Lead Opinion
{¶ 1} In this appeal, we again address questions arising from a sentencing court’s failure to impose postrelease control as mandated by the General Assembly. A sentence that does not include the statutorily mandated term of postre-lease control is void, 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. Although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the еnsuing sentence.
Relevant Background
{¶ 2} In 2002, a judge sentenced appellant, Londen K. Fischer, to an aggregate term of 14 years’ imprisonment for aggravated robbery, felonious assault, having a weapon while under disability, and two counts of aggravated burglary, all with firearms specifications. A timely direct appeal followed, and his convictions were affirmed by the court of appeals. State v. Fischer, Summit App. No. 20988,
{¶ 3} Several years later, Fischer successfully moved pro se for resentencing after this court issued its decision in State v. Bezak,
{¶ 4} On appeal, he asserted that because his original sentence was void, his first direct appeal was “not valid” and that this appeal is in fact “his first direct appeal” in which he may raise any and all issues relating to his conviction. State v. Fischer,
{¶ 5} We granted discretionary review of a single proposition arising from the appeal: whether a direct appeal from a resentencing ordered pursuant to State v. Bezak is a first appeal as of right. State v. Fischer,
Analysis
I
{¶ 6} We begin with simple premises. “In general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act. State v. Payne,
{¶ 7} The crux of our debate arises from the fact that in the normal course, sentеncing errors are not jurisdictional and do not render a judgment void. State ex rel. Massie v. Rogers (1997),
{¶ 8} But in the modern era, Ohio law has consistently recognized a narrow, and imperative, exception to that general rule: a sentence that is not in accordance with statutorily mandated terms is void. See, e.g., Simpkins, at ¶ 14; State v. Bezak,
{¶ 10} In Jordan, we recognized that “[t]he court’s duty to include a notice to the offender about postrelease control at the sentencing hearing is the same as any other statutorily mandated term of a sentence. And based on the reasoning in Beasley, a trial court’s failure to notify an offender at the sentencing hearing about postrelease control is error.” Jordan,
{¶ 11} Three years after Jordan, we issued our decision in Bezak,
{¶ 12} There, a majority held that when a court of appeals remands a case for resentencing because of the trial court’s failure to inform the offender at the sentencing hearing that he may be subject to postrelease control, the court must conduct a new sentencing hearing in its entirety rather than a hearing limited to reimposing the original sentence with proper notice of postrelease control. Id. at ¶ 6. In so holding, the majority in Bezak indicated that it found Jordan dispositive. Id. at ¶ 12. But the majority also relied heavily on Romito v. Maxwell (1967),
{¶ 14} The court in Romito supported that conclusion by relying on Tari v. State (1927),
{¶ 15} Based on the language from Romito, the majority in Bezak rejected the appellate court’s ruling that the sentence in Bezak should be remanded to the trial court so that the defendant “ ‘may be advised that he is subject to post-release control.’ ” Bezak,
{¶ 16} That conclusion required the majority to distinguish the decision in State v. Saxon,
{¶ 17} As the first dissenting opinion in Bezak observed, “[j]ust as Saxon held that a complete resentencing is not required when a defendant on appeal prevails on a challenge only as to one offense in a multiple-offense case, a complete de novo resentencing is not required when a defendant prevails only as to the postrelease-control aspect of a particular sentence. In this situation, the postrelease-control component of the sentence is fully capable of being separated from the rest of the sentence as an independent component, and the limited resentencing must cover only the postrelease control. It is only the postrelease-control aspect of the sentence that is void and that must be rectified. The remainder of the sentence, which the defendant did not successfully challenge, remains valid under the principles of res judicata. See Saxon [
{¶ 18} Although neither the majority nor the dissents in Bezak discussed it at the time, the scope of the remand in Bezak was a critical aspect of void judgments. And so it is at this juncture that we revisit that law before proceeding further.
