         [Cite as State v. Ingles, 2011-Ohio-2901.]


                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-100297
                                                          TRIAL NOS. B-9802147
        Plaintiff-Appellee,                           :              B-9800321

  vs.                                                 :        D E C I S I O N.

EARL INGLES,                                          :

     Defendant-Appellant.                             :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed as Modified

Date of Judgment Entry on Appeal: June 17, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Earl Ingles, pro se.




Please note: we have removed this case from the accelerated calendar.
                   OHIO FIRST DISTRICT COURT OF APPEALS



SUNDERMANN, Judge.

        {¶1}    Defendant-appellant Earl Ingles presents on appeal a single

assignment of error, challenging the Hamilton County Common Pleas Court’s

judgments overruling his Civ.R. 60(B) motions for relief from his judgments of

conviction. We do not reach the merits of this challenge because the common pleas

court had no jurisdiction to entertain the motions.

        {¶2}    In 1998, following a joint trial on the charges contained in the

indictments in the cases numbered B-9800321 and B-9802147, Ingles was convicted

upon jury verdicts finding him guilty of five counts of kidnapping, two counts of

gross sexual imposition, and a single count of attempted kidnapping.                         He

unsuccessfully challenged his convictions in direct appeals to this court and to the

Ohio Supreme Court1 and, collaterally, in postconviction motions filed in 2005 in the

common pleas court. In February 2009, Ingles again collaterally challenged his

convictions, this time in Civ.R. 60(B) motions. The common pleas court overruled

the motions, and this appeal followed.

        {¶3}    Ingles’s 2009 motions sought relief from his convictions “pursuant to

Civil Rule 60(B) and Criminal Rule 57.” But Crim.R. 57(B) instructs a court to “look

to the rules of civil procedure” only “if no rule of criminal procedure exists.” Crim.R.

35 governs the proceedings upon a petition under R.C. 2953.21 et seq. for

postconviction relief. And R.C. 2953.21 et seq. provide “the exclusive remedy by

which a person may bring a collateral challenge to the validity of a conviction or

sentence in a criminal case.”2 Therefore, the common pleas court should have recast



1 See State v. Ingles (Dec. 3, 1999), 1st Dist. Nos. C-980673 and C-980674, leave to file delayed
appeal denied, 99 Ohio St.3d 1539, 2003-Ohio-4671, 795 N.E.2d 679 .
2 R.C. 2953.21(J).




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                      OHIO FIRST DISTRICT COURT OF APPEALS



Ingles’s Civ.R. 60(B) motions as postconviction petitions and reviewed them under

the standards provided by R.C. 2953.21 et seq.3

          {¶4}    But Ingles filed his motions well after the expiration of the time

prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the jurisdiction

of a common pleas court to entertain a tardy postconviction petition: the petitioner

must show either that he was unavoidably prevented from discovering the facts upon

which his petition depends, or that his claim is predicated upon a new or

retrospectively applicable federal or state right recognized by the United States

Supreme Court since the expiration of the time prescribed by R.C. 2953.21(A)(2) or

since the filing of his last petition; and he must show “by clear and convincing

evidence that, but for constitutional error at trial, no reasonable factfinder would

have found [him] guilty of the offense of which [he] was convicted.”

          {¶5}    Ingles did not demonstrate that he had been unavoidably prevented

from discovering the facts upon which his postconviction claims depended. Nor did

he predicate his postconviction claims upon a new or retrospectively applicable

federal or state right recognized by the United States Supreme Court since the

prescribed time had expired.             Because Ingles failed to satisfy either the time

restrictions of R.C. 2953.21(A)(2) or the jurisdictional requirements of R.C. 2953.23,

the common pleas court had no jurisdiction to entertain Ingles’s postconviction

motions on their merits.

          {¶6}    And because the common pleas court lacked jurisdiction to entertain

the motions, the motions were subject to dismissal. Accordingly, upon the authority




3   See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶12.


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                   OHIO FIRST DISTRICT COURT OF APPEALS



of App.R. 12(A)(1)(a), we modify the judgments appealed from to reflect a dismissal

of the motions. And we affirm the judgments as modified.

