State v. Perry
2016 Ohio 7446
Ohio Ct. App. 9th2016Background
- Alfonsia M. Perry was convicted of aggravated murder in 1994 and sentenced to a determinate life term; his conviction and sentence have been litigated repeatedly on direct and collateral review.
- In November 1994 the trial court ordered Perry to pay prosecution costs of $661.50 in its sentencing entry.
- In September 2015 Perry filed a "Motion for Re-Sentencing based on Void Judgment," arguing the sentencing entry was void because the court did not (1) advise him that failure to pay costs could result in community-service sanctions and (2) advise him of appellate rights under the version of Crim.R. 32 in effect at the time.
- The trial court denied the motion as untimely when construed as postconviction relief and held the alleged errors did not render the judgment void.
- Perry appealed; the court of appeals affirmed, holding the sentencing entry was not void for either claimed defect and that the pleading could be properly treated as an untimely postconviction petition.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perry) | Held |
|---|---|---|---|
| Whether failure at 1994 sentencing to warn that nonpayment of court costs could lead to community service rendered the judgment void | The court complied with the law in effect at sentencing; no voidness | The court failed to give statutorily required notice under R.C. 2947.23(A)(1)(a), so the costs portion is void and requires resentencing | Court: R.C. 2947.23 provision requiring community-service advisement became effective in 2003; absent that later statute, omission did not render the 1994 judgment void. |
| Whether the trial court erred by construing the motion as postconviction relief and denying it as untimely | The court may construe such motions as postconviction where appropriate | The motion sought to vacate a void judgment and therefore was not a postconviction petition subject to timeliness bars | Court: Proper to construe the pleading as a postconviction motion; because alleged errors do not render the sentence void, denial as untimely was appropriate. |
| Whether failure to advise of appellate rights at sentencing under former Crim.R. 32(A) renders sentence void | Advisements under former Crim.R. 32(A) are procedural; failure makes sentence voidable, not void; claim must be raised on direct appeal | Perry says lack of advisement of appeal rights is mandatory and renders sentence void | Court: Failure to give Crim.R. 32(A) advisements does not render sentence void; the claim is forfeited if not raised on direct appeal (res judicata). |
Key Cases Cited
- State v. Reynolds, 79 Ohio St.3d 158 (Ohio 1997) (motions to vacate or correct sentence filed after direct appeal that claim constitutional error may be construed as petitions for postconviction relief)
- State v. Joseph, 125 Ohio St.3d 76 (Ohio 2010) (sentence is not void where statutory advisements or other procedural errors occurred; voidness requires more fundamental defects)