Lead Opinion
{¶ 1} The Ninth District Court of Appeals certified a conflict between its decision in this case and a decision of the Eighth District Court of Appeals in State v. Holmes, 8th Dist. Cuyahoga No. 100388,
{¶ 2} A court only has authority to impose a sentence that conforms to law, and R.C. 2941.25 prohibits the imposition of multiple sentences for allied offenses of similar import. Thus, when a sentencing court concludes that an offender has been found guilty of two or more offenses that are allied offenses of similar
{¶ 3} The judgment of conviction entered against Cameron D. Williams in this case reflects that the trial court concluded that the two counts of aggravated murder and one count of murder in connection with the killing of Darían Polk are allied offenses of similar import. Although the court ordered them merged for the purposes of sentencing, and although the state elected to have Williams sentenced for the aggravated murder charged in count three, the court imposed concurrent sentences on each of the three offenses instead of sentencing on only one offense. However, the imposition of concurrent sentences is not the equivalent of merging allied offenses, State v. Damron,
Facts and Procedural History
{¶ 4} On July 28, 2007, Williams broke into an apartment rented by Tamara Hughes, his ex-wife, and shot and killed Darían Polk, whom he found sleeping with her in her bed. Williams then kidnapped Hughes at gunpoint, took her to an abandoned home, and engaged in sexual conduct with her. Akron police arrested him the next day.
{¶ 5} A Summit County Grand Jury indicted Williams on three counts of aggravated murder with death penalty specifications, two counts of kidnapping, and one count each of aggravated burglary, burglary, rape, violating a protection order, intimidating a crime victim, escape, having a weapon while under disability, carrying a concealed weapon, menacing by stalking, and domestic violence, along with firearm specifications.
{¶ 6} At trial, the jury found Williams guilty of two counts of aggravated murder with death penalty specifications (Counts two and three) and one count each of murder (as a lesser included offense of the aggravated murder charge alleged in Count one), kidnapping, aggravated burglary, violating a protection order, intimidating a crime victim, escape, having a weapon while under disability, and cairying a concealed weapon, along with firearm specifications. The x-emain-ing counts and specifications were dismissed. In the penalty phase of the trial,
{¶ 7} At the sentencing hearing, the state elected to have Williams sentenced on the conviction for aggravated murder charged in Count three, and it did not request a sentence on the convictions for murder in Count one or aggravated murder in Count two. The trial court merged Counts one and two into Count three and imposed a sentence of life imprisonment with no possibility of parole until Williams had served 30 full years on that count. However, the sentencing entry provides:
IT IS THEREFORE ORDERED AND ADJUDGED BY THIS COURT that the Defendant, CAMERON D. WILLIAMS, be committed to the Ohio Department of Rehabilitation and Corrections * * * for a definite term of LIFE WITH PAROLE after Fifteen (15) years, which is a mandatory term pursuant to O.R.C. 2929.13(F), for punishment for the crime of MURDER, Ohio Revised Code Section 2903.02, a special felony; for a definite term of LIFE WITH PAROLE after Thirty (30) years, which is a mandatory term pursuant to O.R.C. 2929.13(F), for punishment of the crime of AGGRAVATED MURDER, Ohio Revised Code Section 2903.01(B), a special felony; for a definite term of LIFE WITH PAROLE after Thirty (30) years, which is a mandatory term pursuant to O.R.C. 2929.13(F), for punishment of the crime of AGGRAVATED MURDER, Ohio Revised Code Section 2903.01(D), a special felony * * *.
⅜ * *
THEREUPON, pursuant to Ohio Revised Code Section 2941.25(A), the Court hereby Orders that the offense of MURDER, as contained in the amended Count 1 of the Indictment and the offense of AGGRAVATED MURDER, as contained in Count 2 of the Indictment be merged into the offense of AGGRAVATED MURDER, as contained in Count 3 of the Indictment for purposes of sentencing and that said sentencing be served concurrently and not consecutively with each other, for a total of LIFE WITH PAROLE AFTER Thirty (30) years for the three counts.
* * *
Accordingly, the total sentence the Court imposes is LIFE WITH PAROLE after Sixty-Nine (69) years * * *.
