State v. IsaState v. Isa
Rendered on the 27th day of October, 2017.
JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign County Prosecutor‘s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
ABRAHAM ISA, Inmate No. 566-878, Southern Ohio Correctional Facility, P.O. Box 45699, Lucasville, Ohio 45699 Defendant-Appellant-Pro Se
TUCKER, J.
I. Facts and Procedural History
{¶ 2} In 2007, Isa was convicted of thirteen counts of gross sexual imposition and two counts of rape involving five young women, two of whom were minors. The trial court sentenced Isa to an aggregate prison term of 24 1/2 years. His conviction was affirmed on direct appeal. State v. Isa, 2d Dist. Champaign No. 07–CA–37, 2008–Ohio–5906 (Isa I).
{¶ 3} In 2009, Isa filed two motions for re-sentencing. The first motion asserted that his sentence was void due to a post-release control defect with the second motion asserting his sentence was improperly computed. We affirmed the trial court‘s denial of these motions. State v. Isa, 2d Dist. Champaign Nos. 10–CA–1, 10–CA–2, 2010–Ohio–3770 (Isa II). With respect to the issue of post-release control, raised in Case No. 10–CA–1, we stated: “Based upon the record, we find no merit to Isa‘s contention that his sentence is void due either to a failure to provide for post-release control or a failure to advise him of post-release control.” Id. at ¶ 16.
{¶ 4} Isa later filed a “Motion to Vacate Sentence [as] Contrary to Law,” in which he asserted ineffective assistance of defense counsel, in part for allegedly advising him to reject a favorable plea bargain. The trial court treated the motion as a petition for post-
{¶ 5} Isa filed three additional motions in late 2013, seeking resentencing, to contest his classification under the Adam Walsh Act, a new trial, a change of venue, and for disqualification of the elected trial judge. In February 2014, a visiting judge denied each of these motions/petitions. Isa did not appeal these rulings.
{¶ 6} On August 13, 2014, Isa filed a “Motion for Re–Sentencing Based on Void Judgment.” Isa claimed that the trial court failed to notify him about the possibility of community service in lieu of court costs, and that the trial court failed to impose post-release control as to counts 1 through 13 and counts 16 and 17. Isa states that the trial court did not properly incorporate post-release control and other notifications into its judgment entry.
{¶ 7} On August 26, 2014, the trial court (visiting judge) overruled his motion for resentencing. The court reasoned that the court of appeals had addressed and rejected Isa‘s argument regarding the imposition of post-release control in Isa II, and that the law of the case doctrine barred re-litigation of that issue. With respect to cost costs, the trial court noted that a court “errs if it fails to inform the defendant that he can be ordered to perform community service if he fails to pay court costs.” However, the trial court found that Isa‘s motion with respect to the imposition of court costs was barred by res judicata. We affirmed. State v. Isa, 2d Dist. Champaign No. 2014-CA-31, 2015-Ohio-2876 (Isa
{¶ 8} In August 2015, Isa filed a motion for new trial pursuant to
{¶ 9} On December 29, 2016, turning to the instant appeal, Isa filed a motion to vacate a void judgment in which he argues that because the trial court, during the sentencing hearing, did not impose a prison term for his convictions on Counts 9, 11 and 12, the subsequent imposition in the termination entry of 18 months imprisonment on each of these counts resulted in a void sentence that must be vacated. He also argues that the discrepancy between the sentencing hearing and the termination entry effectively constitutes a sentence modification that was made outside his presence in violation of
{¶ 10} On March 8, 2017, Isa filed a motion to correct clerical error in which he
{¶ 11} Thereafter, the two appeals were consolidated by a Decision and Entry filed July 31, 2017.
II. Sentence Not Void
{¶ 12} Isa‘s first and second assignments of error state:
DID THE TRIAL COURT ERRED [SIC] IN DENYING APPELLANT‘S “MOTION TO VACATE VOID JUDGMENT“?
THE TRIAL COURT VIOLATED APPELLANT‘S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND CRIM.R. 43 WHEN IT IMPOSED PRISON SENTENCES OUTSIDE OF HIS PRESENCE.
{¶ 13} Isa contends that the trial court erred by denying his motion to vacate the judgment relating to Counts 9, 11 and 12. In support, he argues that the trial court erred because the imposition of prison terms for those counts in the termination entry constitutes an improper modification of the sentence imposed at the sentencing hearing. He further argues that the sentence set forth in the termination entry was imposed outside
{¶ 14} The sentencing hearing was conducted on December 3, 2007. The transcript of that hearing states, in pertinent part, as follows:
THE COURT: Thank you.
Counts One through Four [victim 1] are each gross sexual imposition. Sentence of 18 months and $200 fine on each is imposed.
Counts Five through Eight [victim 2] are concurrent with each other. Count Five is rape. Ten-year sentence mandatory and $200 fine. Count Six, Seven and Eight, 18 months sentence, $200 fine.
Counts Nine through Twelve [victim 3] are concurrent with each other. Counts Nine, Eleven and Twelve are gross sexual imposition. Fine of $200 each count. Count Ten, charge of rape, is ten year sentence, $200 fine.
Count Thirteen [victim 4], gross sexual imposition, 18 month confinement, $200 fine.
Count Sixteen and Seventeen [victim 5] each an 18 month confinement, $200 fine.
If I didn‘t say it, Counts Nine through Twelve are concurrent with each other.
Counts Sixteen and Seventeen are concurrent with each other.
These are five groupings of sentences, and each of the five groups is consecutive to each of the other five groups. All of the fines are concurrent making a total fine of $200.
{¶ 15} In the termination entry filed thereafter, the trial court imposed prison terms of 18 months each for Counts 9, 11, and 12. All three counts were also assessed a $200 fine. They were ordered to run concurrently with each other and with Count 10 for which a ten-year sentence and $200 fine was imposed.
{¶ 16} The issue raised by Isa was one that was apparent on the record and could have been raised upon direct appeal. Thus, unless the sentence is void, this claim is barred by the doctrine of res judicata. Under this doctrine, a final judgment of conviction prevents a defendant from raising, other than on direct appeal, any claim that was, or could have been, raised on direct appeal. State v. Howard, 2d Dist. Clark No. 2008-CA-87, 2009-Ohio-3432.
{¶ 17} “A void judgment is one that a court imposes despite lacking subject-matter jurisdiction or the authority to act.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27, citing State v. Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995). “Conversely, a voidable sentence is one that a court has jurisdiction to impose, but was imposed irregularly or erroneously.” Id., citing State v. Filaggi, 86 Ohio St.3d 230, 240, 714 N.E.2d 867 (1999). In cases where a trial court erroneously exercises its rightful jurisdiction, the sentence will not be deemed void, and “the sentence can be set aside only if successfully challenged on direct appeal.” Id. at ¶ 28.
{¶ 18} Generally, “sentencing errors are not jurisdictional and do not necessarily render a judgment void[.]” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 13 (citations omitted), superseded by statute on other grounds as stated in State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382. However, the
{¶ 19} In this case, the trial court, as to Counts 9, 11, and 12, had jurisdiction to impose the 18 month sentence on each count set forth in the termination entry because an 18 month prison term is provided for by statute. The sentences, as set forth in the termination entry, complied with all the statutorily mandated terms. See,
{¶ 20} But, Isa was effectively sentenced to prison terms that were not imposed in his presence in violation of
{¶ 21} Here, the record demonstrates an intent on the part of the trial court to impose the maximum sentence for each count upon which Isa was convicted. The State asked for such a sentence, and the trial court imposed such a sentence with regard to every other count. Further, the trial court imposed a sentence of 18 months for each count of gross sexual imposition except for Counts 9, 11 and 12. This appears to have been a simple mistake of omission on the part of the trial court during the sentencing hearing. Further, Counts 9, 11 and 12 were ordered, at both the hearing and in the termination entry, to run concurrently to Count 10 which imposed a ten-year sentence. Isa‘s ultimate sentence of ten years in prison with regard to victim number 3 does not change, and, thus, the trial court‘s omission did not result in a longer or harsher sentence. Accordingly, any error caused by the discrepancy is harmless.
{¶ 22} Accordingly, the first and second assignments of error are overruled.
III. Termination Entry Not Subject to Nunc Pro Tunc Correction
{¶ 23} Isa‘s third assignment of error is as follows:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT‘S “MOTION TO CORRECT CLERICAL MISTAKE
PURSUANT TO OHIO CRIM.R. 36.”
{¶ 24} Isa contends that the trial court should have granted his motion to correct the termination entry pursuant to
{¶ 25} ”
{¶ 26} It would not be appropriate to use a nunc pro tunc entry to eliminate from
{¶ 27} Isa‘s third assignment of error is overruled.
IV. Conclusion
{¶ 28} Isa‘s assignments of error being overruled, the judgment of the trial court is affirmed.
DONOVAN, J. and FROELICH, J., concur.
Copies mailed to:
Jane A. Napier
Abraham Isa
Hon. J. Timothy Campbell, Visiting Judge c/o Champaign County Common Pleas Court