[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Straley, Slip Opinion No. 2019-Ohio-5206.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2019-OHIO-5206
            THE STATE OF OHIO, APPELLANT, v. STRALEY, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Straley, Slip Opinion No. 2019-Ohio-5206.]
Criminal law—Motion to withdraw a guilty plea—No manifest injustice shown—
        Defendant was mistakenly informed at sentencing that his sentences were
        nonmandatory—Defendant was informed of the maximum sentences for
        each count to which he pleaded guilty, confirmed that he understood the
        possible sentence, and was sentenced to the aggregate sentence to which he
        had agreed.
   (No. 2018-1176—Submitted August 6, 2019—Decided December 19, 2019.)
       APPEAL from the Court of Appeals for Highland County, No. 17CA4,
                                      2018-Ohio-3080.
                                   __________________
        FRENCH, J.
        {¶ 1} This appeal asks whether a defendant who pleads guilty suffers a
manifest injustice under Crim.R. 32.1 if the trial court fails to tell the defendant
                            SUPREME COURT OF OHIO




during his plea colloquy that a portion of his agreed-upon sentence is mandatory.
Here, the court of appeals misapplied our precedent on both void sentences and
postsentencing motions to withdraw a guilty plea and concluded that appellee,
Gregory S. Straley, should be permitted to withdraw his guilty plea. We reverse
the judgment of the Fourth District Court of Appeals and reinstate the trial court’s
judgment denying Straley’s motion to withdraw his guilty plea.
                        I. Facts and Procedural History
       {¶ 2} In 2009, appellant, the state of Ohio, and Straley entered into a
negotiated plea agreement through which Straley would plead guilty to 8 of the 14
counts for which he was indicted. The counts to which he agreed to plea included
3 counts of second-degree-felony sexual battery under R.C. 2907.03(A)(5) (the
victim is under 13 years old at the time of the offenses). In exchange for Straley’s
agreement to plead guilty to those 8 counts, the state agreed to dismiss the other 6
counts of the indictment. The parties also agreed to a recommended sentence on
each of the counts, with an aggregate sentence of 35 years and 10 months.
       {¶ 3} At the time Straley was charged with violating R.C. 2907.03(A)(5),
R.C. 2907.03(B) and 2929.13(F)(3) required mandatory prison sentences when the
victim is under 13 years of age. Am.Sub.H.B. No. 95, 151 Ohio Laws, Part IV,
7059, 7067, 7087-7088. Straley’s guilty-plea form included spaces for indicating
whether a prison term was mandatory for each offense.          The word “No” is
handwritten in the corresponding spaces for each sexual-battery charge. The form
also indicates that a “prison term is presumed necessary” for those charges.
       {¶ 4} The trial court told Straley during his plea colloquy that none of his
prison sentences were mandatory and that while it would not impose community
control, Ohio law allowed community control to be imposed:


               Okay. Now, under the law none of these sentences are
       mandatory, meaning that you have to be sent to prison. Some cases




                                         2
                                 January Term, 2019




        there are mandatory prison sentences where community control is
        not permitted. Community control is permitted by law in this case.
        It’s not recommended and it’s improbable that even if it were
        recommended that it would be granted. * * * So, you understand
        that that is legally possible, although it’s not going to happen in this
        case?


The trial court also confirmed with Straley that he understood that he was agreeing
to plead guilty to the specified charges “in exchange for a recommendation from
the state of 35 years and ten months incarceration, and a dismissal of the other
counts of the indictment.” The court accepted Straley’s guilty plea and imposed
the agreed-upon aggregate sentence, which included consecutive seven-year prison
terms for the three second-degree-felony sexual-battery offenses.             Straley’s
sentencing entry also indicated that none of his prison sentences were mandatory.
        {¶ 5} On direct appeal, Straley argued that the trial court erred by imposing
mandatory sentences without first telling him they were mandatory. The court of
appeals held that because the parties agreed to the sentences and the sentences were
clearly authorized by law, they were not reviewable under R.C. 2953.08(D)(1).
State v. Straley, 4th Dist. Highland No. 09CA4, 2009-Ohio-6170, ¶ 23-26 (“Straley
I”).
        {¶ 6} In 2017, Straley filed a postsentencing motion under Crim.R. 32.1 to
withdraw his guilty plea. He argued that res judicata did not apply and that his
guilty plea was invalid because the trial court imposed nonmandatory prison terms
for his second-degree-felony sexual-battery convictions instead of mandatory ones.
The trial court denied the motion, finding that res judicata barred it, that Straley had
not demonstrated a manifest injustice under Crim.R. 32.1 because he did not allege
that at the time of his plea he was unaware that the sentences were mandatory, and
that Straley waited too long—eight years—to file his motion.




