State v. Fischer

• Decision Date: 23 December 2010
• Docket Number: No. 2009–0897.,2009–0897.
• Citation: 942 N.E.2d 332,128 Ohio St.3d 92
• Parties: The STATE of Ohio, Appellee,v.FISCHER, Appellant.
• Court: Ohio Supreme Court

128 Ohio St.3d 92
942 N.E.2d 332
2010 -Ohio- 6238

The STATE of Ohio, Appellee,
v.
FISCHER, Appellant.

No. 2009–0897.

Supreme Court of Ohio.

Submitted March 30, 2010.Decided Dec. 23, 2010.

[942 N.E.2d 335]

[Ohio St.3d 92] Syllabus of the Court

1. A sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.

[Ohio St.3d 93] 2. The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. ( State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.)

3. Although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.

4. The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Claire R. Cahoon, Assistant Public Defender, for appellant.Kelly R. Curtis, urging reversal for amicus curiae Ohio Association of Criminal Defense Attorneys.Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, urging reversal for amicus curiae Cuyahoga County Public Defender.Mathias J. Heck Jr., Montgomery County Prosecuting Attorney, and Carly J. Ingram, Assistant Prosecuting Attorney,

[942 N.E.2d 336]

urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.

O'CONNOR, J.

O'Connor, J.

{¶ 1} In this appeal, we again address questions arising from a sentencing court's failure to impose postrelease control as mandated by the General Assembly. A sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack. Although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.

Relevant Background

{¶ 2} In 2002, a judge sentenced appellant, Londen K. Fischer, to an aggregate term of 14 years' imprisonment for aggravated robbery, felonious assault, having a weapon while under disability, and two counts of aggravated burglary, all with firearms specifications. A timely direct appeal followed, and his convictions were affirmed by the court of appeals. State v. Fischer, Summit App. No. 20988, 2003-Ohio-95, 2003 WL 118470 (rejecting sufficiency-of-the-evidence claims and Batson challenges).

{¶ 3} Several years later, Fischer successfully moved pro se for resentencing after this court issued its decision in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961 (holding that a sentence that omits a statutorily mandated postrelease term is void) because he had not been properly advised of his postrelease-control obligations. Thereafter, the trial court properly notified [Ohio St.3d 94] Fischer of those obligations and reimposed the remainder of the sentence. Fischer appealed.

{¶ 4} On appeal, he asserted that because his original sentence was void, his first direct appeal was “not valid” and that this appeal is in fact “his first direct appeal” in which he may raise any and all issues relating to his conviction. State v. Fischer, 181 Ohio App.3d 758, 2009-Ohio-1491, 910 N.E.2d 1083, ¶ 4 and 5. The court of appeals rejected his claim, holding that the appeal was precluded by the law-of-the-case doctrine. Id. at ¶ 7–8.

{¶ 5} We granted discretionary review of a single proposition arising from the appeal: whether a direct appeal from a resentencing ordered pursuant to State v. Bezak is a first appeal as of right. State v. Fischer, 123 Ohio St.3d 1410, 2009-Ohio-5031, 914 N.E.2d 206. We hold that it is not.

Analysis I

{¶ 6} We begin with simple premises. “In general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. Unlike a void judgment, a voidable judgment is one rendered by a court that has both jurisdiction and authority to act, but the court's judgment is invalid, irregular, or erroneous.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at ¶ 12. But those statements of law have sparked a recurrent and increasingly divisive debate in our case law on sentences that fail to properly impose postrelease control in accordance with the terms mandated by the General Assembly.

{¶ 7} The crux of our debate arises from the fact that in the normal course, sentencing errors are not jurisdictional

[942 N.E.2d 337]

and do not render a judgment void. State ex rel. Massie v. Rogers (1997), 77 Ohio St.3d 449, 449–450, 674 N.E.2d 1383; Majoros v. Collins (1992), 64 Ohio St.3d 442, 443, 596 N.E.2d 1038. Rather, void sentences are typically those in which a court lacked subject-matter jurisdiction over the defendant. Payne.