                                                          Judgments affirmed as modified.

HENDON, J., concurs.
CUNNINGHAM, P.J., concurs in part and dissents in part.

CUNNINGHAM, P.J., concurring in part and dissenting in part.

       {¶7}    I join the majority in affirming as modified the common pleas court’s

judgments dismissing Ingles’s postconviction motions for lack of jurisdiction. But a

trial court retains jurisdiction to correct a void judgment.4            And the sentences

imposed for the kidnapping offenses charged in counts one and three of the

indictment in the case numbered B-9800321 are void because the trial court lacked

the statutory authority to impose them. I would, therefore, vacate those sentences

and remand for resentencing.

       {¶8}    The kidnapping charges in counts one and three of the indictment in

the case numbered B-9800321 each carried a sexual-motivation specification and a

sexually-violent-predator specification. With respect to each offense, the jury found

that Ingles had acted with a sexual motivation, and the trial court found that Ingles

was a “sexually violent predator” for purposes of the sentencing-enhancement

provisions of R.C. Chapter 2971.             Thus, the trial court, pursuant to R.C.

2971.03(A)(3), enhanced Ingles’s sentences for the sexually motivated kidnappings,

imposing for each offense a prison term of nine years to life, instead of a definite

prison term of up to ten years prescribed for first-degree-felony kidnapping.5




4 See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶18-
19.
5 See R.C. 2929.14(A)(1).




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                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    R.C. 2971.03, in relevant part, mandates an enhanced sentence upon a

guilty verdict or plea on a kidnapping charge if the offender also “is convicted of or

pleads guilty to both a sexual motivation specification and a sexually violent predator

specification that were included in the * * * count in the indictment * * * charging

that offense.”6 In 1998, when Ingles was sentenced, R.C. 2971.01(H)(1) defined a

“sexually violent predator” as “a person who has been convicted of or pleaded guilty

to committing, on or after January 1, 1997, a sexually violent offense and is likely to

engage in the future in one or more sexually violent offenses.”7 In 2005, the General

Assembly amended the statute to define a “sexually violent predator” as “a person

who, on or after January 1, 1997, commits a sexually violent offense and is likely to

engage in the future in one or more sexually violent offenses.”8               The 2005

amendment was prompted by the Ohio Supreme Court’s 2004 decision in State v.

Smith.9

       {¶10} In Smith, the supreme court held that a “[c]onviction of a sexually

violent offense cannot support the specification that the offender is a sexually violent

predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and

the * * * specification are charged in the same indictment.”10 The court’s holding in

Smith derived from its reading of R.C. 2971.01(H)(1) to require that a sexually-

violent-predator specification be supported by a sexually-violent-offense “conviction

* * * that [had] existed prior to the * * * indictment” charging the specification.11




6 R.C. 2971.03(A).
7 Emphasis added.
8 Emphasis added.
9 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283 .
10 See id., syllabus.
11 See id. at ¶27.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



        {¶11} In the proceedings below, the trial court enhanced Ingles’s sentences

for the sexually motivated kidnappings based upon its finding, in support of the

accompanying sexually-violent-predator specifications, that Ingles was a “sexually

violent predator.”      But the court’s finding that Ingles was a “sexually violent

predator” was based on the conduct underlying the sexually-violent-offense charges

contained in the indictments in the cases numbered B-9800321 and B-9802147.

Thus, the court’s finding that Ingles was a “sexually violent predator” was not, as

former R.C. 2971.01(H)(1) had required, based on a sexually-violent-offense

“conviction * * * that [had] existed prior to the * * * indictment” in the case

numbered      B-9800321       charging    the    sexually-violent-predator      specifications.

Accordingly, R.C. Chapter 2971 did not confer upon the trial court the authority to

enhance Ingles’s sentences for the sexually motivated kidnappings.

