[Cite as State v. Teets, 2016-Ohio-7274.]


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

STATE OF OHIO,                                 :

        Plaintiff-Appellee,                    :      Case No. 15CA31

v.                                             :
                                                      DECISION AND
PAUL WESLEY TEETS,                             :      JUDGMENT ENTRY

        Defendant-Appellant.                   :      RELEASED 10/04/2016


                                            APPEARANCES:

Paul Wesley Teets, Orient, Ohio, pro se appellant.

Judy C. Wolford, Pickaway County Prosecuting Attorney, Circleville, Ohio, for appellee.


Hoover, J.
        {¶1}     Paul Wesley Teets (“Teets”) appeals from the Pickaway County Court of

Common Pleas’ denial of his motion for re-sentencing based on void sentence, which was

construed by the trial court as an untimely petition for post-conviction relief. On appeal, Teets

contends that (1) the trial court rendered a void judgment when it put in its sentencing entry that

he would be subject to a five year period of post-release control; (2) the trial court rendered a

void judgment when it failed to notify him at sentencing that he could be required to perform

community service if he failed to pay the costs of prosecution, and that his trial counsel and

appellate counsel were ineffective for failing to previously raise this issue; and (3) he received

ineffective assistance of appellate counsel.

        {¶2}     Because we find merit to Teets’s argument that a portion of his sentence was

rendered void by the trial court’s imposition of post-release control, we sustain his first
Pickaway App. No. 15CA31                                                                             2


assignment of error. However, because the arguments raised under Teets’s second assignment of

error are barred by res judicata, his second assignment of error is overruled. Moreover, because

post-conviction relief is not the appropriate avenue to file a claim for ineffective assistance of

appellate counsel, we find no merit to Teets’s third assignment of error; and it is therefore

overruled. Accordingly, the judgment of the trial court is affirmed in part, reversed in part; and

this matter is remanded for the trial court to correct the sentencing entry.


                                 I. Facts and Procedural History


       {¶3}    On January 19, 2001, Teets was indicted by the Pickaway County grand jury on

one count of aggravated murder, an unspecified felony in violation of R.C. 2903.01(A). On May

3, 2001, a hearing was conducted on Teets’s motion to suppress evidence. The trial court denied

the motion on July 3, 2001.

       {¶4}    A jury trial commenced on September 24, 2001; and thereafter Teets was found

guilty of aggravated murder. A presentence investigation report was ordered; and Teets was

sentenced on December 12, 2001. At that time, the trial court sentenced Teets to life

imprisonment. Additionally, the trial court notified Teets that he would be subject to five years

of post-release control and ordered that he pay the costs of prosecution. Teets appealed his

conviction and sentence to this Court, raising two assignments of error. See State v. Teets, 4th

Dist. Pickaway No. 02CA1, 2002-Ohio-6799. We overruled both of his assignments of error and

affirmed the judgment of the trial court. Id.

       {¶5}    On March 19, 2015, Teets filed a motion for re-sentencing based on void

judgment with the trial court. The trial court denied the motion on April 3, 2015, on the basis that

it was untimely filed, and also lacked merit. This appeal followed.
Pickaway App. No. 15CA31                                                                                              3


                                            II. Assignments of Error


         {¶6}     Teets assigns the following errors for our review:


Assignment of Error I:

         THE TRIAL COURT ERRED AS A MATTER OF LAW AND ENTERED A
         VOID JUDGMENT ON DECEMBER 14TH, 2015 [sic], WHEN IT IMPOSED
         THE WRONG POST-RELEASE CONTROL FOR THE OFFENSE OF
         AGGRAVATED MURDER PURSUANT TO O.R.C. §2903.01 (A) WHICH IS
         A MANDATORY FIVE (5) YEARS POST-RELEASE CONTROL, BY LAW
         TO A FELONY SF DEGREE OFFENSE, THAT IS STATUTORY REQUIRED
         TO SPECIFY THE MANDATORY NATURE OF POST-RELEASE
         CONTROL, PURSUANT TO O.R.C. §2929.19 (B)(3)(c) THROUGH (e), AND
         O.R.C. §2967.28.
Assignment of Error II1:

         TRIAL COUNSEL & APPELLATE COUNSEL WAS INEFFECTIVE FOR
         NOT OBJECTING AND BRIEFING THAT THE TRIAL COURT VIOLATED
         O.R.C. §2947.23 (A)(1)(a), WHEN THE COURT FAILED TO NOTIFY THE
         DEFENDANT AT “SENTENCING” ON DECEMBER 12TH, 2001 AND
         ENTERED ON DECEMBER 14TH, 2001 THAT FAILURE TO PAY COURT
         COSTS OF THIS PROSECUTION COULD RESULT IN THE TRIAL COURT
         ORDERING THE DEFENDANT TO PERFORM COMMUNITY SERVICE.
Assignment of Error III:

         APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT ADVISING THE
         DEFENDANT WHEN THE TRIAL TRANSCRIPTS WAS FILED, AND BY
         O.R.C. §2953.21 THE APPELLANT HAD ONLY 180 DAYS TO FILE A
         CONVICTION [sic].