II
{¶ 19} As described at the outset of our analysis, our debate over whether the failure of a sentencing judge to comply with a statutory mandate renders the ensuing judgment void arises from our disagreement over the narrow, historic view that limits void judgments to cases in which the court acts without jurisdiction. See generally Simpkins,
{¶ 20} But in the modern era, in which we have a more sophisticated understanding of individual rights, we have not so severely limited the notion of void judgments to only those judgments that arise from jurisdictional cases. See, e.g., State v. Foster,
{¶ 22} Judges have no inherent power to create sentences. Griffin & Katz, Ohio Felony Sentencing Law (2008) 4, Section 1:3, fn. 1. See also Woods v. Telb,
{¶ 23} No court has the authority to impose a sentence that is contrary to law. Colegrove,
{¶ 24} Other states’ courts hold similarly, using the voidness doctrine as well as a related theory, the illegal-sentence doctrine.
{¶ 25} “A motion to correct an illegal sentence ‘presupposes a valid conviction and may not, therefore, be used to challenge alleged errors in proceedings that occur prior to the imposition of sentence.’ ” Edwards v. State (1996),
{¶ 26} We similarly hold that when a judge fails to impose statutorily mandated postrelease control as part of a defendant’s sentence, that part of the sentence is void and must be set aside.
{¶ 27} This principle is an important part of the analysis of void sentencеs that we have not focused upon in prior cases involving postrelease control, including Bezak,
{¶ 28} However, we now modify the second sentence in the Bezak syllabus as ill-considered. That sentence states that the offender is entitled to a new sentencing hearing for the offense for which postrelease control was not imposed properly.
{¶ 29} Therefore, we hold that the new sentencing hearing to which an offender is entitled under Bezak is limited to proper imposition of postrelease control. In so holding, we come more into line with legislative provisions concerning appellate review of criminal sentences. R.C. 2953.08(G)(2)(b) permits
{¶ 30} Correcting the defect without remanding for resentencing can provide an equitable, economical, and efficient remedy for a void sentence. Here, we adopt that remedy in one narrow area: in cases in which a trial judge does not impose postrelease сontrol in accordance with statutorily mandated terms. In such a case, the sentence is void. Principles of res judicata, including the doctrine of the law of the case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by collateral attack.
{¶ 31} Our decision today is limited to a discrete vein of cases: those in which a court does not properly impose a statutorily mandated period of postrelease control. In cases involving postrelease control, we will continue to adhere to our narrow, discrete line of cases addressing the unique problems that have аrisen in the application of that law and the underlying statute. In light of the General Assembly’s enactment of R.C. 2929.191, it is likely that our work in this regard is drawing to a close, at least for purposes of void sentences. Even if that is not the case, however, we would be ill-served by the approach advocated by the dissent, which is premised on an unpalatable and unpersuasive foundation.
Ill
{¶ 32} With the law and scope of the question before us today now clarified, we turn to the specific question posed in this appeal, as reframed in our new language: is a direct appeal from a resentencing on a remand from an appeal finding that a sentence was void the “first” direct apрeal as of right because the first appeal was a “nullity”? Like the court of appeals, we answer that question in the negative.
{¶ 34} Other state supremе courts have used the law-of-the-case doctrine in cases of illegal sentences. See, e.g., Brittingham v. State (Del.1998),
{¶ 35} The law-of-the-case doctrine is rooted in principles of res judicata and issue preclusion, and we have expressly disfavored applying res judicata to sentences that do not conform to statutory postrelease-control mandates. Simpkins,
{¶ 36} But other than Bezak, the ease law has thus far focused only on whether a defendant is barred from raising claims about a void sentence rather than on the remedy therefor. We do not disturb that precedent. Instead, our decision today revisits only one component of the holding in Bezak, and we overrule only that portion of the syllabus that requires a complete resentencing hearing rather than a hearing restricted to the void portion of the sentence. In light of our holding, the сourt of appeals in this case correctly held that Fischer’s remaining claims, which did not involve a void sentence or judgment, were barred by res judicata.
{¶ 37} In so holding, we reject Fischer’s claim that there was no final, appealable order in this case.
