         [Cite as State v. Ingels, 2018-Ohio-724.]


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



STATE OF OHIO,                                       :   APPEAL NO. C-160864
                                                         TRIAL NOS. B-9802147
        Plaintiff-Appellee,                          :              B-9800321

  vs.                                                :       O P I N I O N.

EARL INGELS,                                         :

     Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed, and Cause Remanded in B-9800321

Date of Judgment Entry on Appeal: February 28, 2018



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Earl Ingels, pro se.
                 OHIO FIRST DISTRICT COURT OF APPEALS



CUNNINGHAM, Presiding Judge.

       {¶1}   Defendant-appellant Earl Ingels presents on appeal four assignments

of error that, distilled to their essence, challenge the Hamilton County Common

Pleas Court’s judgments overruling his “Motion[s] to Set Aside a Void Violent Sexual

Predator Sanction.”    We remand for resentencing on the kidnapping offenses

charged in counts one and three of the indictment in the case numbered B-9800321,

because those sentences are void when R.C. Chapter 2971 did not confer upon the

trial court the authority to enhance the sentences based on specifications that Ingels

was a “sexually violent predator.”

       {¶2}   In 1998, following a joint trial on the charges contained in the

indictments in the cases numbered B-9800321 and B-9802147, Ingels was convicted

on five counts of kidnapping, two counts of gross sexual imposition, and a single

count of attempted kidnapping. We affirmed those convictions on direct appeal.

State v. Ingels, 1st Dist. Hamilton Nos. C-980673 and C-980674, 1999 WL 1488934

(Dec. 3, 1999), appeal not accepted, 99 Ohio St.3d 1539, 2003-Ohio-4671, 795

N.E.2d 679. Thereafter, we twice remanded for correction of postrelease control.

See State v. Ingels, 1st Dist. Hamilton No. C-130311, 2014-Ohio-363; State v. Ingels,

1st Dist. Hamilton Nos. C-140312, C-140313 and C-140328, 2015-Ohio-1621, appeal

not accepted, 143 Ohio St.3d 1447, 2015-Ohio-3427, 36 N.E.3d 193. See also State v.

Ingels, 1st Dist. Hamilton Nos. C-160295, C-160303 and C-160304 (Oct. 7, 2016)

(affirming the second correction of postrelease control). The other postconviction

challenges to his convictions advanced in motions filed between 2005 and 2016 were

unavailing. See State v. Ingels, 1st Dist. Hamilton No. C-100297, 2011-Ohio-

2901, appeal not accepted, 130 Ohio St.3d 1418, 2011-Ohio-5605, 956 N.E.2d 309;

State v. Ingels, 1st Dist. Hamilton No. C-120052 (Dec. 7, 2012), appeal not




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                 OHIO FIRST DISTRICT COURT OF APPEALS



accepted, 134 Ohio St.3d 1509, 2013-Ohio-1123, 984 N.E.2d 1102; State v. Ingels, 1st

Dist. Hamilton No. C-120238, 2013-Ohio-1460, appeal not accepted, 137 Ohio St.3d

1411, 2013-Ohio-5096, 998 N.E.2d 510.

                                    The Motion

       {¶3}   In his 2016 “Motion to Set Aside a Void Violent Sexual Predator

Sanction,” filed in each of the cases numbered B-9802147 and B-9800321, Ingels

sought “correct[ion]” of the sentences imposed for the kidnapping offenses charged

in counts one and three of the indictment in the case numbered B-9800321, on the

ground that those sentences are void because the trial court lacked the statutory

authority to impose them. Citing the Ohio Supreme Court’s decision in State v.

Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, Ingels argued that the

sentence-enhancement provisions of R.C. Chapter 2971 in effect in 1998, when he

was sentenced, had not conferred upon the trial court the authority to enhance his

kidnapping sentences based on the specifications that he was a “sexually violent

predator,” because those specifications were not, as R.C. 2971.03 then required,

based on a sexually-violent-offense conviction that had existed before the indictment

charging the sexually-violent-predator specification, but were instead based on the

conduct underlying the sexually-violent-offense charges contained in the jointly-tried

indictments in the cases numbered B-9800321 and B-9802147. The motion sought

relief in the form of “removing [the] Sexual Violent Predator sanction” from the

judgment of conviction and a declaration that the state had “forfeited any rights” to

so sanction him or to classify him as a sexual predator under R.C. 2950.09.

       {¶4}   Ingels presented Smith claims on direct appeal from the second

correction of postrelease control and in postconviction motions filed in 2009, 2011,

and 2012. In 2011, we affirmed the dismissal of Ingels’s 2009 motion, upon our




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determination that the claimed error did not render his sentences void. See Ingels,

1st Dist. Hamilton No. C-100297, 2011-Ohio-2901.          We then relied on that

determination to hold that the law of our 2011 decision precluded the trial court, in

correcting postrelease control, and the common pleas court, in deciding Ingels’s

subsequent postconviction motions, from granting relief on that ground. See Ingels,

1st Dist. Hamilton Nos. C-160295, C-160303 and C-160304; Ingels, 1st Dist.