                                           3
                              SUPREME COURT OF OHIO




       {¶ 7} In a two-to-one decision, the Fourth District Court of Appeals
reversed. 2018-Ohio-3080, 107 N.E.3d 8, ¶ 9 (“Straley II”). The court noted that
Straley had raised the sentencing-error argument on direct appeal, but the court of
appeals in Straley I held that R.C. 2953.08(D)(1) precluded review of the agreed
sentence. Straley II at ¶ 7, 17. Nonetheless, the court of appeals cited our precedent
on void and voidable sentences. Because the trial court sentenced Straley to
nonmandatory prison terms in contravention of Ohio law, the court of appeals held
that the sentences were void. Id. at ¶ 21. As such, res judicata did not apply, and
the sentences could be reviewed at any time. Id. at ¶ 19-21, citing State v. Williams,
148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22.
       {¶ 8} Next, the court of appeals rejected the state’s argument that agreed-
upon sentences could not be reviewed under Ohio law. Id. at ¶ 22. Citing our
decision in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,
the court said that “ ‘a trial court does not have the discretion to exercise its
jurisdiction in a manner that ignores mandatory statutory provisions.’ ” Straley II
at ¶ 23, quoting Underwood at ¶ 20. It also rejected the state’s argument that Straley
knew that he had been sentenced to a prison term of 35 years and 10 months.
Instead, the appellate court held that the trial court’s failure to follow the statutory
mandate “prejudiced Straley because it rendered his sentence void so that he has
not yet been properly and legally sentenced in the underlying case.” Id. at ¶ 26.
       {¶ 9} The court of appeals ultimately held that the trial court’s error
amounted to a manifest injustice because “the trial court misadvised Straley that his
entire 35 year, 10 month agreed prison sentence was non-mandatory even though
R.C. 2929.13(F)(3) made 21 years of that sentence mandatory.” Straley II, 2018-
Ohio-3080, 107 N.E.3d 8, at ¶ 31. Regarding Straley’s eight-year delay in filing
his motion to withdraw, the court held that he was “permitted to contest the sentence
at any time,” “[b]ecause his sentence was void in that it included 21 years of non-
mandatory prison time for his three second-degree felony sexual battery




                                           4
                                 January Term, 2019




convictions.” Id. at ¶ 32. Although the court was “completely cognizant of the
absurdity of this result,” it nonetheless found itself bound by Ohio statutory law
and our interpretation of it. Id. at ¶ 34.
        {¶ 10} In a concurring opinion, Judge Harsha expressed further frustration
with the “absurd” result:


        [T]he real absurdity here is the fact that if Straley had taken a direct
        appeal and won, his sentence would have been vacated but his
        conviction would have remained in effect. Only the illegal sentence
        was void. * * * Here he waits 8 years, makes a motion to withdraw
        his plea based upon the imposition of an illegal, i.e. void, sentence.
        Now his motion to withdraw his plea must be granted, and his
        conviction vacated based upon the Supreme Court of Ohio’s
        determination that a trial court’s failure to follow a mandatory
        sentencing provision results in the sentence not simply being
        erroneous and thus voidable, but rather, void ab initio. Accordingly,
        such an error need not be raised on direct appeal, but is subject to
        collateral attack at any time, by a motion to vacate.


Id. at ¶ 36 (Harsha, J., concurring).
        {¶ 11} Writing in dissent, Judge Abele agreed that the result is absurd and
that we should reconsider our void-sentence jurisprudence. He opined that the “root
of the problem is the supreme court’s characterization of errors in sentencing as
void judgments. Generally, a void judgment is one that a court issues when it lacks
jurisdiction over the parties or the subject matter, or if a court lacks the inherent
power to enter a particular judgment.” Id. at ¶ 40 (Abele, J., dissenting). “This is
not the situation when Ohio common pleas courts issue felony sentences, unless,
for example, the court exceeds the maximum sentence or somehow strays beyond




                                             5
                             SUPREME COURT OF OHIO




the court’s specific jurisdiction.” Id. He concluded that Straley is entitled to a
remedy to correct his sentence, or to see that he receives the benefit of his bargain,
but that the withdrawal of his guilty pleas after eight years does not serve the
interests of justice. Id.
        {¶ 12} The state appealed, and we accepted the following proposition of
law:


                A defendant should not be permitted to withdraw his guilty
        plea 8 years after the hearing when he has been given the benefit of
        the plea agreement reached and the problem can be remedied with a
        resentencing hearing.


                                    II. Analysis
        {¶ 13} Crim.R. 32.1 provides that a trial court may grant a defendant’s
postsentence motion to withdraw a guilty plea to “correct a manifest injustice.” To
resolve this matter, we need only apply that rule and our existing plea-withdrawal
precedent.
        {¶ 14} “A defendant who seeks to withdraw a plea of guilty after the
imposition of sentence has the burden of establishing the existence of manifest
injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph
one of the syllabus. A “manifest injustice” is a “clear or openly unjust act,” State
ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), and
relates to a fundamental flaw in the plea proceedings resulting in a miscarriage of
justice, State v. Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030,
¶ 7 (1st Dist.), citing Kreiner at 208 and Smith at 264. The term “has been variously
defined, but it is clear that under such standard, a postsentence withdrawal motion
is allowable only in extraordinary cases.” Smith at 264.




                                          6
                                January Term, 2019




       {¶ 15} Although Crim.R. 32.1 does not provide a time limit for moving to
withdraw after a sentence is imposed, “an undue delay between the occurrence of
the alleged cause for withdrawal and the filing of the motion is a factor adversely
affecting the credibility of the movant and militating against the granting of the
motion.” Smith at 264, citing Oksanen v. United States, 362 F.2d 74, 79 (8th
Cir.1966). And generally, res judicata bars a defendant from raising claims in a
Crim.R. 32.1 postsentencing motion to withdraw a guilty plea that he raised or
could have raised on direct appeal. See State v. Ketterer, 126 Ohio St.3d 448, 2010-
Ohio-3831, 935 N.E.2d 9, ¶ 59. An appellate court reviews a trial court’s decision
on a motion to withdraw a plea under an abuse-of-discretion standard. Smith at
paragraph two of the syllabus; State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-
6894, 820 N.E.2d 355, ¶ 32.
          Straley did not suffer a manifest injustice under Crim.R. 32.1
       {¶ 16} This matter stems from Straley’s postsentencing motion to withdraw
his guilty pleas—an attack on his pleas, not his sentence. The trial court overruled
the motion because (1) it was barred by res judicata, (2) Straley did not show that
he would not have pled guilty if the trial court had told him about the mandatory
sentences, and (3) Straley waited eight years to file the motion.
       {¶ 17} The court of appeals found that Straley suffered manifest injustice
based on the trial court’s misstatements that his sentences were not mandatory,
stating that “[i]t is difficult to fathom a more fundamental flaw in proceedings than
when a court imposes an illegal, void sentence on a defendant.” Straley II, 2018-
Ohio-3080, 107 N.E.3d 8, at ¶ 29. But the sentence imposed is not the issue here.
The issue is the effect that the trial court’s erroneous statements had on Straley
during the plea proceedings. We agree with the trial court that Straley did not show
that any error caused him to forgo trial and plead guilty instead. And although
Straley never argued to the trial court that he would not have pled guilty had he
known some of the sentences were mandatory, the facts surrounding his plea belie




                                          7
                               SUPREME COURT OF OHIO




any such argument. The guilty-plea form Straley signed provided the maximum
sentences for each count to which Straley was pleading guilty and informed Straley
that the court could impose consecutive sentences on the counts. It included the
state’s sentencing recommendation as to each count, including the state’s
recommendation that the sentences be served consecutively.             The trial court
reviewed the maximum sentences with Straley four times during the plea colloquy.
Straley confirmed that he understood both the maximum sentence the court could
impose and that the court could order the sentences be run consecutively. Although
the trial court mistakenly told Straley it was “legally possible” for the court to order
community control, the trial court then clearly told Straley “it’s not going to happen
in this case.” Straley confirmed he understood that.
       {¶ 18} Straley confirmed more than once that he understood that the court
was not obligated to follow the parties’ agreed sentencing recommendation and that
the court had discretion to sentence him to a longer sentence—up to the maximum
sentence. Despite this discretion, the trial court sentenced Straley to the parties’
agreed aggregate prison sentence of 35 years and 10 months. There is no manifest
injustice where Straley was sentenced to the aggregate sentence to which he agreed
in exchange for his guilty plea. He could not have reasonably expected to serve
any less than that sentence.
       {¶ 19} Straley argues that he need not show prejudice here, citing our recent
decision in State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766,
because the trial court’s misstatements had the same effect as a complete failure to
satisfy Crim.R. 11. See Bishop at ¶ 19 (a complete failure to comply with Crim.R.
11 does not implicate an analysis of prejudice). But the trial court here did not
wholly fail to comply with Crim.R. 11. Crim.R. 11(C)(2)(a) requires that a
defendant understand the “nature of the charges against him and the maximum
penalty involved” in order for his plea to be knowing, intelligent, and voluntary.
As stated, the trial court reviewed the maximum sentences with Straley four times




                                           8
                                January Term, 2019




during the plea colloquy, and Straley confirmed that he understood the maximum
sentence on each count to which he intended to plead guilty. The guilty-plea form
Straley signed also outlined the maximum sentences. Under these circumstances,
Straley must show that the trial court’s misstatements prejudiced him.
        {¶ 20} Straley argues that the trial court’s error prejudiced him because he
would become eligible for judicial release under R.C. 2929.20 ten years earlier if
his sentences were all nonmandatory. But at the time Straley entered his guilty plea
in 2009, a person who was sentenced to a prison term of more than ten years was
ineligible for judicial release. Former R.C. 2929.20, Am.Sub.H.B. No. 15, 151
Ohio Laws, Part III, 5228, 5233-5237. The General Assembly did not provide
judicial-release eligibility to inmates serving sentences longer than ten years until
the amendment of R.C. 2929.20 in 2011 Am.Sub.H.B. No. 86. Plainly, Straley
could not have factored judicial-release eligibility into his decision to plead guilty
because judicial release was not available to him in 2009.
        {¶ 21} Straley’s eight-year delay in moving to withdraw his plea also
undercuts his assertion that he would not have pled guilty if he knew part of his
sentence would be mandatory. See Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.
Straley knew about the issue with his sentence in 2009, when he filed his direct
appeal. In that appeal, Straley specifically, and unsuccessfully, argued that the trial
court erred by imposing mandatory sentences without first telling him they were
mandatory. See Straley I, 2009-Ohio-6170. He did not suggest then that the trial
court’s purported error affected his plea.
        {¶ 22} Because Straley cannot show that he suffered prejudice, the trial
court did not abuse its discretion in denying Straley’s motion to withdraw his guilty
plea.
                                    Res judicata
        {¶ 23} Res judicata generally bars a defendant from raising claims in a
Crim.R. 32.1 postsentencing motion to withdraw a guilty plea that he raised or




                                             9
                             SUPREME COURT OF OHIO




could have raised on direct appeal. See Ketterer, 126 Ohio St.3d 448, 2010-Ohio-
3831, 935 N.E.2d 9, at ¶ 59. Straley did not argue on direct appeal that he should
be permitted to withdraw his guilty plea. He argued that the trial court erred by
imposing mandatory sentences without first telling him that they were mandatory.
But he did not argue that the trial court’s misstatements prevented him from making
a knowing, intelligent, and voluntary guilty plea. Straley could have challenged his
guilty plea on direct appeal. See State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-
509, 881 N.E.2d 1224, at paragraph one of the syllabus. Because he did not, the
trial court did not abuse its discretion in finding that res judicata barred Straley’s
motion to withdraw his guilty plea.
                  The court of appeals misapplied our precedent
                         on void-versus-voidable sentences
       {¶ 24} In reversing the trial court’s decision to deny Straley’s motion, the
court of appeals misapplied our precedent on void-versus-voidable sentences.
Citing Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, which stated
that a void sentence may be reviewed at any time, on direct appeal or by collateral
attack, the appellate court rejected the trial court’s application of res judicata.
Straley II, 2018-Ohio-3080, 107 N.E.3d 8, at ¶ 19. Because the trial court sentenced
Straley to nonmandatory prison terms in contravention of Ohio law, the court of
appeals concluded that the sentences were void and res judicata did not preclude
later review. Id. at ¶ 21.
       {¶ 25} We have said that “[i]n general, a void judgment is one that has been
imposed by a court that lacks subject-matter jurisdiction over the case or the
authority to act. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d
306, ¶ 27. Unlike a void judgment, 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.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197,
884 N.E.2d 568, ¶ 12.




                                         10
                                January Term, 2019




       {¶ 26} In recent years, our void-versus-voidable-sentence jurisprudence has
swelled, most notably in the context of improperly imposed postrelease control.
See, e.g., Simpkins (resentencing required because improper imposition of
postrelease control rendered sentence void); State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961 (same); see also Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, at ¶ 6-18 (providing a detailed history of our
void-sentence jurisprudence). We have also applied this jurisprudence in regard to
other criminal penalties. See, e.g., State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-
1908, 972 N.E.2d 509, ¶ 18 (failure to impose mandatory driver’s-license
suspension renders that part of the sentence void); State v. Moore, 135 Ohio St.3d
151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 14 (failure to impose mandatory fine
when no affidavit of indigency was filed renders void that part of the sentence
waiving the fine); Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234,
at ¶ 28 (imposing separate sentences for allied offense renders the sentences void).
       {¶ 27} As the entire appellate panel expressed, our void-versus-voidable-
sentence precedent has frustrated our courts.        See also Fischer at ¶ 41-56
(Lanzinger, J., dissenting). But here, the appellate court invoked that precedent
erroneously. Straley did not attack his sentences—he used the trial court’s failure
to tell him that they were mandatory to support his motion to withdraw his guilty
plea. Whether res judicata should apply under our void-versus-voidable-sentence
precedent does not matter in this context. It applies because Straley failed to attack
his guilty pleas on direct appeal. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831,
935 N.E.2d 9, at ¶ 59.
                                  III. Conclusion
       {¶ 28} We conclude that Straley did not suffer a manifest injustice when the
trial court failed to tell him during his Crim.R. 11 plea colloquy that he would be
subject to mandatory prison sentences for his second-degree-felony sexual-battery
convictions. We reverse the judgment of the Fourth District Court of Appeals and




