[Cite as State v. Williams, 2012-Ohio-3401.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      LAWRENCE COUNTY


STATE OF OHIO,                                      :
                                                    :
             Plaintiff-Appellee,                    :         Case No: 11CA25
                                                    :
             v.                                     :
                                                    :         DECISION AND
TIMOTHY T. WILLIAMS,                                :         JUDGMENT ENTRY
                                                    :
             Defendant-Appellant.                   :         Filed: July 24, 2012



                                               APPEARANCES:

Warren N. Morford, Jr., South Point, Ohio, for Appellant.

J.B. Collier, Jr., Lawrence County Prosecutor, and Robert C. Anderson, Lawrence
County Assistant Prosecutor, Ironton, Ohio, for Appellee.


Kline, J.:

        {¶1}      Timothy T. Williams (hereinafter “Williams”) appeals the judgment of the

Lawrence County Court of Common Pleas, which resentenced him to eight years in

prison. But here, the trial court did not have the authority to resentence Williams.

Accordingly, the trial court’s November 10, 2011 judgment entry of conviction is void,

and we must vacate it.

                                                    I.

        {¶2}      A Lawrence County Grand Jury returned a five-count indictment against

Williams: aggravated trafficking in drugs (Count 1); aggravated trafficking in drugs

(Count 2); aggravated trafficking in drugs (Count 3); aggravated possession of drugs
Lawrence App. No. 11CA25                                                             2


(Count 4); and aggravated possession of drugs (Count 5). Eventually, Williams pled

guilty to all five counts.

       {¶3}    The trial court sentenced Williams to four years in prison for Count 1, eight

years in prison for Count 2, 12 months in prison for Count 3, eight years in prison for

Count 4, and 12 months in prison for Count 5. In its November 4, 2010 judgment entry

of conviction, the trial court stated the following: “The sentences as imposed against the

Defendant hereinabove shall be served concurrently with each other. Thus, Defendant

is Ordered to serve a total of eight (8) years in the appropriate state penal institution.”

       {¶4}    Williams did not appeal from the November 4, 2010 judgment entry of

conviction.

       {¶5}    On August 30, 2011, Williams filed a Petition to Vacate and Set Aside

Sentence Pursuant to O.R.C. 2953.23. Williams raised various arguments in his

petition, including an argument that the trial court failed to merge allied offenses of

similar import. The state “agree[d] with Mr. Williams’ contention that Counts Two and

Four of the indictment were allied offenses of similar import that required the State to

make an election as to which count sentence should be imposed upon the Defendant.”

Memorandum Contra to Defendant’s Petition to Vacate and Set Aside Sentence at 1.

As a result, the trial court scheduled a resentencing hearing for Williams.

       {¶6}    Before his resentencing, Williams argued that all of his offenses should

merge. The trial court, however, decided that “Counts Two and Four are merged and

Counts Three and Five are merged, with the State of Ohio to elect which is to be

sentenced upon.” October 21, 2011 Judgment Entry.
Lawrence App. No. 11CA25                                                               3


       {¶7}   On October 26, 2011, the trial court resentenced Williams. Then, on

November 10, 2011, the trial court filed a new judgment entry of conviction. Even under

the November 10, 2011 judgment entry, Williams received a total of eight years in

prison.

                                               II.

       {¶8}   Although Williams has appealed his resentencing, Williams’s appellate

counsel has filed both (1) a motion to withdraw and (2) a brief under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Because the trial court’s

November 10, 2011 judgment entry is void, the procedures outlined in Anders do not

apply to the present case. See generally State v. Keller, 4th Dist. No. 10CA39, 2012-

Ohio-237, ¶ 4-5 (outlining the procedures appellate courts must follow under Anders).

Nevertheless, Williams’s counsel has raised the following potential assignments of

error: I. “The appellant, Timothy T. Williams, may assert that the trial court erred, to his

material prejudice, by improperly applying the doctrine of merger at the time of

resentencing. He might also argue that because he was a first time offender, and

because his co-defendant received a lesser sentence, he should have received a lesser

penalty.” And II. “The appellant, Timothy T. Williams, may assert as an assignment of

error a claim of ineffective assistance of counsel.”

       {¶9}   Williams has filed a pro se brief in support of these potential assignments

of error.

                                               II.

       {¶10} For the following reasons, we find that the trial court did not have

jurisdiction to either (1) entertain Williams’s petition for postconviction relief or (2) modify
Lawrence App. No. 11CA25                                                              4


Williams’s November 4, 2010 judgment entry of conviction. Therefore, the trial court’s

November 10, 2011 judgment entry is void and must be vacated.

                                              A.

       {¶11} First, “[a] court has no jurisdiction to entertain an untimely petition for

postconviction relief unless the petitioner makes the showings required by R.C.

2953.23(A).” State v. Hall, 4th Dist. No. 06CA17, 2007-Ohio-947, ¶ 10; accord State v.

Bryant, 7th Dist. No. 04-MA-109, 2005-Ohio-5054, ¶ 22; State v. Halliwell, 134 Ohio

App.3d 730, 734, 732 N.E.2d 405 (8th Dist.1999). R.C. 2953.21(A)(2) provides the

following: “If no appeal is taken, except as otherwise provided in section 2953.23 of the

Revised Code, the petition shall be filed no later than one hundred eighty days after the

expiration of the time for filing the appeal.” And here, Williams filed his petition for

postconviction relief on August 30, 2011, which was well beyond the 180-day time limit.

