State v. Mack

• Decision Date: 14 May 2020
• Docket Number: No. 19AP-730,19AP-730
• Citation: 2020 Ohio 2951
• Parties: State of Ohio, Plaintiff-Appellee, v. Levio D. Mack, Defendant-Appellant.
• Court: Ohio Court of Appeals

2020 Ohio 2951

State of Ohio, Plaintiff-Appellee, v. Levio D. Mack, Defendant-Appellant.

No. 19AP-730

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

May 14, 2020

(C.P.C. No. 94CR-000201)

(ACCELERATED CALENDAR)

DECISION

On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

On brief: Levio D. Mack, pro se.

APPEAL from the Franklin County Court of Common Pleas

SADLER, P.J.

{¶ 1} Defendant-appellant, Levio D. Mack, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for sentencing. For the reasons that follow, we reverse.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} The pertinent facts and procedural history of this case were set forth by this court in our decision in State v. Mack, 10th Dist. No. 16AP-680, 2017-Ohio-7417, as follows:

On May 31, 1994, appellant entered guilty pleas to a stipulated lesser included offense of Count 1 of the indictment, aggravated murder without the capital specifications but with the firearm specification, and Count 3 of the indictment, aggravated robbery without the specification. The trial court's judgment entry stated, in pertinent part:

The Court finds that on May 31, 1994, the Defendant entered pleas of guilty to the stipulated lesser included offense of Count One of the indictment, to wit: Aggravated Murder without death specifications, but with firearm specification in violation of R.C. 2903.01, a Felony of the First degree; and to Count Three of the indictment, to wit: Aggravated Robbery without specification in violation of R.C. 2911.01, a Felony of the First degree, and was found guilty of said charges by the Court.

(Emphasis added.) (June 1, 1994 Jgmt. Entry at 1.)

The trial court imposed a sentence of 20 years to life with respect to the aggravated murder charge, 3 additional years as to the firearm specification, and 6 to 25 years on the aggravated robbery charge. All prison terms were ordered to be served consecutively. Eventually, appellant filed a direct appeal and this court affirmed. State v. Mack, 10th Dist. No. 94APA07-992, 1999 Ohio App. LEXIS 3651 (Aug. 10, 1999).

In the years that followed appellant's conviction, he has filed a number of motions that the trial court has construed as petitions for postconviction relief. As relevant to this appeal, on September 13, 2013, appellant filed a "MOTION FOR ISSUANCE OF A FINAL APPEALABLE ORDER." On October 1, 2013, the trial court overruled the motion as untimely, barred by res judicata, and otherwise lacking merit. Appellant filed a timely notice of appeal and this court affirmed. State v. Mack, 10th Dist. No. 13AP-887, 2014-Ohio-1648.

On October 22, 2015, appellant filed a motion for sentencing, arguing that the trial court's sentencing entry of June 1, 1994 was void because the entry clearly and erroneously stated that aggravated murder was "a Felony of the First degree," and for failing to indicate the sequence in which the consecutive sentences were to be served.

On September 12, 2016, the trial court denied appellant's motion.

Id. at ¶ 3-7.

{¶ 3} Appellant appealed to this court from the trial court's September 12, 2016 judgment entry denying his motion for sentencing. We affirmed the trial court's decision. Id. at ¶ 21.

{¶ 4} On July 10 and 11, 2019, appellant filed several related motions including a second motion for sentencing, a motion for order of conveyance, and a motion for establishment of a date certain for oral hearing. On October 8, 2019, the trial court issued a decision and entry denying appellant's motions. Appellant timely appealed to this court from the October 8, 2019 judgment.

II. ASSIGNMENT OF ERROR

{¶ 5} Appellant assigns the following as trial court error:

[W]here a criminal defendant enters into a specific performance contractual plea agreement which included an 'agreed sentence' of 20 years to life for the offense of aggravated murder pursuant to: O.R.C. Section 2903.01( ) and for which a prison term of 20 years to life was and is not authorized, defendant's plea was not made knowingly, intelligently and voluntarily and must be vacated or otherwise set aside pursuant to the mandatory language enumerated in: State v. Brunning, 2013 Ohio 930, to wit:

We recognize that when the state breaches a plea agreement, the defendant has the option to withdraw his plea or seek specific performance. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 491, 1994 Ohio 39, 633 N.E.2d 1128 (1994).

