[Cite as State v. Starks, 2013-Ohio-4496.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99501




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   RONALD E. STARKS
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-176103

        BEFORE: E.T. Gallagher, J., Jones, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: October 10, 2013
FOR APPELLANT

Ronald Starks, pro se
Inmate No. A171-539
Grafton Correctional Institution
2500 S. Avon-Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

         {¶1} Defendant-appellant, Ronald E. Starks (“Starks”), appeals the denial of a

motion to correct his sentence. We find merit to the appeal and reverse.

         {¶2} In December 1982, Starks pleaded guilty in CR-176103-A to one count of

trafficking in violation of R.C. 2925.03. The offense was a third-degree felony and the

court sentenced him to 5 to 15 years in prison and ordered a mandatory minimum of three

years.

         {¶3} In 1983, while serving his drug conviction, Starks was convicted of two

counts of aggravated murder and two counts of aggravated robbery in CR-83-186387 for

acts he committed before going to prison. The court sentenced him to concurrent terms

of 4 to 25 years for each of the robbery counts, and concurrent terms of life imprisonment

for the aggravated murder charges. Those convictions were affirmed on appeal. State v.

Starks, 8th Dist. Cuyahoga No. 50087, 1986 Ohio App. LEXIS 5845 (Mar. 6, 1986).

         {¶4} In 2012, Starks filed a motion to correct his sentence in CR-176103, arguing

that he was improperly sentenced for a second-degree felony even though he was

convicted of a third-degree felony. The trial court denied the motion as moot on grounds

that he had already served his entire sentence in CR-176103. This appeal followed.

         {¶5} In his sole assignment of error, Starks argues the trial court erred in denying

his motion to correct his sentence. He contends that because the court erroneously

imposed a second-degree felony sentence for his third-degree felony conviction, his

sentence is contrary to law and void.
       {¶6} R.C. 2929.11, which governed penalties for felonies at the time Starks’s

sentence was imposed in December 1982, provided in relevant part:

       (B) Terms of imprisonment for felony shall be imposed as follows:
       ***

       (2) For a felony of the second-degree, the minimum term shall be two,
       three, four, or five years, and the maximum term shall be fifteen years;

       (3) For a felony of the third-degree, the minimum term shall be one year,
       eighteen months, two years, or three years, and the maximum term shall be
       ten years.

       {¶7} In CR-176103, Starks pleaded guilty to a third-degree felony. The court

sentenced him to a prison term of 5 to 15 years and ordered a mandatory three-year

minimum.     The mandatory three-year minimum was within the range of maximum

minimum sentences for third-degree felonies under the statute. However, the maximum

penalty for a third-degree felony under the statute was only 10 years. The 5 to 15 year

sentence the court imposed on Starks falls within the range for second-degree felonies.

Therefore, the sentence failed to include the correct statutorily mandated term.
       {¶8} Starks argues the erroneous sentence was a clerical error and the trial court

should have corrected his sentence pursuant to Crim.R. 36.             Crim.R. 36 provides:

“Clerical mistakes in judgments, orders, or other parts of the record, and errors in the

record arising from oversight or omission, may be corrected by the court at any time.”

The term “clerical mistake” refers to “a mistake or omission, mechanical in nature and

apparent on the record, which does not involve a legal decision or judgment.” State ex

rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19.

Imposing a sentence requires the court to apply the sentencing statute to the conviction.

Therefore, it involves a legal decision or judgment and is not a clerical error.

       {¶9} The court denied Starks’s motion to correct the sentence as moot because

Starks had already served the sentence in its entirety and was serving concurrent life

sentences for two counts of aggravated murder in another case. Generally, an “appeal of

a sentence already served is moot.” State v. Wright, 8th Dist. Cuyahoga No. 83781,

2004-Ohio-4077, ¶ 18.        However, where a court fails to comply with statutory

requirements when imposing a sentence, “the attempted sentence [is] a nullity or void.”

State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, 863 N.E.2d 120, ¶ 23,

quoting State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984). The effect of

determining that a judgment is void is that the parties are in the same position as if there

had been no judgment. Beasley at ¶ 12. Thus, “where a sentence is void because it does

not contain a statutorily mandated term, the proper remedy is * * * to resentence the

defendant.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23.
       {¶10} Therefore, the trial court erred in concluding that Starks’s motion to correct

his sentence was moot. The original sentence is void, and the proper remedy is to

resentence Starks within the statutory range for third-degree felonies.

       {¶11} Judgment reversed and case remanded to the trial court for resentencing.

       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.



EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
