[Cite as State v. Walker, 2017-Ohio-7609.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105350




                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                    DONNIE WALKER
                                                   DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-09-526641-B and CR-09-526893-A

        BEFORE: S. Gallagher, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: September 14, 2017
FOR APPELLANT

Donnie Walker, pro se
Inmate No. 661-742
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Brett Hammond
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

      {¶1} This is an accelerated appeal brought under App.R. 11.1 and Loc.App.R.

11.1. In it, Donnie Walker appeals the denial of his motions to vacate his convictions for

having weapons while under disability and receiving stolen property in Cuyahoga C.P.

No. CR-09-526893-A (“weapon case”) and burglary in Cuyahoga C.P. No.

CR-09-526641-B (“burglary case”), claiming that the imposition of community control

sanctions to be served consecutive to another prison term was void ab initio. We reverse

and remand.

      {¶2} In the fall of 2010, Walker was convicted in three cases, including the two at

the heart of this appeal. In the third case, Cuyahoga C.P. No. CR-10-536783-A, Walker

was sentenced to three years in prison. In the burglary case, Walker was sentenced to

two years of community control to be served consecutive to that prison term. The trial

court expressly stated that Walker “must complete prison term in CR-536783 prior to

beginning his community control sanctions sentence in this case number.” (Emphasis

added.) In the weapon case, however, Walker was sentenced to a two-year term of

community control with no reference to consecutive service — the trial court indicated

only that the conditions of the community control imposed in the burglary case applied to

the weapon case. In 2014, Walker violated the community control sanctions on four

occasions. By October, Walker’s community control was terminated and Walker was

imprisoned for an aggregate term of five years, three years on the burglary case and two

years on the weapon case.        Walker was appointed counsel during the violation
proceedings. In 2016, Walker, acting pro se, filed motions to vacate his void sentence

based on State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229 (8th Dist.). The trial court

denied the motions, and this timely appeal followed.

       {¶3} This case exemplifies why the adherence to the statutory limitations on

sentencing is necessary. One of the goals of the sentencing changes implemented under

the rubric of “truth in sentencing” is that the sentence imposed by the judge is the

sentence that is served. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35

N.E.3d 512, ¶ 22, citing Woods v. Telb, 89 Ohio St.3d 504, 508, 2000-Ohio-171, 733

N.E.2d 1103.     In an effort to achieve this, “‘[c]urrent felony sentencing statutes,

contained primarily in R.C. 2929.11 to 2929.19, require trial courts to impose either a

prison term or community control sanctions on each count.’” Id. at ¶ 23, quoting State v.

Berry, 2012-Ohio-4660, 980 N.E.2d 1087, ¶ 21 (3d Dist.).

       {¶4} Building upon the Ohio Supreme Court’s rationale, in our Anderson decision,

this court recognized that “there is no statutory authority for the imposition of community

control sanctions to be served consecutive to, or following the completion of, a prison or

jail term or other sentence of imprisonment.” Anderson, 2016-Ohio-7044, 62 N.E.3d

229 (8th Dist.), at ¶ 31. As a result, any community control sanctions so imposed “are

void as a matter of law.” Id. at ¶ 11.

       {¶5} Part of the unstated rationale behind our       Anderson decision was that

community control sanctions were meant to be an alternative to prison — in other words,

once an offender is sentenced to prison on one count, he will have to serve all his
sentences in prison. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, at

¶ 24-28. Postrelease control is the avenue to offer postprison monitoring of offenders.

If that is insufficient to rehabilitate or monitor offenders, then the legislature should

amend the statutory guidelines.     Courts cannot fashion sentences not authorized by

statute to achieve these purposes. Id. at ¶ 10, citing State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, ¶ 22.

       {¶6} We acknowledge that Walker did not attempt to challenge any aspect of the

2010 sentences until after our decision in Anderson was released. After our Anderson

decision, when Walker was left to his own devices and appointed counsel was no longer

an option, Walker filed a motion to vacate the 2010 sentences as being void ab initio. A

trial court has jurisdiction to correct void sentences. The law favors Walker’s position

— he cannot be found to be in violation of a void sentence. State v. Slaughter, 8th Dist.

Cuyahoga No. 104391, 2017-Ohio-387; State v. Hatcher, 8th Dist. Cuyahoga No. 104780,

2017-Ohio-109; State v. Willard, 8th Dist. Cuyahoga No. 101055, 2014-Ohio-5278, ¶ 19

(defendant cannot be found in violation of community control sanctions if the sanctions

were void).

