         [Cite as State v. Thomas, 2013-Ohio-3422.]




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



STATE OF OHIO,                                    :    APPEAL NO. C-120836
                                                       TRIAL NO. B-0905981
        Plaintiff-Appellee,                       :

  vs.                                             :        O P I N I O N.

MAURICE THOMAS,                                   :

    Defendant-Appellant.                          :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: August 7, 2013




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Maurice Thomas, pro se.




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



HILDEBRANDT, Presiding Judge.

        {¶1}   Defendant-appellant Maurice Thomas appeals from the Hamilton

County Common Pleas Court’s judgment overruling his “Motion to Correct an Illegal

Sentence.” We affirm the court’s judgment as modified.

        {¶2}   Thomas was convicted in 2009 upon guilty pleas to aggravated

robbery in violation of R.C. 2911.01(A)(1) and felonious assault in violation of R.C.

2903.11(A)(2).    He took no direct appeal from his convictions, but instead

unsuccessfully mounted collateral challenges to his convictions in a postconviction

petition filed in 2010 and in his “Motion to Correct an Illegal Sentence,” filed in

2012.

        {¶3}   In his 2012 motion, Thomas argued that the trial court could not,

consistent with R.C. 2941.25, have sentenced him for both aggravated robbery and

felonious assault, because the offenses were allied offenses of similar import

committed with the same conduct.        In this appeal, Thomas advances a single

assignment of error challenging the overruling of his motion. We find no merit to

this challenge.

        {¶4}   Thomas did not specify in his motion the statute or rule under which

he sought relief. R.C. 2953.21 et seq., governing the proceedings upon a postconviction

petition, 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.”        R.C.

2953.21(J).    Therefore, Thomas’s motion was reviewable under the standards

provided by the postconviction statutes. 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



       {¶5}    But Thomas filed his postconviction motion well after the time

prescribed by R.C. 2953.21(A)(2) had expired. R.C. 2953.23 closely circumscribes

the jurisdiction of a common pleas court to entertain a late postconviction claim: the

petitioner must show either that he was unavoidably prevented from discovering the

facts upon which his claim 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 postconviction claim; 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.”

       {¶6}   The record before us does not, as it could not, demonstrate that, but

for the claimed sentencing error, no reasonable factfinder would have found Thomas

guilty of the offenses of which he was convicted. Because Thomas satisfied neither

the time restrictions of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.

2953.23, the postconviction statutes did not confer upon the common pleas court

jurisdiction to entertain Thomas’s postconviction motion. See R.C. 2953.23(A).

       {¶7}   A court nevertheless has jurisdiction to correct a void judgment. See

State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d

263, ¶ 18-19. But the Ohio Supreme Court has not held that the imposition of a

sentence in violation of R.C. 2941.25 renders a judgment of conviction void. See

State v. Lee, 1st Dist. Hamilton No. C-120307, 2013-Ohio-1811, ¶ 8.

       {¶8}   Upon our determination that the common pleas court properly denied

Thomas the relief sought in his postconviction motion, we overrule the assignment of

error. Because the court had no jurisdiction to entertain Thomas’s motion on its




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                  OHIO FIRST DISTRICT COURT OF APPEALS



merits, the motion was subject to dismissal. Accordingly, upon the authority of

App.R. 12(A)(1)(a), we modify the judgment from which Thomas has appealed to

reflect the dismissal of the motion. And we affirm the judgment as modified.

                                                                  Affirmed as modified.

FISCHER, J., concurs.
CUNNINGHAM, J., concurs in part and dissents in part.

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

       {¶9}    I concur in the majority’s holding that the postconviction statutes did

not confer upon the common pleas court jurisdiction to entertain Thomas’s “Motion

to Correct an Illegal Sentence.”     But I respectfully dissent from the majority’s

conclusion that the court had no jurisdiction to entertain his allied-offenses claim.

For the reasons set forth in my concurring and dissenting opinion in State v. Lee, 1st

Dist. Hamilton No. C-120307, 2013-Ohio-1811, ¶ 21-30, I would instead hold that the

court had jurisdiction to entertain the claim because a sentence imposed in

contravention of R.C. 2941.25 is void and thus subject to review at any time. But I

would ultimately affirm the denial of the relief sought, because R.C. 2941.25

authorized the trial court to impose a sentence for each offense, when the record

supports a determination that each offense had been committed with a separate

animus.

       {¶10} And based on the conflict noted in Lee, I would, upon the authority

conferred by the Ohio Constitution, Article IV, Section 3(B)(4), certify to the Ohio

Supreme Court the following question: “Are sentences imposed in violation of R.C.

2941.25 void and thus subject to review at any time?” See Lee at ¶ 31.


Please note:
       The court has recorded its entry on the date of the release of this opinion.


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