State v. Holcomb

• Decision Date: 30 June 2009
• Docket Number: No. 24287.,24287.
• Citation: 184 Ohio App.3d 577,2009 Ohio 3187,921 N.E.2d 1077
• Parties: The STATE of Ohio, Appellee, v. HOLCOMB, Appellant.
• Court: Ohio Court of Appeals

921 N.E.2d 1077

184 Ohio App.3d 577

2009-Ohio-3187

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

No. 24287.

Court of Appeals of Ohio, Ninth District, Summit County.

Decided June 30, 2009.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee.

Daniel L. Holcomb, pro se.

PER CURIAM.

{¶ 1} In 2000, as part of a plea agreement, Daniel Holcomb pleaded guilty to three felonies, and the trial court sentenced him to 13 years in prison. In 2008, Holcomb moved the trial court to "correct sentencing," arguing that it had failed to include mandatory postrelease control as part of his sentence, thereby rendering the sentence void. The trial court held that Holcomb's motion was, in substance, an untimely and successive petition for postconviction relief and, accordingly, dismissed it. This court reverses.

{¶ 2} Since his guilty plea, Holcomb has filed a number of motions with this court and the trial court. Among other things, he moved this court for leave to file a delayed appeal; he twice moved the trial court for leave to withdraw his plea; he moved the trial court to correct void sentencing orders; he moved the trial court to correct unlawful sentencing instructions; he moved the trial court to correct the sentencing journal entry and vacate the sentence; and he petitioned the trial court for postconviction relief. This court has previously issued three opinions as a result of his appeals from various actions by the trial court. State v. Holcomb, 9th Dist. No. 23447, 2007-Ohio-2607, 2007 WL 1545064; State v. Holcomb, 9th Dist. No. 21682, 2003-Ohio-7167, 2003 WL 23094773; State v. Holcomb, 9th Dist. No. 21637, 2003-Ohio-6322, 2003 WL 22797731. This appeal is from the trial court's denial of his latest filing, which he captioned "Motion to Correct Sentencing."

ASSIGNMENT OF ERROR

The trial court exceeded its authority in denying [Holcomb's] motion to vacate his sentence, because his sentence is void, a violation of the Due Process clauses of both the United States and the Ohio Constitutions.

{¶ 3} Holcomb argues that the trial court erred when it denied his motion to correct his sentence. This case provides this court with an opportunity to review the Ohio Supreme Court's jurisprudence regarding void and voidable sentences.

Historical Perspective

{¶ 4} The Ohio Supreme Court has addressed void and voidable sentences for well over 100 years. An early decision, Ex parte Shaw (1857), 7 Ohio St. 81, 82, involved a trial court's sentence that fell below that required by statute. The Supreme Court held that the trial court "had jurisdiction over the offense and its punishment. It had authority to pronounce sentence; and while in the legitimate exercise of its power, committed a manifest error and mistake in the award of the number of years of the punishment. The sentence was not void, but erroneous." Id. Twenty years later, the Supreme Court reached the same result when considering a sentence above the statutory maximum. It held that "[t]he punishment inflicted by the sentence, in excess of that prescribed by the law in force, was erroneous and voidable, but not absolutely void." Ex parte Van Hagan (1874), 25 Ohio St. 426, 432.

{¶ 5} Just over 100 years ago, the Supreme Court reviewed a sentence that omitted credit required by statute. In Hamilton v. State (1908), 78 Ohio St. 76, 77, 84 N.E. 601, the court reviewed a sentence that committed the defendant to the workhouse until his fines and costs were paid, without allowing a credit for each day of confinement on the fine and costs. The court held that "while not wholly void [the sentence] is incomplete and erroneous, and where such sentence has not been executed, it will be reversed." Id. at paragraph 3 of the syllabus. Over the years that followed, the court continued to hold that sentences imposed in violation of a statute were voidable. See, e.g., Ex parte Winslow (1915), 91 Ohio St. 328, 110 N.E. 539; Ex parte Fenwick (1924), 110 Ohio St. 350, 144 N.E. 269; Stahl v. Currey (1939), 135 Ohio St. 253, 14 O.O. 112, 20 N.E.2d 529. In one of the last cases in this line, Carmelo v. Maxwell (1962), 173 Ohio St. 569, 570, 20 O.O.2d 170, 184 N.E.2d 405, the Supreme Court held that a sentence imposed contrary to the terms of a statute does not void the sentence.

