STATE OF OHIO v. NIGEL HARRISON
C.A. CASE NO. 24471; T.C. NO. 08CR4443
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
December 30, 2011
[Cite as State v. Harrison, 2011-Ohio-6803.]
(Criminal appeal from Common Pleas Court)
Rendered on the 30th day of December, 2011.
TIMOTHY J. COLE, Atty. Rеg. No. 0084117, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
NIGEL HARRISON, #609-080, Pickaway Correctional Institution, P. O. Box 209, Orient, Ohio 43146 Defendant-Appellant
DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Nigel Harrison, filed February 7, 2011. Harrison pled guilty to the offense of failure to register, in violation of
{¶ 2} On July 22, 2010, Harrison filed a “Motion/Request to Supplement his Prior Argument with Newly Discovered Evidence,” in which he argued, pursuant to State v. Chessman, 188 Ohio App.3d 428, 2010-Ohio-3239, that there is no penalty specified for failure to provide notice of a place of employment, school or institution of higher learning address change in
{¶ 3} On Octоber 28, 2010, the State filed a Motion to Dismiss. Harrison subsequently filed a “Motion to Reply to Prosecutor‘s Motion to Dismiss,” a “Motion in Response to Prosecutor‘s Motion to Dismiss,” a “Motion to Strike Pursuant to Ohio Rules of Civil Procedure 12(F),” and a “Motion to Vacate Sentence and Schedule Resentencing Hearing.”
{¶ 4} On January 26, 2011, the trial court issued a “Decision and Order Overruling Defendant‘s Motion to Strike and Denying Defendant‘s Petition for Post Conviction Relief.”
{¶ 5} The court noted that Harrison pled guilty tо failure to register and did not file a direct appeal. Accordingly, the court found, Harrison‘s petition for post-conviction relief should have been filed by February 26, 2010, unless there was a reason for the delay. Since Harrison did not advance a reason for his untimely filing, the trial court determined that his “petition is untimely and should be overruled for that reason alone.”
{¶ 6} Regarding Harrison‘s failure to register, the trial court noted that Harrison
{¶ 7} Harrison asserts three assignments of error. We will first consider his second assignment of error. It is as follows:
{¶ 8} “THE TRIAL COURT ERRED BY IMPOSING A TERM OF CONFINEMENT UPON APPELLANT FOR VIOLATING
{¶ 10} As the trial court correctly determined, Harrison was not indicted under
{¶ 11} We will consider Harrison‘s first and third assignments of error together. They are as follows:
{¶ 13} “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S MOTION TO VACATE OR SET ASIDE HIS SENTENCE UNDER THE ADAM WALSH ACT WHEN IT SENTENCE[D] THE APPELLANT UNDER A FIRST DEGREE FELONY IN VIOLATION OF THE 14TH AMENDMENT TO THE UNITED STATE[S] CONSTITUTIONAL RIGHTS TO DUE PROCESS, AND EQUAL PROTECTION OF LAW.”
{¶ 14} Harrison‘s July 14, 2010 filing рrovides both that he “petitions the [trial] court for post-conviction relief pursuant to Ohio Revised Code Sections
{¶ 15}
{¶ 16} “(1) Both of the following apply:
{¶ 17} “(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for
{¶ 18} “(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner wаs convicted * * * .”
{¶ 19} Harrison pled guilty to failure to register, and the time for filing a direct appeal expired 30 days after the July 31, 2009 Termination Entry, on August 30, 2009. Accordingly, a petition for post-conviction relief should have been filed within 180 days, or by February 26, 2010, as the trial court noted. However, Harrison is correct that he is entitled to have his sentence vacated since, subsequent to the Adam Walsh Act, the penalty for failure to register for an offender like Harrison with prior convictions was increased to a mandatory three-year term as a felony of the first degree.
{¶ 20} When considering a void sentence, we agree with the aрproach taken by the Ninth District in State v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, ¶ 20. Therein the court, in reliance upon State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, determined, if “a sentence is void for failure to include proper postrelease-control notification, the trial court - or the reviewing court - has an obligation to recognize the void sеntence, vacate it, and order resentencing. Boswell at ¶ 12. Further, a trial court, confronted with an untimely or successive petition for postconviction relief that challenges a sentence that is void, must ignore the procedural irrеgularities of the petition and vacate the void sentence and resentence the defendant. Id.” “‘The effect of vacating the sentence places the parties in the same position they would have been in had thеre been no sentence.’ Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, * * * at ¶ 8 (further citation omitted).” Holcomb, at ¶ 21.
{¶ 21} Since Harrison‘s sentence is void, his first and third assigned errors are sustained, and we hereby vacate the sentence and remand the matter to the trial court to resentence him.
GRADY, P.J., concurs.
{¶ 22} Harrison pled guilty to his offеnse and was sentenced. He did not appeal. All of this transpired before State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, was decided, which held that the application of the Adam Walsh Act amendments to
{¶ 23} The general rule of appellate jurisprudence regarding the application of new rulings of a high court has been succinctly expressed as: “The usual rule today is that new rulings apply to all cases that are still pending, both civil and criminal.” The Journal of Appellate Practice and Process, Volume 12, Number 1, Spring 2011, “When is Finality . . . Final? Rehearing and Resurrection in the Supreme Court,” Aaron-Andrew P. Bruhl, p. 5. Professor Bruhl cites Griffith v. Kentucky (1987), 479 U.S. 314, 320-328, 107 S.Ct. 708, 93 L.Ed.2d 649, for the criminal side of that proposition.
{¶ 24} Harrison‘s case was no longer pending, in any forum, when State v. Williams was decided, and I find nothing in State v. Williams to suggest that it must be applied to judgments in criminal cases that have already become final.
{¶ 25} From time to time, courts, exercising the power of judicial review secured to the judicial branch by Marbury v. Madison (1803), 5 U.S. 137, 1 Cranch 137, hold acts of the legislative branch to have violated provisions of a state or federal constitution. In general, these holdings render judgments previously rendered in reliance upon the unconstitutiоnal legislative act voidable, but not void.
{¶ 26} In my view, it is radical, and dangerous, to treat judgments in reliance upon
{¶ 27} The reality is that our understanding of the limitations of both the United States and the Ohio constitutions upon legislative power is constantly changing, sometimes in surprising ways. To hold that with every change settled judgments can become not merely voidable, but void, would produce an unmanageable jurisprudence.
{¶ 28} I recognize that there are certain situations in which the Supreme Court of Ohio has held that a sentence that is contrary to statute is not merely voidable but void. More recently, the Supreme Court of Ohio has held that only that part of the sentence that is contrary to statute is void. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at ¶ 17. Thus, the scope of judgments that are not merely voidablе, but void, appears to be contracting, rather than expanding, which I find encouraging.
{¶ 29} Harrison‘s sentence was not contrary to statute; it was in accordance with the statute. In a direct appeal, Harrison would be entitled tо relief upon the ground that the retroactive application of the statute (which the legislature expressly intended) runs afoul of the Retroactive Laws clause in the Ohio Constitution, based upon the holding in Williams, supra. But in my view this reflects that Harrison‘s sentence is voidable, not void.
Copies mailed to:
Timothy J. Cole
Nigel Harrison
Hon. Dennis Adkins