[Cite as State v. Begley, 2019-Ohio-5297.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-19-11

        v.

JOHNNY R. BEGLEY,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Defiance County Common Pleas Court
                           Trial Court No. 16-CR-12687

                                      Judgment Affirmed

                          Date of Decision: December 23, 2019




APPEARANCES:

        Johnny R. Begley, Appellant

        Russell R. Herman for Appellee
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PRESTON, J.

          {¶1} Defendant-appellant, Johnny R. Begley (“Begley”), appeals the June

24, 2019 judgment of the Defiance County Court of Common Pleas denying his

“Motion to Vacate/Correct Void Judgments.” For the reasons that follow, we

affirm.

          {¶2} On November 4, 2016, the Defiance County Grand Jury indicted

Begley on three counts: Count One of involuntary manslaughter in violation of R.C.

2903.04(A), a first-degree felony; Count Two of trafficking in heroin in violation of

R.C. 2925.03(A)(2), (C)(6)(c), a fourth-degree felony; and Count Three of

possession of heroin in violation of R.C. 2925.11(A), (C)(6)(b), a fourth-degree

felony. (Doc. No. 1). Count Two included a forfeiture specification under R.C.

2941.1417(A). (Id.). On November 17, 2016, Begley appeared for arraignment and

pleaded not guilty to the counts of the indictment. (See Doc. No. 12).

          {¶3} A change of plea hearing was held on December 21, 2016. (Doc. No.

12). Under the terms of a negotiated plea agreement, Begley withdrew his previous

pleas of not guilty and pleaded guilty to Counts One and Two as well as the

forfeiture specification. (Id.). In exchange, the State agreed to move for dismissal

of Count Three. (Id.). The trial court accepted Begley’s guilty pleas and found him

guilty. (Id.). The trial court also granted the State’s motion to dismiss Count Three

and dismissed the same. (Id.). The trial court then proceeded immediately to


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sentencing. (Id.). The trial court sentenced Begley to 4 years in prison on Count

One and 11 months in prison on Count Two and ordered that Begley’s sentences be

served consecutively for an aggregate term of 4 years and 11 months’ imprisonment.

(Id.). The trial court filed its judgment entry of conviction and sentence on January

11, 2017. (Id.). Begley did not appeal his conviction or sentence.

           {¶4} On November 8, 2017, Begley filed a motion for judicial release. (Doc.

No. 16). On January 5, 2018, the trial court granted Begley’s motion for judicial

release. (Doc. No. 18). The trial court suspended the balance of Begley’s 4 year

and 11 month prison sentence, reserved the right to reimpose Begley’s prison

sentence, and placed Begley on community control for a period of 4 years. (Id.).

           {¶5} On August 15, 2018, the State filed a motion to revoke Begley’s judicial

release and reimpose his suspended prison sentence.1 (Doc. No. 22). In its motion,

the State alleged that Begley had violated the terms of his community control by

providing a urine sample that tested positive for methamphetamine, cocaine, and

opiates. (Id.). The State also alleged that Begley had failed to report to his

supervising officer. (Id.).

           {¶6} On September 26, 2018, the trial court held a hearing on the State’s

motion to revoke Begley’s judicial release. (Doc. No. 26). At the hearing, Begley

admitted that he violated the terms of his community control. (Id.). The trial court



1
    The State erroneously styled its motion as a “Motion to Revoke Community Control.”

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accepted Begley’s admission, found the allegations made by the State in its motion

to be true, and proceeded immediately to disposition. (Id.). The trial court revoked

Begley’s judicial release and reimposed his 4 year and 11 month prison sentence,

with credit for 540 days served. (Id.). Begley did not appeal the revocation of his

judicial release or the reimposition of his prison sentence.

       {¶7} On March 22, 2019, Begley filed a “Motion to Vacate/Correct Void

Judgements.” (Doc. No. 29). In his motion, Begley alleged that the trial court failed

to make the findings required by R.C. 2929.20(J) when it granted his motion for

judicial release. (Id.). He argued that the trial court’s judgment granting his motion

for judicial release is consequently void and that his community control was

therefore invalid. (Id.). Begley asked the trial court to vacate its judgment granting

his motion for judicial release, vacate its judgment granting the State’s motion to

revoke his judicial release because he “could never have been on community

control, as there was no statutory authority,” and “reinstate[] * * * community

control upon being granted judicial release properly.” (Id.). On May 10, 2019,

Begley filed an amendment to his “Motion to Vacate/Correct Void Judgements.”

