State v. WalkerState v. Walker
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
EILEEN A. GALLAGHER, J.:
{¶ 1} In this consolidated appeal, defendant-appellant Anthony Walker appeals the trial court’s denial of his “motion to set aside void sentence and for resentencing to enforce terms of guilty plea” in two cases — Cuyahoga C.P. No. CR-
Procedural History and Factual Background
Walker’s First Trial in 268354
{¶ 2} On October 24, 1991, a jury found Walker guilty of one count of aggravated burglary, one count of aggravated robbery, one count of attempted murder and two counts of kidnapping — all with firearm specifications — and two counts of aggravated murder with mass murder, felony murder and firearm specifications. The jury recommended a death sentence on the aggravated murder counts.
{¶ 3} On November 21, 1991, the trial court followed the jury’s recommendation and imposed concurrent death sentences on the two aggravated murder counts. It imposed consecutive prison terms of up to twenty-five years, plus an additional three years for the firearm specifications, on each of the remaining counts. Walker appealed his convictions. In October 1993, this court reversed Walker’s convictions on the ground that he had been denied the effective assistance
Walker’s Guilty Plea in 269956
{¶ 4} In 269956, Walker was charged with one count of aggravated murder with felony murder and firearm specifications, one count of aggravated burglary with a firearm specification and one count of aggravated robbery with a firearm specification. In March 1992, while Walker’s appeal in 268354 was pending, the case proceeded to a jury trial. Shortly after trial commenced, the parties reached a plea agreement. Walker agreed to plead guilty to an amended count of murder. In exchange for Walker’s guilty plea, the remaining counts were nolled. The trial court sentenced Walker to “a term of fifteen (15) years to life,” “[s]entence to run concurrent to CR-268354.”1 The sentencing journal entry was filed on March 18, 1992. Walker did not appeal his conviction.
{¶ 5} On or about January 29, 1996, a second jury trial commenced in 268354. The jury found Walker guilty on the aggravated burglary, aggravated robbery, attempted murder and kidnapping counts along with the associated firearm specifications. The jury also found Walker guilty of one count of aggravated murder with the mass murder and firearm specifications (but not guilty of the felony murder specifications). The jury found Walker not guilty on the remaining count of aggravated murder.
{¶ 6} On February 13, 1996, Walker and the state reached a sentencing agreement. The parties stipulated that the state lacked sufficient evidence to demonstrate beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances of the aggravated murder, thereby removing the possibility that Walker could receive a death sentence on the aggravated murder count. The parties also agreed to jointly recommend sentences as follows: (1) a sentence of 33 years on the aggravated murder count (30 years on the underlying offense plus three years on the firearm specification), (2) maximum sentences on each of the remaining counts and (3) that the sentences in 268354 would be served concurrently with one another but consecutively to Walker’s sentence in 269956. At the February 13, 1996 hearing, the trial court summarized the terms of the parties’ sentencing agreement as follows:
The agreement you are proposing is on count one; ten to twenty-five, count two, ten to twenty-five; count three, ten to twenty-five; count four, ten to twenty-five; count five, eight to fifteen; count seven, three
years for the gun specification, thirty years to life for the substantive offense. Now, all of those are to run concurrently with each other, but run consecutively with the sentence in Case 269956, and that it is, of course, stipulated that the aggravating factors do not outweigh the mitigating factors beyond a reasonable doubt, that the defendant may retain his right to appeal from the verdict of guilty in the basic case, guilty of the crimes for which he’s being prosecuted, but that he does not contest the sentence since he’s going to agree to the sentence[.]
The state and defense counsel confirmed this was an accurate recitation of the parties’ agreement. Walker likewise confirmed his understanding of the parties’ sentencing agreement:
THE COURT: Mr. Walker, do you understand what is being proposed here?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions that you want to ask about it?
THE DEFENDANT: No, sir.
{¶ 7} The trial court then proceeded to advise Walker of the rights he was waiving by entering into the sentencing agreement, including his right to a full sentencing hearing and the right to appeal his sentence. Walker indicated that he understood and that he had no questions regarding the waiver of these rights.
