STATE OF OHIO v. EDWARD A. SMITH
No. 106893
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 17, 2019
[Cite as State v. Smith, 2019-Ohio-155.]
JOURNAL ENTRY AND OPINION
JUDGMENT: SENTENCE VACATED; REMANDED FOR RESENTENCING
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-88-226041-A
BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 17, 2019
FOR APPELLANT
Edward A. Smith, pro se Inmate No. R135659 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Strеet Cleveland, Ohio 44113
{1} Defendant-appellant, Edward Smith, appeals pro se from his sentence following a guilty plea. He raises the following assignment of error for review:
The trial court erred as a matter of law when sentencing defendant-appellant to 20 years to life and abused its disсretion in denying defendant‘s motion to correct a facially illegal sentence where defendant-appellant‘s sentence is contrary to law.
{2} After careful review of the record and relevant case law, we vacate Smith‘s sentence and remand the matter to the trial сourt for proceedings consistent with this opinion.
I. Procedural and Factual History
{3} In November 1985, Smith fatally stabbed the victim, while burglarizing the victim‘s home. Smith was 17 years of age at the time. In July 1988, Smith entered into a plea agreement with the state of
{4} In July 2013, Smith filed a “motion to void sentence,” alleging that his sentence was void and that the trial court lacked subject matter jurisdiction over his case. In August 2013, the trial court deniеd the motion without a hearing.
{5} In November 2013, Smith filed a pro se “motion to void judgment and correct under
{6} In August 2014, the trial court issued the following entry regarding Smith to the Ohio Adult Parole Authority:
The court is in receipt of the Ohio Adult Parole Authority‘s 08/14/2014 notice of offender‘s hearing before the parole board. The court imposed a sentence after due consideration of all relevant factors and opрoses any reduction or modification of sentence by the Ohio parole board from that which was imposed.
{7} In January 2015, the Ohio Parole Board held a hearing to determine whether it would release Smith. The parole board decided not to release Smith because of the severity оf his crime and serious infractions he committed while incarcerated. The parole board found that Smith‘s release would create either an undue risk to public safety or be inconsistent with the welfare and security of society.
{8} In June 2015, which was approximately five months after the parole board‘s decision, Smith filed a motion seeking to withdraw his previously entered guilty plea. In his motion, Smith argued the trial court breached his plea agreement when the trial court submitted a letter to the Adult Parole Authority opposing his release.
{9} Following a hearing, the trial court denied Smith‘s motion to withdraw his guilty plea. This court affirmed the trial court‘s judgment in State v. Smith, 8th Dist. Cuyahoga No. 104263, 2017-Ohio-1155.
{10} In February 2018, Smith filed a “motion to void sentence.” In the motion, Smith argued that his sentence is contrary to law and that the trial court exceeded its authority under the Ohio Revised Code by imposing a prison term of 20 years to life. The trial court denied Smith‘s motion without a hearing.
{11} Smith now appeals the trial court‘s judgment.
II. Law and Analysis
{12} In his sole assignment of error, Smith argues “the trial court erred as a matter of law by sentencing him to 20 years to life and abused its discretion in denying his motion to correct an illegal sentence where the sentence is contrary to law.” Smith contends that the trial court exceeded its authority in sentеncing him to a term of imprisonment that is not authorized by the Ohio Revised Code.
{13} While there is no constitutional right to appellate review of a criminal sentence,
{14} In this case, however, Smith does not challenge the evidentiary basis supporting his sentence. Rather, Smith maintains that the trial court imposed a prison term that is not authorized under
{15} We further note that the procedural history of this case, including the significant delay between the imposition of Smith‘s sentence and this appeal, does not preclude our review. Generally, if the sentencing court had jurisdiction and statutory authority to act, sentencing errors do not render the sentence void and the sentence can be set aside only if successfully challenged on direct appeal.” Williams at ¶ 23, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6-7. However, because “‘[n]o court has the authority to impose a sentence that is contrary to law,’ when the trial court disregards statutory mandates, ‘[p]rinciples of res judicata, including the doctrine of the law of the case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by collateral attack.‘” Id. at ¶ 22, quoting Fischer at ¶ 23, 30.
[Ohio‘s] jurisprudence on void sentences “reflects a fundamental understanding of constitutiоnal democracy” that the power to define criminal offenses and prescribe punishment is vested in the legislative branch of government and that courts may impose sentences only as provided by statute.
Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 22, quoting Fischer, at ¶ 21-22. Thus, “[t]he function and duty of a court is to apply the law as written.” State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984), superseded by statute on other grounds as stated in Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958. “[C]rimes are statutory, as are the penalties therefore, and the only sentence which a trial judge may impose is that provided for by statute * * * A court has no power to substitute a different sentence for that provided for by law.” Id., quoting Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964). “Any attempt by a court to disregard statutory requirements when imposing a sentencе renders the attempted sentence a nullity or void.” Id. With this standard in mind, we turn to the issue of
{16} As stated, Smith was convicted of aggravated murder in violation of
the trial court shall impose a sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment.
{17} “When construing a statute, [a reviewing] court‘s paramount concern is the legislative intent in enacting the statute.” Yonkings v. Wilkinson, 86 Ohio St.3d 225, 227, 714 N.E.2d 394 (1999), citing State v. S.R., 63 Ohio St.3d 590, 594, 589 N.E.2d 1319 (1992). “Furthermore, words must be taken in their usual, normal or customary meaning.” Id., quoting S.R. at 595.
{18} On appeal, Smith contends that his рrison term is contrary to law because a sentence of “twenty (20) years to life” is not an authorized sentence for aggravated murder. The state concedes that Smith‘s sentencing entry does not precisely track the statutory language used in
{19} Here, Smith‘s appeal relies extensively on the decisions rendered in State v. Kemp, 8th Dist. Cuyahoga No. 97913, 2013-Ohio-167, and State v. Duncan, 2d Dist. Clark No. 2016-CA-77, 2016-Ohio-7658. In Kemp, the defendant was convicted of murder in violation of
Pursuant to
R.C. 2929.02(B)(1) , “whoever is convicted of or pleads guilty to murder in violation of section 2903.02 of the Revised Code shall be imprisoned for an indefinite term of fifteen years to life.” Accordingly, the sentence imposed by the trial court is contrary toR.C. 2929.02(B)(1) ; Kemp should have been sentenced to “an indefinite term of fifteen years to life.”
Id. at ¶ 75.
{20} Similarly, in Duncan, the defendant was convicted of felony murder in violation of
We reject the state‘s argument that the sentence imposed has no practical consequence because it has the sаme outcome for purposes of parole. Regardless of
whether the two sentences permit parole at the same time, they are two different sentences. One is set forth by statute, the other is not. The trial court converted an indefinite sentence required by statute into a de facto definite sentence. Thus, we conclude that the trial court exceeded its authority in sentencing, rendering void the sentence imposed.
Duncan at ¶ 14.
{21} While recognizing the relevance of Kemp and Duncan, the state maintains that the decisions were incorrectly decided, because they require the trial court to track the statutory language in its judgment entry when imposing a sentence in contravention of established precedent. We disagree with the state‘s interpretation of Kemp and Duncan. In our view, the decisions do not require trial courts to provide a word-for-word recitation of relevant sentencing statutes. Rather, Kemp and Duncan recognize the fundamental diffеrences between the sentences permitted for murder (
{22} With that said, we recognize that this court has previously declined to apply Kemp and Duncan to a circumstance where the trial court sentenced the defendant to “20 full years to life in prison” when the applicable statute required that he be sentenced to “life imprisonment with parole eligibility after serving twenty full years of imprisonment.” State v. Melton, 8th Dist. Cuyahoga No. 107076, 2018-Ohio-4699, citing former
After review, we find Kemp and Duncan to be distinguishable from the present case. Melton was sentenced under pre-S.B. 2 law. He was sentenced to an indefinite sentence of “20 full years to life in prison.” Although not the exact wording of the statute, the trial court did not convert a “de facto definite sentence” into an indefinite sentence — as it did in Kemp and Duncan — becausе Melton‘s sentence was already an indefinite sentence. Accordingly, we find that Melton‘s sentence is not contrary to law, and we are therefore barred by res judicata from addressing it.
Id. at ¶ 24.
{23} However, after careful consideration, we find the factual distinction present in Melton renders its conclusiоn inapplicable to the circumstances and specific arguments raised in this appeal. Unlike Smith, the defendant in Melton was subject to former
{24} As stated, the trial courts in Kemp and Duncan erred by imposing a sentence on a murder conviction that more closely resembled the type of sentence that is appropriate for an aggravated murder
{25} We find no basis to invalidate the sentencing principles developed by this court in Kemp, and the Second District in Duncan. While the state‘s position of practicality is not lost on this court, we find the legislature‘s construction of the
{26} Smith‘s sole assignment of error is sustained. Smith‘s sеntence is reversed and vacated, and the matter is remanded to the trial court for resentencing in accordance with this opinion.
{27} Sentence vacated and remanded for resentencing.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR