[Cite as State v. Brooks, 2020-Ohio-3286.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 108919
                 v.                                :

DWAYNE BROOKS,                                    :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 11, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-88-230828-ZA


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory J. Ochocki, Assistant Prosecuting
                 Attorney, for appellee.

                 Patituce & Associates, L.L.C., and Kimberly Kendall
                 Corral, for appellant.


MARY J. BOYLE, P.J.:

                   Appellant Dwayne Brooks appeals his sentence.     He raises one

assignment of error for our review:
      The trial court erred in denying appellant’s motion to void sentence where
      the appellant’s sentence is void as a matter of law.
              Finding no merit to his assignment of error, we affirm the trial court’s

judgment.

I.   Factual Background and Procedural History

              This is not the first time this case has been before us. In State v.

Brooks, 8th Dist. Cuyahoga No. 98380, 2012-Ohio-5292, we described the facts and

procedural history as follows:

      In 1988, defendant-appellant Dwayne Brooks was convicted of
      aggravated murder with a mass murder specification (Count One), two
      counts of attempted murder (Counts Two and Three), and aggravated
      robbery (Count Four). The convictions stemmed from a 1987 shooting
      between rival drug gangs involved in a turf dispute. The evidence at
      trial demonstrated that Brooks was among a group of four people who,
      armed with a pistol and shotgun, stole a van by force, drove to a park,
      and shot three victims in broad daylight in front of dozens of witnesses.

      The trial court sentenced Brooks to “life, without the possibility of
      parole until serving twenty (20) years” on Count One; on Counts Two,
      Three, and Four, the court sentenced Brooks to five to twenty-five years
      incarceration, to be served concurrent with one another but
      consecutive to Count One.

      This court affirmed Brooks’s convictions on appeal. State v. Brooks,
      8th Dist. [Cuyahoga] No. 57034, 1991 Ohio App. LEXIS 113 (Jan. 10,
      1991). The Ohio Supreme Court denied further review. State v. Brooks,
      63 Ohio St.3d 1406, 585 N.E.2d 428 (1992). Approximately two and
      one-half years after his convictions, Brooks filed a petition for
      postconviction relief and a motion for a new trial. The trial court denied
      relief and this court affirmed on appeal. State v. Brooks, 8th Dist.
      [Cuyahoga] No. 65088, 1994 Ohio App. LEXIS 910 (Mar. 10, 1994).
      The Supreme Court of Ohio again declined further review. State v.
      Brooks, 70 Ohio St.3d 1425, 638 N.E.2d 87 (1994).

      Brooks then filed an application to reopen his direct appeal, which this
      court denied in State v. Brooks, 8th Dist. [Cuyahoga] No. 57034, (July
      27, 1994). The Ohio Supreme Court declined further review. State v.
      Brooks, 74 Ohio St.3d 1416, 655 N.E.2d 737 (1995). Brooks
      subsequently filed a second motion for a new trial; the trial court
      denied the motion and this court again affirmed on appeal. State v.
      Brooks, 8th Dist. [Cuyahoga] No. 75522, 1999 Ohio App. LEXIS 3596
      (Aug. 5, 1999). The Ohio Supreme Court declined further review. State
      v. Brooks, 87 Ohio St.3d 1441, 719 N.E.2d 5 (1999).

Brooks, 8th Dist. Cuyahoga No. 98380, 2012-Ohio-5292, at ¶ 1-4.

               In 2012, Brooks appealed the trial court’s denial of his “motion to

correct clerical mistakes in judgment order.” Brooks argued that the trial court’s

ruling was in error because his sentence of “life, without the possibility of parole

until serving twenty (20) years” was contrary to the language of then

R.C. 2929.03(C)(2) that stated “twenty full years.” (Emphasis added) Id. at ¶ 6.

“Therefore, he contends, the trial court’s failure to include the language ‘20 full

years’ in its journal entry of sentencing was a clerical mistake that renders the

judgment void ab initio and requires resentencing.” Id. We affirmed the holding of

the trial court, finding that Brooks’s argument was barred by res judicata because he

could have but did not raise the issue in his direct appeal; his motion must be

construed as a petition for postconviction relief and was untimely; and the trial court

lacked jurisdiction to rule on the motion because he did not satisfy the factors of

R.C. 2953.23(A) to allow the trial court to consider a second petition for

postconviction relief. Id.

               In July 2019, Brooks filed a “Motion to Vacate Void Sentence,” in

which he argued that the absence of the word “full” in his sentencing judgment entry
renders his sentence void and illegal, subject to correction at any time. The trial

court denied his motion. It is from this judgment that Brooks now appeals.

II. Law and Argument

              Brooks contends that this court has jurisdiction to vacate his sentence

because the trial court’s omission of the word “full” in the sentencing entry renders

his sentence void, and a void sentence can be vacated at any time regardless of res

judicata or timeliness for seeking postconviction relief. The state maintains that

Brooks is asserting the same argument he raised seven years ago, if the trial court

lacked jurisdiction to rule on Brooks’s motion in 2012 it lacks jurisdiction now, and

this court’s previous opinion in Brooks, 8th Dist. Cuyahoga No. 98380, 2012-Ohio-

5292, created law of the case when we rejected Brooks’s argument.

