[Cite as State v. Hurst, 2014-Ohio-481.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 13 CA 64
MARK EDWARD HURST

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 07 CR 527


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         February 11, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KENNETH W. OSWALT                              MARK E. HURST
PROSECUTING ATTORNEY                           PRO SE
20 South Second Street, Fourth Floor           19 East Street
Newark, Ohio 43055                             Newark, Ohio 43055
Licking County, Case No. 13 CA 64                                                     2

Wise, J.

      {¶1}   Defendant-appellant, Mark E. Hurst, appeals the Licking County Court of

Common Pleas, July 9, 2013, denial of his Motion to Vacate/or Void Original and

Successive “Final Judgment Entries” for “Plain Error” of “Allied Offenses”, Motion to

Decrease and/or Void “Post Release Control”, Motion for New Sentencing Hearing and

Motion to Appoint Counsel.

      {¶2}   Appellee is the State of Ohio.

                      STATEMENT OF THE CASE AND FACTS

      {¶3}   On August 6, 2008, following a trial by jury, Appellant was found guilty of

one count of Pandering Obscenity Involving a Minor, a felony of the fourth degree, in

violation of R.C. §2907.321(A)(5); one count of Pandering Sexually Oriented Matter

Involving a Minor, a felony of the fourth degree, in violation of R.C. §2907.322(A)(5);

and one count of Illegal Use of a Minor In Nudity Oriented Material or Performance, a

felony of the fifth degree in violation of R.C. §2907.323(A)(3).    The offenses were

alleged to have taken place in March and April 2007.

      {¶4}   The trial court sentenced Appellant to 15 months on the charge of

Pandering Obscenity Involving a Minor; 15 months on the charge of Pandering Sexually

Oriented Matter Involving a Minor and 9 months on the charge of Illegal Use of a Minor

in Nudity Oriented Material or Performance, with all three sentences running

consecutive for an aggregate sentence of 39 months. Appellant was also classified as

a Tier 1 Sexual Offender under Ohio's Sex Offender Registration and Notification Law

(SORN Law). The Tier I classification was based on the 2008 amendments to the

SORN Law, commonly referred to as the Adam Walsh Act (AWA) or Senate Bill 10.
Licking County, Case No. 13 CA 64                                                         3


       {¶5}   Appellant appealed to this Court, which affirmed his sentence and

conviction by Opinion and Judgment Entry dated March 6, 2009. See, State v. Hurst,

2009-0hio-0938 (Licking App. No. 08-CA-0104, 5th Dist.) (Hurst I).

       {¶6}   Appellant served his full term, and was released under the supervision of

the Adult Parole Authority in November of 2011.

       {¶7}   In response to the Ohio Supreme Court holding in State v. Williams, 129

Ohio St.3d 344, 2011-Ohio-3374, on February 10, 2012, the State moved the trial court

to vacate Appellant's Tier I classification and to reclassify Appellant a "sexually oriented

offender,” under the law in effect prior to S.B. 10, commonly known as Megan's Law or

S.B. 5. The trial court granted the motion without a hearing, via Judgment Entry of

February 29, 2012.

       {¶8}   Appellant again appealed to this Court. During that appeal, this Court set

aside the "sexually-oriented offender" without the need to remand the matter to the trial

court and instead ordered: "Based upon the above, we find only that portion of

Appellant's sentence classifying him a sexually oriented offender is void. As a result,

this Court vacates the illegal portion of Appellant's sentence. Appellant's sentencing

entry is affirmed in all other respects, excepting his classification as a sexually oriented

offender, which is hereby vacated. The judgment of the Licking County Court of

Common Pleas is affirmed in part, vacated in part and final judgment entered." See,

State v. Hurst, 2012-0hio-6075 (Licking App. No. 12-CA-20, 5th Dist.) (Hurst II)

       {¶9}   On April 26, 2013, Appellant filed the following motions: (1) Motion to

Appoint Counsel; (2) Motion to Vacate and/or Void Original and Successive "Final
Licking County, Case No. 13 CA 64                                                       4


Judgment Entries" For "Plain Error" of "Allied Offenses"; (3) Motion to Decrease and/or

Void “Post Release Control; and, (4) Motion for a New "Sentencing Hearing".

