STATE OF OHIO v. FREDERICK COVINGTON
Appellate Case No. 2019-CA-50
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
February 7, 2020
2020-Ohio-390
WELBAUM, P.J.
Trial Court Case No. 2012-CR-70(A). (Criminal Appeal from Common Pleas Court)
OPINION
Rendered on the 7th day of February, 2020.
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
REGINA ROSEMARY RICHARDS, Atty. Reg. No. 0079457, 4 West Main Street, Suite 707, Springfield, Ohio 45502 Attorney for Defendant-Appellant
Facts and Course of Proceedings
{¶ 2} On October 29, 2012, Covington entered into a plea agreement and pled guilty to one count of engaging in a pattern of corrupt activity in violation of
{¶ 4} On November 8, 2012, Covington‘s case proceeded to sentencing. At sentencing, the trial court imposed an eleven-year mandatory prison term for each of the two counts of trafficking in cocaine and ordered those sentences to be served concurrently with one another. The trial court also imposed a seven-year prison sentence for engaging in a pattern of corrupt activity and ordered that sentence to be served consecutively with the sentences for trafficking in cocaine. The trial court did not state that the seven-year prison term for engaging in a pattern of corrupt activity was mandatory. Judgment Entry of Conviction (Nov. 8, 2012), p. 3; Sentencing Tr. (Nov. 8, 2012), p. 17.
{¶ 5} Covington did not file a timely direct appeal from his conviction. However, on May 17, 2013, Covington filed a motion for leave to file a delayed appeal. In his motion, Covington indicated that he wished to appeal the validity of his guilty plea and argued that his appeal was delayed because his trial counsel had advised him that there
{¶ 6} On August 7, 2013, this court issued a decision and entry overruling Covington‘s motion to file a delayed appeal and stated the following:
The November 8, 2012 conviction entry shows that Covington was sentenced to a non-mandatory term of seven years on one count of engaging in a pattern of corrupt activity, a first-degree felony. Covington argues that the trial court was required by law to impose mandatory prison time for this count. Covington states that at his plea hearing, and within the plea form itself, however, he was not informed that his sentence on Count One [engaging in a pattern of corrupt activity] would be mandatory; indeed, the conviction entry reflects that it is not. As a result, Covington now argues that reversal on appeal is likely because he did not knowingly, intelligently, and voluntarily enter into a plea when he was informed that he would not receive mandatory prison time on Count One, despite mandatory time being required by law.
Upon review, the court does not find Covington prejudiced at this time. Pursuant to the plea agreement,1 he has been ordered to serve a non-mandatory prison sentence on Count One. He was not told the term would be mandatory, and a mandatory term was not imposed. Should the non-mandatory sentence be modified and a mandatory term
imposed, Covington would have the opportunity at that time to appeal that new sentence.
(Emphasis added.) State v. Covington, 2d Dist. Clark No. 13-CA-47 (Decision and Final Judgment Entry, Aug. 7, 2013), p. 2.
{¶ 7} Following this court‘s decision denying Covington‘s motion for a delayed appeal, Covington‘s case remained dormant for five years until Covington filed a “Motion to Vacate Void Judgment of Conviction and Sentence and to Withdraw Guilty Plea” on November 29, 2018. In response to Covington‘s motion, the State filed an opposing memorandum arguing that the motion was an untimely petition for post-conviction relief that the trial court lacked jurisdiction to consider. The State also argued that the claims asserted in the motion were barred by res judicata. Several months later, on June 5, 2019, the trial court issued an entry overruling Covington‘s motion without a hearing “for the reasons set forth in the State‘s brief in opposition[.]” Entry (June 5, 2019), p. 1.
{¶ 8} Covington now appeals from the trial court‘s order overruling his motion, raising a single assignment of error for review.
Assignment of Error
{¶ 9} Under his sole assignment of error, Covington contends that the trial court erred in overruling his “Motion to Vacate Void Judgment of Conviction and Sentence and to Withdraw Guilty Plea” without a hearing. Specifically, Covington argues that the trial court erroneously determined that it lacked jurisdiction to rule on the motion due to the untimely nature of its filing. Covington also argues that the trial court erroneously determined that the claims raised in his motion were barred by res judicata.
{¶ 11} Petitions for post-conviction relief are governed by
{¶ 12} In this case, it is clear that Covington‘s petition for post-conviction relief was untimely, as it was filed almost five years after the expiration of the deadline to file an appeal from his conviction.2 Covington also failed to even argue that the untimeliness of
{¶ 13} A void sentence is “not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40. To the extent that a sentence is void, only the offending portion of the sentence is subject to review and correction. Id. at 24-29.
{¶ 14} In his petition for post-conviction relief, Covington sought to vacate his conviction on grounds that it was void. Covington raised two arguments in support of this claim. The first argument was that his guilty plea was not knowingly, intelligently, and voluntarily entered on account of the trial court failing to advise him at the plea hearing that the offense of engaging in a pattern of corrupt activity carried a mandatory prison term, and due to the plea form incorrectly stating that the sentence for that offense was non-mandatory. The second argument was that the sentence he received for engaging in a pattern of corrupt activity was unauthorized by law and void because the trial court
{¶ 15} Covington is correct in that
{¶ 16} The State, however, argues that the improper non-mandatory sentence for engaging in a pattern of corrupt activity renders that sentence voidable, not void. “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, 884 N.E.2d 568, ¶ 12. “Arguments challenging the imposition of a sentence that is voidable are barred by the doctrine of res judicata if not raised on direct appeal.” State v. Parson, 2d Dist. Montgomery No. 24641, 2012-Ohio-730, ¶ 10, citing Simpkins at ¶ 30.
{¶ 17} In support of its claim that Covington‘s sentence for engaging in a pattern of corrupt activity is merely voidable, the State cites several cases standing for the proposition that a trial court‘s failure to convey whether a prison term is mandatory at the sentencing hearing or in the sentencing entry does not render the sentence void. See,
{¶ 18} In all the cases cited by the State, the courts concluded that the sentences were not rendered void by the mere omission of the term “mandatory.” Colvin at ¶ 34, citing State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 14; Johnson at ¶ 22; VanCleve at ¶ 18. The cases cited by the State partially rely on
{¶ 19} The Tenth District followed Vancleve, Jones, and Walker after noting that the ” ‘the Ohio Supreme Court has applied its void-sentence analysis in limited circumstances.’ ” State v. Ward, 10th Dist. Franklin No. 16AP-774, 2017-Ohio-4411, ¶ 17, quoting State v. Culgan, 9th Dist. Medina No. 09CA0060-M, 2010-Ohio-2992, ¶ 20. Specifically, the Tenth District stated that:
Ohio appellate courts have “declined to extend the void sanction doctrine” in cases challenging a trial court‘s alleged failure to advise a defendant that his or her sentence is mandatory, “concluding that a trial
court‘s failure to state that a prison term is mandatory does not render the sentence void.”
Ward at ¶ 18, quoting Vancleve at ¶ 17.
{¶ 20} Based on the foregoing case law and the language of
{¶ 21} We do not find that these additional details distinguish Covington‘s sentence from the foregoing authority or otherwise undermine our conclusion that the sentencing error caused the sentence to be voidable, rather than void. Furthermore, in our decision
{¶ 22} We note that in State v. Straley, 2018-Ohio-3080, 107 N.E.3d 8 (4th Dist.), the Fourth District Court of Appeals held that the trial court‘s improper imposition of non-mandatory prison terms when mandatory prison terms were required by statute rendered the corresponding sentences void and not subject to res judicata. Id. at ¶ 21. In reviewing that decision, the Supreme Court of Ohio recently found that the Fourth District misapplied the precedent on void-versus-voidable sentences. State v. Straley, Ohio Slip Op. No. 2019-Ohio-5206, ___ N.E.3d ___ , ¶ 24. Specifically, the Supreme Court explained that the appellate court in Straley erroneously invoked the “void-versus-voidable-sentence precedent” because the appellant “did not attack his sentences.” Id. at ¶ 27. Instead, the appellant “used the trial court‘s failure to tell him that [the sentences] were mandatory to support his motion to withdraw guilty plea.” Id. The Supreme Court found that “[w]hether res judicata should apply under [its] void-versus-voidable-sentence precedent [did] not matter in [that] context.” Id. Rather, the court found res judicata applied “because Straley failed to attack his guilty pleas on direct appeal.” (Citation omitted.) Id.