Hamilton No. C-120238, 2013-Ohio-1460; Ingels, 1st Dist. Hamilton No. C-120052.

       {¶5}   In this appeal from the overruling of Ingels’s 2016 motion, we revisit

that determination. We conclude that the sentences imposed for the kidnapping

offenses charged in counts one and three of the indictment in the case numbered B-

9800321 are void, because the trial court lacked the statutory authority to impose

them. And on that basis, we overrule our prior decisions to the extent that they hold

to the contrary.

    No Statutory Authority to Enhance the Kidnapping Sentences

       {¶6}   The kidnapping charges in counts one and three of the indictment in

the case numbered B-9800321 each carried a sexual-motivation specification and a

sexually-violent-predator specification. With respect to each offense, the jury found

that Ingels had acted with a sexual motivation, and the trial court found that Ingels

was a “sexually violent predator” for purposes of the sentencing-enhancement

provisions of R.C. Chapter 2971.        Thus, the trial court, pursuant to R.C.

2971.03(A)(3), enhanced Ingels’s sentences for the sexually motivated kidnappings,

imposing for each offense a prison term of nine years to life, instead of a definite

prison term of up to ten years prescribed for first-degree-felony kidnapping. See

R.C. 2929.14(A)(1).




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}   R.C. 2971.03, in relevant part, mandates an enhanced sentence upon a

guilty verdict or plea on a kidnapping charge if the offender also “is convicted of or

pleads guilty to both a sexual motivation specification and a sexually violent predator

specification that were included in the * * * count in the indictment * * * charging

that offense.” R.C. 2971.03(A). R.C. 2971.01(H)(1), as it provided in 1998 when

Ingels was sentenced, defined a “sexually violent predator” as “a person who has

been convicted of or pleaded guilty to committing, on or after January 1, 1997, a

sexually violent offense and is likely to engage in the future in one or more sexually

violent offenses.” (Emphasis added.) In 2005, the General Assembly amended the

statute to define a “sexually violent predator” as “a person who, on or after January 1,

1997, commits a sexually violent offense and is likely to engage in the future in one or

more sexually violent offenses.” (Emphasis added.) R.C. 2971.01(H)(1).

       {¶8}   The 2005 amendment was prompted by the Ohio Supreme Court’s

2004 decision in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d

283. In Smith, the court held that a “[c]onviction of a sexually violent offense cannot

support the specification that the offender is a sexually violent predator as defined in

R.C. 2971.01(H)(1) if the conduct leading to the conviction and the * * * specification

are charged in the same indictment.” Id. at syllabus. That holding derived from the

court’s reading of former R.C. 2971.01(H)(1) to require that a sexually-violent-

predator specification be supported by a sexually-violent-offense “conviction * * *

that [had] existed prior to the * * * indictment” charging the specification. Id. at ¶

27.

       {¶9}   In the proceedings below, the trial court enhanced Ingels’s sentences

for the sexually motivated kidnappings based upon its finding, in support of the

accompanying sexually-violent-predator specifications, that Ingels was a “sexually




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violent predator.”   But the court’s finding that Ingels was a “sexually violent

predator” was based on the conduct underlying the sexually-violent-offense charges

contained in the indictments in the cases numbered B-9800321 and B-9802147; its

“sexually violent predator” finding was not, as former R.C. 2971.01(H)(1) had

required, based on a sexually-violent-offense “conviction * * * that [had] existed

prior to the * * * indictment” in the case numbered B-9800321, charging the

sexually-violent-predator specifications.    Accordingly, R.C. Chapter 2971, as it

provided when Ingels was sentenced, did not confer upon the trial court the

authority to enhance his sentences for the sexually motivated kidnappings.

    The Kidnapping Sentences Are Subject to Correction as Void

       {¶10} The Ohio Supreme Court in State v. Williams, 148 Ohio St.3d 403,

2016-Ohio-7658, 71 N.E.3d 234, recently reaffirmed the long-recognized “vital”

principles that only the legislature has the power to prescribe punishment for a

criminal offense, that a trial court may impose only a sentence that is authorized by

statute, and that a sentence that is not authorized by statute is void and thus

reviewable, and subject to correction, at any time. Id. at ¶ 20-23, citing Colegrove v.

Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964), State v. Beasley, 14 Ohio St.3d

74, 75, 471 N.E.2d 774 (1984), State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,

873 N.E.2d 306, ¶ 28, and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332, ¶ 6-8, 21-23, 30. R.C. Chapter 2971, as it provided in 1998 when Ingels

was sentenced, did not confer upon the trial court the authority to enhance his

sentences for kidnapping as charged in counts one and three of the indictment in the

case numbered B-9800321.       Therefore, those sentences are void and subject to

correction at any time.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} The Eighth Appellate District concluded to the contrary in addressing

a Smith claim in its 2006 decision in State v. Waver, 8th Dist. Cuyahoga No. 87495,

2006-Ohio-1743. Waver had petitioned the court of appeals for a writ of mandamus

to compel the trial court to vacate his 1997 rape and felonious-assault convictions.

