131 N.E.3d 321 (Ohio App. 8 Dist. 2019), 106893, State v. Smith

Docket Nº106893
Citation131 N.E.3d 321, 2019-Ohio-155
Opinion JudgeEILEEN T. GALLAGHER, J.
Party NameSTATE of Ohio, Plaintiff-Appellee v. Edward A. SMITH, Defendant-Appellant
AttorneyEdward A. Smith, pro se, Inmate No. R135659, Marion Correctional Institution, FOR APPELLANT Michael C. O’Malley, Cuyahoga County Prosecutor, BY: Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, The Justice Center, ATTORNEYS FOR APPELLEE
Judge PanelBEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Celebrezze, J. EILEEN A. GALLAGHER, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR
Case DateJanuary 17, 2019
CourtCourt of Appeals of Ohio

Page 321

131 N.E.3d 321 (Ohio App. 8 Dist. 2019)

2019-Ohio-155

STATE of Ohio, Plaintiff-Appellee

v.

Edward A. SMITH, Defendant-Appellant

No. 106893

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 17, 2019

Page 322

Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-88-226041-A.

Edward A. Smith, pro se, Inmate No. R135659, Marion Correctional Institution, FOR APPELLANT

Michael C. O’Malley, Cuyahoga County Prosecutor, BY: Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, The Justice Center, ATTORNEYS FOR APPELLEE

BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.

[¶1] Defendant-appellant, Edward Smith, appeals pro se from his sentence following a guilty plea. He raises the following assignment of error for review: The trial court erred as a matter of law when sentencing defendant-appellant to 20 years to life and abused its discretion in denying defendant’s motion to correct a facially illegal sentence where defendant-appellant’s sentence is contrary to law.

[¶2] After careful review of the record and relevant case law, we vacate Smith’s sentence and remand the matter to the trial court for proceedings consistent with this opinion.

I. Procedural and Factual History

[¶3] In November 1985, Smith fatally stabbed the victim, while burglarizing the victim’s home. Smith was 17 years of age at the time. In July 1988, Smith entered into a plea agreement with the state of

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Ohio in which he pled guilty to aggravated murder. On the same day of his plea, the trial court sentenced Smith to 20 years to life in prison. The sentence was ordered to run concurrently to three other cases Smith had pending at that time.

[¶4] In July 2013, Smith filed a "motion to void sentence," alleging that his sentence was void and that the trial court lacked subject matter jurisdiction over his case. In August 2013, the trial court denied the motion without a hearing.

[¶5] In November 2013, Smith filed a pro se "motion to void judgment and correct under Civ.R. 60(B)." Smith reiterated the arguments raised in his July 2013 motion, alleging that the trial court lacked jurisdiction to impose the 20-year-to-life prison term. In December 2013, the trial court denied the motion without a hearing.

[¶6] In August 2014, the trial court issued the following entry regarding Smith to the Ohio Adult Parole Authority: The court is in receipt of the Ohio Adult Parole Authority’s 08/14/2014 notice of offender’s hearing before the parole board. The court imposed a sentence after due consideration of all relevant factors and opposes any reduction or modification of sentence by the Ohio parole board from that which was imposed.

[¶7] In January 2015, the Ohio Parole Board held a hearing to determine whether it would release Smith. The parole board decided not to release Smith because of the severity of his crime and serious infractions he committed while incarcerated. The parole board found that Smith’s release would create either an undue risk to public safety or be inconsistent with the welfare and security of society.

[¶8] In June 2015, which was approximately five months after the parole board’s decision, Smith filed a motion seeking to withdraw his previously entered guilty plea. In his motion, Smith argued the trial court breached his plea agreement when the trial court submitted a letter to the Adult Parole Authority opposing his release.

[¶9] Following a hearing, the trial court denied Smith’s motion to withdraw his guilty plea. This court affirmed the trial court’s judgment in State v. Smith, 8th Dist. Cuyahoga No. 104263, 2017-Ohio-1155, 2017 WL 1179934.

[¶10] In February 2018, Smith filed a "motion to void sentence." In the motion, Smith argued that his sentence is contrary to law and that the trial court exceeded its authority under the Ohio Revised Code by imposing a prison term of 20 years to life. The trial court denied Smith’s motion without a hearing.

[¶11] Smith now appeals the trial court’s judgment.

II. Law and Analysis

[¶12] In his sole assignment of error, Smith argues "the trial court erred as a matter of law by sentencing him to 20 years to life and abused its discretion in denying his motion to correct an illegal sentence where the sentence is contrary to law." Smith contends that the trial court exceeded its authority in sentencing him to a term of imprisonment that is not authorized by the Ohio Revised Code.

[¶13] While there is no constitutional right to appellate review of a criminal sentence, R.C. 2953.08 confers statutory rights upon a defendant to appeal from some felony sentences. See State v. Smith, 80 Ohio St.3d 89, 97, 684 N.E.2d 668 (1997). R.C. 2953.08(A) authorizes a defendant to challenge a sentence that is "contrary to law." But the statute bars that appeal when the sentence to be reviewed, as here, was imposed for the crime of aggravated murder. Specifically, R.C. 2953.08(D)(3) provides, "[a] sentence imposed

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for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review under [R.C. 2953.08]." Accordingly, evidentiary review of a sentence imposed by a trial court pursuant to R.C. 2929.03(A) is precluded. See State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, 2014 WL 4100944, ¶ 64.

[¶14] In this case, however, Smith does not challenge the evidentiary basis supporting his sentence. Rather, Smith maintains that the trial court imposed a prison term that is not authorized under R.C. 2929.03(A), and is, therefore, void. This court has previously recognized that no court has the authority to impose sentences that are void as a matter of law. State v. Lee, 8th Dist. Cuyahoga, 2018-Ohio-1839, 112 N.E.3d 65, ¶ 6, citing State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 28. Thus, regardless of the restrictions set forth under R.C. 2953.08(D), "an appellate court has authority to review sentences that are void." Id., citing Williams at ¶ 28; State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 25. See also

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 20 ("A trial court does not have the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory provisions."), citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 27 ("Every judge has a duty to impose lawful sentences."). Accordingly, while this court is not entitled to review the evidentiary basis supporting Smith’s sentence, we may review the record to determine whether the sentence imposed is void.

[¶15] We further note that the procedural history of this case, including the significant delay between the imposition of Smith’s sentence and this appeal, does not preclude our review. Generally, "if the sentencing court had jurisdiction and statutory authority to act, sentencing errors do not render the sentence void and the sentence can be set aside only if successfully challenged on direct appeal." Williams at ¶ 23, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6-7. However, because "[n]o court has the authority to impose a sentence that...

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