      {¶10} The trial court denied these motions in a July 9, 2013 Judgment Entry

      {¶11} Appellant now appeals, assigning the following errors for review:

                                 ASSIGNMENTS OF ERROR

      {¶12} “I. THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLANT

WAS UNTIMELY IN FILING HIS POST-CONVICTION RELIEF AND BARRED BY THE

DOCTRINE OF RES JUDICATA.

      {¶13} II. THE TRIAL COURT VIOLATED THE APPELLANT’S RIGHT TO

ARTICLE XIV OF THE UNITED STATES CONSTITUTION, “EQUAL PROTECTION”

      {¶14} III. THE TRIAL COURT ABUSED THEIR DISCRETION WHEN THEY

DENIED APPELLANT’S CHALLENGE OF THE SENTENCES FOR CRIMES OF

“SIMILAR IMPORT”, FOR REASONS OF TIME-BARRED AND RES JUDICATA.

      {¶15} IV. TRIAL COURT ABUSED THEIR DISCRETION WHEN THEY DID NOT

ADDRESS THE ISSUE OF THE ILLEGAL DENIAL OF SENTENCING HEARING

DEMANDED BY O.R.C. §2929.19, THAT APPELLANT WAS DENIED AFTER TRIAL.

                                             I., III.

      {¶16} In his First and Third Assignments of Error, Appellant argues that the trial

court erred in denying his motion for post-conviction relief. We disagree.

      {¶17} While Appellant assigns error to the trial court’s determination that his

post-conviction relief motion was untimely, we find Appellant has wholly failed to provide

any explanation concerning the legal reasons in support of this argument.

      {¶18} App.R.16 (A)(7) provides:
Licking County, Case No. 13 CA 64                                                          5


       {¶19} “The appellant shall include in its brief, under the headings and in the

order indicated, all of the following: * * * An argument containing the contentions of the

appellant with respect to each assignment of error presented for review and the reasons

in support of the contentions, with citations to the authorities, statutes, and parts of the

record on which appellant relies. The argument may be preceded by a summary.”

       {¶20} “If an argument exists that can support [an] assignment of error, it is not

this court's duty to root it out.” Thomas v. Harmon, 4th Dist. No. 08CA17, 2009–Ohio-

3299, ¶ 14, quoting State v. Carman, 8th Dist. No. 90512, 2008–Ohio–4368, ¶ 31. “It is

not the function of this court to construct a foundation for [an appellant's] claims; failure

to comply with the rules governing practice in the appellate courts is a tactic which is

ordinarily fatal.” Catanzarite v. Boswell, 9th Dist. No. 24184, 2009–Ohio–1211, ¶ 16,

quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 9th Dist.1996).

Therefore, “[w]e may disregard any assignment of error that fails to present any

citations to case law or statutes in support of its assertions.” Frye v. Holzer Clinic, Inc.,

4th Dist. No. 07CA4, 2008–Ohio–2194, ¶ 12. See, also, App.R. 16(A)(7); App.R.

12(A)(2); Albright v. Albright, 4th Dist. No. 06CA35, 2007–Ohio–3709, ¶ 16; Tally v.

Patrick, 11th Dist. No. 2008–T–0072, 2009–Ohio–1831, ¶¶ 21–22; Jarvis v. Stone, 9th

Dist. No. 23904, 2008–Ohio–3313, ¶ 23; State v. Paulsen, 4th Dist. Nos. 09CA15,

09CA16, 2010–Ohio-806, ¶ 6; State v. Norman, 5th Dist. No. 2010–CA–22, 2011–Ohio–

596, ¶ 29; State v. Untied, 5th Dist. No. CT20060005, 2007 WL 1122731, ¶ 141.