{¶ 8} On appeal, the Ninth District Court of Appeals reversed the conviction for violating a protection order as not supported by sufficient evidence but affirmed Williams’s other convictions and sentences. 9th Dist. Summit No. 24169,
{¶ 9} On April 23, 2014, Williams moved to correct his sentences, asserting that the concurrent sentences imposed on Counts one, two, and three were contrary to law. He sought a de novo sentencing at which, he argued, all of his convictions should be merged as allied offenses into a single conviction for aggravated murder. The trial court denied the motion.
{¶ 10} The court of appeals affirmed, construing the motion as an untimely and successive petition for postconviction relief that the trial court lacked authority to consider.
{¶ 11} The Ninth District certified that its judgment conflicts with State v. Holmes, 8th Dist. Cuyahoga No. 100388,
{¶ 12} We agreed to resolve the conflict.
Positions of the Parties
{¶ 13} Williams maintains that “[sentences for counts which were previously determined to be subject to merger are void, and res judicata does not preclude a
{¶ 14} The state concedes that the trial court erred in imposing separate sentences for allied offenses of similar import, but it maintains that the error did not render the sentences void. It argues that a void sentence is one imposed by a court that lacks subject-matter jurisdiction or authority to act but that a sentencing error renders the sentence only voidable and subject to reversal on direct appeal. Relying on State v. Holdcroft,
{¶ 15} Here, then, we are asked whether separate sentences imposed for convictions for allied offenses of similar import that the trial court found to be subject to merger pursuant to R.C. 2941.25(A) are void and subject to attack at any time.
Allied Offenses of Similar Import
{¶ 16} The allied offenses statute, R.C. 2941.25, provides:
(A) Where the same conduct by [a] defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 17} Construing this statute in Whitfield,
{¶ 18} The determination whether an offender has been found guilty of allied offenses of similar import “is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct,” State v. Ruff,
{¶ 19} But once the sentencing court decides that the offender has been found guilty of allied offenses of similar import that are subject to merger, R.C. 2941.25 prohibits the imposition of multiple sentences. Damron,
Void Sentences
{¶ 20} In Colegrove v. Burns,
{¶ 22} Our jurisprudence on void sentences “reflects a fundamental understanding of constitutional 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. State v. Fischer,
{¶ 23} But 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. Fischer at ¶ 6-7; State v. Payne,
{¶ 24} Our cases have similarly recognized that the trial court’s failure to find that the offender has been convicted of allied offenses of similar import, even if erroneous, does not render the sentence void. In Mosely v. Echols,
{¶ 25} And, most recently, in Rogers,
{¶ 26} Our decisions in Mosely, Holdcroft, and Rogers establish that when a trial court finds that convictions are not allied offenses of similar import, or when it fails to make any finding regarding whether the offenses are allied, imposing a separate sentence for each offense is not contrary to law and any error must be asserted in a timely appeal or it will be barred by principles of res judicata. See Holdcroft at ¶ 8-9.
{¶ 27} However, as we explained in Underwood,
{¶ 28} It therefore follows that when a trial court concludes that an accused has in fact been found guilty of allied offenses of similar import, it cannot impose a separate sentence for each offense. Rather, the court has a mandatory duty to merge the allied offenses by imposing a single sentence, and the imposition of separate sentences for those offenses — even if imposed concurrently — is contrary to law because of the mandate of R.C. 2941.25(A). In the absence of a statutory remedy, those sentences are void. Singleton,
{¶ 29} The state’s concern that this conclusion is inconsistent with Rogers,
Remedy
{¶ 30} We have recognized that a resentencing hearing limited to correcting the void sentence is a proper remedy for a trial court’s failure to comply with mandatory sentencing laws. Fischer,
{¶ 31} But a resentencing is not required in all cases. Article IV, Section 2(B)(2)(f) of the Ohio Constitution grants this court appellate jurisdiction to “review and affirm, modify, or reverse the judgment in any case certified by any court of appeals.” Article IV, Section 3(B)(2) grants similar authority to the courts of appeals “to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district.” And in Fischer, we explained that “[correcting a defect in a sentence without a remand is an option that has been used in Ohio and elsewhere for years in cases in which the original sentencing court, as here, had no sentencing discretion.” Id. at ¶ 29. This remedy, we noted, can provide an equitable, economical, and efficient remedy for a void sentence. Id. at ¶ 30.
