[Cite as State v. Walker, 2016-Ohio-1462.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 15CA104
GARY D. WALKER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                        April 6, 2016

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

BAMBI COUCH PAGE                               GARY D. WALKER, PRO SE
PROSECUTING ATTORNEY                           Inmate #554324
RICHLAND COUNTY, OHIO                          Lebanon Correctional Institution
                                               3791 State Route 63
By: DANIEL M. ROGERS                           Lebanon, Ohio 45036
Assistant Prosecuting Attorney
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA104                                                           2

Hoffman, J.


       {¶1}   Defendant-appellant Gary D. Walker appeals the November 19, 2015

Judgment Entry entered by the Richland County Court of Common Pleas denying his

Motion to Correct Void Sentence and Presentence Motion to Withdraw Guilty Plea.

Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On June 2, 2009, Appellant was convicted and sentenced in the Richland

County Court of Common Plea on multiple charges, including Engaging in a Pattern of

Corrupt Activity, in violation of R.C. 2923.32, a felony of the second degree.

       {¶3}   In his most recent motion filed November 2, 2015, Appellant requested the

trial court take judicial notice of the March 25, 2004 Sentencing Journal Entry entered by

the Cuyahoga County Court of Common Pleas, in CR446954. The trial court refused to

do so, noting six years had passed between Appellant’s original sentencing and when

Appellant first presented it with that entry of a prior conviction, and there was insufficient

evidence in the record at the time of sentencing to support the imposition of a mandatory

sentence.

       {¶4}   Appellant maintains he previously entered a plea of guilty to one count of

Drug Possession, in violation of R.C. 2925.11, a felony of the second degree, in the

Cuyahoga County Court of Common Pleas, Case No. CR446954. Therefore, pursuant to

R.C. 2929.13(F)(6), the trial court was required to impose a mandatory term of

imprisonment.

       {¶5}   Appellant filed a notice of appeal from his conviction and sentence on July

1, 2009. On September 24, 2009, this Court dismissed the appeal on Appellant’s motion.
Richland County, Case No. 15CA104                                                            3


       {¶6}   On September 28, 2009, Appellant filed a Motion for Sentencing claiming

he was not properly advised of the consequences of violating post-release control. On

December 30, 2009, the trial court conducted a video conference notifying Appellant of

his post-release control obligations.

       {¶7}   On January 14, 2010, Appellant filed a Motion to Dismiss for lack of

jurisdiction claiming the grand jury failed to return a valid indictment. On January 28,

2010, Appellant filed a Supplemental Motion to Withdraw Guilty Plea.

       {¶8}   On March 3, 2010, Appellant filed a Petition for Writ of Prohibition with the

Supreme Court of Ohio regarding his motion to withdraw guilty plea. The Ohio Supreme

Court dismissed Appellant’s Petition for Writ of Prohibition on May 5, 2010.

       {¶9}   Thereafter, Appellant continued to file various post-trial motions with the trial

court, all of which were denied.

       {¶10} Pertinent herein, on November 2, 2015, Appellant filed a Motion to Correct

Void Sentence and Presentence Motion to Withdraw Guilty Plea. The trial court denied

the motion via Judgment Entry of November 19, 2015.

       {¶11} It is from that entry Appellant appeals, assigning as error,1

       {¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

TAKE JUDICIAL NOTICE PURSUANT TO EVID.R. 201(B)(2) OF THE MARCH 25, 2004,

SENTENCING JOURNAL ENTRY FROM CUYAHOGA COUNTY COMMON PLEAS

COURT WHEN THIS JUDGMENT ENTRY IS NOT SUBJECT TO REASONABLE




1This case has been assigned to this Court’s Accelerated Calendar pursuant to the Fifth
District Court of Appeal’s Local Rule 6 and Ohio Appellate Rule 11.1. Accordingly, the
statement of the reason for this Court’s decision as to each error may be brief and in
conclusory form.
Richland County, Case No. 15CA104                                                          4


DISPUTE AND IS CAPABLE OF ACCURATE AND READY DETERMINATION BY

RESORTING TO SOURCES WHOSE ACCURACY CANNOT REASONABLY BE

QUESTIONED.