                                         11
                             SUPREME COURT OF OHIO




reinstate the trial court’s judgment denying Straley’s motion to withdraw his guilty
plea.
                                                                Judgment reversed.
        O’CONNOR, C.J., and FISCHER, J., concur.
        KENNEDY, J., concurs in judgment only, with an opinion.
        DEWINE, J., concurs, with an opinion.
        DONNELLY, J., concurs in judgment only, with an opinion.
        STEWART, J., concurs in judgment only.
                               _________________
        KENNEDY, J., concurring in judgment only.
        {¶ 29} Because the doctrine of res judicata bars appellee Gregory S.
Straley’s collateral attack on his judgment of conviction, I concur in the court’s
reversal of the judgment of the Fourth District Court of Appeals and reinstatement
of the trial court’s denial of Straley’s motion to withdraw his guilty pleas.
However, contrary to the majority’s analysis, I would not reach the question
whether Straley has proven that a manifest injustice exists that would justify
withdrawing his pleas: the conclusion that res judicata bars his motion eliminates
any need to reach the motion’s merits.
                          Facts and Procedural Posture
        {¶ 30} In 2009, Straley and the state entered into a plea agreement in which
he would plead guilty to 8 counts of an indictment, the state would dismiss 6
remaining counts, and the parties would jointly recommend an aggregate sentence
of 35 years and 10 months in prison. Three of the counts charged Straley with
second-degree-felony sexual battery under R.C. 2907.03(A)(5); those counts
required the trial court to impose mandatory sentences. Pursuant to Crim.R.
11(C)(2)(a), the trial court was prohibited from accepting Straley’s plea without
first advising him in the plea colloquy that because the sentences for those three
counts were mandatory, Straley was not eligible for the imposition of community-




                                         12
                                January Term, 2019




control sanctions. However, the trial court instead advised Straley that none of his
sentences were mandatory and that community control was permitted by law in his
case and was legally possible. Nonetheless, the trial court told Straley that he would
not receive community-control sanctions rather than prison, and Straley pleaded
guilty pursuant to the plea agreement. The trial court then imposed the jointly
recommended sentence of 35 years and 10 months in prison.
       {¶ 31} On direct appeal, the appellate court rejected Straley’s claim that he
had not pleaded guilty to one of the three counts of second-degree-felony sexual
battery, holding that the trial court had sufficiently complied with Crim.R. 11(C)
and “had the authority to then (1) accept Straley’s written guilty pleas and (2)
convict Straley of all the counts in the plea agreement.” 4th Dist. Highland No.
09CA4, 2009-Ohio-6170, ¶ 21 (“Straley I”). The court also rejected an assignment
of error asserting that “[t]he trial court erred by imposing a mandatory sentence
without advising the appellant that the sentence was mandatory,” id. at ¶ 8, because
pursuant to R.C. 2953.08(D)(1), a sentence that is jointly recommended by the
parties and imposed by the trial court is not subject to review when it is “authorized
by law,” id. at 23-25. We declined review. 125 Ohio St.3d 1462, 2010-Ohio-2753,
928 N.E.2d 738.
       {¶ 32} More than eight years after pleading guilty, Straley moved to
withdraw his pleas, asserting that they were not entered knowingly, intelligently,
and voluntarily and therefore were invalid. He also argued that the sentences on
his three convictions for second-degree-felony sexual battery were void because
the trial court had imposed a nonmandatory prison sentence even though a
mandatory prison sentence was required by statute. The trial court denied the
motion on the basis of res judicata and alternatively found that Straley had failed to
demonstrate that withdrawal of his pleas was needed to correct a manifest injustice.
       {¶ 33} The court of appeals reversed, holding that the sentences for the three
convictions of second-degree-felony sexual battery were void because the trial




                                         13
                             SUPREME COURT OF OHIO




court had disregarded mandatory sentencing provisions, and therefore, res judicata
did not preclude a collateral attack on them. 2018-Ohio-3080, 107 N.E.3d 8, ¶ 21
(“Straley II”). The appellate court then held that this court’s intervening decision
in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, had
abrogated the holding in Straley I, and that because Straley’s nonmandatory
sentences were not authorized by law, “the State’s claim that the agreed sentence
could not be reviewed is meritless.” Straley II at ¶ 24. The court held that
notwithstanding the jointly recommended sentence, Straley was prejudiced by the
trial court’s error: “[t]he trial court’s failure to follow th[e] statutory mandate
prejudiced Straley because it rendered his sentence void so that he has not yet been
properly and legally sentenced in the underlying case,” id. at ¶ 26. Lastly, the court
of appeals concluded that Straley had demonstrated a manifest injustice supporting
his motion to withdraw his plea, because “[i]t is difficult to fathom a more
fundamental flaw in proceedings than when a court imposes an illegal, void
sentence on a defendant,” id. at ¶ 29.
       {¶ 34} On appeal to this court, the threshold question is whether Straley’s
attack on his judgment of conviction is barred by res judicata.
                                   Res Judicata
       {¶ 35} According to 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 the trial, which resulted in that judgment of conviction, or on an appeal
from that judgment.” (Emphasis deleted.) State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967), paragraph nine of the syllabus. As we explained in State v.
Saxon, “the doctrine serves to preclude a defendant who has had his day in court
from seeking a second on that same issue,” and it “promotes the principles of
finality and judicial economy by preventing endless relitigation of an issue on