      {¶7} Additional briefing was sought upon reviewing the final sentencing entry in

the weapon case. The trial court did not impose the community control sanctions to be

served consecutive to, or to commence upon the completion of, the prison term as it had

in the burglary case. The default, in this situation, is to consider the sentence to be

concurrent with the prison term. Anderson, 2016-Ohio-7044, 62 N.E.3d 229, at ¶ 19 (8th
Dist.). As a result, in the weapon case, Walker’s sanctions expired sometime in 2012,

two years before the alleged violations occurred. A trial court speaks through its journal,

and whether the trial court intended to impose the sanctions to be served following

Walker’s release from prison is immaterial. Although the trial court indicated that the

terms of the sanctions imposed in the weapon case were identical to the ones imposed in

the burglary case, the consecutive service of the community control sanctions in the

burglary case was expressly limited to that case number alone. The trial court’s journal

entries are not ambiguous.

      {¶8} In response, the state argues that under R.C. 2929.15(A)(1), the community

control sanctions toll while Walker was serving his prison sentence. We find no merit to

the state’s argument or characterization of R.C. 2929.15(A)(1).

       {¶9} R.C. 2929.15(A)(1) provides that

       [t]he duration of all community control sanctions imposed upon an offender
       under this division shall not exceed five years. If the offender absconds or
       otherwise leaves the jurisdiction of the court in which the offender resides
       without obtaining permission from the court or the offender’s probation
       officer to leave the jurisdiction of the court, or if the offender is confined in
       any institution for the commission of any offense while under a community
       control sanction, the period of the community control sanction ceases to run
       until the offender is brought before the court for its further action.

The state focuses on the language “[i]f the offender is confined in any institution for the

commission of any offense while under a community control sanction” as the statutory

authorization to toll concurrent community control sanctions until the offender is released

from prison or jail. According to the state, the community control sanctions in the

weapon case tolled during the time Walker served his prison sentence despite the fact that
both sentences were imposed on the same day. A plain reading of the statute does not

lend itself to the state’s interpretation.

       {¶10} The legislature unambiguously limited the tolling provision under R.C.

2929.15(A)(1) to situations in which the offender commits an offense while under a

community control sanction, in which case those sanctions are not affected by the

subsequent criminal activity. In other words, if an offender commits a crime while on

community control, the defendant cannot receive the benefit from being imprisoned on

the new crime as it relates to the older sanction — the trial court must bring the offender

back on the first case to reassess. In this case, Walker did not commit the offenses in

CR-10-536783-A while he was serving the community control sanction in the weapon

case — those sentences were imposed on the same day.                     The tolling provision in

R.C. 2929.15(A)(1) is not applicable.1



       1
         In Anderson, 2016-Ohio-7044, 62 N.E.3d 229, ¶ 19 (8th Dist.), we noted that some
statutory sections focus on the execution of a community control sanction, not the implementation of
the sentence. Id. (R.C. 2951.07, providing that community control sanctions cease to run if the
offender is confined in any institution for the commission of an offense, guides courts on executing
the community control sanctions and does not control how community control sanctions are to be
implemented.) We note that R.C. 2929.15(A)(1) provides for situations in which the offender is
confined in any institution for the commission of any offense while under a community control
sanction, and R.C. 2951.07 broadens that to situations in which the offender is confined for the
commission of any offense. The differing language could support an argument that R.C. 2951.07
provides for the tolling of community control sanctions; however, this would ignore the unambiguous
language of R.C. 2951.07. In that section, the legislature expressly provided that the community
control “ceases to run” if the offender is confined in an institution. “Ceases to run” implies that the
community control sanctions were implemented and being served before the offender is confined for
the commission of any offense. Something cannot end unless first starting. Thus, in Anderson, we
concluded that R.C. 2951.07 controls only after an offender begins serving his community control
sanctions; it does not affect how those sanctions are imposed. State v. Criss, 55 Ohio App.3d 238,
       {¶11} It necessarily follows that Walker could not have violated the community

control sanctions imposed in the weapon case in 2014, two years after the stated term of

the sanctions expired. His current prison sentence in that case must be vacated as being

void. A trial court lacks authority to find a violation occurred on an expired sanction.

