         [Cite as State v. Grant, 2013-Ohio-3421.]




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



STATE OF OHIO,                                       :    APPEAL NO. C-120695
                                                         TRIAL NO. B-9702360-A
        Plaintiff-Appellee,                          :

  vs.                                                :       O P I N I O N.

JAMES GRANT,                                         :

    Defendant-Appellant.                             :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: August 7, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

James Grant, pro se.




Please note: We have removed this case from the accelerated calendar.
                  OHIO FIRST DISTRICT COURT OF APPEALS



DEWINE, Judge.

       {¶1}    Defendant James Grant appeals from the Hamilton County Common

Pleas Court’s judgment overruling his “Motion to Correct Void Sentence.” Mr. Grant

contended that he is entitled to relief because he was convicted and sentenced for

allied offenses of similar import in violation of R.C. 2941.25(A). We conclude that

Mr. Grant’s motion failed to satisfy the time or jurisdictional requirements of Ohio’s

postconviction relief statutes.   And while a trial court does have jurisdiction to

correct a void judgment, we conclude that errors involving allied offenses do not

render a judgment void. Accordingly, we affirm the common pleas court’s judgment

as modified.

                                       Background

       {¶2}    Mr. Grant was convicted in 1997 of involuntary manslaughter,

aggravated burglary, two counts of aggravated robbery, and three counts of

kidnapping. In his direct appeal, this court reversed and remanded for the trial court

to make the then-necessary statutory sentencing findings and to merge the allied

offenses of aggravated robbery and kidnapping as to two of his victims. State v.

Grant, 1st Dist. Hamilton No. C-971001, 2001 Ohio App. LEXIS 1388 (Mar. 23,

2001), appeal not allowed, 92 Ohio St.3d 1443, 751 N.E.2d 482 (2001). After the

trial court resentenced Mr. Grant, he unsuccessfully challenged his convictions in

direct appeals to this court and to the Ohio Supreme Court, State v. Grant, 1st Dist.

Hamilton No. C-010632 (June 5, 2002), appeal not allowed, 96 Ohio St.3d 1524,

2002-Ohio-5099, 775 N.E.2d 864, and, collaterally, in postconviction motions filed

with the common pleas court in 2008 and 2012.

       {¶3}    In his 2012 “Motion to Correct Void Sentence,” Mr. Grant argued the

trial court should have merged all his convictions together pursuant to R.C. 2941.25




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on the ground that they are allied offenses of similar import committed with the

same conduct. In a single assignment of error, Mr. Grant challenges the overruling

of his motion.
              The Motion Does Not Meet the Prerequisites of Ohio’s
                         Postconviction-Relief Statutes
       {¶4}      We will first review Mr. Grant’s motion under Ohio’s postconviction

statutes, R.C. 2953.21 et seq.    Mr. Grant filed his postconviction motion well after

the expiration of the time prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely

circumscribes the jurisdiction of a common pleas court to entertain a late

postconviction claim: the petitioner must show either that he was unavoidably

prevented from discovering the facts upon which his claim depends, or that his claim

is predicated upon a new or retrospectively applicable right recognized by the United

States Supreme Court; and he must show “by clear and convincing evidence that, but

for constitutional error at trial, no reasonable factfinder would have found [him]

guilty of the offense of which [he] was convicted.” Mr. Grant did not satisfy these

requirements, and, as a result, the common pleas court was without jurisdiction to

entertain his postconviction motion. See R.C. 2953.23(A).

                             The Judgment is Not Void

       {¶5}      A trial court does have jurisdiction to correct a void judgment. State

ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶

18-19. But this court has previously held that an error involving allied offenses does

not make a sentence void, only voidable. State v. Lee, 1st Dist. Hamilton No. C-

120307, 2013-Ohio-1811, ¶ 8. In Lee, however, we never set forth a rationale for this

conclusion. I think it appropriate to do so now.

       {¶6}      Historically, a void sentence was understood to be one imposed by a

court that is “lacking subject matter jurisdiction or the authority to act.” State v.



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Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27.           “A voidable

sentence,” on the other hand, “is one that a court has jurisdiction to impose, but was

imposed irregularly or erroneously.” Id. Under the traditional view, a sentence that

is not void, but merely voidable, may only be successfully challenged on direct

appeal. Id. at ¶ 28. Errors in the imposition of a sentence generally were considered

nonjurisdictional and simply made the sentence voidable. See, e.g., Majoros v.

Collins, 64 Ohio St.3d 442, 443, 596 N.E.2d 1038 (1992).            Such a result was

consistent with principles of res judicata and promoted the interest of finality of

judgments.

       {¶7}    In recent years, however, the Ohio Supreme Court has been more

willing to conclude that certain sentencing errors render a sentence void. In State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 8-9, the court

explained that despite the general rule that void sentences are “typically” only those

in which a court lacked subject matter jurisdiction, “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.”