{¶ 32} The judgment of conviction in this case states the trial court’s finding that the two counts of aggravated murder and one count of murder of which Williams was convicted are allied offenses of similar import, and the concurrent sentences it imposed for those offenses are therefore contrary to law. But there is no need to remand for resentencing, because at the sentencing hearing, the state elected to have Williams sentenced for aggravated murder as charged in Count three, and the trial court had no discretion to impose separate sentences for Counts one and two.
{¶ 33} Accordingly, we modify the judgment of the court of appeals to vacate the sentences imposed for murder in Count one and aggravated murder in Count two, which the trial court found subject to merger. The remaining convictions and sentences, including the sentence of life with the possibility of parole after 30 years imposed for aggravated murder in Count three, are not affected by our ruling today.
{¶ 34} We recognize that our decision will not change the aggregate sentence Williams received. We also acknowledge that at the time the trial court sentenced Williams, we had not yet clarified that the imposition of concurrent sentences is not the equivalent of merging allied offenses of similar import. We expect that our decision today will clarify the path going forward for lawyers, litigants, and judges of our state.
Judgment affirmed as modified.
Dissenting Opinion
dissenting.
{¶ 35} I respectfully dissent. I would reaffirm this court’s commitment to principles of res judicata and hold that the sentence imposed on appellant, Cameron D. Williams, is not void. The majority cannot expect its opinion to “clarify the path going forward for lawyers, litigants, and judges of our state,” majority opinion at ¶ 34, when it further complicates the unusual void-sentence line of cases that continues to play havoc with our jurisprudence.
{¶ 36} This case provides an opportunity for the court to truly limit its unusual conception of void sentences to postrelease-control-control cases, as it appeared to do in State v. Fischer,
Problems with the majority’s approach
{¶ 37} I cannot see how imposing concurrent prison terms for allied offenses renders a sentence void when we have stated that a sentencing court’s error in determining that offenses are not allied does not render the resulting sentence void. See State v. Holdcroft,
{¶ 38} I have consistently maintained my position that this court has erroneously held that errors in sentencing render a sentence void, subject to collateral attack at any time, when at most, the error was voidable, subject to correction on direct appeal. See, e.g., State v. Simpkins,
{¶ 39} The issue is more than mere semantics. Before the postrelease-control cases, our case law was clear on which errors were void and which were voidable.
Our precedent on void/voidable
{¶ 40} Under traditional jurisprudence, sentencing errors were not jurisdictional. See Ex Parte Shaw,
{¶ 41} In another case, this court refused to grant a writ of habeas corpus to a prisoner who claimed that he had been improperly sentenced to an indeterminate term of imprisonment for a burglary offense. Ex parte Winslow,
If the court in sentencing him did not act under [the burglary] statute, but sentenced him under another statute, which for the purposes of this case may be conceded to have been invalid, the sentence was erroneous and voidable but not void. The error was not a jurisdictional one * * *.
Id. at 330. The holding that sentencing errors were voidable but not void was reiterated a number of times. See Ex parte Van Hagan,
{¶ 42} And when we held that a court did act without jurisdiction, we unanimously held that the sentence imposed was void and that the prisoner was entitled to release in a habeas corpus proceeding. In re Lockhart, 157 Ohio St.
{¶ 43} In habeas cases, we have held repeatedly that sentencing errors are nonjurisdictional and that these errors are properly corrected on appeal. See State ex rel. Shackleford v. Moore,
{¶ 44} Thus, until recently, our precedent held that sentencing errors are to be corrected on appeal and are not jurisdictional ei-rors. A finding that a sentence was “contrary to law” or “unauthorized by law” meant that the sentence could be corrected as a voidable sentence, rather than that it was a void sentence (i.e., a nullity because of lack of jurisdiction) that could be collaterally attacked at any time.
{¶ 45} We held to this traditional approach as late as 2007, when we explained:
In reality, void and voidable sentences are distinguishable. A void sentence is one that a court imposes despite lacking subject-matter jurisdiction or the authority to act. State v. Wilson (1995),73 Ohio St.3d 40 , 44,652 N.E.2d 196 . Conversely, a voidable sentence is one that a court has jurisdiction to impose, but was imposed irregularly or erroneously. State v. Filiaggi (1999),86 Ohio St.3d 230 , 240,714 N.E.2d 867 .
