         [Cite as State v. Hengehold, 2016-Ohio-5383.]




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



STATE OF OHIO,                                    :      APPEAL NO. C-150402
                                                          TRIAL NO. B-905998
        Plaintiff-Appellee,                       :
                                                            O P I N I O N.
  vs.                                             :

JEFFREY HENGEHOLD,                                :

    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 17, 2016




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

Jeffrey Hengehold, pro se.
                   OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}     Defendant-appellant Jeffrey Hengehold appeals from the Hamilton

County Common Pleas Court’s judgment overruling his “Motion for Re-Sentencing

Based on Void Judgment.” We affirm the court’s judgment.

       {¶2}     Hengehold was convicted of murder and arson in 1991. We affirmed

his convictions in his direct appeal. State v. Hengehold, 1st Dist. Hamilton No. C-

910143 (Dec. 31, 1991), appeal not accepted, 63 Ohio St.3d 1472, 591 N.E.2d 242

(1992).

       {¶3}     In 2015, he filed with the common pleas court a “Motion for Re-

Sentencing Based on Void Judgment.” In his motion, he sought resentencing on the

grounds that the trial court had violated R.C. 2947.23(A)(1), and his trial counsel had

been ineffective in failing to object, when the court, at his sentencing hearing, did not

provide notice that he could be ordered to perform community service if he did not

pay the costs of his prosecution. In this appeal from the overruling of that motion,

Hengehold advances three assignments of error.

                      Ground Not Asserted in the Motion

       {¶4}     We address first Hengehold’s third assignment of error, in which he

contends that the trial court violated R.C. 2929.19(B)(6) in ordering him to pay the

costs of his prosecution without first considering his ability to pay. This court has

jurisdiction to review only the judgment from which Hengehold appeals. In that

judgment, the common pleas court overruled Hengehold’s 2015 motion for

resentencing.    In overruling the motion, the court did not rule upon, because

Hengehold had not asserted in his motion, a challenge to the trial court’s order that he

pay costs. Therefore, we do not reach the merits of this challenge. See State v.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



Gipson, 1st Dist. Hamilton Nos. C-960867 and C-960881, 1997 Ohio App. LEXIS

4404 (Sept. 26, 1997).

                         Grounds Asserted in the Motion

       {¶5}    In his first assignment of error, Hengehold contends that the trial

court violated R.C. 2947.23(A)(1) in failing to provide at sentencing community-

service-for-nonpayment-of-costs notification. In his second assignment of error, he

asserts that his trial counsel was ineffective in not objecting to the trial court’s failure

to provide that notification. Because each assignment of error essentially restates a

ground for relief advanced in Hengehold’s postconviction motion for resentencing, it

may fairly be read to challenge the common pleas court’s denial of the relief sought

in the motion on that ground.

       {¶6}    In his motion, Hengehold did not designate a statute or rule under

which the relief sought might be afforded. The common pleas court was, therefore,

free to “recast” the motion “into whatever category necessary to identify and

establish the criteria by which the motion should be judged.” State v. Schlee, 117

Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.

       {¶7}    Ineffective assistance of counsel. R.C. 2953.21 et seq.,

governing the proceedings upon a petition for postconviction relief, 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).      Under the

postconviction statutes, a common pleas court may grant a petitioner relief from his

conviction upon proof of a constitutional violation during the proceedings resulting

in his conviction that rendered his conviction void or voidable.                 See R.C.

2953.21(A)(1); State v. Powell, 90 Ohio App.3d 260, 264, 629 N.E.2d 13 (1st

Dist.1993).




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}   With his claim that his trial counsel had been ineffective concerning

community-service-for-nonpayment-of-costs notification, Hengehold effectively

invoked the Sixth and Fourteenth Amendments to the United States Constitution

and Article I, Section 10, of the Ohio Constitution. Thus, with respect to that claim,

his motion may fairly be read to seek resentencing based on a constitutional violation

in the proceedings leading to his conviction. Accordingly, the claim was reviewable

by the common pleas court under the standards provided by the postconviction

statutes.

       {¶9}   But Hengehold filed his petition well after the time prescribed by R.C.