                                         14
                                 January Term, 2019




which a defendant has already received a full and fair opportunity to be heard.” 109
Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.
         {¶ 36} Res judicata bars the relitigation of constitutional issues, State v.
Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, ¶ 19, including claims
that the accused’s guilty pleas were not knowingly, intelligently, and voluntarily
made, State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59-
60. It also bars an attempt to relitigate the question whether an offender’s sentence
complies with mandatory statutory provisions. State ex rel. McKinney v. Schmenk,
152 Ohio St.3d 70, 2017-Ohio-9183, 92 N.E.3d 871, ¶ 10-12 (res judicata barred
renewed claim that a sentence imposed for an allied offense of similar import is
void).
         {¶ 37} Straley could have challenged the validity of all of his guilty pleas
on direct appeal. The same error that he now claims prohibited him from entering
knowing, voluntary, and intelligent guilty pleas—statements in his plea colloquy
that the sentences for the three second-degree-felony sexual-battery counts were
not mandatory—appeared on the face of the record in 2009 when he filed his notice
of appeal. Moreover, in reviewing Straley’s claim on direct appeal that he had not
entered a plea on one count of second-degree-felony sexual battery (one of the
counts subject to a mandatory sentence), the court of appeals held that all of
Straley’s guilty pleas were entered after the trial court complied with Crim.R. 11,
so that “the trial court had the authority to then (1) accept Straley’s written guilty
pleas and (2) convict Straley of all the counts in the plea agreement, including count
seven.” Straley I, 2009-Ohio-6170, at ¶ 21. The court of appeals also held that the
jointly recommended sentences were “clearly authorized by law” and that Straley
was bound by the sentences that he had agreed were appropriate. Id. at ¶ 25.
         {¶ 38} We have recognized that res judicata does not apply to void
judgments. Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188,
¶ 46; State v. Wilson, 73 Ohio St.3d 40, 45, 652 N.E.2d 196 (1995), fn. 6. But in




                                          15
                             SUPREME COURT OF OHIO




deciding whether res judicata barred Straley’s motion to withdraw his pleas, the
court of appeals, in Straley II, focused on the wrong judgment. The validity of
Straley’s pleas, convictions, and sentences had already been determined on direct
appeal in Straley I by a valid judgment binding the parties—the Fourth District
Court of Appeals had subject-matter jurisdiction to entertain an appeal from the
judgment of conviction entered by the Highland County Court of Common Pleas,
see Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2953.02. It is the appellate
court’s judgment in Straley I that bars Straley’s subsequent motion to withdraw his
pleas and his attempts to invalidate his sentences, notwithstanding Straley’s claims
that his pleas are invalid and that his sentences are void. See McKinney, 152 Ohio
St.3d 70, 2017-Ohio-9183, 92 N.E.3d 871, at ¶ 10-12; see also State ex rel. Peoples
v. Johnson, 152 Ohio St.3d 418, 2017-Ohio-9140, 97 N.E.3d 426, ¶ 13 (explaining
that res judicata precludes collateral attacks seeking to relitigate jurisdictional
determinations).
       {¶ 39} The court of appeals suggested another reason why Straley I did not
control, stating that this court’s subsequent decision in Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, 922 N.E.2d 923, “in effect, abrogated our holding in Straley I as
it pertains to the assignments of error challenging his sentence.” 2018-Ohio-3080,
107 N.E.3d 8, at ¶ 24. In Underwood, we held that a jointly recommended sentence
was not “authorized by law” within the meaning of R.C. 2953.08(D) if that sentence
did not comply with mandatory sentencing provisions. Underwood at ¶ 20.
       {¶ 40} However, we have explained that res judicata applies despite a
subsequent change in the law: “[t]here is no merit to [the] claim that res judicata
has no application where there is a change in the law due to a judicial decision of
this court.” State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996). In
Szefcyk, the court of appeals affirmed Szefcyk’s conviction for involuntary
manslaughter predicated on his commission of a minor-misdemeanor marked-lanes
violation, and we declined review. Id. at 94. We subsequently held that a minor