       {¶8}    Thus, the question before us is whether a trial court’s incorrect

application of the rule regarding allied offenses set forth in R.C. 2941.25 falls within

this “narrow and imperative exception” so as to render a sentence void.         For the

reasons that follow, I hold that it does not.

       {¶9}    A necessary starting place for consideration of the question before us is

a review of the types of cases where the Ohio Supreme Court has found that a

sentencing error renders a sentence void. The court’s work in this area has been

most pronounced in cases dealing with the imposition of postrelease control. In a

series of cases, the court has held that where a trial court fails to comply with its




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statutory duties relating to the imposition of postrelease control, that portion of the

sentence is void.   See, e.g., Fischer at paragraph one of the syllabus; State v.

Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 27-28; State v.

Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 16 (overruled in part

by Fischer).

       {¶10} In Fischer, the court traced the “roots” of its postrelease-control

decisions on voidness to two older cases, Colegrove v. Burns, 175 Ohio St. 437, 195

N.E.2d 811 (1964), and State v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774 (1984).

See Fischer at ¶ 9-10 and 22-23. Beasley was a case where the trial court had

disregarded a mandatory two-to-15-year prison term and had imposed only a fine.

The trial court’s sentence was void, said the Supreme Court, because it was “an

attempt to disregard statutory requirements when imposing a sentence.” Beasley at

75. Colegrove was a case where the trial court had imposed a 60-day sentence for a

probation violation without any statutory authority to do so.          In finding the

unauthorized sentence to be void, the Supreme Court explained that “a court has no

power to substitute a different sentence for that provided by statute.” Colegrove at

438.

       {¶11} The court in Fischer noted that “our decision today is limited to a

discrete vein of cases: those in which a court does not properly impose a statutorily

mandated period of postrelease control.” Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332, at ¶ 31. Subsequent to Fischer, however, the court has

extended the doctrine to two other areas involving mandatory sentencing terms.

       {¶12} In State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d

509, the court extended the voidness concept to a trial court’s failure to include a

mandatory driver’s license suspension in a sentence.       The court explained that,




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                  OHIO FIRST DISTRICT COURT OF APPEALS



“[l]ike postrelease control, a driver’s license suspension is required by law to be part

of an offender’s sentence,” and if the trial court fails in its duty to impose either

postrelease control or a driver’s license suspension, the executive branch is unable to

impose either sanction after the offender leaves prison. Id. at ¶ 14. Thus, concluded

the court, “[b]ecause a mandatory driver’s license suspension is a statutorily

mandated term, we hold that a trial court’s failure to include this term in a criminal

sentence renders the sentence void in part.” Id. at ¶ 15.

       {¶13} The court next held that the failure to impose a statutorily mandated

fine would also render that portion of a sentence void. State v. Moore, 135 Ohio

St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432.          “Because the fine is a statutory

punishment, the trial court’s failure to impose the fine when an affidavit of indigency

is not filed with the court prior to the filing of the trial court’s journal entry of

sentencing renders that part of the sentence void.” Id. at ¶ 14.

       {¶14} In extending the concept of voidness beyond its traditional

parameters, the court has consistently emphasized the limited nature of the

exception. Thus in Fischer, it described the exception as “narrow.” Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 8. In Harris, it termed its

jurisprudence in this area as “a narrow exception to the general rule that sentencing

errors are not jurisdictional.” Harris at ¶ 7; see also Simpkins, 117 Ohio St.3d 420,

425, 2008-Ohio-1197, 884 N.E.2d 568, at ¶ 14 (characterizing as “narrow” the “vein

of cases * * * [where the] court has held that a sentence that does not contain a

statutorily mandated term is void”).

       {¶15} The commonality in the voidness cases is that they all involve

situations where the court has failed to impose a sentence term that it was mandated

by law to impose (postrelease control, driver’s license suspension, statutorily




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                  OHIO FIRST DISTRICT COURT OF APPEALS



mandated fine), or where a court has attempted to impose a sentence that was

completely unauthorized by statute. They involve instances where a trial court has

refused or neglected to do what the General Assembly has commanded with respect

to a mandatory criminal sentencing term, see Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332, at ¶ 15 and fn. 1, rather than where the trial court simply got

the law wrong. Either something that was required was left out of a sentence, or the

trial court simply decided to create its own sentence despite statutory dictates to the

contrary.

       {¶16} In contrast, the purported error in this case dealt not with a statutorily

mandated sentencing term or with the imposition of a sentence that was completely

unauthorized by law, but with the application of a general rule prohibiting multiple

convictions for certain offenses. Such an error is of a different sort than those errors

that the Supreme Court has found to render a sentence void.

