[Cite as State v. Smith, 2019-Ohio-155.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106893




                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                           EDWARD A. SMITH

                                                       DEFENDANT-APPELLANT




                                        JUDGMENT:
                                     SENTENCE VACATED;
                                 REMANDED FOR RESENTENCING




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-88-226041-A

        BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: January 17, 2019
FOR APPELLANT

Edward A. Smith, pro se
Inmate No. R135659
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


EILEEN T. GALLAGHER, J.:

        {¶1} Defendant-appellant, Edward Smith, appeals pro se from his sentence following a

guilty plea. He raises the following assignment of error for review:

        The trial court erred as a matter of law when sentencing defendant-appellant to 20
        years to life and abused its discretion in denying defendant’s motion to correct a
        facially illegal sentence where defendant-appellant’s sentence is contrary to law.

        {¶2} After careful review of the record and relevant case law, we vacate Smith’s sentence

and remand the matter to the trial court for proceedings consistent with this opinion.

                               I. Procedural and Factual History

        {¶3} In November 1985, Smith fatally stabbed the victim, while burglarizing the victim’s

home.    Smith was 17 years of age at the time.        In July 1988, Smith entered into a plea

agreement with the state of Ohio in which he pled guilty to aggravated murder. On the same day
of his plea, the trial court sentenced Smith to 20 years to life in prison. The sentence was

ordered to run concurrently to three other cases Smith had pending at that time.

       {¶4} In July 2013, Smith filed a “motion to void sentence,” alleging that his sentence was

void and that the trial court lacked subject matter jurisdiction over his case. In August 2013, the

trial court denied the motion without a hearing.

       {¶5} In November 2013, Smith filed a pro se “motion to void judgment and correct under

Civ.R. 60(B).” Smith reiterated the arguments raised in his July 2013 motion, alleging that the

trial court lacked jurisdiction to impose the 20-year-to-life prison term. In December 2013, the

trial court denied the motion without a hearing.

       {¶6} In August 2014, the trial court issued the following entry regarding Smith to the

Ohio Adult Parole Authority:

       The court is in receipt of the Ohio Adult Parole Authority’s 08/14/2014 notice of
       offender’s hearing before the parole board. The court imposed a sentence after
       due consideration of all relevant factors and opposes any reduction or
       modification of sentence by the Ohio parole board from that which was imposed.

       {¶7} In January 2015, the Ohio Parole Board held a hearing to determine whether it

would release Smith. The parole board decided not to release Smith because of the severity of

his crime and serious infractions he committed while incarcerated. The parole board found that

Smith’s release would create either an undue risk to public safety or be inconsistent with the

welfare and security of society.

       {¶8} In June 2015, which was approximately five months after the parole board’s

decision, Smith filed a motion seeking to withdraw his previously entered guilty plea. In his

motion, Smith argued the trial court breached his plea agreement when the trial court submitted a

letter to the Adult Parole Authority opposing his release.
       {¶9} Following a hearing, the trial court denied Smith’s motion to withdraw his guilty

plea. This court affirmed the trial court’s judgment in State v. Smith, 8th Dist. Cuyahoga No.

104263, 2017-Ohio-1155.

       {¶10} In February 2018, Smith filed a “motion to void sentence.” In the motion, Smith

argued that his sentence is contrary to law and that the trial court exceeded its authority under the

Ohio Revised Code by imposing a prison term of 20 years to life. The trial court denied Smith’s

motion without a hearing.

       {¶11} Smith now appeals the trial court’s judgment.

                                      II. Law and Analysis

       {¶12} In his sole assignment of error, Smith argues “the trial court erred as a matter of

law by sentencing him to 20 years to life and abused its discretion in denying his motion to

correct an illegal sentence where the sentence is contrary to law.” Smith contends that the trial

court exceeded its authority in sentencing him to a term of imprisonment that is not authorized by

the Ohio Revised Code.