       {¶12} Because Williams’s petition was untimely, he had to meet the

requirements of either R.C. 2953.23(A)(1) or 2953.23(A)(2).

              Whether a hearing is or is not held on a petition filed

              pursuant to section 2953.21 of the Revised Code, a court

              may not entertain a petition filed after the expiration of the

              period prescribed in division (A) of that section or a second

              petition or successive petitions for similar relief on behalf of a

              petitioner unless division (A)(1) or (2) of this section applies:

              (1) Both of the following apply:

              (a) Either the petitioner shows that the petitioner was

              unavoidably prevented from discovery of the facts upon
Lawrence App. No. 11CA25                                                       5


             which the petitioner must rely to present the claim for relief,

             or, subsequent to the period prescribed in division (A)(2) of

             section 2953.21 of the Revised Code or to the filing of an

             earlier petition, 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.

             (b) The petitioner shows by clear and convincing evidence

             that, but for constitutional error at trial, no reasonable

             factfinder would have found the petitioner guilty of the

             offense of which the petitioner was convicted or, if the claim

             challenges a sentence of death that, but for constitutional

             error at the sentencing hearing, no reasonable factfinder

             would have found the petitioner eligible for the death

             sentence.

             (2) The petitioner was convicted of a felony, the petitioner is

             an offender for whom DNA testing was performed under

             sections 2953.71 to 2953.81 of the Revised Code or under

             former section 2953.82 of the Revised Code and analyzed in

             the context of and upon consideration of all available

             admissible evidence related to the inmate’s case as

             described in division (D) of section 2953.74 of the Revised

             Code, and the results of the DNA testing establish, by clear
Lawrence App. No. 11CA25                                                              6


              and convincing evidence, actual innocence of that felony

              offense or, if the person was sentenced to death, establish,

              by clear and convincing evidence, actual innocence of the

              aggravating circumstance or circumstances the person was

              found guilty of committing and that is or are the basis of that

              sentence of death. R.C. 2953.23(A).

       {¶13} Here, Williams did not even attempt to satisfy either R.C. 2953.23(A)(1) or

2953.23(A)(2). Rather, he filed a standard petition that completely ignores the

requirements of R.C. 2953.23. Williams’s petition essentially claims (1) that his guilty

pleas were not knowing, intelligent, and voluntary; (2) that Williams received ineffective

assistance of counsel; and (3) that the trial court should have merged Williams’s various

offenses. These claims do not satisfy either R.C. 2953.23(A)(1) or 2953.23(A)(2).

Therefore, the trial court did not have jurisdiction to entertain Williams’s petition for

postconviction relief, and the trial court did not have the authority to resentence Williams

under the postconviction-relief statute. See Hall at ¶ 16.

                                              B.

       {¶14} Furthermore, the trial court did not have the inherent authority to modify

Williams’s November 4, 2010 judgment entry of conviction. “[A] trial court lacks the

authority to reconsider its own valid, final judgment in a criminal case, with two

exceptions: (1) when a void sentence has been imposed and (2) when the judgment

contains a clerical error.” State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940

N.E.2d 924, ¶ 14; see also See State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553,

961 N.E.2d 671, ¶ 1. The present case, however, does not involve the correction of a
Lawrence App. No. 11CA25                                                              7


clerical error, and Williams’s November 4, 2010 judgment entry of conviction is not void.

See State v. Miller, 4th Dist. No. 11CA14, 2012-Ohio-1922, ¶ 6 (finding that the failure

to merge allied offenses of similar import renders a judgment voidable, not void).

Rather, the trial court reconsidered its own valid final judgment by merging allied

offenses of similar import and resentencing Williams. Because the trial court lacked

jurisdiction to do this, the November 10, 2011 judgment entry is void. See State v.

Franklin, 4th Dist. No. 09CA7, 2009-Ohio-6831, ¶ 10; State v. Martin, 9th Dist. No.

10CA0007, 2010-Ohio-5394, ¶ 12.

                                            C.

       {¶15} In conclusion, we find the following: Williams’s petition for postconviction

relief was untimely and did not meet the requirements of either R.C. 2953.23(A)(1) or

2953.23(A)(2). Therefore, the trial court did not have the authority to resentence

Williams under the postconviction-relief statute. Furthermore, the trial court did not

have the inherent authority to modify the November 4, 2010 judgment entry of

conviction. As a result, the trial court’s November 10, 2011 judgment entry is void.

       {¶16} We have the authority to vacate a void judgment. Hall, 2007-Ohio-947, ¶

11; State v. Horne, 9th Dist. No. 24691, 2009-Ohio-6283, ¶ 9. Accordingly, we vacate

the November 10, 2011 judgment entry. The November 4, 2010 judgment entry of

conviction remains valid. See Martin at ¶ 13.

                                                                 JUDGMENT VACATED.
Lawrence App. No. 11CA25                                                          8


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE VACATED. Appellant shall pay the costs
herein taxed.

      The Court finds that there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas 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. Exceptions.

Abele, P.J. and Harsha, J.: Concur in Judgment & Opinion.


                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