[a]nd that:

A plea agreement is an essential part of the criminal justice system. State v. Vari, 7th Dist. No. 07MA142, 2010-Ohio-1300, ¶ 19, citing Santobello v. New York, 404 U.S. 257, 261, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). A defendant has a contractual right to enforcement of the prosecutor's obligations under the plea agreement after the plea has been accepted by the court. see: State v. Adams, 2014 Ohio 724 see also: State v. Smith, 2019 Ohio 155; and, State v. Houston. 2019 Ohio 355 (8th Dist.).

(Sic passim.)

III. LEGAL ANALYSIS

{¶ 6} In appellant's assignment of error, he contends his sentence of 20 years to life for aggravated murder was not authorized by statutory law and is void. We agree.

{¶ 7} In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, the Supreme Court of Ohio explained the rationale underlying the void sentence doctrine in Ohio:

In Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964), this court described the trial judge's role at sentencing:

"Crimes are statutory, as are the penalties therefor, and the only sentence which a trial court may impose is that provided for by statute. A court has no power to substitute a different sentence for that provided for by statute or one that is either greater or lesser than that provided for by law." And applying this principle in State v. Beasley, 14 Ohio St.3d 74, 75, 14 Ohio B. 511, 471 N.E.2d 774 (1984), we stated that "[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void."

* * *

Our jurisprudence on void sentences "reflects a fundamental understanding of constitutional democracy" that the power to define criminal offenses and prescribe punishment is vested in the legislative branch of government and that courts may impose sentences only as provided by statute. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21-22. Because "[n]o court has the authority to impose a sentence that is contrary to law," id. at ¶ 23, when the trial court disregards statutory mandates, "[p]rinciples of res judicata, including the doctrine of the law of the case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by collateral attack." Id. at ¶ 30.

Id. at ¶ 20, 22.

{¶ 8} In denying appellant's motion to void his sentence, the trial court concluded as follows:

Defendant argues that his sentence is void and as a result, he is entitled to be resentenced. Defendant's Motion appears to argue that Defendant's sentence is void on the grounds that it does not provide for parole eligibility. Defendant's Motion lacks merit. At the time Defendant was sentenced, an indefinite prison term of 20 years to life in prison was an authorized sentence for aggravated murder. Defendant's parole eligibility is provided under former R.C. 2967.13(C). Therefore, Defendant's argument that his sentence is void on the grounds that his sentence does not provide for parole eligibility lacks merit.

(Oct. 8, 2019 Decision at 3.)

{¶ 9} Contrary to the trial court's conclusion, on the date of appellant's conviction, R.C. 2929.03(A) mandated the following penalty for aggravated murder:

If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge of aggravated murder, the trial court shall impose a sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment on the offender.

(Emphasis added.)

{¶ 10} Appellant contends the imposition of an indefinite sentence of "twenty years to life" for aggravated murder was not authorized by statutory law and the trial court lacked authority to impose such a sentence. In support of his argument, appellant relies on a decision of the Eighth District Court of Appeals in State v. Smith, 8th Dist. No. 106893, 2019-Ohio-155.

{¶ 11} In 1988, Smith pleaded guilty to aggravated murder pursuant to a plea agreement with the state. The trial court imposed a sentence of "20 years to life in prison." Id. at ¶ 12. In 2018, after the parole board denied parole and after the trial court refused to permit Smith to withdraw his guilty plea, Smith filed a motion to void his sentence. The trial court denied the motion. On appeal, Smith argued that the trial court erred when it sentenced him to a prison term that was contrary to law. Specifically, Smith argued "his prison term is contrary to law because a sentence of 'twenty (20) years to life' is not an authorized sentence for aggravated murder." Id. at ¶ 18.

{¶ 12} The Eighth District determined at the time of Smith's conviction, the only sentence authorized by R.C. 2929.03(A) was a definite sentence of "life imprisonment with parole eligibility after serving twenty years of imprisonment." Id. at ¶ 16. Though the state conceded that Smith's sentence "[did] not precisely track the statutory language used in R.C. 2929.03(A)," the state argued that defendant's sentence had the "same 'practical effect' " because Smith was granted a parole hearing after he had served 20 years. Id. at ¶ 18. In other words, the state maintained that Smith's argument on appeal raised " 'a distinction without a difference.' " Id. The Eighth District was not persuaded by the state's practicality argument and held that "[b]ecause the trial court imposed a sentence that does not comport with the statutory language set forth in R.C....