       {¶17} In reaching our decision today, we also must be mindful of the

Supreme Court’s repeated description of the exception to the general rule that

sentencing errors are nonjurisdictional as a “narrow” one. Quite simply, if this court

were to hold that an allied-offenses error renders a sentence void, it would be hard-

pressed to identify any intellectually justifiable stopping point.       If a sentence

imposed in contravention of R.C. 2941.25 is void, the logical implication is that all

statutorily-based sentencing errors render a sentence void. A criminal sentence

would be subject to review indefinitely. Such a result would seriously undermine

principles of res judicata, a doctrine that “promotes the principles of finality and

judicial economy by preventing endless relitigation of an issue on which a defendant

has already received a full and fair opportunity to be heard.”     State v. Saxon, 109

Ohio St.3d 176, 181, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18} This position is consistent with that of the other appellate districts that

have addressed the issue. See, e.g., State v. Moore, 7th Dist. Mahoning No. 12 MA

91, 2013-Ohio-1431, ¶ 15 (holding that, because “[t]here is a fundamental difference

between a void judgment and one that merely contains an alleged error,” an error in

merging firearm specifications “would result in error subject to appellate review and

remand for correction if necessary, rather than a void judgment which would need to

be vacated”); State v. Porter, 6th Dist. Lucas No. L-12-1243, 2013-Ohio-1360, ¶ 12,

quoting State v. Guevara, 6th Dist. Lucas No. L-12-1218, 2013-Ohio-728, ¶ 8

(holding that “the failure to merge allied offenses at sentencing does not render a

sentence void”); State v. Garnett, 10th Dist. Franklin No. 12AP-594, 2013-Ohio-1210,

¶ 10, quoting Guevara at ¶ 8 (holding that “the failure to merge allied offenses at

sentencing does not render a sentence void”); State ex rel. Porterfield v. McKay, 11th

Dist. Trumbull No. 2012-T-0012, 2012-Ohio-5027, ¶ 17 (holding that because “R.C.

2941.25 does not set forth any mandated terms of imprisonment, any violation of its

provisions regarding the merger of allied offenses would have only caused [the

sentence] to be voidable, not void”); State v. Johnson, 9th Dist. Summit No. 26167,

2012-Ohio-4251, ¶ 7 (citing State v. Abuhilwa, 9th Dist. Summit No. 25300, 2010-

Ohio-5997, ¶ 8, to hold that “the failure to merge allied offenses does not result in a

void sentence, which could be corrected notwithstanding [defendant’s] failure to

raise the issue in his second post-trial motion”); State v. Miller, 4th Dist. Lawrence

No. 11CA14, 2012-Ohio-1922, ¶ 6 (holding that defendant’s “argument that the trial

court should have merged his convictions under R.C. 2941.25, if meritorious, would

only render the judgment voidable, not void”); State v. Parson, 2d Dist. Montgomery

No. 24641, 2012-Ohio-730, ¶ 9 (noting, in holding that an allied-offenses error would

render sentences “voidable” and not “void,” that “Defendant does not claim that his




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                    OHIO FIRST DISTRICT COURT OF APPEALS



sentence is not in conformity with statutorily mandated terms, or is not provided for

by law, or even that the sentence fails to comply with the formal requirements of

2941.25”).1

                          The Judgment is Affirmed as Modified

        {¶19} Therefore, upon our determination that the common pleas court

properly denied Mr. Grant the relief sought in his postconviction motion, we overrule

the assignment of error. Because the court had no jurisdiction to entertain Mr.

Grant’s motion on its merits, the motion was subject to dismissal. Accordingly, upon

the authority of App.R. 12(A)(1)(a), we modify the judgment appealed to reflect the

dismissal of the motion. And we affirm the judgment as modified.

                                                                        Affirmed as modified.

DINKELACKER, J., concurs in judgment only.
CUNNINGHAM, P.J., concurs in part and dissents in part.
CUNNINGHAM, P.J., concurring in part and dissenting in part.

        {¶20} I concur in the majority’s holding that the postconviction statutes did

not confer upon the common pleas court jurisdiction to entertain Grant’s motion.

But I respectfully dissent from its determination that the court lacked any

jurisdiction to entertain his allied-offenses claim.

        {¶21} In his opinion, Judge DeWine acknowledges that a court has

jurisdiction to correct a void sentence, but concludes that a sentence imposed in

violation of R.C. 2941.25 is not void.          That conclusion is based on a perceived

distinction between a sentence imposed in violation of R.C. 2941.25 and those




1 It is also worth noting that the Ohio Supreme Court has consistently held that allied-offenses
errors are nonjurisdictional and are not cognizable in habeas corpus or other extraordinary writs.
See, e.g., State ex rel. Agosto v. Gallagher, 131 Ohio St.3d 176, 2012-Ohio-563, 962 N.E.2d 796;
State ex rel. Hudson v. Sutula, 131 Ohio St.3d 177, 2012-Ohio-554, 962 N.E.2d 798; Smith v.
Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10.