              It is well settled that a void sentence can be attacked anytime. State

v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22; State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 25. In support of

his argument that his sentence is void, Brooks cites to Crestwood Farm Bloodstock

v. Evercest Stables, Inc., 751 F.3d 434, 445 (6th Cir. 2014) (breach-of-contract case

applying Kentucky law), Vandertoll v. Commonwealth, 110 S.W.3d 789, 795 (KY

2003) (condemnation case applying Kentucky law), and Black’s Law Dictionary 101

(8th Ed.2004), for the proposition that “shall means shall” and is a “word of

command.” We do not disagree with the principle but note these authorities are not

binding on our interpretation of Ohio law. Brooks also relies on Williams at ¶ 22,

and Fischer at ¶ 21-22, in which the Ohio Supreme Court explained that the
legislative branch has the power to define criminal offenses and punishments, and

that courts can sentence only as authorized by statute. Brooks further points to

Fischer, State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984), and State v.

Willard, 8th Dist. Cuyahoga No. 101055, 2014-Ohio-5278, ¶ 19, for the principle that

sentences imposed contrary to statute are void.

               However, in State v. Harper, Slip Opinion No. 2020-Ohio-2913, the

Ohio Supreme Court recently realigned its void-sentence jurisprudence with the

traditional understanding of what constitutes a void judgment.1 Harper at ¶ 5. In

Harper, the Ohio Supreme Court held that the trial court’s failure to properly

impose postrelease control rendered the sentence voidable, not void, and therefore

not subject to collateral attack. Harper at ¶ 5-6. The court explained:

       A sentence is void when a sentencing court lacks jurisdiction over the
       subject-matter of the case or personal jurisdiction over the accused.
       When the sentencing court has jurisdiction to act, sentencing errors in
       the imposition of postrelease control render the sentence voidable, not
       void, and the sentence may be set aside if successfully challenged on
       direct appeal.

Id. at ¶ 42. The court explicitly overruled its “precedent to the extent that it holds

that the failure to properly impose postrelease control in the sentence renders that

portion of a defendant’s sentence void.” Id. at ¶ 40.

               We find that the Ohio Supreme Court’s reasoning in Harper likewise

applies to Brooks’s alleged sentencing error. The trial court had subject-matter



       1Although the Ohio Supreme Court published Harper after the parties had
submitted their appellate briefs, both parties addressed the issue of res judicata in their
briefs.
jurisdiction over Brooks’s case and had personal jurisdiction over him.

R.C. 2931.03; Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131 N.E.3d 1, ¶ 8

(“[A] common pleas court has subject-matter jurisdiction over felony cases.”). Even

if the trial court’s omission of the term “full” from Brooks’s sentence was contrary to

former R.C. 2929.03(C)(2), the sentencing error would render Brooks’s sentence

voidable, not void. Thus, Brooks’s sentence could be challenged only on direct

appeal.

               Res judicata therefore precludes Brooks’s appeal.

      Under the doctrine of res judicata, a final judgment of conviction 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 was raised or could
      have been raised by the defendant at trial, which resulted in that
      judgment of conviction, or on an appeal from that judgment.

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), syllabus. It is well settled

that the doctrine of res judicata bars claims that were raised or could have been

raised on direct appeal. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894

N.E.2d 1221, ¶ 6. Because Brooks could have, but did not, raise any issue regarding

the omission of the term “full” from his sentence in his direct appeal, the issue is

now barred by res judicata.

               Moreover, we must construe Brooks’s motion as a petition for

postconviction relief, and, as such, it is untimely.

      Where a criminal defendant, subsequent to his or her direct appeal,
      files a motion seeking vacation or correction of his or her sentence on
      the basis that his or her constitutional rights have been violated, such a
      motion is a petition for postconviction relief as defined in R.C. 2953.21.
State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131, syllabus.

Here, over 28 years after his direct appeal, Brooks seeks the correction of his

sentence on the grounds that it is void – a due-process argument. See Brooks, 8th

Dist. Cuyahoga No. 98380, 2012-Ohio-5292, at ¶ 9.

               Pursuant to R.C. 2953.21(A)(2), a defendant must file any petition for

postconviction relief within 365 days from the filing of the trial transcripts in the

petitioner’s direct appeal or, if a direct appeal was not pursued, 365 days after the

expiration of the time in which a direct appeal could have been filed. Brooks did not

file his “Motion to Vacate Void Sentence” until July 2019, well after the filing of the

trial transcripts in his 1991 direct appeal.

               Furthermore, this is not Brooks’s first petition for postconviction

relief in this case. R.C. 2953.23(A)(1)(a) allows a trial court to entertain an untimely

or successive petition only if (1) the petitioner was “unavoidably prevented” from

discovering the facts on which the petition is predicated and “that, but for

constitutional error at trial, no reasonable factfinder would have found the

petitioner guilty of the offense[,]” or (2) “the United States Supreme Court

recognized a new federal or state right that applies retroactively to persons in the

petitioner’s situation, and the petition asserts a claim based on that right.”

               In his motion to vacate his sentence, Brooks does not claim that he

was unavoidably prevented from discovering facts upon which he relied in his

petition. Nor has the United States Supreme Court recognized a new federal or state
right that applies retroactively to Brooks. The trial court therefore had no authority

to consider his motion and properly denied it.

              Accordingly, we overrule Brooks’s assignment of error.

              Judgment affirmed.

      It is ordered that appellee recover from appellant 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.



MARY J. BOYLE, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
MARY EILEEN KILBANE, J., CONCUR