                                             III. Law and Analysis


                                               A. Void v. Voidable




1
  We note that a slightly different version of this assignment of error appears in the “Table of Contents” portion of
Teets’s appellate brief. Specifically, the version in the “Table of Contents” does not include the argument that trial
counsel and appellate counsel were ineffective, but simply argues that the trial court erred by failing to notify him of
the possibility of community service.
Pickaway App. No. 15CA31                                                                             4


       {¶7}    In his first two assignments of error, Teets argues that the trial court erred in

imposing his sentence, thus rendering his sentence or portions of his sentence void. Teets claims

that because his sentence or portions of his sentence are void, he can challenge it at any time and

the principle of res judicata does not apply.

       {¶8}    “ ‘In 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. 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.’ ” (Internal citation omitted.) State v.

Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332, ¶ 6, quoting State v. Simpkins,

117 Ohio St.3d 420, 2008–Ohio–1197, 884 N.E.2d 568, ¶ 12. Typically, “sentencing errors are

not jurisdictional and do not render a judgment void.” Id. at ¶ 7. However, “a sentence that is not

in accordance with statutorily mandated terms is void.” Id. at ¶ 8. A void sentence “is not

precluded from appellate review by principles of res judicata, and may be reviewed at any time,

on direct appeal or by collateral attack.” Id. at paragraph one of the syllabus.

       {¶9}    In contrast, arguments challenging the imposition of a voidable sentence are

barred by the doctrine of res judicata if not raised on a direct appeal. See State v. Payne, 114

Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306, ¶ 30. The doctrine of res judicata bars claims

that the defendant raised or could have raised on direct appeal. In re B.C.S., 4th Dist. Washington

No. 07CA60, 2008–Ohio–5771, ¶ 14. “[T]he doctrine serves to preclude a defendant who has

had his day in court from seeking a second on that same issue. In so doing, 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.” State v. Saxon,
Pickaway App. No. 15CA31                                                                              5


109 Ohio St.3d 176, 2006–Ohio–1245, 846 N.E.2d 824, ¶ 18. Accord State v. Miller, 4th Dist.

Lawrence No. 11CA14, 2012-Ohio-1922, ¶ 5.


                              B. Imposition of Post-Release Control


       {¶10} In his first assignment of error, Teets contends that the trial court erred when

imposing post-release control, thus rendering that portion of his sentence void. In particular,

Teets argues that the trial court failed to notify him that he is subject to a mandatory period of

post-release control. We agree that the trial erred in imposing post-release control, thus rendering

that portion of his sentence void, albeit for reasons that differ from those advanced by Teets.

       {¶11} In the case sub judice, Teets was convicted of aggravated murder, “ ‘ which is an

unclassified felony to which the post-release control statute does not apply.’ ” State v. Lofton, 4th

Dist. Pickaway No. 11CA16, 2012-Ohio-2274, ¶ 8, quoting State v. Silguero, 10th Dist. Franklin

No. 11 AP-274, 2011-Ohio-6293, ¶ 8; see also State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, 893 N.E.2d 462, ¶ 36 (“[A]n individual sentenced for aggravated murder * * * is not

subject to postrelease control, because that crime is an unspecified felony to which the

postrelease-control statute does not apply.”). “ ‘Instead of postrelease control, when an offender

convicted of an unclassified felony is released from prison he or she is subject to parole.’ ” Id.,

quoting State v. Evans, 8th Dist. Cuyahoga No. 95692, 2011-Ohio-2153, ¶ 7, in turn citing Clark

at ¶ 36; R.C. 2967.13. “Therefore, the trial court erred when it imposed postrelease control.” Id.,

citing Silguero at ¶ 8. Moreover, the error renders the post-release control portion of the sentence

void. Id. at ¶ 10. We note, however, because only the post-release control portion of the sentence

is void, as opposed to the entire sentence, “the proper remedy ‘is to remand the matter for the

trial court to correct the sentencing entry to eliminate the postrelease control language.’ ” Id.,

quoting Evans at ¶ 9.
Pickaway App. No. 15CA31                                                                            6


        {¶12} Based on the foregoing, we sustain Teets’s first assignment of error and conclude

that the portion of Teets’s sentence imposing post-release control is void.