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                  OHIO FIRST DISTRICT COURT OF APPEALS



sentences that the Ohio Supreme Court has held to be void. “The commonality in the

voidness cases” that my colleague insists distinguishes the voidness cases from this

case “is that [the voidness cases] all involve situations where the court has failed to

impose a sentence term that it was mandated by law to impose (postrelease control,

driver’s license suspension, statutorily mandated fine), or where a court has

attempted to impose a sentence that was completely unauthorized by statute,” while

“the purported error in this case dealt * * * with the application of a general rule

prohibiting multiple convictions for certain offenses.”

       {¶22} To me, what the voidness cases have in common is that they are all

grounded in the long-recognized “vital principle,” announced in 1964 in Colgrove v.

Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964), and “reaffirm[ed]” in 2010 in

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 23, that

“[n]o court has the authority to impose a sentence that is contrary to law.” Id., citing

Colgrove at 438; accord State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985

N.E.2d 432, ¶ 14; State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d

509, ¶ 7 and 15 (citing Colgrove and State v. Beasley, 14 Ohio St.3d 74, 75, 471

N.E.2d 774 [1984]). This principle led the Ohio Supreme Court to carve out “a

narrow, and imperative, exception to th[e] general rule” that “sentencing errors are

not jurisdictional and do not render a judgment void.” Fischer at ¶ 7-8.

       {¶23} But the exception is broader than Judge DeWine would have it. It

applies not only “where the court has failed to impose a sentence term that it was

mandated by law to impose.” It also applies when a court has imposed “a sentence

that is not in accordance with statutorily mandated terms.” (Emphasis added.) Id.,

citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 14;

State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961; State v. Jordan,




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                  OHIO FIRST DISTRICT COURT OF APPEALS



104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864; Woods v. Telb, 89 Ohio St.3d

504, 2000-Ohio-171, 733 N.E.2d 1103 (2000); State v. Beasley, 14 Ohio St.3d 74, 75,

471 N.E.2d 774 (1984); Colegrove v. Burns, 175 Ohio St. 437, 195 N.E.2d 811 (1964).

By its terms, the allied-offenses statute mandates a sentence on only one of multiple

offenses if the offenses are allied offenses of similar import committed neither

separately nor with a separate animus as to each. It follows that sentences that are

not in accordance with those statutorily mandated terms are void.

       {¶24} Moreover, as my colleague acknowledges, the exception also applies

“where a court has attempted to impose a sentence that was completely unauthorized

by statute.” A court must be said to be acting outside the authority conferred by the

allied-offenses statute when it imposes separate sentences for multiple offenses

despite a clear demonstration on the record that the state had relied upon the same

conduct to prove the offenses, and that the offenses had been committed neither

separately nor with a separate animus as to each. State v. Johnson, 195 Ohio App.3d

59, 2011-Ohio-3143, 958 N.E.2d 977, ¶ 78 (1st Dist.), citing State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 49 and 51.

       {¶25} For these reasons, along with the reasons set forth in my concurring

and dissenting opinion in State v. Lee, 1st Dist. Hamilton No. C-120307, 2013-Ohio-

1811, ¶ 21-30, I would hold that the common pleas court had jurisdiction to entertain

Grant’s allied-offenses claim, because a sentence imposed in contravention of R.C.

2941.25 is void and thus subject to review at any time.

       {¶26} I would also go on to hold that R.C. 2941.25 did not preclude the trial

court from imposing separate sentences for the aggravated robbery pertaining to

Frazier and the aggravated robbery pertaining to Franklin, when the record shows

that each offense involved a different victim.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶27} But Grant was convicted of involuntary manslaughter, aggravated

burglary, and kidnapping for the death of a single victim, Antwaun Gilliam. The

record shows that the state relied upon the same conduct to prove involuntary

manslaughter and aggravated burglary, and that the offenses had been committed

neither separately nor with a separate animus as to each. But the record may also be

said to permit a conclusion that Gilliam’s kidnapping had been committed separately

from the other two offenses.      Therefore, I would hold that a sentence may be

imposed for either involuntary manslaughter or aggravated burglary, and I would

remand for resentencing on those offenses consistent with R.C. 2941.25 and for a

determination of whether Grant could, consistent with R.C. 2941.25, also be

sentenced for Gilliam’s kidnapping.

       {¶28} Finally, based on the conflict noted in Lee, I would, upon the authority

conferred by the Ohio Constitution, Article IV, Section 3(B)(4), certify to the Ohio

Supreme Court the following question: “Are sentences imposed in violation of R.C.

2941.25 void and thus subject to review at any time?” See Lee at ¶ 31.



Please note:

       The court has recorded its entry on the date of the release of this opinion.




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