State v. PeeksState v. Peeks
OPINION
{¶ 1} Dеfendant-appellant, Willie J. Peeks, appeals from a judgment imposing consecutive sentences entered by the Franklin County Court of Common Pleas. For the following reasons, we affirm that judgment.
{¶ 2} On January 25, 2005, a Franklin County Grand Jury indicted appellant for three counts of robbery in violation of R.C.
{¶ 3} Appellant initially entered a not guilty plea to the charges. Before trial, however, appellant entered a guilty plea to four counts of aggravated robbery without any firearm specifications. The trial court accepted appellant‘s guilty plea, found him guilty, and dismissed the remaining charges. The trial court sеntenced appellant to eight-year prison terms for each count. Although the trial court ordered two of those sentences to be served concurrently, it ordеred the other two sentences to be served consecutively, for a total prison term of 16 years. Appellant‘s counsel objected to the sentence based on the United States Supreme Court‘s decision in Blakely v. Washington (2004), 542, U.S. 296, 124 S.Ct. 2531.1 The trial court overruled appellant‘s objection and imposed sentence.
{¶ 4} Appellant appeals and assigns the following error:
The trial court was without authority to impose consecutive terms of incarceration, as the sentence violated the
Sixth Amendment to the United States Constitution .
{¶ 5} Appellant‘s assignment of error challenges the trial court‘s imposition of cоnsecutive sentences. Former R.C.
{¶ 6} In this case, the trial court sentenced appellant to consecutive prison terms based on findings it made pursuant to R.C.
{¶ 7} Appellant contends that the harmless error analysis is improper because the Supreme Court of Ohio in Foster stated that a sentence based on R.C.
{¶ 8} This court has previously held that a Blakely-Foster error is waived if the defendant failed to object in the triаl court. State v. Draughon, Franklin App. No. 05AP-860, 2006-Ohio-2445, at ¶ 7. Relying on language from the United States Supreme Court in United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, we applied the well-settled doctrine of waiver to overrule Draughon‘s Blakely-Foster challenge, even though we acknowledged the language in Foster that seems to require a remаnd for resentencing. Our reasoning rested on the difference between a void and voidable judgment. Draughon at ¶ 7-8.
{¶ 9} Notwithstanding the language in Foster that declared sentences imposed pursuant to an unconstitutional statute void, the assumption underlying our decision in Draughon was that a Blakely-Foster error rendered his sentence voidable — not void. A voidable error can be waived. See State v. Barnes (1982), 7 Ohio App.3d 83, 85 (failing to object to voidable order waived any error); State v. Grimm (Apr. 25, 1997), Miami App. No. 96CA-37 (failure to object to voidable defect waives issue on appeal); Trotwood v. Wyatt (Jan. 21, 1993), Montgomery App. No. 13319 (voidable defects waived on appellate review if not raised below). The distinction between void and voidable judgments is сrucial to the resolution of this case.
{¶ 10} A void judgment is one rendered by a court lacking subject-matter jurisdiction or the authority to act. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, at ¶ 12; State v. Beasley (1984), 14 Ohio St.3d 74, 75. A voidable judgment, on the other hand, is a judgmеnt rendered by a court having jurisdiction/authority and, although seemingly valid, is irregular and erroneous. State v. Montgomery, Huron App. No. H-02-039, 2003-Ohio-4095, at ¶ 9. Generally, sentencing errors are not jurisdictional and, therefore, do not rеnder the sentence void. See State ex rel. Massie v. Rogers (1997), 77 Ohio St.3d 449, 450; Majoros v. Collins (1992), 64 Ohio St.3d 442, 443 (noting that “[w]e have consistently held that sentencing errors are not jurisdictional * * *.“); Johnson v. Sacks (1962), 173 Ohio St. 452, 454 (“The imposition of an erroneous sentence does nоt deprive the trial court of jurisdiction.“).
{¶ 11} Although Foster states that sentences imposed pursuant to R.C.
{¶ 12} However, these cases do not support the proposition that an errоneous sentence is automatically void. Because a sentence rendered unlawful by Blakely-Foster does not call into question the trial court‘s jurisdiction/authority, such a sentence is voidable — not void. We again note that the void-voidable distinction was not addressed in Foster . Given the absence of any analysis of this important distinction, we conclude that aрpellant‘s reliance on the Foster court‘s use of the word “void” is misplaced. Cf. Kelley v. Wilson, 103 Ohio St.3d 201, 2004-Ohio-4883, at ¶ 14 (“[D]espite our language in Green that the specified errors rendered the sentence ‘void,’ the judgment was voidable and properly challenged on direct apрeal.“); State v. Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, at ¶ 20-26 (Cook, J., dissenting) (noting majority‘s confusion between void and voidable judgment).
{¶ 13} In this case, there is no question that the trial court had jurisdiction/authority to impose the sentence. The trial court did not disregard a statutory requirement or exceed its authority when it sentenced appellant. Rather, the trial court erred by sentencing appellant under a statute that was subsequently declared unconstitutional and severed from the statutory scheme by the Foster court. Sentencing errors such as this are not jurisdictional errors that wоuld render a sentence void. See Majoros, supra, at 443 (allegation that trial court applied statute not in effect at time of sentencing would only raise non-jurisdictional sentencing errоr). Instead, the erroneous sentence in this case is merely voidable.
{¶ 14} Therefore, a remand for resentencing is not mandatory. We may reverse only if the Blakley-Foster error challenged on appeal is not harmless. Recuenco, supra.
{¶ 15} After examining the purpose and effect of R.C.
{¶ 16} Because we reach this conclusion as a matter of law, there is no need to remand this case to the trial court for resentencing or for a determination of harmless error. Appellant‘s lone assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.