham further relies on a line of cases holding that a sentence is

void for failure to include a notification about the postrelease control and urges us

to hold that his sentence is void for failure to include a notification about his duty


1
  That case concerned a provision of the statute requiring notice of the sexual offender classification
hearing. Glover, 2012-Ohio-6006, ¶ 3. The reasoning of Glover applies to the case before us with respect
to the issue that failure to follow all the statutorily-mandated procedures does not necessarily render a
judgment void.

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to register as a sexually oriented offender. See, e.g., State v. Jordan, 104 Ohio

St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23, superseded by statute on other

grounds as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920

N.E.2d 958; State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d

718, ¶¶ 18-19. But unlike with the criminal nature of post-release control, the trial

court’s failure to notify Graham about the civil nature of the registration

requirement of R.C. 2950, as of the time of Graham’s sentencing, did not render

his sentence void. See State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374,

952 N.E.2d 1108, ¶¶ 10-16 (recognizing that the statutory scheme for the

classification and registration of sex offenders codified in R.C. 2950 was remedial

rather than punitive in nature prior to the enactment of S.B. 10 in 2007); State v.

Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 4 (“Cook holds

that the scheme provided for in R.C. Chapter 2950 is civil, not punitive, in nature.

Williams reaffirms that principle.”), citing State v. Cook, 83 Ohio St.3d 404, 422,

700 N.E.2d 570 (1998), and State v. Williams, 88 Ohio St.3d 513, 528, 728 N.E.2d

342 (2000).

       {¶18} The Ohio Supreme Court refused to hold that a judgment is void for

failure to inform an offender about mandatory court costs because “[t]he civil

nature of the imposition of court costs does not create the taint on the criminal

sentence that the failure to inform a defendant of postrelease control does.” State


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v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 21. Similarly, as

a remedial rather than a punitive sanction, the registration requirement “does not

create the taint on the criminal sentence that the failure to inform a defendant of

postrelease control does.” Id.; cf. State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-

1908, 972 N.E.2d 509, ¶¶ 11, 14 (citing Joseph and distinguishing it from a case

involving a mandatory driver’s license suspension, which is a criminal sanction,

“akin to postrelease control”).

        {¶19} Accordingly, Graham’s sentence is not void and his allegations

regarding the trial court’s sentencing errors, brought to the attention of the trial

court almost thirteen years after his sentencing and after his direct appeal, are

barred by res judicata.2 Several appellate courts arrived at similar holdings where

a defendant who was represented by counsel failed to raise the issue of the trial

court’s failure to comply with statutory requirements of R.C. 2950.09 in his or her

direct appeal. See State v. Westerfield, 10th Dist. Franklin No. 13AP-286, 2013-

Ohio-4216, ¶ 6, citing Glover, 4th Dist. Washington No. 12CA7, 2012-Ohio-6006,

¶ 6, and Harris, 9th Dist. Lorain No. 07CA009130, 2007-Ohio-4915, ¶ 4.

        {¶20} The second assignment of error is thus overruled.




2
  We further note that Graham was not prejudiced by the trial court’s failure to conduct a hearing required
by R.C. 2950.09 “to determine whether the offender is a sexual predator,” because he was not classified as
a sexual predator.

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                                  Conclusion

       {¶21} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant, in the particulars assigned and

argued. The judgment of the Common Pleas Court in Hancock County, Ohio is

thereby affirmed.

                                                            Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




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