        {¶12} The Ohio Supreme Court has long recognized and has recently

“reaffirmed [the] vital principle” that “[n]o court has the authority to impose a

sentence that is contrary to law.”12 And it has “consistently” held that “a sentence

that is not in accordance with statutorily mandated terms is void.”13 A void sentence

“may be reviewed at any time, on direct appeal or by collateral attack.”14 Thus,

irrespective of a case’s procedural posture, when a trial court has imposed a sentence

that it had no statutory authority to impose, and the matter has come to a court’s

attention, the sentence must be vacated, and the defendant must be resentenced.15




12 State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶23 (citing Colgrove v.
Burns [1964], 175 Ohio St. 437, 438, 195 N.E.2d 811 ).
13 Id. at ¶8 (citing Colgrove, 175 Ohio St. 437, and its progeny).
14 See id., paragraph one of the syllabus.
15 See State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶12; accord State v.
Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077, ¶17-20; State v. Long, 1st
Dist. No. C-100285, 2010-Ohio-6115, ¶5.


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                   OHIO FIRST DISTRICT COURT OF APPEALS



        {¶13} R.C. Chapter 2971, as it provided in 1998 when Ingles was sentenced,

did not confer upon the trial court the authority to enhance Ingles’s sentences for

kidnapping as charged in counts one and three of the indictment in the case

numbered B-9800321. Therefore, those sentences are void.

        {¶14} The Eighth Appellate District concluded to the contrary in addressing

a Smith claim in its 2006 decision in State v. Waver.16 Waver had petitioned the

court of appeals for a writ of mandamus to compel the trial court to vacate his 1997

rape and felonious-assault convictions. The court of appeals denied the petition

upon its determination that mandamus was not appropriate, and that only an

“[a]ppeal [would provide] the remedy” for Waver’s Smith claim.17 In so holding, the

court concluded that a successful Smith claim would not have rendered Waver’s

convictions void, because the supreme court in Smith had expressly held that “the

trial court erred in relying on the jury’s convictions of the underlying rape and

kidnapping charges to prove the sexually-violent-predator specification alleged in the

same indictment.”18

        {¶15} The Waver decision is not controlling on this appellate district. Nor is

it persuasive. For the purpose of determining whether a Smith error renders a

sentence void, we perceive no significance in the supreme court’s use of the word

“erred” in declaring its holding.       The void-or-voidable issue was not before the

supreme court in Smith because the case was before the court on direct appeal,

requiring no more to “remedy” the sentencing error than to hold that “the trial court

erred” and to order that Smith be resentenced. But a void-or-voidable inquiry is not



16 8th Dist. No. 87495, 2006-Ohio-1743.
17 Id. at ¶4.
18 Smith, 104 Ohio St.3d 106, at ¶33 (quoted and emphasis added in Waver, supra, at ¶4).




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                    OHIO FIRST DISTRICT COURT OF APPEALS



superfluous when, as here and in Waver, it is undertaken in a collateral proceeding.

To the contrary, the determination in a collateral proceeding of whether a sentencing

error rendered a sentence void effectively determines whether the court may

“remedy” the error at all.19

        {¶16} Because R.C. Chapter 2971, as it provided when Ingles was sentenced,

did not confer upon the trial court the authority to enhance Ingles’s sentences for

kidnapping as charged in counts one and three of the indictment in the case

numbered B-9800321, the sentences are void.                I would, therefore, vacate those

sentences and remand for resentencing.

        {¶17} And because this disposition would conflict with the decision of the

Eighth Appellate District in Waver, I would, upon the authority conferred by Section

3(B)(4), Article IV, Ohio Constitution, certify to the Ohio Supreme Court the

following question: “Is a sentence imposed under former R.C. Chapter 2971 void,

when the finding that the offender was a ‘sexually violent predator’ was not, as

former R.C. 2971.01(H)(1) had required, based on a sexually-violent-offense

conviction that had existed prior to the indictment charging the sexually-violent-

predator specification.”



Please Note:

        The court has recorded its own entry on the date of the release of this decision.




19 See Fischer, 128 Ohio St.3d at ¶40 (holding that “void sentences are not precluded from
appellate review by principles of res judicata and may be reviewed at any time, on direct appeal or
by collateral attack”).


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