                       C. Failure to Give Community Service Notification


        {¶13} In his second assignment of error, Teets contends that his sentence is void, and

that the trial court erred by denying his motion for re-sentencing because at his sentencing in

2001 the court failed to notify him of the possible penalty for failing to pay the costs of

prosecution – specifically, that he could be required to perform community service if he failed to

pay those costs. He also argues that his trial counsel and appellate counsel were ineffective for

failing to previously raise this issue.

        {¶14} Teets’s argument that the trial court should have alerted him of the possibility of

community service pursuant to R.C. 2947.23(A)(1)(a), if meritorious, would only render the

judgment voidable, not void. State v. Wolke, 4th Dist. Adams No. 15CA1008, 2016-Ohio-1134,

¶¶ 8-9; State v. Bennett, 4th Dist. Scioto No. 15CA3682, 2015-Ohio-3832, ¶¶ 17-18; State v.

McCreery, 4th Dist. Lawrence No. 15CA10, 2015-Ohio-5453, ¶¶ 16-19. Because Teets failed to

raise this argument in his direct appeal, it is now barred by the doctrine of res judicata, and Teets

cannot now challenge his sentence on that basis collaterally through a motion for re-sentencing.

Additionally, his argument that his trial counsel was ineffective for failing to object to the

imposition of costs and to the trial court’s failure to give the necessary community service

notification is also barred by the doctrine of res judicata, because Teets failed to raise this

argument in his direct appeal. Wolke at ¶¶ 10-11, citing McCreery at ¶¶ 20-21. To the extent that

Teets raises claims of ineffective assistance of appellant counsel, we conclude that the argument

is meritless for the reasons discussed more fully below.

        {¶15} Accordingly, Teets’s second assignment of error is overruled.
Pickaway App. No. 15CA31                                                                            7


                                D. Assistance of Appellate Counsel


       {¶16} In his third assignment of error, Teets claims that he received ineffective

assistance of appellate counsel. We find no merit to this assertion. The proper vehicle to raise

this issue is an App.R. 26(B) application to reopen the appeal. State v. Ulmer, 4th Dist. Scioto

No. 15CA3708, 2016-Ohio-2873, ¶ 16; State v. Vincent, 4th Dist. Ross No. 09CA3135, 2010-

Ohio-3261, ¶ 9; State v. Davis, 4th Dist. Highland No. 09CA19, 2009-Ohio-7083, ¶¶ 13-15; see

also State v. Bradley, 4th Dist. Scioto No. 95CA2364, 1996 WL 718261, * 12 (Dec. 2, 1996) (“*

* * we find that post-conviction relief is not the appropriate avenue to file a claim for ineffective

appellate counsel * * *”). Furthermore, Teets has failed to show prejudice. The basis of his

ineffective assistance claim is that his original appellate counsel failed to inform him of the filing

deadlines to file a post-conviction motion, and had they done so, he would have timely filed his

motion for re-sentencing and the trial court would have reviewed the motion on its merits. This

argument is misplaced, however, because in addition to denying the motion for re-sentencing as

untimely, the trial court also found that the motion lacked merit. Accordingly, we overrule

Teets’s third assignment of error.


                                          IV. Conclusion


       {¶17} Having overruled Teets’s second and third assignments of error, we affirm the

judgment of the trial court in part; however, having sustained his first assignment of error, we

also reverse the judgment of the trial court in part. Consequently, we remand this matter and

instruct the trial court to correct the December 14, 2001 Entry of Sentence by removing all

references to post-release control. Lofton, supra, at ¶ 11.


                                                              JUDGMENT AFFIRMED IN PART,
                                                                       REVERSED IN PART,
Pickaway App. No. 15CA31                     8


                           AND CAUSE REMANDED.
Pickaway App. No. 15CA31                                                                                9


                                       JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED for further proceedings consistent with this
opinion. Appellant and appellee shall split the costs.

        The Court finds that reasonable grounds existed for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Pickaway County
Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Abele, J., and McFarland, J.: Concur in Judgment and Opinion.


                                                For the Court


                                                BY: ____________________________
                                                    Marie Hoover, 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.
