State v. SailorState v. Sailor
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 1, 2021
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary McGrath, Assistant Prosecuting Attorney, for appellee.
Friedman, Gilbert + Gehardstein, L.L.C., Sarah Gelsomino, and Marcus Sidoti, for appellant.
SEAN C. GALLAGHER, P.J.:
{¶ 1} Ru-el Sailor appeals the denial of his motion to correct an allegedly void sentence, filed almost two years following the entry of his final conviction. The
{¶ 2} In 2003, Sailor was convicted of aggravated murder, among other offenses, and sentenced to serve a life sentence with the possibility of parole after 28 years. The conviction was affirmed. State v. Sailor, 8th Dist. Cuyahoga No. 83552, 2004-Ohio-5207. In 2002, Cordell and Nichole Hubbard were involved in an altercation with Clark Lamar and Omar Clark that led to Cordell Hubbard shooting Omar Clark eleven times and causing serious injury to Lamar. Id. at ¶ 2. An eyewitness wrongly identified Sailor as the driver of the car transporting Cordell to the murder scene. Id. at ¶ 6. At trial, Sailor lied under oath by testifying that he was with Cordell the entire night of the shooting, that neither of them had been present at the scene of the shooting, and they had spent most of their time inside a bar — finally ending their evening at 4:00 a.m. after the shooting had occurred. Id. at ¶ 20. At the sentencing hearing, and for the first time throughout the proceedings, Cordell disclosed to the court that another man had accompanied him to the shooting and Sailor was not present. Id. at ¶ 21.
{¶ 3} In 2017, the Cuyahoga County Prosecutor’s conviction integrity unit evaluated Sailor’s case. According to the state, Sailor was exonerated of any involvement in the actual murder for which he was found guilty based on testimony from the eyewitness who had obtained his information about Sailor’s supposed presence from another — the witness claimed to have been under the influence of PCP and alcohol on the night of the shooting and relied on a trusted friend’s
{¶ 4} In March 2018, the parties filed a joint motion to vacate the conviction under
{¶ 5} In December 2019, the state filed a motion to vacate an allegedly void sentence claiming that the maximum sentence that could be imposed upon the perjury and obstructing justice charges, under the version of
{¶ 6} Sailor appealed claiming the trial court possesses jurisdiction to correct what he asserted at the time to be a void sentence. After the briefing in this matter was completed, the Ohio Supreme Court issued two decisions of note. In State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, the Ohio Supreme Court held that “sentences based on an error, including sentences in which a trial court fails to impose a statutorily mandated term, are voidable if the court
{¶ 7} Thus, when initially filing his appeal Sailor had an argument that his sentence was void; however, following Harper/Henderson, the Ohio Supreme Court returned Ohio to the narrow interpretation of that exception to sentencing finality rendering his sentence to be voidable and subject to correction only through a timely, direct appeal. A sentence can only be considered void if the trial court lacked subject matter jurisdiction over the matter or personal jurisdiction over the person — all other sentencing errors, including the failure to impose the statutorily mandated sentence or in exceeding the statutory sentence, must be timely challenged or forever forfeited. See generally Henderson. Throughout the trial court proceedings involving Sailor during the 1998 trial, the trial court possessed personal jurisdiction over Sailor and subject matter jurisdiction over his convictions and sentencing. No one is arguing otherwise.
The justiciable controversy issue
{¶ 9} In Kimbro, it was generally recognized that “courts will not resolve issues that are moot.” State v. Marcum, 2015-Ohio-5237, 54 N.E.3d 719, ¶ 6 (10th Dist.), citing In re L.W., 168 Ohio App.3d 613, 2006-Ohio-644, 861 N.E.2d 546, ¶ 11 (10th Dist.). An appeal, direct or otherwise, will be deemed moot if the appellant seeks to obtain a “judgment upon some matter which, when rendered, for any reason cannot have any practical legal effect upon a then-existing controversy.” Id., citing In re L.W.. When an appeal becomes moot, it must be dismissed. Kimbro, 8th Dist. Cuyahoga No. 107529, 2019-Ohio-1247, at ¶ 2. This is because, in general, appellate courts avoid issuing advisory opinions. Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, ¶ 27, citing State ex rel. White v. Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 18, State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d 238, 242, 2000-Ohio-67, 736 N.E.2d 893, and Egan v. Natl. Distillers & Chem. Corp., 25 Ohio St.3d 176, 495 N.E.2d 904 (1986).