(Doc. No. 33).

       {¶8} On May 17, 2019, the State filed a memorandum in opposition to

Begley’s motion. (Doc. No. 34). On June 3, 2019, Begley filed a motion to strike

the State’s memorandum in opposition. (Doc. No. 39). In his motion to strike,


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Begley argued that the State’s memorandum should be stricken because it was not

filed within 10 days after the filing of his “Motion to Vacate/Correct Void

Judgements” as required by R.C. 2953.21(E). (Id.).

       {¶9} On June 24, 2019, the trial court denied Begley’s “Motion to

Vacate/Correct Void Judgements” on grounds that his arguments were barred by the

doctrine of res judicata. (Doc. No. 40). The trial court did not explicitly deny

Begley’s motion to strike. (See id.).

       {¶10} On July 22, 2019, Begley filed a notice of appeal. (Doc. No. 42). He

raises two assignments of error for our review.

                            Assignment of Error No. I

       Trial court erred in denying               Defendant’s     Motion     to
       Vacate/Correct Void Judgments.

       {¶11} In his first assignment of error, Begley argues that the trial court erred

by denying his “Motion to Vacate/Correct Void Judgements.” Specifically, Begley

contends that the trial court erred by concluding that his arguments are barred by

principles of res judicata because the judgments he seeks to vacate are void and res

judicata does not bar a trial court from vacating void judgments.

       {¶12} A judgment granting judicial release “is a modification of a sentence

* * *.” State v. Sykes, 8th Dist. Cuyahoga No. 106390, 2018-Ohio-4774, ¶ 16, citing

State v. Costlow, 8th Dist. Cuyahoga No. 89501, 2008-Ohio-1097, ¶ 9. R.C.

2929.20(J) provides that

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       [a] court shall not grant a judicial release * * * to an eligible offender

       who is imprisoned for a felony of the first or second degree * * *

       unless the court, with reference to factors under [R.C. 2929.12], finds

       both of the following:

       (a) That a sanction other than a prison term would adequately punish

       the offender and protect the public from future criminal violations by

       the eligible offender because the applicable factors indicating a lesser

       likelihood of recidivism outweigh the applicable factors indicating a

       greater likelihood of recidivism;

       (b) That a sanction other than a prison term would not demean the

       seriousness of the offense because factors indicating that the eligible

       offender’s conduct in committing the offense was less serious than

       conduct normally constituting the offense outweigh factors indicating

       that the eligible offender’s conduct was more serious than conduct

       normally constituting the offense.

R.C. 2929.20(J)(1)(a)-(b). Furthermore, “[a] court that grants a judicial release to

an eligible offender under [R.C. 2929.20(J)(1)] shall specify on the record both

findings required in that division and also shall list all the factors described in that

division that were presented at the hearing.” R.C. 2929.20(J)(2).




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       {¶13} Begley argues that the trial court’s judgment granting his motion for

judicial release and imposing a term of community control is void because the trial

court failed to make the findings required by R.C. 2929.20(J) on the record. After

reviewing the record, we agree with Begley that the trial court did not make the

findings required by R.C. 2929.20(J) before granting his motion for judicial release,

and we assume for the sake of Begley’s argument that the trial court erred by failing

to make these findings. Nevertheless, we reject Begley’s argument that the trial

court’s oversight renders its judgment granting his motion for judicial release void.

       {¶14} “Typically, ‘sentencing errors are not jurisdictional and do not render

a judgment void.’” State v. Cupp, 4th Dist. Adams No. 16CA1024, 2016-Ohio-

8462, ¶ 14, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 7. “‘[I]f

the sentencing court had jurisdiction and statutory authority to act, sentencing errors

do not render the sentence void and the sentence can be set aside only if successfully

challenged on direct appeal.’” State ex rel. Rodriguez v. Barker, __ Ohio St.3d __,

2019-Ohio-4155, ¶ 9, quoting State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-

7658, ¶ 23. Furthermore, courts have held that a trial court’s failure to make certain

statutory findings before imposing a sentence does not render the sentence void.

See State v. Chapin, 10th Dist. Franklin No. 14AP-1003, 2015-Ohio-3013, ¶ 9

(holding that the trial court’s alleged failure to make the findings required by R.C.