                                         16
                                January Term, 2019




misdemeanor cannot serve as the predicate offense for involuntary manslaughter,
and the trial court granted Szefcyk’s petition for postconviction relief on the basis
of that new ruling. Id. at 95. The court of appeals reversed, and we affirmed,
holding that because Szefcyk had already had an opportunity to fully litigate the
issue on direct appeal, his petition for postconviction relief was barred by res
judicata. We concluded that “ ‘ “[p]ublic policy dictates that there be an end of
litigation; that those who have contested an issue shall be bound by the result of the
contest, and that matters once tried shall be considered forever settled as between
the parties.” ’ ” Id., quoting Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394,
401, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), quoting Baldwin v. Traveling Men’s
Assn., 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931).
       {¶ 41} Similarly, here, the court of appeals determined the validity of
Straley’s pleas, convictions, and sentences in Straley I, and res judicata is not
defeated by the fact that the prior judgment “may have been wrong or rested on a
legal principle subsequently overruled in another case.” Moitie at 398. Because a
new decision from this court is not an exception to the doctrine of res judicata, our
intervening decision in Underwood does not give Straley a basis to collaterally
attack his judgment of conviction.
       {¶ 42} The majority’s analysis fails to appreciate these time-honored
principles. It reaches the merits of Straley’s motion to withdraw his pleas before it
decides whether that motion is barred by res judicata. Then, it decides that res
judicata does in fact bar Straley’s motion to withdraw, which obviates the need to
consider the merits of that motion in the first instance. The majority concludes by
editorializing that “our void-versus-voidable-sentence jurisprudence has swelled”
and “has frustrated our courts” only to decide that “[w]hether res judicata should
apply under our void-versus-voidable-sentence precedent does not matter.”
Majority opinion at ¶ 26, 27.




                                         17
                             SUPREME COURT OF OHIO




       {¶ 43} However, because res judicata precludes Straley from relitigating the
questions whether his pleas, convictions, and sentences are valid, any further
discussion of whether this court should or should not revisit our void-sentence
jurisprudence would contravene our duty not to issue advisory opinions as well as
“ ‘the cardinal principle of judicial restraint—if it is not necessary to decide more,
it is necessary not to decide more,’ ” State ex rel. LetOhioVote.org v. Brunner, 123
Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quoting PDK
Laboratories, Inc. v. United States Drug Enforcement Administration, 362 F.3d
786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and in judgment).
       {¶ 44} Because the majority opinion unnecessarily considers the merits of
arguments that are barred by res judicata, I concur only in its judgment reversing
the court of appeals.
                               _________________
       DEWINE, J., concurring.
       {¶ 45} I concur in today’s majority decision.         The majority correctly
concludes that even if Gregory S. Straley’s sentence could be considered void under
our caselaw, he has not demonstrated a manifest injustice that would entitle him to
withdraw his plea. It also correctly concludes that res judicata applies: regardless
of whether Straley’s sentence is void, his failure to challenge his plea on direct
appeal bars him from attacking it. . .
       {¶ 46} It is no surprise, though, that the court of appeals reached the result
it did. Its conclusion flowed naturally from this court’s expansion of the void-
sentence doctrine beyond its traditional boundaries to include a variety of
sentencing errors and from this court’s broad pronouncement that a void sentence
can be attacked at any time, principles of res judicata notwithstanding. See, e.g.,
State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22. As
I, and others, have explained, this court’s expansion of the void-sentence doctrine
is inconsistent with concepts of jurisdiction and finality that are a central premise




                                         18
                                January Term, 2019




of our judicial system. See, e.g., State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-
2927, 85 N.E.3d 700, ¶ 37 (DeWine, J., concurring in judgment only); Grimes at
¶ 27 (French, J., concurring in judgment only); Williams at ¶ 35-68 (Lanzinger, J.,
dissenting); see also State v. Johnson, 155 Ohio St.3d 441, 2018-Ohio-4957, 122
N.E.3d 126, ¶ 12 (DeWine, J., concurring in judgment only); Johnson at ¶ 17
(DeGenaro, J., concurring in judgment only).
       {¶ 47} This case is simply further evidence that it is long past time to end
this court’s dalliance with perpetually modifiable sentences. . As the majority
notes, all three judges on the panel below expressed their frustration with our
precedent in this area. 2018-Ohio-3080, 107 N.E.3d 8, at ¶ 34 (Hoover, P.J.) (“we
are completely cognizant of the absurdity of this result,” but “we * * * are bound
by the law as set forth by the Ohio Legislature and the Supreme Court of Ohio’s
interpretation of that law”); id. at ¶ 37 (Harsha, J., concurring) (“Ohio should return
to the traditional approach correcting such legal errors and declare them to be errors
in the exercise of jurisdiction, not ones that divest a court of the power to make
such mistakes”); id. at ¶ 40 (Abele, J., dissenting) (“I believe that the root of the
problem is the supreme court’s characterization of errors in sentencing as void
judgments”).
       {¶ 48} And the Fourth District is hardly alone. Not long ago, the Third
District Court of Appeals bemoaned the “mass confusion” that has resulted from
this court’s departure from traditional principles “as to what mistakes by a trial
court rendered a sentence void or voidable,” which has been compounded by this
court’s “sloppiness [in expanding] the void-sentencing-error concept beyond
postrelease-control cases to include other random nonjurisdictional-sentencing
errors.” State v. Kegley, 3d Dist. Crawford No. 3-18-03, 2018-Ohio-4167, ¶ 13-14.
The Tenth District Court of Appeals recently warned that this court’s extension of
the void-sentence doctrine “threaten[s] to swallow the rule [on finality] and lead to
a situation where virtually any allegedly serious error in sentencing can be revived