{¶ 11} In this case, in light of the fact that Sailor has fully served the imposed term of incarceration, one he believes is four years longer in the aggregate than statutorily allowed at the time, the sole issue advanced in this appeal is arguably moot. There is no live case or controversy to be resolved, nor can we offer any relief from the length of the sentence already served. In response to our request for
{¶ 12}
{¶ 13} Thus, in the civil action to declare Sailor to be wrongfully imprisoned, even if
The void and voidable doctrines, trial court jurisdiction and the scope of appellate review
{¶ 14} Because this is not a delayed or direct appeal, we need not rest solely on the mootness analysis in light of the extraordinary circumstances presented by this appeal, because the trial court lacks jurisdiction to modify the sentence for two separate and distinct reasons, which will be discussed in further detail. First and foremost, we cannot deem the trial court’s decision, to deny the motion to vacate a void sentence, to be in error. Under Harper/Henderson, any errors in the imposition of the final sentence are voidable, and can only be corrected through a direct appeal rather than through a collateral attack in a postconviction proceeding. It is undisputed that the conclusions reached in Harper and Henderson apply to this case. Jimison v. Wilson, 106 Ohio St.3d 342, 2005-Ohio-5143, 835 N.E.2d 34, ¶ 12, quoting Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6-7 (“‘A new judicial ruling may be applied only to cases that are pending on the announcement date.’”); see also Stewart, 8th Dist. Cuyahoga No. 109498, 2020-Ohio-6743, at ¶ 5. And, irrespective of Harper/Henderson, a trial court patently lacks jurisdiction to modify a sentence after the offender has fully served the
{¶ 15} Sailor claims that Harper/Henderson is inapplicable because Sailor was sentenced to an aggregate term longer than legally required. According to Sailor, there is an exception to the doctrine of res judicata that permits the trial court to modify the final sentence in this case because the pair of Ohio Supreme Court decisions in Harper/Henderson involved the defendant receiving shorter sentences than statutorily required.
{¶ 16} Sailor draws our attention to State v. Stansell, 8th Dist. Cuyahoga No. 109023, 2021-Ohio-2036, in which the panel concluded that such a distinction was dispositive. In Stansell, the defendant filed a motion to vacate what he asserted to be a void sentence in 2019. Id. at ¶ 11-13. The sentence was originally imposed in 1998, so the trial court denied the motion. Id. In the appeal of the collateral proceeding, the panel concluded that the doctrine of res judicata did not preclude the trial court from modifying what was deemed to be an erroneous sentence because “res judicata is generally inapplicable ‘where life or liberty is at stake.’” Id., quoting Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). According to that panel, “the trial court [in Stansell] imposed a sentence outside of its authority; Harper and Henderson should not serve as a bar to this court’s review.” Id. at ¶ 31. Stansell concluded that the sentence imposed was void and subject to collateral attack despite Harper/Henderson. Stansell at ¶ 23 and 29. The panel in Stansell concluded that the sentence imposed was void and subject to
{¶ 17} Further and irrespective of the en banc proceedings in Stansell, although the doctrine of res judicata can impact the postconviction collateral proceedings, that is an affirmative defense and the tribunal must first possess jurisdiction in order to resolve the applicability of the doctrine. State ex rel. McGirr v. Winkler, 152 Ohio St.3d 100, 2017-Ohio-8046, 93 N.E.3d 928, ¶ 17, citing State ex rel. Lipinski v. Cuyahoga Cty. Common Pleas Court, Probate Div., 74 Ohio St.3d 19, 20-21, 1995-Ohio-96, 655 N.E.2d 1303, and State ex rel. Flower v. Rocker, 52 Ohio St.2d 160, 162, 370 N.E.2d 479 (1977); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967) (res judicata applies and “may operate” to prevent consideration of a collateral attack based on a claim that could have been raised on direct appeal from the voidable sentence).