2953.21(A)(2) had expired. The jurisdiction of a common pleas court to entertain a

late postconviction claim is closely circumscribed. The petitioner must show either

that he was unavoidably prevented from discovering the facts upon which his

postconviction claim depends, or that his claim is predicated upon a new

retrospectively applicable right recognized by the United States Supreme Court since

the time for filing his claim had expired. 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.”             R.C.

2953.23(A)(1).

       {¶10} The record does not, as it could not, demonstrate that, but for trial

counsel’s alleged ineffectiveness concerning community-service-for-nonpayment-of-

costs notification, “no reasonable factfinder would have found [Hengehold] guilty of

the offense[s] of which [he] was convicted.” R.C. 2953.23(A)(1)(b). Therefore, the

postconviction statutes did not confer upon the common pleas court jurisdiction to

entertain on the merits Hengehold’s postconviction challenge to his trial counsel’s

effectiveness in that regard. We, therefore, overrule the second assignment of error.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} Community-service-for-nonpayment-of-costs notification.

We do not reach the merits of Hengehold’s first assignment of error, challenging the

common pleas court’s denial of postconviction relief on the ground that the trial

court violated R.C. 2947.23(A)(1) in failing to provide community-service-for-

nonpayment-of-costs notification.

       {¶12} A court of appeals has only “such jurisdiction as may be provided by

law to review and affirm, modify, or reverse judgments or final orders of the courts of

record inferior to the court of appeals within the district.”      Article IV, Section

3(B)(2), Ohio Constitution. Hengehold’s motion seeking resentencing based on the

lack of community-service-for-nonpayment-of-costs notification was filed with the

common pleas court more than 24 years after his convictions and more than 23 years

after we affirmed his convictions in his direct appeal. The judgment denying that

relief is, therefore, not reviewable under this court’s jurisdiction under R.C. 2953.02

or 2953.08 to review a judgment of conviction entered in a criminal case. Nor is that

judgment reviewable under our jurisdiction under R.C. 2953.23(B) to review an

order denying postconviction relief, when relief was sought based on a statutory,

rather than a constitutional, violation. Nor is the judgment reviewable under our

jurisdiction under R.C. 2505.03(A) to review a “final order, judgment or decree,”

when it was not a “final order” as defined by R.C. 2505.02. See State v. Holmes, 1st

Dist. Hamilton No. C-150290, 2016-Ohio-4608, ¶ 6-14. Accord State v. Jones, 1st

Dist. Hamilton Nos. C-150303 and C-150312, 2016-Ohio-5109.

                         The Sentences Are Not Void

       {¶13} Finally, courts always have 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 Hengehold’s sentences would not have been rendered void by the




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                 OHIO FIRST DISTRICT COURT OF APPEALS



alleged error in the imposition of costs, by the lack of community-service-for-

nonpayment-of-costs notification, or by trial counsel’s alleged ineffectiveness

concerning that notification. See Strickland v. Washington, 466 U.S. 668, 694, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989) (holding that a conviction may be reversed on the ground of ineffective

assistance of counsel only upon proof of an outcome-determinative deficiency in

counsel’s performance); State v. Holmes, 1st Dist. Hamilton No. C-150290, 2016-

Ohio-4608, ¶ 5 (holding that a sentence is not rendered void by the trial court’s

failure to comply with R.C. 2929.19(B)(6) in ordering defendant to pay the costs of

his prosecution); State v. Wurzelbacher, 1st Dist. Hamilton No. C-130011, 2013-

Ohio-4009, ¶ 11 (holding that a sentence is not rendered void by the trial court's

failure to provide community-service-for-nonpayment-of-costs notification).

                              Affirmed as Modified

       {¶14} We do not reach the merits of the challenges advanced in Hengehold’s

first and third assignments of error. Because the postconviction statutes did not

confer on the common pleas court jurisdiction to entertain Hengehold’s late

postconviction challenge to his trial counsel’s effectiveness concerning community-

service-for-nonpayment-of-costs notification, the claim was subject to dismissal.

Accordingly, upon the authority of App.R. 12(A)(1)(a), we modify the judgment

appealed from to reflect the dismissal of the claim. And we affirm the judgment as

modified.

                                                      Judgment affirmed as modified.

FISCHER, P.J., HENDON and DEWINE, JJ.


Please note:

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


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