Payne,
Postrelease-control cases
{¶ 46} This court’s departure from these clear principles started with the attempts to remedy a trial court’s error in imposing postrelease control as part of a sentence or in failing to impose mandatory postrelease control. See Simpkins,
{¶ 47} A recurring problem was that trial courts were improperly imposing mandatory postrelease control by failing to give notice that it was part of a defendant’s sentence either at the sentencing hearing or in the sentencing entry. This court’s solution was to declare such sentences void. See State v. Bezak,
{¶ 48} At first, the remedy for the error in imposing postrelease control required a complete resentencing. Bezak at ¶ 16 (“When a defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense”); Simpkins at ¶ 6 (in cases in which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed, unless the defendant has completed his sentence).
{¶ 49} In response to these postrelease-control cases, the General Assembly enacted R.C. 2929.191, Am.Sub.H.B. No. 137, 151 Ohio Laws, Part IV, 7622, effective July 11, 2006, which authorizes a judge to correct a sentence when an offender was not properly notified of mandatory postrelease control or did not have mandatory postrelease control included in the sentencing entry. According to R.C. 2929.191(A)(1), the court, “at any time before the offender is released from imprisonment under [the prison] term,” may prepare and issue a “correction” to the judgment entry of conviction that includes a period of postrelease control after the offender leaves prison. The court must hold a hearing to notify the defendant beforehand. R.C. 2929.191(C).
{¶ 50} This court attempted to put an end to postrelease-control problems in Fischer,
[I]n cases in which a trial judge does not impose postrelease control in accordance with statutorily mandated terms * * *, the sentence is void. Principles 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 ¶ 30.
{¶ 51} Fischer then tried to end the confusion in the void-voidable area by stating, “Our decision today is limited to a discrete vein of cases: those in which a court does not properly impose a statutorily mandated period of postrelease control.” Id. at ¶ 31. The court concluded optimistically that “it is likely that our work in this regard is drawing to a close, at least for purposes of void sentences.” Id. The Fischer majority was very much mistaken on that point.
Beyond the postrelease-control cases
{¶ 52} Despite the reassuring language, the court proceeded to expand Fischer ⅛ holding over the course of the next two years in State v. Harris,
{¶ 53} And now the majority in this case offers some alarming language:
[T]he power to define criminal offenses and prescribe punishment is vested in the legislative branch of government and * * * courts may impose sentences only as provided by statute. State v. Fischer,128 Ohio St.3d 92 ,2010-Ohio-6238 ,942 N.E.2d 332 , ¶ 21-22. Because “[n]o court has the authority to impose a sentence that is contrary to law,” id. at ¶ 23, 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 ¶ 30.
(Emphasis added.) Majority opinion at ¶ 22.
{¶ 54} The problem here is that the quotations have been taken out of context and their meanings have been expanded beyond the original intent. Both
{¶ 55} Erroneous judgments, procedural mistakes, and sentencing errors can all arise because a mandatory statutory requirement was not followed. But these errors are not necessarily the result of attempts to act without authority or to disregard statutory requirements. The majority’s position regarding void sentences relies on a prior case in which this court stated that “[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.” (Emphasis added.) State v. Beasley,
{¶ 56} This understanding comports with the reasoning of the United States Supreme Court, which concluded unanimously:
A void judgment is a legal nullity. See Black’s Law Dictionary 1822 (3d ed.1933); see also id., at 1709 (9th ed.2009). Although the term “void” describes a result, rather than the conditions that render a judgment unenforceable, it suffices to say that a void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final. See Restatement (Second) of Judgments 22 (1980); see generally id., § 12. * * *
“A judgment is not void, ” for example, “simply because it is or may have been erroneous.” Hoult v. Hoult,57 F.3d 1 , 6 (C.A.1 1995); 12 J. Moore et al., Moore’s Federal Practice § 60.44[1][a], pp. 60-150 to 60-151 (3d ed. 2007) * * *.
(Emphasis added.) United Student Aid Funds, Inc. v. Espinosa,
{¶ 57} The majority’s position that a sentence that does not comply with statutory mandates may be corrected at any time is inconsistent with federal jurisprudence. As I previously noted,
More than two decades ago, language was eliminated from the federal rules that allowed courts to correct an “illegal sentence” at any time. P.L. No. 98-473, 98 Stat. 2015. Fed.R.Crim.P. 35(a) now provides, “Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” However, if a federal sentencing error is not correctable under this rule or under Fed.R.Crim.P. 36 as a clerical error, it may be corrected only on direct appeal or, in limited cases, by a writ of habeas corpus under Section 2255, Title 28, U.S.Code. See generally United States v. Collins (Apr. 26, 2010), N.D.Ill. No. 04 CR 709, 2010 WL 1727852 .