                                          19
                              SUPREME COURT OF OHIO




time and time again without being foreclosed by res judicata.” State v. Steele, 10th
Dist. Franklin No. 18AP-187, 2018-Ohio-3950, ¶ 11, fn. 1; accord State v. Davic,
10th Dist. Franklin No. 18AP-569, 2019-Ohio-1320, ¶ 11, fn. 2.
        {¶ 49} Today, the majority takes a step in the right direction by cabining the
void-sentence doctrine at least a bit. But as this case illustrates, until we return to
our traditional understanding of void and voidable sentences, we—and courts
across Ohio—will continue to have a mess on our hands.
                                _________________
        DONNELLY, J., concurring in judgment only.
       {¶ 50} I concur in the court’s judgment reversing the judgment of the Fourth
District Court of Appeals. I agree that appellee Gregory Straley was not prejudiced
by the trial court’s statement at Straley’s plea hearing that his entire prison sentence
was nonmandatory. The reason that he was not prejudiced, though, is because the
trial court imposed nonmandatory sentences.
       {¶ 51} The trial court did not just fail to tell Straley that his sentences were
mandatory. The court affirmatively stated that the sentences were not mandatory.
More importantly, the plea form and sentencing entry both affirmatively stated that
all of Straley’s sentences are nonmandatory. A court speaks through its journal.
State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 15. If
the sentencing entry states that the trial court imposed nonmandatory sentences,
then Straley is serving nonmandatory sentences, plain and simple.
       {¶ 52} Given that the trial court discussed the nonmandatory nature of the
sentences that it intended to impose, the state had a full and fair opportunity to
object to the trial court’s sentencing decision. The state failed to do so at the plea
and sentencing hearing and failed to appeal the matter.
       {¶ 53} To the extent that res judicata should be applied here, it applies
against the state. And I believe that res judicata does apply to sentencing errors like
the one in this case. I agree with the position long held by former Justice Lanzinger




                                          20
                                 January Term, 2019




that sentencing errors, by and large, do not deprive a sentencing court of subject-
matter jurisdiction or create a void, infinitely nonfinal sentence:


       Regardless of whether the sentence contains a mistake, everyone
       who leaves the courtroom after a sentencing hearing under R.C.
       2929.19 has an expectation and understanding that a final decision
       has been made, one that can be appealed (by either party) within 30
       days and corrected, if necessary, by the court of appeals.


(Emphasis sic.) State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920
N.E.2d 958, ¶ 58 (Lanzinger, J., dissenting).
       {¶ 54} The state has the authority to appeal sentences that are imposed
following a conviction for a felony, and the state—not the defendant—is the party
that should appeal decisions that are adverse to the state. See R.C. 2945.67(A);
R.C. 2953.14. Thus, although the trial court’s sentencing decision contained an
error, the onus was on the state to bring that error to the attention of the trial court
or the court of appeals.
       {¶ 55} This court has long held that defendants must abide by erroneous
judgments in order to promote the interest in finality. See State v. Saxon, 109 Ohio
St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18 (“res judicata promotes the
principles of finality and judicial economy by preventing endless relitigation of an
issue on which a defendant has already received a full and fair opportunity to be
heard”), citing State ex rel. Willys-Overland Co. v. Clark, 112 Ohio St. 263, 268,
147 N.E. 33 (1925). But res judicata should work in the same way against all
parties, including the state. See State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-
954, 926 N.E.2d 278, ¶ 30 (Lanzinger, J., dissenting) (“If the state does not appeal
an erroneous sentence within 30 days, it should not be allowed to turn back the




                                          21
                             SUPREME COURT OF OHIO




clock, as if the sentence did not occur”). The doctrine of res judicata must work
both ways or else it does not work at all.
       {¶ 56} Because Straley is serving nonmandatory sentences, he cannot
demonstrate a manifest injustice irrespective of whether the nonmandatory aspect
of some of those sentences is contrary to law. The trial court correctly denied
Straley’s motion to withdraw his guilty plea, and I agree with the majority’s
decision to order the reinstatement of the trial court’s decision. Accordingly, I
concur in judgment only.
                                 _________________
       Anneka Collins, Highland County Prosecuting Attorney, for appellant.
       Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant
Public Defender, for appellee.
                                 _________________




                                         22