{¶ 8} The state pointed out that because the sentences were jointly recommended sentences, the trial court, in its discretion, could impose lesser sentences on the individual counts than what had jointly recommended or could order that the sentences imposed in 268354 be served concurrently, rather than
THE COURT: * * * I don’t want to mislead you in any way. I think we have all discussed this, and we’re going to impose this particular sentence. * * * I don’t want you to be misled in any way. You are not getting the possibility here that you are going to get 23 years to life instead of 33, or that would run concurrently with the other sentence rather than consecutively. * * * Do you understand?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions?
THE DEFENDANT: No.
{¶ 9} Consistent with the parties’ sentencing agreement, the trial court found that the aggravating factors for the aggravated murder did not outweigh the mitigating factors and sentenced Walker to an aggregate prison term of 33 years to life to be served consecutively to the sentence imposed in 269956.2
{¶ 10} Once again, Walker appealed his convictions. Walker claimed that the trial court had erred in refusing to grant a mistrial for jury misconduct, in giving
{¶ 11} On February 14, 2000, Walker filed an application to reopen his appeal with this court, asserting that his appellate counsel was ineffective because counsel had failed to raise additional assignments of error in the appeal related to jury instructions, prosecutorial misconduct during closing argument and the sufficiency and manifest weight of the evidence supporting his convictions. Walker did not raise any issue with his sentencing in his application to reopen the appeal. This court denied the application to reopen the appeal. State v. Walker, 8th Dist. Cuyahoga No. 74773, 2000 Ohio App. LEXIS 2906 (June 20, 2000).
Walker’s Postconviction Motions
Prior Postconviction Motions
{¶ 12} In the years that followed, Walker filed a number of postconviction motions with the trial court. On February 28, 2005, Walker filed, pro se, a “motion
{¶ 13} On June 22, 2010, Walker filed, pro se, a motion for resentencing and the issuance of a revised judgment entry pursuant to
{¶ 14} On November 20, 2012, Walker filed, pro se, a “request to invoke or enforce specific performance of plea agreement entered into in Case Number CR 92-269956” in 269956 and 268354. Walker claimed that, as a condition of his guilty plea in 269956, the parties had agreed that the sentence imposed in 269956 would run concurrently with the sentences imposed in 268354 and that the trial court’s imposition of consecutive sentences following his retrial in 268354 violated the terms of that plea agreement.3 Walker requested that the trial court grant “specific performance of the plea agreement” in 269956 and “amend the judgment entry” in 268354 to reflect that the sentences in the two cases were to run concurrently. The
Walker’s Motion to Set Aside Void Sentence and for Resentencing
{¶ 15} On June 3, 2019, Walker filed the motion that is the subject of this appeal — a “motion to set aside void sentence and for resentencing to enforce term of guilty plea” — in both cases. Walker asserted that (1) the 15-years-to-life sentence the trial court imposed in 269956 was “not authorized by law” and (2) the trial court’s imposition of consecutive sentences in 268354 breached the terms of his plea agreement in 269956. Specifically, Walker contended that the version of
{¶ 16} Walker also, once again, argued that concurrent service of his sentences in 269956 and 268354 was a condition of his plea agreement in 269956 and that the trial court breached that agreement when, after his retrial in 268354, the trial court ordered that Walker’s sentence in 268354 be served consecutively to his sentence in 269956. Walker requested that his sentence in 269956 be vacated and that he be “resentenced accordingly.” He further requested that the imposition
{¶ 17} On June 10, 2019, the trial court denied Walker’s motion in 269956. Walker appealed (Appeal No. 108752). On July 19, 2019, the trial court denied the motion in 268354. Once again, Walker appealed (Appeal No. 108884). This court granted Walker’s motion to consolidate the appeals for briefing, hearing and disposition.
{¶ 18} Walker raises the following two assignments of error for review:
Assignment of Error No. I: The trial court erred by denying appellant’s post-judgment motion because the trial court’s sentence in CR-91-269956 is unauthorized by law and is void.
Assignment of Error No. II: The imposition of consecutive sentences in CR-91-269354 [sic] constituted a breach of the terms of the guilty plea in CR-91-269956 and the specific concurrent sentence term that was previously imposed in CR-91-269956, which provided that the sentences in both cases would be concurrent.
Law and Analysis
{¶ 19} In this case, Walker raises two different sentencing errors. In his first assignment of error, Walker contends that his sentence for murder in 269956 is contrary to law and void because the version of
{¶ 20} In his second assignment of error, Walker contends that the trial court breached his plea agreement in 269956 when, after his retrial in 268354, the trial court ordered that Walker’s aggregate sentence of 33 years to life in 268354 be served consecutively to his sentence of 15 years to life in 269956, rather than concurrently. Walker requests that this court vacate the imposition of consecutive sentences in 268354 and remand for resentencing to impose concurrent sentences.
{¶ 21} A void sentence can be attacked anytime. See, e.g., State v. Brooks, 8th Dist. Cuyahoga No. 108919, 2020-Ohio-3286, ¶ 7, citing State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22, and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 25. In support of his argument that his sentence in 269956 is void, Walker cites this court’s decisions in State v. Houston, 8th Dist. Cuyahoga No. 107538, 2019-Ohio-355, and State v. Smith, 8th Dist. Cuyahoga No. 106893, 2019-Ohio-155.
{¶ 22} In Houston, this court held that where the trial court failed to include a reference to “parole eligibility after serving twenty years of imprisonment” in the defendant’s sentence as mandated by former
{¶ 23} However, after Houston and Smith were decided, the Ohio Supreme Court decided State v. Harper, Slip Opinion No. 2020-Ohio-2913. In Harper, the Ohio Supreme Court “realign[ed]” its “void-sentence jurisprudence” in cases involving the imposition of postrelease control with “the traditional understanding of what constitutes a void judgment.” Id. at ¶ 4, 39, 43. In that case, the defendant had moved to vacate the portion of his sentence imposing postrelease control after he was charged with violating the conditions of his postrelease control, claiming that it was void because the sentencing journal entry failed to state the consequences of violating postrelease control as required by State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700. Id. at ¶ 9. The Ohio Supreme Court held that the trial court’s failure to properly impose postrelease control rendered the defendant’s sentence voidable, not void, and that, therefore, the sentence was not subject to collateral attack. Id. at ¶ 5-6. The court explained:
A sentence is void when a sentencing court lacks jurisdiction over the subject-matter of the case or personal jurisdiction over the accused. When the sentencing court has jurisdiction to act, sentencing errors in the imposition of postrelease control render the sentence voidable, not void, and the sentence may be set aside if successfully challenged on direct appeal.
{¶ 24} In State v. Henderson, Slip Opinion No. 2020-Ohio-4784, the Ohio Supreme Court took “the next and final step” toward a return to the “traditional understanding of the distinction between void and voidable sentences” and 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 imposing the sentence has jurisdiction over the case and the defendant.” Id. at ¶ 1.5
{¶ 26} On appeal, this court affirmed, in part, the trial court’s decision, applying
“binding precedent” in Harper “to resolve this case.” Id. at ¶ 50-73. Justice Stewart concurred in judgment only without a separate opinion.
If the court has jurisdiction over the case and the person, any sentence based on an error in the court’s exercise of that jurisdiction is voidable. Neither the state nor the defendant can challenge the voidable sentence through a postconviction motion.
Id. at ¶ 27, 43. Because the sentencing error rendered the defendant’s sentence voidable, the court held that the state could not “correct the error” through a postconviction motion for resentencing. Id. at ¶ 40; see also State v. Dowdy, 2020-Ohio-4789 (reversing State v. Dowdy, 8th Dist. Cuyahoga No. 107844, 2019-Ohio-3570 — in which this court, following Smith, 2019-Ohio-155, had vacated the defendant’s “void” sentence where the trial court had failed to use statutorily mandated language when imposing a sentence for aggravated murder — on the authority of Harper and Henderson).