The court of appeals denied the petition upon its determination that mandamus was

not appropriate, and that only an “[a]ppeal [would provide] the remedy” for Waver’s

Smith claim. Id. at ¶ 4. In so holding, the court concluded that a successful Smith

claim would not have rendered Waver’s convictions void, because the Supreme Court

in Smith had expressly held that “the trial court erred in relying on the jury’s

convictions of the underlying rape and kidnapping charges to prove the sexually-

violent-predator specification alleged in the same indictment.” (Emphasis added.)

Id. at ¶ 4, quoting Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, at ¶

33.   See State v. Stansell, 2014-Ohio-1633, 10 N.E.3d 795 (8th Dist.) (holding

that Smith does not apply retroactively to a “closed case[]”).

       {¶12} But the Waver decision is not controlling on this appellate district.

Nor is it persuasive. For the purpose of determining whether a Smith error renders a

sentence void, we perceive no significance in the Supreme Court’s use of the word

“erred” in declaring its holding.    The void-or-voidable issue was not before the

Supreme Court in Smith because the case was before the court on direct appeal,

requiring no more to “remedy” the sentencing error than to hold that “the trial court

erred” and to order that Smith be resentenced. But a void-or-voidable inquiry is not

superfluous when, as here and in Waver, it is undertaken in a collateral proceeding.

To the contrary, the determination in a collateral proceeding of whether an

unauthorized sentence is void effectively determines whether the court may

“remedy” the error at all. See Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942




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                   OHIO FIRST DISTRICT COURT OF APPEALS



N.E.2d 332, at ¶ 40 (holding that “void sentences are not precluded from appellate

review by principles of res judicata and may be reviewed at any time, on direct appeal

or by collateral attack”).

       {¶13} Nor do we find persuasive the decisions of the Ninth and Tenth

Appellate Districts affirming the rejection of Smith claims advanced in

postconviction motions. The Tenth District in State v. Haynes, 10th Dist. Franklin

No. 14AP-276, 2015-Ohio-183, concluded that it was bound, under the doctrines of

res judicata and the law of the case, by its “prior rulings” that Haynes’s sentence was

“not void despite the intervening Smith decision,” and that Smith “could only apply

to future cases involving sexually violent predators.” Id. at ¶ 7-14. The Ninth District

in State v. Ditzler, 9th Dist. Lorain No. 13CA010342, 2013-Ohio-4969, similarly held

that Smith does not apply retroactively to a “closed case[].” Id. at ¶ 5-12.

       {¶14} Under the doctrine of the law of the case, an inferior court must follow

the controlling authority of a higher court, leaving to the higher court the prerogative

of overruling its own decision. See Johnson v. Microsoft Corp., 156 Ohio App.3d

249, 2004-Ohio-761, 805 N.E.2d 179, ¶ 11 (1st Dist.), following Rodriguez de Quijas

v. Shearson/Am. Express Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526

(1989).   Accordingly, the common pleas court cannot be said to have erred in

declining to afford Ingels the relief sought in his 2016 motion, in light of our previous

rulings in his case that the claimed Smith error did not render his sentences void.

But we possess, and here exercise, the prerogative to overrule those previous

decisions and hold that, because R.C. Chapter 2971, as it provided when Ingels was

sentenced, did not confer upon the trial court the authority to enhance his sentences

for kidnapping as charged in counts one and three of the indictment in the case

numbered B-9800321, those sentences are void and thus now subject to correction




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                 OHIO FIRST DISTRICT COURT OF APPEALS



by the common pleas court under its jurisdiction to correct a void judgment. See

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

263, ¶ 18-19 (holding that a court always has jurisdiction to correct a void judgment).

                      We Remand and Certify a Conflict

       {¶15} Therefore, we affirm the common pleas court’s judgments overruling

Ingels’s 2016 motions. But we remand this case to the common pleas court for

resentencing, consistent with the law and this opinion, on the kidnapping offenses

charged in counts one and three of the indictment in the case numbered B-9800321.

       {¶16} And because this disposition conflicts with the decisions of the Eighth

District in Waver, the Ninth District in Ditzler, and the Tenth District in Haynes, we

certify to the Ohio Supreme Court, upon the authority conferred by Article IV,

Section 3(B)(4) of the Ohio Constitution, the following question: “Is a sentence

imposed under former R.C. Chapter 2971 void, and thus correctable at any time,

when the finding that the offender was a ‘sexually violent predator’ was not, as

former R.C. 2971.01(H)(1) had required, based on a sexually-violent-offense

conviction that had existed prior to the indictment charging the sexually-violent-

predator specification.”

                                                               Judgments accordingly.

ZAYAS and DETERS, JJ., concur.



Please note:

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




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