State of Ohio v. Claude Lee Spencer
Case No. 15CA3681
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
RELEASED: 04/14/2015
[Cite as State v. Spencer, 2015-Ohio-1445.]
HOOVER, P.J.
DECISION AND JUDGMENT ENTRY
Claude Lee Spencer, Chillicothe, Ohio, Pro Se Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
HOOVER, P.J.,
{¶1} Spencer filed an appeal from an entry denying his motion for resentencing based on alleged errors in the imposition of court costs. The state filed a motion to dismiss the appeal arguing that the entry is not a final appealable order because Spencer’s arguments concerning court costs could have been raised on direct appeal. Spencer filed a response arguing that errors in the imposition of court costs makes that portion of his sentеnce “void” and thus it is subject to review at any time. After reviewing the memoranda and the relevant law, we hereby GRANT the state’s motion and DISMISS this appeal because the entry appealed from is not a final, appealable order.
I.
{¶2} In 1993 Spencer pleaded guilty to murder and was sentence to 15 years to life in prison. His sentence included the imposition of court costs. Spencer did not appeal.
II.
{¶3} The trial court’s еntry denying Spencer’s motion for re-sentencing is not a final appealable order. Appellate courts in Ohio have jurisdiction to review the final orders or judgments of inferior courts within their district.
{¶4} In State v. Lemaster, 4th Dist. No. 02CA20, 2003-Ohio-4557, we held that an order denying the defendant’s motion “to correct аnd/or modify sentence” was not a final appealable order. We noted that, “[a] final appealable order includes an order which amounts to a disposition of the cause and which affects a substantial right in an action which in effect determines the action and prevents a judgment.” Id. (internal quotations
[The defendant] is asking us to review his sentence by reviewing the trial court’s denial of his motion. However, the trial court’s denial of this motion did not affect [the defendant’s] substantial rights and determine the action. If [the defendant’s] substantial rights were in fact ever violated, the violatiоn occurred at the trial court’s order of conviction and sentencing. He should have raised all arguments concerning his sentence on his direct appeal to this Court from the trial court’s imposition of sentence. He failed to do so.
Id. at ¶ 25. As a result, we dismissed the appeal for lack of a final appealable order.
{¶5} In State v. Kaiser, 4th Dist. No. 10CA1, 2010-Ohio-4616, we followed our holding in Lemaster and reached the same result. Id. at ¶ 22. (defendant did not have a substantial right to а modification of a previously imposed sentence). We also noted that several other courts have likewise concluded that a motion to correct, modify or recоnsider a sentence that is merely attempting to attack the original conviction or sentence is not a final appealable order. Id. at ¶ 21, citing State v. Senk, 8th Dist. No. 88524, 2007-Ohio-3414, at ¶ 18 (“it is evident that [the defendant] is attemрting to attack his sentence collaterally by appealing the trial court’s denial of his motion to correct sentence. We conclude that the judgment of the trial court, which [thе defendant] is appealing, is not a final appealable order.”); State v. Vanelli, 9th Dist. No. 02CA66, 2003-Ohio-2717, at ¶ 9 (“The November 15, 2001 judgment entry was final and appealable, yet Appellant failed to timely appeal from that order. Appellant has filed a notice of appeal from a judgment on a motion to reconsider. Such a judgment is a nullity and is not a final, appealable order.”); State v. Tully, 5th Dist. No. 2001CA313, 2002-Ohio-1290 (finding that аppellant’s substantial rights were not affected because “[n]othering changed by virtue of the [trial court’s] order”); State v. Arnett, 3rd Dist. No. 17-95-25, 1996 WL 106999 (Feb. 22, 1996)(finding that the trial court’s denial of a motion to modify sentence was not a finаl appealable order); State v. Shinkle, 27 Ohio App.3d 54, 55 (12th Dist. 1986)(“For purposes
{¶6} We note that courts frequently treat motions to correct, re-sentence, modify, or vacate sentences as petitions for post-conviction relief. See State v. Eubank, 6th Dist. No. L-07-1302, 2008-Ohio-4225. Howevеr, post-conviction relief petitions are used to assert claims that there was such a denial or infringement of the persons’ rights as to render the judgment void or voidable under the Ohio or United States Constitution such that the conviction should be vacated or set aside.
{¶7} Spencer’s claim that the error in his sentence as it relates to court costs renders that portion of his sentence “void” is not supported by law. The Supreme Court of Ohio makes a clear distinction between sentencing errors involving postrelease control, which may result in a void portion of a sentence, and sentencing errors involving the imposition of court costs. “There is a significant difference between postrelease control and court costs in regard to the duty of the trial court.” State v. Joseph, 126 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 18. A trial court has a statutory duty to provide notice of postrelease control, but exercises discretion in the waiver of court costs.
{¶8} Additionally, court costs are not punishment and are civil in nature. Id. “The сivil nature of the imposition of court costs does not create the taint on the criminal sentence that the failure to inform a defendant of postrelease control does. Nor does the failure to inform a defendant orally of court costs affect another branch of government.” Id. at ¶ 21. A defendant must make a motion to waive payment of court costs аt the time of sentencing or the issue is waived, “If the defendant makes such a motion, then the
{¶9} Also, we note that Spencer’s argument that his sentencе is void because the trial court failed to comply with
{¶10} Because any errors in the trial court’s imposition of court costs do not cause any portion of Spencer’s judgment of conviction to be void, any alleged errors had to be raised on a direct appeal. Spencer’s attempt to attack them collaterally some 22 years later is barred by res judicata. Therefore, we decline to treat his motion for resentencing as
III.
{¶11} We conclude that Spencer’s motion for re-sentencing is not a proper petition for post-conviction reliеf, is barred by the doctrine of res judicata, and the trial court’s order denying it is not a final appealable order. Because the trial court’s entry denying his motion is not a final appealable order, we do not have jurisdiction to consider this appeal from that entry. Therefore, we GRANT the state’s motion and DISMISS this appeal.
{¶12} The clerk shall serve a copy of this order on all counsel of record at their last known addresses. The clerk shall serve appellant by certified mail, return receipt requested. If returned unserved, the clerk shall serve appellant by ordinary mail.
MOTION GRANTED. APPEAL DISMISSED. COSTS TO APPELLANT.
IT IS SO ORDERED.
Abele, J.: Concurs.
Harsha, J.: Concurs with concurring opinion.
FOR THE COURT
Marie Hoover
Presiding Judge
Harsha J., Concurring:
{¶13} I agree that the trial court’s sentence is void. Therefore, I concur in dismissal because in this context the trial court lacked jurisdiction to substantively modify or reсonsider the final criminal judgment and any attempt to do so would have been a nullity. In essence, the trial court had no jurisdiction to do anything but deny the motion. See State v. Simin, 9th Dis. No. 25309, 2011-Ohio-3198, at ¶ 10 (trial court loses jurisdiction to substantively modify final judgment and any attempt to do so would be a nullity.) See also State v. Conghenour, 4th Dist. Gallia App. No. 12CA2 (May 25, 2012).