       {¶13} “II. THE TRIAL COURT ERRED WHEN IT IMPOSED A SENTENCE

CONTRARY TO LAW UNDER OHIO REVISED CODE § 2929.13(F)(6), THEREBY

RENDERING WALKER’S SENTENCE VOID.

       {¶14} “III. THE TRIAL COURT ERRED WHEN IT ACCEPTED WALKER’S

UNINTELLIGENT AND INVOLUNTARY PLEAS WHICH WERE INDUCED BY AN

UNFULFILLABLE PROMISE TO HAVE THE COURT IMPOSE AN ILLEGAL SENTENCE

CONTRARY TO R.C. 2929.13(F)(6), THEREBY RENDERING WALKER’S PLEAS IN

VIOLATION OF THE DUE PROCESS CLAUSE UNDER THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION.

       {¶15} “IV. THE TRIAL COURT ERRED WHEN IT DID NOT LET WALKER

RESCIND THE CONTRACTUAL AGREEMENT UNDER THE DOCTRINE OF MUTUAL

MISTAKE      ALTHOUGH       WALKER’S       PLEAS        WERE      UNINTELLIGENTLY      AND

INVOLUNTARILY ENTERED ON A MUTUAL MISTAKE OF THE FACTS AND LAW.”

                                         I., II., III., and IV.

       {¶16} Upon review, Appellant’s assigned errors raise common and interrelated

issues; therefore, we will address the arguments together.

       {¶17} As set forth in the Statement of the Facts and Case supra, Appellant filed

various post-trial motions following his dismissal of his direct appeal.

       {¶18} We find all of Appellant’s arguments raised herein were either raised (in the

trial court) or were capable of being raised via direct appeal of his original conviction and
Richland County, Case No. 15CA104                                                       5


sentence or via subsequent appeal of the denial of his various post-conviction motions.

Therefore, we find the arguments barred by the doctrine of res judicata.

      {¶19} Appellant maintains his sentence is void because the trial court failed to

impose a mandatory prison term pursuant to R.C. 2929.13(F)(6); thus reviewable at any

time. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.    Appellant asserts because

he was convicted of a first or second degree felony, and had previously been convicted

of or entered a plea of guilty to a first or second degree felony in another jurisdiction,

failure to impose a mandatory prison term renders his sentence illegal; therefore, void.2

We disagree.

      {¶20} Unlike void sentences, voidable sentences are not reviewable at any time

and are subject to res judicata. State v. Perry, 10 Ohio St.2d 175, 226 NE 2d 104 (1967).

The trial court sentenced Appellant pursuant to a plea agreement, to a non-mandatory

sentence. The trial court had subject matter jurisdiction to impose the sentence. It would

normally be considered beneficial to a defendant not to be subject to a mandatory

sentence. Yet Appellant now seeks to benefit from an error he failed to bring to the trial

court’s attention at the time of sentencing, which error was beneficial to him. To allow

him to do so now would allow him to benefit for an error he seemingly invited, or at least

condoned.




2 Appellant cites State v. Williams, 2nd Dist. No. 2011CA44, 2012 Ohio 1240. However,
we find Williams distinguishable from the procedural history herein as Williams involved
a direct appeal of the defendant’s conviction; therefore, voidness and the doctrine of res
judicata was not at issue.
Richland County, Case No. 15CA104                                                             6


       {¶21} Unlike the scenario presented in the post release control sentencing line of

cases, the sentencing error alleged herein required the trial court to consider a sentencing

factor outside the four corners of the statute itself. The Fischer Court specifically held,

              Our decision today is limited to a discrete vein of cases: those in

       which a court does not properly impose a statutorily mandated period of

       postrelease control. In cases involving postrelease control, we will continue

       to adhere to our narrow, discrete line of cases addressing the unique

       problems that have arisen in the application of that law and the underlying

       statute. In light of the General Assembly's enactment of R.C. 2929.191, it is

       likely that our work in this regard is drawing to a close, at least for purposes

       of void sentences. Even if that is not the case, however, we would be ill-

       served by the approach advocated by the dissent, which is premised on an

       unpalatable and unpersuasive foundation.

