STATE OF OHIO, Plaintiff-Appellee, vs. DONALD JONES, Defendant-Appellant.
APPEAL NOS. C-150312, C-150303; TRIAL NO. B-0511217-C
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 27, 2016
2016-Ohio-5109
Criminal Appeals From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed as Modified and Cause Remanded in C-150303; Appeal Dismissed in C-150312
Donald Jones, pro se.
Per Curiam.
{¶1} Defendant-appellant Donald Jones appeals from the Hamilton County Common Pleas Court’s judgment overruling his “Motion for Re-Sentencing Based on Void Judgment.” We dismiss the case numbered C-150312 as duplicative of the case numbered C-150303. We affirm as modified the court’s judgment denying relief under the postconviction statutes. But we remand for resentencing in conformity with the statutory mandates concerning postrelease control.
{¶2} Jones was convicted of murder in 2006. We affirmed his conviction in his direct appeal. State v. Jones, 1st Dist. Hamilton No. C-070083 (Oct. 24, 2007), appeal not accepted, 116 Ohio St.3d 1505, 2008-Ohio-381, 880 N.E.2d 481.
{¶3} Jones also challenged his conviction in postconviction motions filed with the common pleas court in 2007, 2010, 2012, and 2015. In his 2015 “Motion for Re-Sentencing Based on Void Judgment,” he sought resentencing on the grounds that (1) the trial court violated
Grounds Not Asserted in the Motion
{¶4} In his first assignment of error, Jones contends that the trial court violated
Grounds Asserted in the Motion
{¶6} Jones further contends in his first assignment of error that the trial court’s May 2012 nunc pro tunc entry granting his motion to remit costs violated his right to be present during sentencing, and that the trial court violated
{¶7} Nunc pro tunc sentencing entry and ineffective trial counsel. Jones’s motion for resentencing did not designate a statute or rule under which the relief sought might be afforded. The common pleas court was, therefore, free to “recast” the motion “into whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
{¶8}
{¶9} Jones effectively invoked the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10, of the Ohio Constitution with his claim that his trial counsel had been ineffective concerning community-service-for-nonpayment-of-costs notification. In support of his claim that the 2012 nunc pro tunc entry remitting costs denied him his right to be present at sentencing, he invoked
{¶10} But Jones filed his petition well after the time prescribed by
{¶11} The record does not, as it could not, demonstrate that, but for the claimed errors, “no reasonable factfinder would have found [Jones] guilty of the offense of which [he] was convicted.”
{¶12} Community-service-for-nonpayment-of-costs notification. We do not reach the merits of Jones’s challenge on appeal to the common pleas court’s denial of relief on the ground that the trial court violated
{¶13} A court of appeals has only “such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district.”
{¶14} Void judgment. Finally, courts always have jurisdiction to correct a void judgment. See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. But Jones’s sentence would not have been rendered void by the alleged errors in community-service-for-nonpayment-of-costs notification or in the imposition and remission of costs, or by trial counsel’s alleged ineffectiveness in those matters. See State v. Wurzelbacher, 1st Dist. Hamilton No. C-130011, 2013-Ohio-4009, ¶ 8; State v. Grant, 1st Dist. Hamilton No. C-120695, 2013-Ohio-3421, ¶ 9-16 (holding that a judgment of conviction is void only to the extent that a sentence is unauthorized by statute or does not include a statutorily mandated term or if the trial court lacks subject-matter jurisdiction or the authority to act).
{¶15} We, therefore, overrule the first and second assignments of error.
Postrelease Control
{¶16} In his third assignment of error, Jones contends that the trial court erred in including in his sentence a period of postrelease control. We agree.
{¶17} In sentencing Jones for murder, the trial court notified him that, upon his release, he would be subject to a mandatory period of postrelease control of five years. The court also incorporated postrelease-control notification in the judgment of conviction.
{¶18} But the postrelease-control statutes then in effect authorized a mandatory five-year period of postrelease control only for a first-degree felony or a felony sex offense. See former
Affirmed as Modified, but Remanded
{¶20} The postconviction statutes did not confer on the common pleas court jurisdiction to entertain Jones’s late postconviction claims on their merits. The claims were, therefore, subject to dismissal. Accordingly, upon the authority of
{¶21} But the common pleas court had jurisdiction to correct a void sentence. And Jones’s sentence is void to the extent that the trial court imposed an unauthorized period of postrelease control. We, therefore, remand this cause for correction of the offending portion of his sentence, in accordance with the law and this opinion.
Judgment accordingly.
FISCHER, P.J., CUNNINGHAM and STAUTBERG, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.