       {¶21} According to App. R. 12(A)(2):

       {¶22} “The court may disregard an assignment of error presented for review if

the party raising it fails to identify in the record the error on which the assignment of
Licking County, Case No. 13 CA 64                                                       6


error is based or fails to argue the assignment separately in the brief, as required under

App. R. 16(A).”

       {¶23} An appellate court may rely upon App.R. 12(A) in overruling or

disregarding an assignment of error because of “the lack of briefing” on the assignment

of error. Hawley v. Ritley, 35 Ohio St.3d 157, 159, 519 N.E.2d 390, 392–393(1988);

Abon, Ltd. v. Transcontinental Ins. Co., 5th Dist. No. 2004–CA–0029, 2005 WL

1414486, ¶ 100; State v. Miller, 5th Dist. No. 04–COA–003, 2004–Ohio–4636, ¶ 41.

“Errors not treated in the brief will be regarded as having been abandoned by the party

who gave them birth.” Uncapher v. Baltimore & Ohio Rd. Co., 127 Ohio St. 351, 356,

188 N.E. 553, 555(1933).

       {¶24} We shall therefore only address Appellant’s arguments as they relate to

the trial court’s determination that Appellant’s motion is barred by the doctrine of res

judicata.

       {¶25} “Under the doctrine of res judicata, a final judgment of conviction bars the

convicted defendant from raising and litigating in any proceeding, except an appeal from

that judgment, any defense or 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.” State v. Perry, 10 Ohio St.2d 175, 180,

226 N.E.2d 104 (1967).

       {¶26} Appellant, in his motion to vacate his sentence, argues that the offenses

for which he was previously convicted and sentenced were “allied offenses” and that the

trial court erred in sentencing. Appellant did not raise this sentencing error on direct
Licking County, Case No. 13 CA 64                                                       7


appeal, as he could have done. On this basis, the trial court found that his motion to

vacate was barred by res judicata.

      {¶27} Appellant argues that the trial court's judgment of conviction and his

resulting sentences were void. 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.” State v. Parson, 2d Dist. Montgomery No. 24641, 2012–Ohio–730, ¶

8; State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 233, ¶ 8.

      {¶28} Under Ohio law, there are “but two reasons that a judgment is void: ‘[the

judgment] has been imposed by a court that lacks subject-matter jurisdiction over the

case or the authority to act.’ " Lamb v. Lamb, 2d Dist. Montgomery No. 92–DM–1074,

2011–Ohio–2970, ¶ 12, quoting State v. Simpkins, 117 Ohio St.3d 420, 2008–Ohio–

1197, 884 N.E.2d 568, ¶ 12.

      {¶29} 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. Moreover, “defendants with a voidable sentence are entitled to re-

sentencing only upon a successful challenge on direct appeal.” State v. Payne, 114

Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306, ¶ 30.

      {¶30} Even if we accept that the trial court erred at the time of sentencing when

it failed to find that one or more of Appellant's offenses were allied offenses of similar

import, Appellant’s sentence is merely voidable and not void. Id.
Licking County, Case No. 13 CA 64                                                         8


       {¶31} The trial court clearly had jurisdiction over Appellant's case and the

authority to impose a sentence upon him. Further, Appellant’s sentence was within the

statutory limits and was provided for by law. Thus, his sentence was not void.

       {¶32} Arguments challenging the imposition of a sentence that is voidable are

barred by the doctrine of res judicata if not raised on direct appeal. Parson, supra, citing

State v. Simpkins, 117 Ohio St.3d 420, 2008–Ohio–1197, 884 N.E.2d 568, ¶ 30. Res

judicata precludes a defendant from raising an issue “in a motion for post-conviction

relief if he or she could have raised the issue on direct appeal.” State v. Reynolds, 79

Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997). Because Appellant’s sentence, assuming

his allied offense argument had merit, would be voidable, he is barred by the doctrine of

res judicata from challenging his sentence on those grounds collaterally through his

petition for post-conviction relief. Smith v. Voorhies, 119 Ohio St.3d 345, 2008–Ohio–

4479, 894 N.E.2d 44, ¶ 10–11 (“allied-offense claims are non-jurisdictional,” and, thus,

barred by the doctrine of res judicata where they were raised, or could have been

raised, on direct appeal).