{¶ 23} Although the Supreme Court in Straley did not specifically address the issue of whether the improper imposition of a non-mandatory prison sentence renders a sentence voidable or void, the concurring opinions in that case nevertheless provide some guidance on the matter. For example, Justice DeWine‘s concurring opinion in
It is no surprise, though, that the court of appeals reached the result it did. Its conclusion flowed naturally from this court‘s expansion of the void sentence doctrine beyond its traditional boundaries to include a variety of sentencing errors and from this court‘s broad pronouncement that a void sentence can be attacked at any time, principles of res judicata notwithstanding. See, e.g., State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22. As I, and others, have explained, this court‘s expansion of the void-sentence doctrine is inconsistent with concepts of jurisdiction and finality that are a central premise of our judicial system. * * *
This case is simply further evidence that it is long past time to end this court‘s dalliance with perpetually modifiable sentences. As the majority notes, all three judges on the panel below expressed their frustration with our precedent in this area. * * *
And the Fourth District is hardly alone. Not long ago, the Third District Court of Appeals bemoaned the “mass confusion” that has resulted from this court‘s departure from traditional principles “as to what mistakes by a trial court rendered a sentence void or voidable,” which has been compounded by this court‘s “sloppiness [in expanding] the void-sentencing-error concept beyond postrelease-control cases to include other random nonjurisdictional-sentencing errors.” State v. Kegley, 3d Dist. Crawford No. 3-18-03, 2018-Ohio-4167, ¶ 13-14. The Tenth District Court of
Appeals recently warned that this court‘s extension of the void-sentence doctrine “threaten[s] to swallow the rule [on finality] and lead to a situation where virtually any allegedly serious error in sentencing can be revived time and again without being foreclosed by res judicata.” State v. Steele, 10th Dist. Franklin No. 18AP-187, 2018-Ohio-3950, ¶ 11, fn. 1; accord State v. Davic, 10th Dist. Franklin No. 18AP-569, 2019-Ohio-1320, ¶ 11, fn. 2.
Today, the majority takes a step in the right direction by cabining the void-sentence doctrine at least a bit. But as this case illustrates, until we return to our traditional understanding of void and voidable sentences, we—and courts across Ohio—will continue to have a mess on our hands.
(Emphasis added.) Straley at ¶ 46-49, (DeWine, J., concurring).
{¶ 24} Justice Donnelly‘s concurring opinion in Straley also stated that:
The trial court did not just fail to tell Straley that his sentences were mandatory. The court affirmatively stated that the sentences were not mandatory. * * * A court speaks through its journal. State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 15. If the sentencing entry states that the trial court imposed nonmandatory sentences, then Straley is serving nonmandatory sentences, plain and simple.
Given that the trial court discussed the nonmandatory nature of the sentences that it intended to impose, the state had a full and fair opportunity to object to the trial court‘s sentencing decision. The state failed to do so at the plea and sentencing hearing and failed to appeal the matter.
To the extent that res judicata should be applied here, it applies
against the state. And I believe that res judicata does apply to sentencing errors like the one in this case.
(Emphasis added.) Straley at ¶ 51-53, (Donnelly, J., concurring in judgment only).
{¶ 25} Based on the foregoing concurring opinions in Straley, the case law cited by the State in this case, and the language of
{¶ 26} Covington‘s sole assignment of error is overruled.
Conclusion
{¶ 27} Having overruled Covington‘s assignment of error, the judgment of the trial court is affirmed.
DONOVAN, J., concurs.
FROELICH, J., concurs in judgment:
{¶ 28} I concur in judgment and write separately to emphasize that Covington was sentenced to and is serving a consecutive, non-mandatory seven-year sentence for
{¶ 29} “[F]inality is not a stand-alone value that trumps a State‘s overriding interest in ensuring that justice is done in its courts and secured to its citizens.” Dist. Attorney‘s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 98, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) (Stevens, J., dissenting). The legitimate quest for finality should not include an overzealous application of the letter of the law. See Grant Gilmore, The Ages of American Law 111 (1977) (“The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed.“).
Copies sent to:
John M. Lintz
Regina Rosemary Richards
Hon. Douglas M. Rastatter