{¶ 38} Fischer’s theory is that because the trial court did not properly apply postrelease-control sanctions, his sentence was void under Bezak. Because his sentence was void, he contends, there was no sentence, and without a sentence, no conviction and no final order. See State v. Whitfield,
{¶ 39} Nothing in Baker discusses void or voidable sentences. Rather, the syllabus speaks only to the requirement that the judgment of conviction set forth “the sentence” in addition to the other necessary aspects of the judgment. The judgment in this case did set forth the sentence. The fact that the sentence was illegal does not deprive the appellate court of jurisdiction to consider and correct the error. In fact, R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court to modify or vacate any sentence that is “contrary to law.” Clearly, no such authority could exist if an unlawful sentence rendered a judgment nonfinal and unappealable. Thus, Baker does not avail Fischer.
IV
{¶ 40} Our intention today is to provide a clear, simple, and more workable solution to a vexing issue without compromising the interests of fairness. In balancing those interests here, we have carefully considered the law in a combined effort to craft the most equitable solution. We therefore hold that void sentences are not precluded from appellate review by principles of res judicata and may be reviewed at any timе, on direct appeal or by collateral attack. We further hold that although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence. The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing.
Judgment affirmed.
Notes
. The term “illegal” generally means “forbidden by law.” Black’s Law Dictionary (9th Ed.2009) 815. It accurately summarizes a judge’s actiоn in failing to do what the General Assembly has commanded with respect to postrelease control.
. The current version of Fed.R.Crim.P. 35(a) permits correction of a sentence only for “clear error” ■within 14 days of sentencing. But the original version of the rule permitted correction of an illegal sentence “at any time,” and the prior version of the rule continued the law as it existed when the rule was adopted in 1944. See Advisory Committee Notes to Fed.R.Crim.P. 35(a).
Dissenting Opinion
dissenting.
{¶ 42} The majority holds that void sentences are “not precluded from appellate review by principles of res judicata and may be reviewed at any time, on direct appeal or by collateral attack.” But it holds further that “[although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.” In other words, a sentence that is “void” because of an error in imposing postrelease control is now only “partially void.”
{¶ 43} Consequently, an appeal may be taken of any postrelease-control error at any time, but apparently the court of appeals is to correct only the erroneous portion of the sentence, rather than conduct a de novo sentencing hearing. This holding effectively overrules the second sentence of the syllabus in State v. Bezak,
{¶ 44} I respectfully dissent because I believe that it would be more sensible for us to completely abandon Bezak, and its progeny and instead hold that these errors are correctable on direct appeal within the usual time for appellate review. This aрproach honors Ohio legal precedent, promotes judicial economy, and treats both the state and defendants equally and fairly.
I. The Majority Has Redefined the Term “Void”
{¶ 45} Before the line of cases starting a mere three years ago with Bezak, this court repeatedly held that sentencing errors are nonjurisdictional and that these errors are properly corrected on appeal. See State ex rel. Shackleford v. Moore,
{¶ 46} Within the past year, a unanimous United States Supreme Court also had no trouble in defining the term “void”: “A void judgment is a legal nullity. See Black’s Law Dictionary 1822 (3d ed.1933); see also id., at 1709 (9th ed.2009). Although the term ‘void’ describes a result, rather than the conditions that render a judgment unenforceable, it suffices to say that a void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final. See Restatement (Second) of Judgments 22 (1980); see generally id., § 12.” United Student Aid Funds, Inc. v. Espinosa (2010), — U.S.-,
{¶ 47} Redefinition of the term “void” to include sentences containing errors in postrelease control is an entirely unnecessary reaction to the consequences of the “modern era”
{¶ 48} A more troublesome part of the majority’s holding is that although the sentence remains “void,” a defendant will not receive the benefit of the resentenc-ing mandated by R.C. 2929.19, which protects defendants’ due process rights.
{¶ 49} An approach that deems certain sentences “illegal” or “partially void” is ill-suited for Ohio law. A close reading of cases from other jurisdictions cited in the majority opinion reveals that the cited cases arise from a variety of factual circumstances and procedural postures far removed from a judge’s error in imposing postrelease control. Many of these jurisdictions rely upon statutes or rules that give their courts the power to review erroneous or “illegal” sentences at any time. The majority’s approach has been rejected by the federal courts, which now correct sentencing errors with the method used by Ohio prior to Bezak.
