State v. BrittaState v. Britta
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Kenneth A. Bossin, 1392 S.O.M. Center Road, Mаyfield Heights, OH 44124 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Aldo J. Britta, Jr., appeals the March 17, 2011 Judgment Entry of the Lake County Court of Common Pleas, denying his Motion for Resentencing. At issue in this appeal is whether a criminal sentence, which allegedly violates
{¶3} A jury trial was held on November 18 and 19, 2008. The jury returned a verdict finding Britta guilty of four counts of Gross Sexual Imposition.
{¶4} On January 5, 2009, Britta filed a Motion to Merge Counts Onе and Two and Three and Four, on the grounds that the first and second Counts were allied offenses committed with the same animus, as were the third and fourth Cоunts.
{¶5} On January 9, 2009, a sentencing hearing was held. The court denied Britta‘s Motion to Merge, citing State v. While, 11th Dist. No. 2001-T-0051, 2003-Ohio-4594, at ¶19 (holding that, where the “appellant maneuvered his hand over two separate erogenous zones (the victim‘s breast and genital area) ***, the nature of appellant‘s conduct requires an inference of a separate and distinct animus for each act” sufficient to support separate counts of Gross Sexual Imрosition).
{¶6} On January 14, 2009, the trial court issued its Judgment Entry of Sentence, sentencing Britta to four years of imprisonment for each count of Gross Sexual Imposition, with two of the sentences running concurrently to the others, for an aggregate prison term of eight years. The court further advised Britta that he was classified as a Tier II sexual offender and would be subject to post release control upon the completion of his prison sentence.
{¶7} Britta appealed his convictions to this court.
{¶8} On March 15, 2010, this court issued its decision, affirming Britta‘s convictions. See State v. Britta, 11th Dist. No. 2009-L-017, 2010-Ohio-971.
{¶10} On March 17, 2011, the trial court entered an Opinion and Judgment Entry, denying Britta‘s Motion for Resentencing. The court noted thаt “Britta failed to cite any authority in his motion that stands for the proposition that the failure to merge counts creates a void sentenсe,” and the “Courts have ruled otherwise.” Thus, the court concluded that Britta‘s sentence was not void because of the alleged errors in аpplying
{¶11} On April 7, 2011, Britta filed a Notice of Appeal. On appeal, Britta raises the following assignment of error:
{¶13} Under Ohio law, “a sentence that is not in accordance with statutorily mandated terms is void.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at ¶8. We review such a sentence under a clear and convincing standard. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶14 (“the appellate court must ensure that the trial court has adherеd to all applicable rules and statutes in imposing the sentence ***, this is subject to review only to determine whether it is clearly and convinсingly contrary to law, the standard found in
{¶14} A void sentence “is not precluded from appellate review by principles of res judicata, аnd may be reviewed at any time, on direct appeal or by collateral attack.” Fischer, 2010-Ohio-6238, paragraph one of the syllabus. “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, at ¶12. Moreover, “defendants with a voidable sentence are entitled to resentencing only upon a successful challenge on direct appeal.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, at ¶30.
{¶15} The claims raised in Brittа‘s Motion for Resentencing demonstrate that, at most, his sentence is voidable. The concept behind a void sentence is that “[j]udges have no inherent power to create sentences.” Fischer, 2010-Ohio-6238, at ¶22. “[T]he only sentence which a trial court may impose is that provided for by statute. A сourt has no power to substitute a different sentence for that provided for by statute or one that is
{¶16} The multiple count statute expressly provides that the same conduct may support multiple convictions where the offenses are “committed separately or with a separate animus.”
{¶17} Arguments challenging the imposition of a sentence that is voidable are barred by the doctrine of res judicata if not raised on direct appeal. Simpkins, 2008-Ohio-1197, at ¶30 (res judicata “operate[s] to prevent consideration of a collateral attack based on a claim that could havе been raised on direct appeal from the voidable sentence“). Since Britta‘s sentence, assuming his allied-offense argument had mеrit, would be voidable, he is barred by the doctrine of res judicata from challenging his sentence on those grounds collaterally through a motion for resentencing. Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, at ¶¶10-11 (“allied-offense claims are nonjurisdictional,” and, thus, barred by the doctrine of res judicata where they were raised, or could have been raised, on direct appeal).
{¶18} This is the conclusion reached by numerous appellate districts of this state, inсluding this one. See State v. Hobbs, 11th Dist. No. 2010-L-064, 2011-Ohio-
{¶19} The sole assignment of error is without merit.
{¶20} For the forеgoing reasons, the March 17, 2011 Judgment Entry of the Lake County Court of Common Pleas, denying Britta‘s Motion for Resentencing, is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.