       {¶12} Finally, with respect to the burglary case, the state presented two arguments

in favor of affirming the sentence imposed therein:         (1) that res judicata precludes

Walker from challenging his void sentences; and (2) that Walker cannot retroactively

apply our en banc Anderson decision because Walker failed to directly appeal his original

conviction. The state’s reliance on the doctrine of res judicata is misplaced, and further,

implicit within that doctrine is the concept that courts generally avoid retroactive

application of new law.

       {¶13} In State v. Holmes, 8th Dist. Cuyahoga No. 100388, 2014-Ohio-3816, ¶ 13,

it was held that “[i]f a judgment is void, the doctrine of res judicata has no application,

and the propriety of the decision can be challenged on direct appeal or by collateral

attack.” Thus, Walker’s failure to appeal his 2010 convictions or challenge the validity

of the sentence is irrelevant. The Holmes rationale was recently affirmed in State v.

Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 1. “[W]hen the trial

court disregards statutory mandates, ‘[p]rinciples of res judicata, including the doctrine of

the law of the case, do not preclude appellate review. The sentence may be reviewed at


563 N.E.2d 727, 728 (8th Dist.1988); Columbus v. Todd, 74 Ohio App.3d 774, 778, 600 N.E.2d 727
(10th Dist.1991); Anderson at ¶ 24.
any time, on direct appeal or by collateral attack.’” Id. at ¶ 22, quoting Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 30.

       {¶14} That is precisely what Walker attempted; he collaterally attacked his void

sentences by filing motions to vacate in both cases. If the defendant in Williams was

permitted to appeal his sentence as being void after a significant number of appellate

opportunities, including 18 postconviction-relief filings (id. at ¶ 71), there is no reason to

deny Walker one opportunity to review his sentence claimed to be void under our

Anderson analysis. A trial court always has jurisdiction to correct a void judgment.

       {¶15} With respect to the retroactive application issue, the state overlooks the

limitations of the black letter law that new judicial decisions are not to be applied

retroactively to a “final conviction.” Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592,

819 N.E.2d 687, ¶ 6. It is important to distinguish final convictions from void ones. A

void sentence is never considered a “final conviction”; it can be attacked at any time so

that changes in the law necessarily apply. Williams at ¶ 22. It is for this reason that trial

courts must take care in fashioning sentences that are authorized by law; the failure to do

so erodes finality.

       {¶16} Further, if we were to follow the state’s reasoning, the decision would

implicitly conflict with the conclusion reached in Slaughter, 8th Dist. Cuyahoga No.

104391, 2017-Ohio-387 (defendant successfully appealed a violation of community

control sanctions, originally imposed before Anderson), and Hatcher, 8th Dist. Cuyahoga

No. 104780, 2017-Ohio-109 (appeal from the denial of a motion to vacate a void
sentence), and would also place this district at odds with the Twelfth District — State v.

Ervin, 12th Dist. Butler No. CA2016-04-079, 2017-Ohio-1491 (following the rationale

advanced in Anderson as applicable to a 2010 conviction). Given the limited nature of

the state’s argument, we decline to create such a conflict.

        {¶17} A trial court is devoid of any authority to impose consecutive terms of

community control sanctions, and therefore, such sentences are void ab initio and can be

collaterally attacked at any time. The trial court never possessed statutory authority to

impose the community control sanctions to be served consecutive to a prison term in the

burglary case. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, at ¶ 10

(courts have no inherent authority to create sentences and must apply sentencing laws as

written). Typically, this would result in a remand for a new sentencing in the burglary

case.

        {¶18} However, our conclusion that there could never have been a violation of the

community control sanctions imposed in the weapon case in 2014 voids the two-year

prison sentence and complicates the disposition of this appeal. In 2014, Walker was

sentenced to three years of prison in the burglary case, with 497 days of time served.

The state concedes that in this situation, Walker has completed the sentence in the

burglary case. Regardless of our conclusion that the sentence imposed in the burglary

case was void, Walker has served the resulting prison sentence. A remand to resentence

Walker to the three-year prison term would serve no purpose. In light of the unique

circumstances presented, we remand with an order for the trial court to immediately
release Walker from the burglary sentence. We further vacate the violation of sanctions

in the weapon case because the trial court was without jurisdiction to impose a violation

upon an expired sanction.

       {¶19} Reversed and remanded.

       It is ordered that appellant recover from appellee 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.



SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY
