State of Ohio, Plaintiff-Appellee, v. Levio D. Mack, Defendant-Appellant.
No. 16AP-680 (C.P.C. No. 94CR-201)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 31, 2017
[Cite as State v. Mack, 2017-Ohio-7417.]
HORTON, J.; BROWN and BRUNNER, JJ., concur.
(REGULAR CALENDAR)
Rendered on August 31, 2017
On brief: Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.
On brief: Levio D. Mack, pro se.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, Levio D. Mack, pro se, appeals from a September 12, 2016 judgment of the Franklin County Court of Common Pleas denying appellant‘s motion for sentencing. For the following reasons, we аffirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant confessed to having shot the victim, Edgar Pettus, while robbing him and then attempting to start a fire to hide the evidence. On January 14, 1994, appellant was indicted on the following charges: Count 1 of the indictment, aggravated murder with two capital specifications and one firearm specification; Count 2 of the indictment, aggravated robbery with three specifications; Count 3 of the indictment, aggravated robbery with one specification; and Count 4 of the indictment, aggravated arson with one specification.
{¶ 3} On May 31, 1994, appellant entered guilty pleas to a stipulated lesser included offense of Count 1 of the indictment, aggravated murder without the capital
The Court finds that on May 31, 1994, the Defendant entered pleas of guilty to the stipulated lesser included offense of Count One of the indictment, to wit: Aggravated Murder without death specifications, but with firearm specification in violation of
R.C. 2903.01 , a Felony of the First degree; and to Count Three of the indictment, to wit: Aggravated Robbery without specification in violation ofR.C. 2911.01 , a Felony of the First degree, and was found guilty of said charges by the Court.
(Emphasis added.) (June 1, 1994 Jgmt. Entry at 1.)
{¶ 4} The trial court imposed a sentence of 20 years to life with respect to the aggravated murder charge, 3 additional years as to the firearm specification, and 6 to 25 years on the aggravated robbery charge. All prison terms were ordered to be served consecutively. Eventually, appellant filed a direct appeal and this court affirmed. State v. Mack, 10th Dist. No. 94APA07-992 (Aug. 10, 1999).
{¶ 5} In the years that followed appellant‘s conviction, he has filed a number of motions that the trial court has construed as petitions for postconviction relief. As relevant to this appeal, on September 13, 2013, appellant filed a “MOTION FOR ISSUANCE OF A FINAL APPEALABLE ORDER.” On October 1, 2013, the trial court overruled the motion as untimely, barred by res judicata, and otherwise lacking merit. Appellant filed a timely notice of appeal and this court affirmed. State v. Mack, 10th Dist. No. 13AP-887, 2014-Ohio-1648.
{¶ 6} On October 22, 2015, appellant filed a motion for sentencing, arguing that the trial court‘s sentencing entry of June 1, 1994 was void because the entry clearly and erroneously stated that aggravated murder was “a Felony of the First degree,” and for failing to indicate the sequence in whiсh the consecutive sentences were to be served.
{¶ 7} On September 12, 2016, the trial court denied appellant‘s motion. The trial court noted that:
Defendant argues that his sentence is void and as a result, he is entitled to be resentenced. His argument hinges on the fact that the Judgment Entry erronеously classified Aggravated Murder in violation of
R.C. 2903.01 as “a Felony of the Firstdegree,” when in fact Aggravated Murder is an unspecified felony. * * *
The record clearly establishes that the inclusion of “a Felony of the First Degree” in the Judgment Entry was an erroneous clerical error.
Moreover, the Court finds that res judicata bars Defendant from now seeking to vacate his judgment and have a new sentencing hearing. It is well-established that “[a] void judgment is a nullity and open to collateral attack at any time.” Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 46. However, the Judgment Entry in this case constitutes a voidable judgment on the grounds that it contains a clerical mistake. Therefore, res judicata bars Defendant from raising this аrgument for the first time. Defendant failed to raise this issue on direct appeal and he failed to raise it during any subsequent Motions before this Court. Accordingly, Defendant‘s contention is barred by the doctrine of res judicata.
(Emphasis sic.) (Sept. 12, 2016 Entry Denying Defendant‘s Mot. at 2-4.) The trial court then denied appellant‘s motion and stated that, pursuant to
{¶ 8} In addition, on August 23, 2016, appellant filed a motion for shock probation pursuant to
{¶ 9} On September 27, 2016, appellant filed a notice of appeal, noting specifically that he was appealing the September 12, 2016 judgmеnt of the trial court.
II. ASSIGNMENTS OF ERROR
{¶ 10} Appellant‘s three assignments of error are lengthy, and at times difficult to follow. However, we will briefly summarize. In assignment of error one, appellant asserts that he is entitled to re-sentencing, based upon his claim that the June 1, 1994 judgment
III. ASSIGNMENT OF ERROR ONE—BARRED BY RES JUDICATA
{¶ 11} In his first assignment of error, appellant asserts that he is entitled to sentencing or re-sentencing, based on his claim that the June 1, 1994 judgment entry was void. His argument hinges on the fact that the judgment еntry erroneously classified aggravated murder in violation of
{¶ 12} Appellant could have raised all of the arguments contained in his motion during his direct appeal, which he did not do. Res judicata bars any claim that appellant could have raised in the trial сourt before conviction or on appeal after conviction. State v. Perry, 10 Ohio St.2d 175 (1967). In Perry, the Supreme Court of Ohio stated:
Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any сlaimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.
{¶ 13} Even if appellant‘s claim was not barred by res judicata, his argument still lacked merit. ” ‘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. Unlike a void judgment, a voidable judgment is one rendered by a court that has both jurisdiction and authority to act, but the court‘s judgment is invalid, irrеgular, or erroneous.’ ” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 6, quoting State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 27.
{¶ 14} The trial court found that the record clearly establishes that the inclusion of “а Felony of the First degree” in the judgment entry was an erroneous clerical error. The trial court noted that appellant was indicted for aggravated murder, and his signed guilty plea states that he pled “[g]uilty to the stipulated lesser included offense of Count 1 of the indictment, to wit, Aggravated Murder, 2903.01 R.C., withоut death specifications.” (June 1, 1994 Entry of Guilty Plea.) The trial court also reviewed the transcript from the May 31, 1994 plea hearing and found that appellant entered into a plea to the same. (Sept. 12, 2016 Entry Denying Def.‘s Mot. at 3.) Accordingly, there was competent, credible evidence tо show that the trial court‘s misclassification of Count 1 of the indictment constitutes a clerical error.
{¶ 15} As found by the trial court, the sentencing entry was voidable, not void. Res judicata “bars attacks on voidable judgments but not void judgments.” State v. Mack, 10th Dist. No. 13AP-884, 2014-Ohio-1648, ¶ 7.
{¶ 16} Based on the foregoing, appellant‘s first assignment of error is ovеrruled.
IV. ASSIGNMENT OF ERROR TWO – NOT PROPERLY RAISED
{¶ 17} In his second assignment of error, appellant argues that ODRC should be held in contempt for “unconstitutionally” altering, amending, or modifying his life sentence to “888” years in prison. (Appellant‘s brief at 9-10.)
{¶ 18} Appellant attached an unauthenticated document to his appellant‘s brief, purpоrtedly from the ODRC. This document is not part of the record in this appeal. This document, if it is authentic, shows that appellant‘s minimum sentence for aggravated murder is 20, and maximum sentence is 888.88. It also shows that the minimum sentence for aggravated robbery is 6 years with a maximum of 25. It states that the aggregate sеntence is “3 Gun + 26.00 – Life.”
{¶ 19} Appellant never raised this argument with the trial court, and instead raises a constitutional argument for the first time on appeal, which is improper. See State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 74 (constitutional argument raised for the first time on appeal “need not be heard” by reviewing court), citing State v. Douglas, 10th Dist. No. 09AP-111, 2009-Ohio-6659, quoting State v. Awan, 22 Ohio St.3d 120 (1986).
{¶ 20} Second, appellant‘s argument relies upon material that was never presented to the trial court, and is therefore outside the record, which is also improper. State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus (“A reviewing court cannot add matter to the record before it, which was not part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter.“).
{¶ 21} Even if the merits are considered, and it is assumed that the ODRC document attached to appellant‘s brief is a true and accurate copy of an actual record maintained by ODRC, his argument fails. The state argues that “[i]t appears that, for whatever reason, the system used by ODRC converts the maximum possible sentence for a life term into the numerical equivalent of 888.88 years. But, the form also clearly recognizes that the minimum prison term for aggravated murder is 20 years, so ODRC‘s routine bookkeeping process to apparently designate an infinite number as 888.88 did not ‘alter, amend, or modify’ defendant‘s sentence in any manner whatsoever.” (Appellee‘s brief at 8.) We agree with the state. In addition, the document clearly shows that the
{¶ 22} Accordingly, appellant‘s second assignment of error is overruled.
V. ASSIGNMENT OF ERROR THREE—COURT LACKS JURISDICTION
{¶ 23} In his third assignment of error, appellant asserts that the trial court committed some type of duе process and/or equal protection violation by recasting his motion for shock probation as a motion for judicial release.
{¶ 24} We note that the trial court does not state why it chose to review appellant‘s motion under the judicial release statute,
{¶ 25} Firstly, the trial court‘s judgment entry recasting and denying appellant‘s motion for shock probation was filed on September 14, 2016. Appellant‘s notice of appeal is specifically limited to the September 12, 2016 judgment entry, denying his motion for “sentencing.” As a result, this court lacks jurisdiction to entertain appellant‘s argument, as it relates to a judgment he never appealed. See
{¶ 26} Secondly, even if this court had jurisdiction, a motion denying shock probation is not a final, appealable order. State v. Coffman, 91 Ohio St.3d 125, 126 (2001). Coffman also “requires the dismissal of orders denying judicial release pursuant to
We discern no relevant difference between the new statute and its predecessor that would permit us to read into it a right оf appeal that did not previously exist. Coffman at 127 (“In matters of probation and parole, we have steadfastly refused to recognize a right of appeal absent a clear directive from the General Assembly that an appeal may be prosecuted“). We concludе that the denial of a motion for shock probation under
R.C. 2929.201 , like the denial of a motion underR.C. 2947.061 , is not a final appealable order.
Id. at ¶ 6.
Notwithstanding the time limitation for filing a motion under former section 2947.061 of the Revised Code, an offender whose offense was committed before July 1, 1996, and who otherwise satisfies the eligibility criteria for shock probation under that section as it existed immediately prior to July 1, 1996, may apply to the offender‘s sentencing court for shock probation.
{¶ 28} The 1996 version of
{¶ 29} This court lacks jurisdiction as to appellant‘s third assignment of error.
VI. DISPOSITION
{¶ 30} Based on the foregoing, appellant‘s first and second assignments of error are overruled. This court lacks jurisdiction as to appellant‘s third assignment of error. Therefore, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and BRUNNER, JJ., concur.
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