{¶ 8} But in the modern era, Ohio law has consistently recognized a narrow, and imperative, exception to that general rule: a sentence that is not in accordance with statutorily mandated terms is void. See, e.g., Simpkins, at ¶ 14; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864; State v. Beasley (1984), 14 Ohio St.3d 74, 75, 14 OBR 511, 471 N.E.2d 774; Colegrove v. Burns (1964), 175 Ohio St. 437, 25 O.O.2d 447, 195 N.E.2d 811. See also Woods v. Telb (2000), 89 Ohio St.3d 504, 733 N.E.2d 1103.

[Ohio St.3d 95] {¶ 9} Although our case law on void judgments was rooted in cases in which courts lacked subject-matter jurisdiction, it evolved beyond those roots over the years. By the time we decided Beasley, it had developed into the principle that “[a]ny attempt by a court to disregard statutory requirements * * * renders the attempted sentence a nullity or void.” Id., 14 Ohio St.3d at 75, 14 OBR 511, 471 N.E.2d 774. And although Beasley may be recognized more for the principle that jeopardy does not attach to a void sentence, and thus the correction of a void sentence would not constitute double jeopardy, id., its underlying principles governing void sentences formed the basis for our holding in Jordan, a postrelease-control case.

{¶ 10} In Jordan, we recognized that “[t]he court's duty to include a notice to the offender about postrelease control at the sentencing hearing is the same as any other statutorily mandated term of a sentence. And based on the reasoning in Beasley, a trial court's failure to notify an offender at the sentencing hearing about postrelease control is error.” Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 26. We held that “[b]ecause a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing, any sentence imposed without such notification is contrary to law. As a general rule, if an appellate court determines that a sentence is clearly and convincingly contrary to law, it may remand for resentencing. See R.C. 2953.08(G)(2). Furthermore, where a sentence is void because it does not contain a statutorily mandated term, the proper remedy is, likewise, to resentence the defendant. State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774.” (Footnote omitted.) Jordan at ¶ 23. We then vacated the entire sentence and remanded for resentencing. Id. at ¶ 28.

{¶ 11} Three years after Jordan, we issued our decision in Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Bezak is significant in that it was the most divisive decision by the court in the contexts of void and voidable judgments and nonconforming postrelease-control sentences.

{¶ 12} There, a majority held that when a court of appeals remands a case for resentencing because of the trial court's failure to inform the offender at the sentencing hearing that he may be subject to postrelease control, the court must conduct a new sentencing hearing in its entirety rather than a hearing limited to reimposing the original sentence with proper notice of postrelease control. Id. at ¶ 6. In so holding, the majority in Bezak indicated that it found Jordan dispositive. Id. at ¶ 12. But the majority also relied heavily on

[942 N.E.2d 338]

Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267–268, 39 O.O.2d 414, 227 N.E.2d 223, for the proposition that the effect of a void judgment is that the judgment is a nullity, and the parties are in the same position as if there had been no judgment. Bezak at ¶ 12–13.

[Ohio St.3d 96] {¶ 13} Romito, a habeas case from 1967, was in many ways inapposite to Bezak. Romito was a habeas petitioner and recidivist offender who had been convicted of armed robbery and repeated instances of burglary between 1941 and 1957. All of those offenses led to imprisonment, as well as an indictment as a habitual criminal, to which he pleaded guilty and was sentenced to 15 years, “that being the statutory maximum for his last prior conviction for burglary.” Romito at 266. The habitual-criminal enhancement was declared void, however, and he then sought habeas relief and release from confinement on the underlying burglary sentence, which he asserted had also been voided. Id. Although Romito remained in custody lawfully under a prior valid sentence for other offenses, the court agreed that “[t]he vacation of the prior burglary sentence in the instant case was an integral part of the habitual criminal...