2929.14(C)(4) before imposing consecutive sentences did not render the


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defendant’s sentence void). In this case, the trial court erred by failing to make the

findings required by R.C. 2929.20(J) on the record. However, it is undisputed that

the trial court had subject-matter jurisdiction and statutory authority to grant

Begley’s motion for judicial release and modify his sentence. Therefore, at most,

the trial court’s failure to make the required findings renders its judgment granting

Begley’s motion for judicial release and modifying his sentence merely voidable,

rather than void. See Fischer at ¶ 6 (“‘[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.’”), quoting State v. Simpkins, 117 Ohio St.3d 420,

2008-Ohio-1197, ¶ 12.

       {¶15} Because the trial court’s judgment granting Begley’s motion for

judicial release and modifying his sentence is, at most, voidable, the doctrine of res

judicata applies. State v. Mack, 10th Dist. Franklin No. 16AP-680, 2017-Ohio-

7417, ¶ 15 (“Res judicata ‘bars attacks on voidable judgments * * *.’”), quoting

State v. Mack, 10th Dist. Franklin No. 13AP-884, 2014-Ohio-1648, ¶ 7; State v.

Hall, 11th Dist. Ashtabula No. 2016-A-0069, 2017-Ohio-4376, ¶ 12. “‘Under the

doctrine of res judicata, a final judgment 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 the

defendant raised or could have raised at trial or on appeal.’” (Emphasis added.)


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State v. Jacobs, 3d Dist. Logan No. 8-18-04, 2018-Ohio-3218, ¶ 8, quoting State v.

Brown, 167 Ohio App.3d 239, 2006-Ohio-3266, ¶ 7 (10th Dist.). Begley could have

attempted to raise his argument in a direct appeal from the trial court’s judgment

granting his motion for judicial release or in an appeal from the trial court’s

judgment revoking his judicial release and reimposing his prison sentence. Because

Begley did not appeal either of the trial court’s judgments, his argument is now

barred by the doctrine of res judicata. Therefore, we conclude that the trial court

did not err by denying Begley’s motion.

       {¶16} Begley’s first assignment of error is overruled.

                           Assignment of Error No. II

       Trial court erred in not ruling on Defendant’s “Motion to Strike
       State’s Motion to Deny” before issuing a ruling.

       {¶17} In his second assignment of error, Begley argues that the trial court

erred by failing to rule on his motion to strike the State’s memorandum in opposition

to his “Motion to Vacate/Correct Void Judgements” before denying the motion.

Begley also argues that the trial court should have granted his motion to strike

because the State’s memorandum in opposition to his “Motion to Vacate/Correct

Void Judgements” was filed outside of R.C. 2953.21(E)’s 10-day response period.

       {¶18} Begley’s arguments are without merit. First, contrary to Begley’s

suggestion, we conclude that the trial court effectively denied his motion to strike.

“[G]enerally, when a trial court fails to rule on a motion, an appellate court will

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presume that the trial court overruled that motion.” State v. Henson, 4th Dist.

Highland No. 05CA13, 2006-Ohio-2861, ¶ 4, fn. 1, citing State v. Rozell, 4th Dist.

Pickaway No. 95CA17, 1996 WL 344034 (June 20, 1996) and State v. Kennedy, 4th

Dist. Athens No. 95CA1657, 1995 WL 580858 (Oct. 2, 1995). Here, although the

trial court did not explicitly deny Begley’s motion to strike, there is nothing in the

record suggesting that it granted Begley’s motion. In fact, the presumption that the

trial court denied Begley’s motion is bolstered by the fact that the trial court’s

judgment denying Begley’s “Motion to Vacate/Correct Void Judgements” relied

heavily on legal arguments and cases contained in the State’s memorandum. Thus,

we conclude that the trial court implicitly denied Begley’s motion to strike.

       {¶19} Moreover, we conclude that the trial court did not err by denying

Begley’s motion to strike. To the extent that Begley’s “Motion to Vacate/Correct

Void Judgements” can be regarded as a petition for postconviction relief, the State’s

memorandum in opposition was filed within R.C. 2953.21(E)’s time constraints.

Although the State’s memorandum in opposition was filed more than 50 days after

Begley originally filed his “Motion to Vacate/Correct Void Judgements,” the State’s

memorandum was filed only 7 days after Begley filed the amendment to his petition.

(Doc. Nos. 29, 33, 34). Because the State’s memorandum was filed in direct

response to Begley’s amended petition, the State filed its memorandum within the




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10-day period provided for by R.C. 2953.21(E). Accordingly, the trial court did not

err by denying Begley’s motion to strike.

       {¶20} Begley’s second assignment of error is overruled.

       {¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




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