       {¶33} Further, because Appellant's sentence is not void, his motion to vacate

sentence was properly reclassified by the trial court as a petition for post-conviction

relief. State v. Reynolds, 79 Ohio St.3d 158, 160 (1997). The motion was untimely

because it was not filed within 180 days after the time for filing an appeal expired, and

the conditions for extending that time were not satisfied. See R.C. 2953.21(A)(2) and

R.C. §2953.23(A).
Licking County, Case No. 13 CA 64                                                          9


       {¶34} Based on the foregoing, we find Appellant’s sentence is not void. The trial

court correctly construed his motion to vacate sentence as a petition for post-conviction

relief and correctly determined that he was not entitled to relief.

       {¶35} Appellant’s First and Third Assignments of Error are denied.

                                                 II.

       {¶36} In his Second Assignment of Error, Appellant argues that the trial court

violated his right to equal protection under Article XIV of the United States Constitution.

We disagree.

       {¶37} Appellant argues that because the State was allowed to move the trial

court to modify the sexual offender classification portion of his sentence, he should be

permitted to raise an allied offense sentencing error argument.

       {¶38} Upon review, we find Appellant’s argument not well-taken.

       {¶39} A retroactive classification of an offender under S.B. 10 for an offense

committed before the effective date of that act “was not merely voidable, but void.” State

v. Knowles, 2d Dist Champaign No. 2011–CA–17, 2012–Ohio–2543, ¶ 9–10, following

State v. Eads, 2d Dist. Montgomery No. 24696, 2011–Ohio–6307, ¶ 24.

       {¶40} However, as set forth above, an argument challenging the imposition of a

sentence that is “voidable” is barred by the doctrine of res judicata if not raised on direct

appeal. Parson, supra, citing State v. Simpkins, 117 Ohio St.3d 420, 2008–Ohio–1197,

884 N.E.2d 568, ¶ 30.

       {¶41} As a “void” judgment and a “voidable” judgment are distinctly different, we

do not find that the State and Appellant were similarly situated litigants for purposes of

an Equal Protection analysis.
Licking County, Case No. 13 CA 64                                                       10


      {¶42} Appellant’s Second Assignment of Error is overruled.

                                           IV.

      {¶43} In his Fourth and final Assignment of Error, Appellant claims that the trial

court erred in not granting his motion for a new sentencing hearing. We disagree.

      {¶44} It does not appear that the trial court formally ruled upon or addressed

Appellant’s motion for a new sentencing hearing. It is well-settled that, when a motion is

not ruled on, it is deemed to be denied. Newman v. Al Castrucci Ford Sales, Inc. (1988),

54 Ohio App.3d 166, 169, 561 N.E.2d 1001; Solon v. Solon Baptist Temple, Inc. (1982),

8 Ohio App.3d 347, 457 N.E.2d 858; State v. Whitaker, Cuyahoga App. No. 83824,

2004-Ohio-5016.

      {¶45}    This Court, in its previous Opinion in Hurst II, vacated the illegal portion

of Appellant’s sentence and affirmed his sentence in all other aspects, therein ordering

final judgment without the need for remand or a new sentencing hearing.

      {¶46}    Based on our remand, we do not find error in the trial court’s failure to

conduct a new sentencing hearing.
Licking County, Case No. 13 CA 64                                               11


       {¶47}   Accordingly, Appellant’s Fourth Assignment of Error is denied.

       {¶48}   For the foregoing reasons, the judgment of the Court of Common Pleas

of Licking County, Ohio, is affirmed.


By: Wise, J.

Hoffman, P. J, and

Farmer, J., concur.
Licking County, Case No. 13 CA 64   12