       {¶13} While there is no constitutional right to appellate review of a criminal sentence,

R.C. 2953.08 confers statutory rights upon a defendant to appeal from some felony sentences.

See State v. Smith, 80 Ohio St.3d 89, 97, 684 N.E.2d 668 (1997). R.C. 2953.08(A) authorizes a

defendant to challenge a sentence that is “contrary to law.” But the statute bars that appeal when

the sentence to be reviewed, as here, was imposed for the crime of aggravated murder.

Specifically, R.C. 2953.08(D)(3) provides, “[a] sentence imposed for aggravated murder or

murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review

under [R.C. 2953.08].” Accordingly, evidentiary review of a sentence imposed by a trial court
pursuant to R.C. 2929.03(A) is precluded.       See State v. Jackson, 8th Dist. Cuyahoga No.

100125, 2014-Ohio-3583, ¶ 64.

       {¶14} In this case, however, Smith does not challenge the evidentiary basis supporting his

sentence.   Rather, Smith maintains that the trial court imposed a prison term that is not

authorized under R.C. 2929.03(A), and is, therefore, void. This court has previously recognized

that no court has the authority to impose sentences that are void as a matter of law. State v. Lee,

8th Dist. Cuyahoga No. 105894, 2018-Ohio-1839, ¶ 6, citing State v. Williams, 148 Ohio St.3d

403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 28. Thus, regardless of the restrictions set forth under

R.C. 2953.08(D), “an appellate court has authority to review sentences that are void.” Id, citing

Williams at ¶ 28; State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 25.

 See also State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 20 (“A trial

court does not have the discretion to exercise its jurisdiction in a manner that ignores mandatory

statutory provisions.”), citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884

N.E.2d 568, ¶ 27 (“Every judge has a duty to impose lawful sentences.”). Accordingly, while

this court is not entitled to review the evidentiary basis supporting Smith’s sentence, we may

review the record to determine whether the sentence imposed is void.

       {¶15} We further note that the procedural history of this case, including the significant

delay between the imposition of Smith’s sentence and this appeal, does not preclude our review.

Generally, “if the sentencing court had jurisdiction and statutory authority to act, sentencing

errors do not render the sentence void and the sentence can be set aside only if successfully

challenged on direct appeal.” Williams at ¶ 23, citing State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, ¶ 6-7. However, because “‘[n]o court has the authority to

impose a sentence that is contrary to law,’ when the trial court disregards statutory mandates,
‘[p]rinciples of res judicata, including the doctrine of the law of the case, do not preclude

appellate review. The sentence may be reviewed at any time, on direct appeal or by collateral

attack.’” Id. at ¶ 22, quoting Fischer at ¶ 23, 30.

       [Ohio’s] jurisprudence on void sentences “reflects a fundamental understanding of
       constitutional democracy” that the power to define criminal offenses and prescribe
       punishment is vested in the legislative branch of government and that courts may
       impose sentences only as provided by statute.

Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 22, quoting Fischer, at ¶

21-22. Thus, “[t]he function and duty of a court is to apply the law as written.” State v.

Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984), superseded by statute on other grounds as

stated in Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958. “[C]rimes are

statutory, as are the penalties therefore, and the only sentence which a trial judge may impose is

that provided for by statute * * *. A court has no power to substitute a different sentence for

that provided for by law.” Id., quoting Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d

811 (1964). “Any attempt by a court to disregard statutory requirements when imposing a

sentence renders the attempted sentence a nullity or void.” Id. With this standard in mind, we

turn to the issue of whether the trial court disregarded statutory requirements when sentencing

Smith to 20 years to life in prison.

       {¶16} As stated, Smith was convicted of aggravated murder in violation of R.C. 2903.01.

 At the time of his sentencing, the penalty for this offense was codified at R.C. 2929.03(A),

which stated in relevant part:

       the trial court shall impose a sentence of life imprisonment with parole eligibility
       after serving twenty years of imprisonment.

