[Cite as State v. Hughes, 2013-Ohio-1566.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99165



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  KENNETH HUGHES
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-398499

        BEFORE: Boyle, J., Stewart, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: April 18, 2013
FOR APPELLANT

Kenneth Hughes, pro se
Inmate No. A406-858
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43302

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

          {¶1} Defendant-appellant, Kenneth Hughes, appeals the trial court’s decision

denying his “motion to correct void sentence.” Finding no merit to this appeal, we

affirm.

                               Procedural History and Facts

          {¶2} In May 2001, Hughes pleaded guilty to two counts of aggravated murder,

each including a mass murder specification and one including a firearm specification.

The plea agreement included a sentence of life imprisonment with possibility of parole

after 63 years.     A three-judge panel ultimately determined the evidence established

Hughes’s guilt beyond a reasonable doubt and sentenced Hughes in accordance with his

plea agreement.     Hughes’s convictions and sentence were affirmed on direct appeal.

State v. Hughes, 8th Dist. No. 81019, 2003-Ohio-166, appeal not allowed, 99 Ohio St.3d

1436, 2003-Ohio-2902, 789 N.E.2d 1117. The federal district court subsequently denied

Hughes’s petition for habeas corpus.    Hughes v. Haviland, N.D. Ohio No. 1:04CV593,

2007 U.S. Dist. LEXIS 102781 (Oct. 16, 2007).

          {¶3} Hughes has filed several successive postconviction motions, including a

successive motion to vacate or set aside his sentence, all of which were denied by the trial

court and never appealed.     He also filed motions to withdraw his guilty plea that were

denied and unsuccessfully appealed.        See State v. Hughes, 8th Dist. No. 97311,

2012-Ohio-706. The instant appeal arises from Hughes’s filing of a motion to correct

void sentence on September 19, 2012.     The trial court denied the motion and this appeal
now follows.

                                        Void Sentence

          {¶4} In his single assignment of error, Hughes argues that the trial court erred in

denying his motion to correct void sentence because the trial court failed to comply with

sentencing statutes with respect to the mandatory three years imposed on the firearm

specification.

          {¶5} A void sentence is one imposed by a court that lacks subject-matter

jurisdiction or the authority to act.       State v. Payne, 114 Ohio St.3d 502, 2007-

Ohio-4642, 873 N.E.2d 306, ¶ 27.            As a general rule, sentencing errors are not

jurisdictional except where a sentence is not in accordance with statutorily-mandated

terms. State v. McCall, 7th Dist. No. 12MA57, 2012-Ohio-5604, citing State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 8. Thus, a sentencing entry that

fails to properly impose postrelease control where it is statutorily required has been

labeled a void sentence to the extent of the failure. Id. at ¶ 26-27.          Additionally,

“imposing a sentence outside the statutory range, contrary to the statute, is outside a

court’s jurisdiction, thereby rendering the sentence void ab initio.” Payne at fn. 3.

          {¶6} Hughes first argues that “[h]aving been convicted of a firearm specification

under R.C. 2941.145(A),” he “was only subject to a sentence of three years of actual

incarceration, not the sentence of three years incarceration pronounced by the trial

court.”     He contends that the trial court’s imposition of three years on the firearm

specification, without the specific reference to “actual incarceration” rendered his
sentence void.     Hughes’s argument appears to be based on the theory that, if the trial

court had imposed “three years actual incarceration,” he would have been entitled to a

reduction of the sentence for good behavior. But this argument has no basis under the

law. Nor does Hughes rely on any authority in support of his claim.                     See App.R.

16(A)(7) and 12(A)(2).1        Contrary to Hughes’s assertion, former R.C. 2929.14 that

governed at the time of his offense, did not make this purported distinction between

“actual incarceration” and “incarceration.”         Here, Hughes was subject to a mandatory

three-year prison term for his conviction of the firearm specification under R.C.

2941.145, which the trial court properly imposed.

       {¶7} Hughes next contends that the trial court’s sentencing order failed to specify

that the three years on the firearm specification must be served “not only consecutively

but also prior to the terms of imprisonment imposed for the underlying felonies,” and

therefore his sentence is void. This argument, likewise, has no merit. Former R.C.

2929.14(E)(1) provided that Hughes shall serve the mandatory term on the firearm

specification “consecutively to and prior to the prison term imposed for the underlying

felony.”   Here, the trial court properly ordered that Hughes’s firearm specification be

served consecutive to the underlying felony offense. We find no basis to conclude that

the trial court’s silence as to ordering it to be served prior to the underlying felony renders

the sentence void.


           Although Ohio’s sentencing statutes recognized “actual incarceration” as a statutorily
       1


defined term at one time and allowed for “good time” credit, this distinction was eliminated after the
passage of Am.Sub.S.B. No. 2 in 1996. See former R.C. 2929.01(C) — pre-S.B. 2.
       {¶8} Lastly, Hughes argues that he has a “state created liberty interest in being

subject to no sentence other than a mandatory * * * three years of actual incarceration.”

Having already found that the trial court properly imposed the mandatory three-year

sentence on the firearm specification, we reject this argument as well.

       {¶9} Hughes’s sole assignment of error is overruled.

       {¶10} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.      Case remanded to the trial court

for execution of sentence.




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

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

MELODY J. STEWART, A.J., and
MARY EILEEN KILBANE, J., CONCUR