{¶ 18} As is pertinent to this appeal, a trial court possesses continuing jurisdiction only for the purposes of vacating a void judgment. Id. If the judgment is not void, the court lacks a basis to assert its continuing jurisdiction to act and denying the motion merely reflects the ministerial task of disposing of the active motion on the court’s docket. Although this concept is derived from the principles
{¶ 19} In order to apply or consider the doctrine of res judicata to a final sentence, the court must first possess continuing jurisdiction to modify the final sentence — in other words res judicata could potentially be considered in situations in which the trial court is reviewing a void sentence but has no bearing on the trial court’s lack of continuing jurisdiction to modify a sentence that is merely voidable. State ex rel. Flower v. Rocker, 52 Ohio St.2d 160, 162, 370 N.E.2d 479 (1977) (writ of prohibition was not warranted because the court had jurisdiction to rule on the
{¶ 20} Under Harper/Henderson, Sailor’s sentence was merely voidable. Accordingly, the trial court lacked jurisdiction to modify the final sentence because there was no other basis cited to invoke the trial court’s continuing jurisdiction over the final entry of conviction. Moreover, practically speaking, under Harper/Henderson there is no imaginable scenario in which the sentence alone would be deemed void — the voidness doctrine implicates the trial court’s jurisdiction over the person and subject matter such that the entire conviction, both guilt and sentencing, would be affected.
{¶ 21} And regardless, the Ohio Supreme Court in McIntosh, 162 Ohio St.3d 501, 2020-Ohio-6826, 165 N.E.3d 1262, addressed the application of Harper/Henderson to situations in which the sentence exceeds the maximum permitted by law, essentially holding that such sentences were merely voidable and could not be considered void. In McIntosh, the Ohio Supreme Court reaffirmed its
{¶ 22} Instead it was concluded that “[t]he imposition of compound sentences for allied offenses is an error in the exercise of jurisdiction, to be challenged at sentencing and remedied on direct appeal.” In so concluding, McIntosh expressly overruled Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 28, in which it was concluded that “the imposition of separate sentences for those offenses—even if imposed concurrently—is contrary to law” and the sentences are considered void. Sentences in excess of that which is statutorily permitted necessarily fall under the ambit of Harper/Henderson. Id. Under McIntosh, the imposition of separate sentences for allied offenses, even if imposed concurrently, renders the sentence voidable, but not subject to collateral attack despite the fact that the offender is being punished in excess of what the law permits.
{¶ 23} In light of Harper/Henderson and McIntosh, we cannot conclude that the trial court erred by denying the motion to vacate a void sentence. In this case, the trial court possessed jurisdiction over the criminal matter, and as such, any
{¶ 24} Regardless, in addition to and independent from the Harper/Henderson rationale, a trial court patently lacks jurisdiction to modify a sentence after the offender has been released. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, at ¶ 14. Sailor’s attempt to claim that the exception to res judicata applies in support of demonstrating error lacks merit. In light of the fact that the trial court imposed a ten-year aggregate term of imprisonment and then calculated the time Sailor served to have exceeded the sentences imposed, Sailor was immediately discharged. At that time, the case was fully resolved and closed. “[O]nce a valid prison sanction has been served, it is no longer res judicata that acts as a bar to modification; rather, the court has lost jurisdiction to modify the sentence” altogether. Id. Contrary to Sailor’s assertion, it is not res judicata that bars the modification in this case, but instead, it is the trial court’s lack of jurisdiction over the served sentence that is dispositive — an issue that deprived the trial court of jurisdiction to modify the sentence the moment Sailor was discharged from his final sentence and precludes this court from finding error.
{¶ 25} In light of the fact that Sailor is solely challenging the length of a sentence that has been completely served, this appeal could be dismissed as moot. Notwithstanding, even if we were to consider the merits of the arguments presented, there is no error — the trial court lacked jurisdiction to modify the final sentence based on the doctrine of void sentences set forth in Harper/Henderson and based
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, PRESIDING JUDGE
EMANUELLA D. GROVES, J., CONCURS;
MARY EILEEN KILBANE, J., CONCURS IN JUDGMENT ONLY