       {¶17} “When construing a statute, [a reviewing] court’s paramount concern is the

legislative intent in enacting the statute.” Yonkings v. Wilkinson, 86 Ohio St.3d 225, 227, 714
N.E.2d 394 (1999), citing State v. S.R., 63 Ohio St.3d 590, 594, 589 N.E.2d 1319 (1992).

“‘Furthermore, words must be taken in their usual, normal or customary meaning.’” Id., quoting

S.R. at 595.

        {¶18} On appeal, Smith contends that his prison term is contrary to law because a

sentence of “twenty (20) years to life” is not an authorized sentence for aggravated murder. The

state concedes that Smith’s sentencing entry does not precisely track the statutory language used

in R.C. 2929.03(A). However, the state maintains that a prison term of “20 years to life” has the

same “practical effect” of a sentence imposed under R.C. 2929.03(A) in terms of Smith’s

eligibility for parole after serving 20 years in prison. Thus, the state contends that Smith’s

argument on appeal presents “a distinction without a difference.” For the reasons that follow,

we are unpersuaded by the state’s position.

        {¶19} Here, Smith’s appeal relies extensively on the decisions rendered in State v. Kemp,

8th Dist. Cuyahoga No. 97913, 2013-Ohio-167, and State v. Duncan, 2d Dist. Clark No.

2016-CA-77, 2016-Ohio-7658. In Kemp, the defendant was convicted of murder in violation of

R.C. 2903.02(A), and was sentenced to “life in prison with eligibility for parole after 15 years.”

Based on the trial court’s failure to adhere to the statutory language provided in the sentencing

statute applicable to murder convictions, this court determined that the sentence imposed by the

trial court was contrary to law, stating:

        Pursuant to R.C. 2929.02(B)(1), “whoever is convicted of or pleads guilty to
        murder in violation of section 2903.02 of the Revised Code shall be imprisoned
        for an indefinite term of fifteen years to life.” Accordingly, the sentence imposed
        by the trial court is contrary to R.C. 2929.02(B)(1); Kemp should have been
        sentenced to “an indefinite term of fifteen years to life.”

Id. at ¶ 75.
           {¶20} Similarly, in Duncan, the defendant was convicted of felony murder in violation of

R.C. 2903.02(B) and, as in Kemp, was subject to R.C. 2929.02(B)(1), which mandates an

indefinite prison term of fifteen years to life. In Duncan, however, the trial court sentenced the

defendant to a prison term of “life with the possibility of parole.” In vacating the trial court’s

sentence, the Second District relied on Kemp, in determining that the trial court exceeded its

authority by sentencing the defendant to a prison term that “appears more like [the sentencing]

language appearing in R.C. 2929.03(A)(1)(b)-(d),” and does not comport with the language of

R.C. 2929.02(B)(1). In rejecting an argument that is analogous to that currently posed by the

state in this case, the court explained:

           We reject the state’s argument that the sentence imposed has no practical
           consequence because it has the same outcome for purposes of parole. Regardless
           of whether the two sentences permit parole at the same time, they are two
           different sentences. One is set forth by statute, the other is not. The trial court
           converted an indefinite sentence required by statute into a de facto definite
           sentence. Thus, we conclude that the trial court exceeded its authority in
           sentencing, rendering void the sentence imposed.

Duncan at ¶ 14.

           {¶21} While recognizing the relevance of Kemp and Duncan, the state maintains that the

decisions were incorrectly decided, because they require the trial court to track the statutory

language in its judgment entry when imposing a sentence in contravention of established

precedent. We disagree with the state’s interpretation of Kemp and Duncan. In our view, the

decisions do not require trial courts to provide a word-for-word recitation of relevant sentencing

statutes.     Rather, Kemp and Duncan recognize the fundamental differences between the

sentences permitted for murder (R.C. 2929.02(B)) and aggravated murder (R.C. 2929.03(A)), and

require the trial court to impose a sentence that comports with the language of the applicable

statute.
        {¶22} With that said, we recognize that this court has previously declined to apply Kemp

and Duncan to a circumstance where the trial court sentenced the defendant to “20 full years to

life in prison’” when the applicable statute required that he be sentenced to “life imprisonment

with parole eligibility after serving twenty full years of imprisonment.” State v. Melton, 8th

