STATE OF OHIO, Plaintiff-Appellee, vs. EARL INGLES, Defendant-Appellant.
APPEAL NO. C-100297; TRIAL NOS. B-9802147, B-9800321
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 17, 2011
[Cite as State v. Ingles, 2011-Ohio-2901.]
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed as Modified
Date of Judgment Entry on Appeal: June 17, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Earl Ingles, pro se.
Please note: we have removed this case from the accelerated calendar.
SUNDERMANN, Judge.
{1} Defendant-appellant Earl Ingles presents on appeal a single assignment of error, challenging the Hamilton County Common Pleas Court‘s judgments overruling his
{2} In 1998, following a joint trial on the charges contained in the indictments in the cases numbered B-9800321 and B-9802147, Ingles was convicted upon jury verdicts finding him guilty of five counts of kidnapping, two counts of gross sexual imposition, and a single count of attempted kidnapping. He unsuccessfully challenged his convictions in direct appeals to this court and to the Ohio Supreme Court1 and, collaterally, in postconviction motions filed in 2005 in the common pleas court. In February 2009, Ingles again collaterally challenged his convictions, this time in
{3} Ingles‘s 2009 motions sought relief from his convictions “pursuant to Civil Rule 60(B) and Criminal Rule 57.” But
{4} But Ingles filed his motions well after the expiration of the time prescribed by
{5} Ingles did not demonstrate that he had been unavoidably prevented from discovering the facts upon which his postconviction claims depended. Nor did he predicate his postconviction claims upon a new or retrospectively applicable federal or state right recognized by the United States Supreme Court since the prescribed time had expired. Because Ingles failed to satisfy either the time restrictions of
{6} And because the common pleas court lacked jurisdiction to entertain the motions, the motions were subject to dismissal. Accordingly, upon the authority
Judgments affirmed as modified.
HENDON, J., concurs.
CUNNINGHAM, P.J., concurs in part and dissents in part.
CUNNINGHAM, P.J., concurring in part and dissenting in part.
{7} I join the majority in affirming as modified the common pleas court‘s judgments dismissing Ingles‘s postconviction motions for lack of jurisdiction. But a trial court retains jurisdiction to correct a void judgment.4 And the sentences imposed for the kidnapping offenses charged in counts one and three of the indictment in the case numbered B-9800321 are void because the trial court lacked the statutory authority to impose them. I would, therefore, vacate those sentences and remand for resentencing.
{8} The kidnapping charges in counts one and three of the indictment in the case numbered B-9800321 each carried a sexual-motivation specification and a sexually-violent-predator specification. With respect to each offense, the jury found that Ingles had acted with a sexual motivation, and the trial court found that Ingles was a “sexually violent predator” for purposes of the sentencing-enhancement provisions of
{10} In Smith, the supreme court held that a “[c]onviction of a sexually violent offense cannot support the specification that the offender is a sexually violent predator as defined in
{12} The Ohio Supreme Court has long recognized and has recently “reaffirmed [the] vital principle” that “[n]o court has the authority to impose a sentence that is contrary to law.”12 And it has “consistently” held that “a sentence that is not in accordance with statutorily mandated terms is void.”13 A void sentence “may be reviewed at any time, on direct appeal or by collateral attack.”14 Thus, irrespective of a case‘s procedural posture, when a trial court has imposed a sentence that it had no statutory authority to impose, and the matter has come to a court‘s attention, the sentence must be vacated, and the defendant must be resentenced.15
{14} The Eighth Appellate District concluded to the contrary in addressing a Smith claim in its 2006 decision in State v. Waver.16 Waver had petitioned the court of appeals for a writ of mandamus to compel the trial court to vacate his 1997 rape and felonious-assault convictions. The court of appeals denied the petition upon its determination that mandamus was not appropriate, and that only an “[a]ppeal [would provide] the remedy” for Waver‘s Smith claim.17 In so holding, the court concluded that a successful Smith claim would not have rendered Waver‘s convictions void, because the supreme court in Smith had expressly held that “the trial court erred in relying on the jury‘s convictions of the underlying rape and kidnapping charges to prove the sexually-violent-predator specification alleged in the same indictment.”18
{15} The Waver decision is not controlling on this appellate district. Nor is it persuasive. For the purpose of determining whether a Smith error renders a sentence void, we perceive no significance in the supreme court‘s use of the word “erred” in declaring its holding. The void-or-voidable issue was not before the supreme court in Smith because the case was before the court on direct appeal, requiring no more to “remedy” the sentencing error than to hold that “the trial court erred” and to order that Smith be resentenced. But a void-or-voidable inquiry is not
{16} Because
{17} And because this disposition would conflict with the decision of the Eighth Appellate District in Waver, I would, upon the authority conferred by Section 3(B)(4), Article IV, Ohio Constitution, certify to the Ohio Supreme Court the following question: “Is a sentence imposed under former
Please Note:
The court has recorded its own entry on the date of the release of this decision.