{¶ 28} Since Harper was decided, this court has applied the reasoning of that decision to other types of alleged sentencing errors.
{¶ 29} In Brooks, 2020-Ohio-3286, the defendant argued that his sentence of “life, without the possibility of parole until serving twenty (20) years” was “void and illegal, subject to correction at any time” because it was contrary to the language of former
{¶ 30} In State v. Starks, 8th Dist. Cuyahoga No. 109444, 2020-Ohio-4306, the defendant argued that his sentences on two aggravated murder counts were “contrary to law and void” because the trial court had imposed sentences of “life” imprisonment on those counts instead of sentences of “life imprisonment with parole eligibility after serving twenty years of imprisonment.” Id. at ¶ 6, 8. The trial court had subject matter jurisdiction over the case and had personal jurisdiction over the defendant. Id. at ¶ 15. Based on Harper and Brooks, this court held that even if the trial court had improperly omitted language regarding parole eligibility from the defendant’s sentences, the sentencing error would render the sentences voidable, not void and the sentences, therefore, could be challenged only on direct appeal. Id. Because the defendant had failed to do so, the court held that res judicata
{¶ 31} A similar conclusion is warranted in this case. Here, the trial court had subject matter jurisdiction over Walker’s cases and had personal jurisdiction over him.
{¶ 32} Further, it is well settled that the doctrine of res judicata bars claims that were raised or could have been raised on direct appeal. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 6. “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 claimed lack of due process that was raised or could have been raised by the defendant at trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” (Emphasis deleted.)
{¶ 33} Here, Walker did not object to his sentences at sentencing. Walker did not file a direct appeal in 269956 and did not raise any issue with respect to sentencing in his direct appeal or in his application to reopen his direct appeal in 268354. Although Walker argued in his November 2012 “request to invoke or enforce specific performance of plea agreement entered into in Case Number CR 92-269956” that the trial court had breached the plea agreement in 269956 by imposing consecutive sentences in 268354, Walker did not appeal the trial court’s denial of that motion. ‘“[R]es judicata precludes [a defendant] from re-litigating the same issues with the hope of obtaining a different result.’” State v. Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, ¶ 20, quoting State v. Hildebrand, 2d Dist. Clark No. 2012-CA-48, 2013-Ohio-2122, ¶ 5.
{¶ 34} Because Walker could have, but did not, raise any issue regarding his sentences in a direct appeal, res judicata bars his claims. Harper, Slip Opinion No. 2020-Ohio-2913, at ¶ 41; Brooks, 2020-Ohio-3286, at ¶ 10; Starks, 2020-Ohio-4306, at ¶ 15-16.6
{¶ 35} Furthermore, there is nothing in the record, aside from the affidavit Walker submitted with his proposed
{¶ 36} Moreover, it is clear from the record, including the transcript of the proceedings on February 13, 1996, that the sentence the trial court imposed after the second trial in 268354, including that the sentence in 268354 be served consecutively to the sentence in 269956, was imposed pursuant to a sentencing agreement. The record shows that in order to avoid the possibility of receiving a death sentence, Walker agreed to a jointly recommended sentence that included that the sentences imposed in 268354 would be served consecutively to the sentence imposed in 269956 and that Walker would waive his right to appeal the sentences imposed pursuant to the sentencing agreement. Walker does not dispute the existence of the sentencing agreement in 268354, that these were terms of the sentencing agreement or that he knowingly, intelligently and voluntarily entered into the sentencing agreement. Thus, even if the trial court had erred in imposing consecutive sentences, Walker was not in a position to challenge the trial court’s action. See, e.g., State v. Brownlee, 2018-Ohio-739, 107 N.E.3d 822, ¶ 25 (8th Dist.) (“a party cannot take advantage of an error that the party induced the trial court
{¶ 37} Accordingly, the trial court did not err in denying Walker’s motion to set aside void sentence and enforce the terms of his guilty plea. Walker’s assignments of error are overruled.
{¶ 38} Judgment affirmed.
It is ordered that appellee recover from appellant the 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, A.J., and MARY EILEEN KILBANE, J., CONCUR