Dist. Cuyahoga No. 107076, 2018-Ohio-4699, citing former R.C. 2929.03(C)(2). This court

reasoned, in relevant part:

        After review, we find Kemp and Duncan to be distinguishable from the present
        case. Melton was sentenced under pre-S.B. 2 law. He was sentenced to an
        indefinite sentence of “20 full years to life in prison.” Although not the exact
        wording of the statute, the trial court did not convert a “de facto definite sentence”
        into an indefinite sentence — as it did in Kemp and Duncan — because Melton’s
        sentence was already an indefinite sentence. Accordingly, we find that Melton’s
        sentence is not contrary to law, and we are therefore barred by res judicata from
        addressing it.

Id. at ¶ 24.

        {¶23} However, after careful consideration, we find the factual distinction present in

Melton renders its conclusion inapplicable to the circumstances and specific arguments raised in

this appeal. Unlike Smith, the defendant in Melton was subject to former R.C. 2929.03(C)(2),

which applies to offenders who are found guilty of one or more specifications of aggravating

circumstances listed in R.C. 2929.04(A). The distinction is important because the aggravating

circumstances present in Melton’s case required him to serve 20 full years of imprisonment

before becoming eligible for parole, and made certain sentence diminutions codified under Ohio

Adm.Code 5120-2-10 unavailable to him. For this reason, we find the trial court’s inclusion of

the term “full” in Melton’s sentence was significant and avoided the “practical parole

complications” associated with the trial court’s failure to strictly adhere to the language set forth

under former R.C. 2929.03(C)(2). Conversely, because Smith was not subject to the “full”
language discussed in Melton, we find Kemp and Duncan’s precise adherence to the language of

the applicable sentencing statute to be instructive in this case.

       {¶24} As stated, the trial courts in Kemp and Duncan erred by imposing a sentence on a

murder conviction that more closely resembled the type of sentence that is appropriate for an

aggravated murder conviction under R.C. 2929.03(A), i.e., a prison term of life with parole

eligibility after a certain period of time. See R.C. 2929.03(A)(b)-(d). In contrast, the trial court

in this case imposed a prison term that more closely resembles the type of indefinite prison term

permitted for murder convictions under R.C. 2929.02(B)(1), i.e., a prison range defined by

minimum and maximum terms. Thus, while Kemp and Duncan address the reverse sentencing

scenario, the decisions demonstrate the legislatively constructed differences between the sentence

permitted for aggravated murder and the sentence permitted for murder.

       {¶25} We find no basis to invalidate the sentencing principles developed by this court in

Kemp, and the Second District in Duncan. While the state’s position of practicality is not lost

on this court, we find the legislature’s construction of the R.C. 2929.03(A) and 2929.02(B), and

its decision to use different statutory language in each sentencing statute, was intentional. One

expressly sets forth parole eligibility by statute, the other does not. Duncan, 2d Dist. Clark No.

2016-CA-77, 2016-Ohio-7658, at ¶ 14. Because the trial court imposed a sentence that does not

comport with the statutory language set forth in R.C. 2929.03(A), we conclude that the trial court

exceeded its authority in sentencing. Accordingly, the sentence imposed by the trial court is

void; Smith should have been sentenced to “life imprisonment with parole eligibility after

serving twenty years of imprisonment.”
       {¶26} Smith’s sole assignment of error is sustained. Smith’s sentence is reversed and

vacated, and the matter is remanded to the trial court for resentencing in accordance with this

opinion.

       {¶27} Sentence vacated and remanded for resentencing.

       It is ordered that appellant recover from appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution. Case remanded to the trial court for resentencing.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
