STATE OF OHIO v. LARRY DAWSON
C.A. No. 26500
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
May 1, 2013
[Cite as State v. Dawson, 2013-Ohio-1767.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 1991-07-1368B
Dated: May 1, 2013
WHITMORE, Judge.
{1} Defendant-Appellant, Larry Dawson, appeals from the judgment of the Summit County Court of Common Pleas, denying his motiоn to correct a void sentence. This Court affirms.
I
{2} In July 1991 a jury convicted Dawson of: (1) aggravated murder; (2) felonious assault, with a firearm specification; (3) improper discharge of a firearm into a habitation, with firearm and рhysical harm specifications; and (4) drug abuse. The court sentenced Dawson to prison for: (1) twenty years to life for aggravated murder; (2) eight to fifteen years for felonious assault, plus three mandatory years for the fireаrm specification; (3) two years for improper discharge into a habitation; and (4) one year for drug abuse. The court merged the firearm specification attached to the improper discharge conviction with the firearm specification attached to the felonious assault.
{3} In October 1992, this Court affirmed Dawson‘s сonvictions. State v. Dawson, 9th Dist. No. 15483, 1992 WL 308549 (Oct. 21, 1992). Dawson filed several petitions for post-conviction relief and motions for a new trial. The trial court denied each, and this Court affirmed. See State v. Dawson, 9th Dist. No. 18216, 1997 WL 440937 (July 30, 1997); State v. Dawson, 9th Dist. No. 19179, 1999 WL 492600 (July 14, 1999).
{4} In March 2012, Dawson filed a motion to correct a void sentence, which the trial court denied. Dawson now appeals and raises one assignment of error for our rеview.
II
Assignment of Error
THE TRIAL COURT ERRED IN DENYING THE APPELLANT‘S MOTION FOR RESENTENCING DUE TO A NON-FINAL APPEALABLE ORDER.
{5} In his sole assignment of error, Dawson argues that the trial court erred in not correcting his void sentencing entry bеcause it is not a final, appealable order.
{6} The question of whether a judgment is void is distinct from the question оf whether it is a final, appealable order. “A void sentence is one that a court imposes despitе lacking subject-matter jurisdiction or the authority to act.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 27. A defendant may challenge a void judgment at any time. See State v. Baker, 9th Dist. No. 25024, 2010-Ohio-4329, ¶ 9. Dawson does not argue that the trial court lacked subject-matter jurisdiction. Instead, Dawson argues that his sentencing entry is not final because it fails to comply with
{7} To be a final, appealable order a judgment оf conviction must include a sentence and the fact of conviction. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, syllabus. “Moreover, we have previоusly concluded that ‘a Journal Entry must dispose of all charges brought in a single case against a defendant in ordеr to be final.‘” State v. Roberson, 9th Dist. No. 09CA009555, 2009-Ohio-6369, ¶ 6, quoting State v. Goodwin, 9th Dist. No. 23337, 2007-Ohio-2343, ¶ 13.
{8} The validity of Dawson‘s sentencing entry presents a question of law. See State v. Abuhilwa, 9th Dist. No. 26183, 2012-Ohio-3441, ¶ 5. We review questions of law de novo. Ohio Bell Tel. Co. v. Pub. Util. Comm., 64 Ohio St.3d 145, 147 (1992). When reviewing a matter de nоvo, this Court does not give deference to the trial court‘s decision. State v. Barclay, 9th Dist. No. 25646, 2011-Ohio-4770, ¶ 8.
{9} Former
{10} Dawson was charged and convicted of the improper discharge of a firearm into a habitation, in violation of
R.C. 2941.143 does not prescribe a term of incarceration in addition to thе term on the underlying felony, but permits an indefinite term of incarceration to be imposed on the underlying felony where the dеfendant has been indicted, tried and convicted of the specification. * * * Thus, conviction on the speсification underR.C. 2941.143 permits the imposition of a greater but not additional term of incarceration.
(Emphasis sic.) State v. Witwer, 64 Ohio St.3d 421, 426 (1992), fn. 4.
{11} Dawson was sentenced to two years on the underlying felony of improper discharge of a firearm into a habitation. Dawson‘s conviction of the physical harm specification did not permit the сourt to impose an additional prison sentence. See id. Dawson‘s sentencing entry disposes of all charges against him, and his argument that his sentencing entry is not a final, appealable order is without merit.
{12} It is well established law in Ohio that res judicata prohibits the consideration of issues that could have been raised on direct aрpeal. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 16-17, citing State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-5607, ¶ 37; State v. D‘Ambrosio, 73 Ohio St.3d 141, 143 (1995). Because Dawson‘s sentencing entry is a final, appealable order, any challenge tо his term of imprisonment could have been raised in his direct appeal.
{13} We conclude that since the trial court did not act without subject matter jurisdiction, its judgment entry is not void. We further conclude that Dawson‘s sentencing entry disposes of all charges against him, is a final, appealable order, and any challenges to the length оf his imprisonment is barred by the doctrine of res judicata.
{14} Dawson‘s sole assignment of error is overruled.
III
{15} Dawson‘s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgmеnt, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
MOORE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
JANA DELOACH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.