State v. Foster, 2017 Ohio 2987

In 1999 Nathaniel Foster was convicted of kidnapping, felonious assault, aggravated robbery, and possession of criminal tools; he received aggregate prison terms including additional consecutive terms for repeat violent offender specifications.
Foster appealed; his convictions and sentence were affirmed on direct appeal in 2000 and several collateral motions thereafter were denied or dismissed.
In 2009 the trial court held a resentencing hearing (at the state’s motion), imposed the same sentence, and added five years of postrelease control while making the required findings on the record for the repeat violent offender specifications.
In 2016 Foster filed a motion to vacate a void judgment (arguing the sentence was void for lack of required statutory findings), which the trial court denied; he appealed that denial.
The court of appeals reviewed two assignments: (1) whether the sentence was void for failure to make required findings under R.C. 2929.14(D)(2)(b), and (2) whether the motion should have been treated as a timely postconviction petition.
The court held the resentencing complied with statutory findings, treated Foster’s motion as a postconviction petition (untimely), found no exception under R.C. 2953.23, and also noted the claims were barred by res judicata.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Foster’s sentence was void for failing to make required findings for a repeat violent offender enhancement	State: trial court complied at resentencing and made required findings on the record	Foster: trial court failed to make the requisite R.C. 2929.14(D)(2)(b) findings before imposing additional years	Held: sentence was not void; court made the necessary findings at resentencing
Whether the motion to vacate constituted a postconviction petition and was timely	State: motion is a postconviction petition and is untimely; no statutory exception applies	Foster: if sentence were void the motion would not be a postconviction petition and timeliness wouldn't apply	Held: motion is a postconviction petition, untimely, and Foster did not satisfy R.C. 2953.23 exceptions
Whether Foster demonstrated prejudice warranting relief (clear and convincing evidence a reasonable factfinder would not convict)	State: no such showing	Foster: challenges sentencing and related errors	Held: Foster failed to show the required clear-and-convincing proof
Whether claims are barred by res judicata	State: earlier appeals and motions could have raised these claims	Foster: sought relief as void-judgment, contending prior avenues were inadequate	Held: claims were barred by res judicata because they were or could have been raised earlier

State v. Fischer, 128 Ohio St.3d 92 (2010) (defining when a sentence is void for failing to include a statutorily mandated term)
State v. Beasley, 14 Ohio St.3d 74 (1984) (a court acts without jurisdiction when it imposes a sentence contrary to statute)
State v. Payne, 114 Ohio St.3d 502 (2007) (sentencing outside statutory range renders the sentence void and discusses preservation of sentencing errors)
State v. Jordan, 104 Ohio St.3d 21 (2004) (sentence is void when it omits a statutorily mandated term)
Colegrove v. Burns, 175 Ohio St. 437 (1964) (a court lacks power to substitute a sentence not provided by statute)