       Fischer 128 Ohio St.3d 92, at 100.

       {¶22} We look to the rationale set forth by Justice Lanzinger and concurred in by

Justices French and O’Neill in the dissenting opinion in In re J.S., 136 Ohio St.3d 8, 2013-

Ohio-1721. Although only persuasive as an advisory opinion because the case was

ultimately dismissed as improvidently accepted.3 Justice Lanzinger’s dissent accurately

expresses the confusion and inconsistency in the expansion of the rule of Fischer when

a trial court does not impose a statutorily mandated period of post release control. Justice

Lanzinger opined,




3 Justices O’Connor, Pfeifer, O’Donnell and Kennedy concurred in the majority opinion
dismissing the appeal as being improvidently accepted.
Richland County, Case No. 15CA104                                                      7

            This expansion of the rule of Fischer from the original cases, in which

     a court does not properly impose a statutorily mandated period of

     postrelease control, to an increasing number of non-postrelease-control

     cases, in which the court failed to comply with a statute, has led to

     confusion. It is unclear whether Fischer truly applies to the “discrete vein of

     cases” identified in its text, subject to certain exceptions as recognized by

     this court, or whether, contrary to its language, Fischer applies to any case

     in which a court failed to comply with a statutory provision.

            ***

            A decision in this case could help to provide order to this area of the

     law. Now is the proper time to closely reexamine the void-sentence doctrine

     to reaffirm basic principles of our jurisprudence.

            A. A Sentencing Error Is Voidable and Does Not Mean that the Court

     Lacked Jurisdiction

            It is axiomatic that a judgment by a court lacking jurisdiction is void,

     and thus subject to collateral attack at any time, while a judgment by a court

     that has made an error in exercising jurisdiction is voidable, and thus subject

     to correction only on direct appeal. State v. Payne, 114 Ohio St.3d 502,

     2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. Stated another way, a court with

     subject-matter jurisdiction might impose an erroneous sentence, one that,

     because it does not comply completely with a statute, is contrary to law.

     That error may be corrected (i.e., the sentence is voidable) and then will

     have no effect once it is vacated. But a judgment that is void is rendered by
Richland County, Case No. 15CA104                                                         8


      a court without jurisdiction and is of no effect from the beginning—it was a

      nullity. Before the recent void-sentence cases, Ohio law provided that errors

      made by a court having jurisdiction were voidable and correctable only on

      direct appeal, even when the errors involved significant matters of criminal

      procedure. We clearly explained the difference between void and voidable

      judgments when analyzing a court's failure to convene a statutorily

      mandated three-judge panel in a death-penalty case in Pratts v. Hurley, 102

      Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992:

             ***

             The foregoing cases acknowledged the common understanding of

      the terms “void” and “voidable.” The United States Supreme Court has

      made the same distinction:

             A void judgment is a legal nullity. See Black's Law Dictionary 1822

      (3d ed.1933); see also id., at 1709 (9th ed.2009). Although the term “void”

      describes a result, rather than the conditions that render a judgment

      unenforceable, it suffices to say that a void judgment is one so affected by

      a fundamental infirmity that the infirmity may be raised even after the

      judgment becomes final. See Restatement (Second) of Judgments 22

      (1980); see generally id., § 12. * * *

             “A judgment is not void,” for example, “simply because it is or may

      have been erroneous.” Hoult v. Hoult, 57 F.3d 1, 6 (C.A.1, 1995).

      {¶23} Similarly, this Court previously held the trial court’s [erroneous] inclusion of

the term “mandatory” in a defendant’s sentence does not render the sentence illegal and
Richland County, Case No. 15CA104                                                        9


the claimed error was capable of being raised on direct appeal.4 We find the same logic

would apply to the reverse scenario presented herein where the claimed error was the

trial court’s failure to include the term “mandatory” in the sentence.

         {¶24} Accordingly, we find Appellant’s sentence was voidable, not void; therefore,

subject to res judicata.

         {¶25} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur




4   State v. Roush, Fifth District Morrow County App. No. 13 CA 0008, 2014-Ohio-4887.