{¶ 50} More than two decades ago, language was eliminated from the federal rules that allowed courts to correct an “illegal sentence” at any time. P.L. No. 98-473, 98 Stat. 2015. Fed.R.Crim.P. 35(a) now provides, “Within 14 days aftеr sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” However, if a federal sentencing error is not correctable under this rule or under Fed.R.Crim.P. 36 as a clerical error, it may be corrected only on direct appeal or, in limited cases, by a writ of habeas corpus under Section 2255, Title 28, U.S.Code. See generally United States v. Collins (Apr. 26, 2010), N.D.Ill. No. 04 CR 709,
{¶ 51} Ohio’s rules and statutes currently do not allow for correction of sentences “at any time.” Thus, sentencing errors must be corrected on direct appeal. Indeed, this method is consistent with the statute governing appellate review of sentences. R.C. 2953.08(G) does allow appellate courts a number of options to correct sentences that fail to comply with statutory requirements. But that statute also properly limits these options so that courts may exercise them only on direct appeal. This ensures finality in sentencing while still allowing for the correction of any errors as part of an appeal as of right, either by the defendant or the state.
III. A Return to Historical Distinctions Will Promote Justice and Finality
{¶ 52} It is time to return to the historic, narrow, and accurate view of void judgments as being those rendered without jurisdiсtion. See Ex parte Winslow
{¶ 53} The real question here is “What is the proper remedy when a judge makes a sentencing mistake?” Our sentencing statutes recognize the possibility that a judge may err in sentencing by allowing parties 30 days to appeal sentences on grounds that they are contrary to law.
{¶ 54} The majority has essentially elevated postrelease-control mistakes to the level of “super-error” to allow untimely challenges to parts of the sentence that could very easily be brought on direct appeal and correctеd as other sentencing errors are. While it is critical that sentences comply with statutory mandates, any concern over mistakes omitting mandatory postrelease control could easily be obviated if all prosecutors and defense attorneys attended the sentencing hearings and reviewed the sentencing entries in their cases.
{¶ 55} The General Assembly has created a prospective remedy for the problem of postrelease-control notification by enacting R.C. 2929.191, but according to our holdings in State v. Singleton,
{¶ 56} It is hoped that this decision today is truly limited to a discrete vein of cases: those “in which a court does not properly impose a statutorily mandated period of postrelease control,” in оther words, only those cases in which the state has not obtained a mandatory monitoring period in addition to a defendant’s prison sentence. My fear is that the broad language in the majority opinion has the potential to apply to other statutory mandates, creating other “void” sentences that may be infinitely appealable, and then modified without a full rehearing under R.C. 2929.19(A).
IV. Conclusion
{¶ 57} We can easily correct the problems arising from the void-sentence doctrine by simply clarifying that mistakes in imposing sentences make the sentence merely voidable, that is, subject to being reversed on direct appeal. I therefore respectfully dissent.
. Notably, this also overrules paragraph one of the syllabus in last year’s decision in State v. Singleton,
. Although the majority cites State v. Foster,
. The earliest of these cases, State v. Beasley (1984),
. R.C. 2929.19(A) states, “The court shall hold a sentencing hearing before imposing a sentence under this chapter upon an offender who was convicted of or pleaded guilty to a felony and before resentencing an offender * * *. At the hearing, the offendеr, the prosecuting attorney, the victim or the victim’s representative * * * and, with the approval of the court, any other person may present information relevant to the imposition of sentence in the ease. The court shall inform the offender of the verdict of the jury or finding of the court and ask the offender whether the offender has anything to say as to why sentence should not be imposed upon the offender.” (Emphasis added.)
. See United States v. Terzado-Madruga (C.A.11, 1990),
. R.C. 2953.08(B)(2) provides prosecutors with an appeal as a matter of right in felony cases on grounds that the sentence is contrary to law. R.C. 2953.08(A)(4) provides defendants with the same right to appeal.