Void or Voidable

{¶ 6} The first thorough, modern discussion about void and voidable judgments in the criminal context appears in State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, decided two years after the adoption of Ohio's postconviction-relief statute. The Supreme Court first discussed the term "void":

Within the meaning of the statute, a judgment of conviction is void if rendered by a court having either no jurisdiction over the person of the defendant or no jurisdiction of the subject matter, i.e., jurisdiction to try the defendant for the crime for which he was convicted. Conversely, where a judgment of conviction is rendered by a court having jurisdiction over the person of the defendant and jurisdiction of the subject matter, such judgment is not void * * *.

Id. at 178-179, 39 O.O.2d 189, 226 N.E.2d 104. As for "voidable," the court described it this way: "The word `voidable' has caused some confusion. Thus, an erroneous judgment that is not void could be considered as in effect `voidable,' so long as it may be set aside on appeal." Id. at 179, 39 O.O.2d 189, 226 N.E.2d 104. The court provided two examples of voidable convictions and cited two cases; interestingly, neither of those decisions use the word "void" or "voidable" to describe the claim. The first example of a voidable conviction was one for which the factual basis for a constitutional claim was not known until after the judgment of conviction. Id. at 179, 39 O.O.2d 189, 226 N.E.2d 104. The second example was in a case in which the defendant was not represented by counsel at the trial or plea hearing that resulted in the judgment of conviction; the judgment would be voidable at any time prior to a final judicial determination that the defendant knowingly and intelligently waived the right to counsel. Id. at 179-180, 39 O.O.2d 189, 226 N.E.2d 104.

{¶ 7} Just two months later, the Supreme Court considered another case, Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267, 39 O.O.2d 414, 227 N.E.2d 223, involving void and voidable judgments, and, rather than refer to Perry, the court cited Tari v. State (1927), 117 Ohio St. 481, 493-494, 159 N.E. 594, which stated:

This decision must turn in its last analysis upon the distinction to be made between a void and a voidable judgment. If it was a void judgment, it is a mere nullity, which could be disregarded entirely, and could have been attacked collaterally, and the accused could have been discharged by any other court of competent jurisdiction in habeas corpus proceedings. If it was voidable, it is not a mere nullity, but only liable to be avoided by a direct attack and the taking of proper steps to have its invalidity declared. Until annulled, it has all the ordinary consequences of a legal judgment.

Void sentences—Disregard Statutory Requirements

{¶ 8} The Supreme Court turned its attention to void sentences in 1984 in an oft-cited case, State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774. In Beasley, the Supreme Court reviewed a sentence it found void, holding:

Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void. The applicable sentencing statute in this case, R.C. 2929.11, mandates a two to fifteen year prison term and an optional fine for felonious assault. The trial court disregarded the statute and imposed only a fine. In doing so the trial court exceeded its authority and this sentence must be considered void.

Id. at 75, 14 OBR 511, 471 N.E.2d 774. This language has been cited repeatedly for the proposition that a sentence that disregards statutory authority is void, a conclusion that seems to conflict with Ex parte Shaw (1857), 7 Ohio St. 81, and other decisions discussed above that would conclude that the sentence would be voidable, not void.

{¶ 9} Beasley played a significant role 20 years later when the Supreme Court confronted a trial court's failure to advise a defendant about postrelease control. In State v. Jordan (2004), 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, the Ohio Supreme Court considered the trial court's failure to advise the defendant about postrelease control at the sentencing hearing. The Supreme Court quoted Beasley and held that the trial "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." Id. at ¶ 26. Again, this conclusion conflicts with earlier decisions that seemingly would have concluded that the sentence was voidable, not void.

{¶ 10} The court revisited this issue three years later in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. The court held: "When a defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense." Id. at syllabus. The court held that Jordan controlled its decision: "Bezak was not informed about the imposition of postrelease control at his sentencing hearing. As a result, the sentence imposed by the trial court is void. `The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no...