Fischer,
{¶ 58} Ohio’s rules and statutes do not allow for correction of sentences “at any time.” Both the state and the defendant have the right to appeal sentences on grounds that the “sentence is contrary to law.” R.C. 2953.08(B)(2) and 2953.08(A)(4). However, both parties are expected to follow the time limits expressed in R.C. 2953.08(E). That means, within 30 days from the entry of the judgment of conviction, a party who wishes to challenge a sentence must file an appeal. App.R. 4(A). Sentences are considered res judicata if no appeal is taken within that time. See Saxon,
{¶ 59} R.C. 2953.08(G) does allow appellate courts a number of options to correct sentences that fail to comply with statutory requirements. But that statute also properly limits these options so that courts may exercise them only on direct appeal. This ensures finality in sentencing while still allowing for the correction of any errors as part of an appeal as of right, either by the defendant or the state. I respectfully object to the majority’s using our constitutional power under Article IY, Section 2(B)(2)(f) for sentencing-error correction.
Resolving the confusion
{¶ 60} A quick summary of some of this court’s cases on the postrelease-control front shows that the court has not been consistent on these issues. See Hernandez v. Kelly,
{¶ 61} Nor have the non-postrelease-control eases been consistent. Harris,
{¶ 62} The majority opinion, in my view, rather than “clarifying] the path going forward,” lurches in yet a new direction. Declaring that failure to properly merge allied offenses causes a sentence to be void, or partly void, the court uses language that may be stretched to say that any mistake in sentencing results in a void or at least partly void sentence. On this point, res judicata is nearly dead.
{¶ 63} It is no news that the appellate courts have noted inconsistencies in this court’s application of the void and voidable concepts and in response have called for continuity. See, e.g., State v. Holcomb,
{¶ 64} The Ninth District in Holcomb noted that in 1998, this court departed from traditional application of the void and voidable principles by holding that because a three-judge panel in a capital case had not followed specific statutory requirements, “ ‘there has been no valid conviction and [the defendant’s] sentence is therefore void.’ ” Id. at ¶ 11, quoting State v. Green,
{¶ 66} Not long ago, in a dissenting opinion, I suggested an alternative to the majority’s approach:
The real question here is: “What is the proper remedy when a judge makes a sentencing mistake?” Our sentencing statutes recognize the possibility that a judge may err in sentencing by allowing parties 30 days to appeal sentences on grounds that they are contrary to law. Allowing for challenges to sentencing error on direct appeal gives the state and the defense ample opportunity to draw attention to any potential postrelease-control error, thus satisfying any constitutional concerns arising from an imperfect sentence. Licensed attorneys should be competent to perform their duties during a sentencing hearing, and it is not unreasonable for prosecutors and defense counsel to review the judgment issued in a case to ensure that the sentence complies with Ohio law. This approach is the pragmatic approach — equitable, economical, and efficient. Most importantly, it is the approach contained in Ohio’s sentencing scheme, which provides for direct appeal by either party in a criminal case. See R.C. 2953.08.
(Footnote omitted and emphasis sic.) Fischer,
{¶ 67} The label “void” should not be pasted on anytime the court wishes to modify an error outside the 30-day appeal window. Williams’s sentence was imposed over eight years ago and has been repeatedly reviewed. Athough the trial court erred in imposing separate, concurrent sentences for allied offenses, the trial court did not wholly lack jurisdiction or authority to impose sentence. Thus, this was a voidable sentence, not a void sentence. The doctrine of res judicata does not allow a sentence to be attacked indefinitely.
{¶ 68} Because I would restore the traditional concepts of void and voidable sentences, I respectfully dissent.
French, J., concurs in the foregoing opinion.
Dissenting Opinion
dissenting.
{¶ 69} Because the majority’s decision expands the void-sentence doctrine and is incongruent with our precedent, I respectfully dissent. When a trial court states the mandatory terms of incarceration in a sentencing entry and then mistakenly uses the term “concurrently” to describe how the sentences will run for the offenses that the trial court merged for purposes of sentencing pursuant to R.C. 2941.25(A) but the sentence will not result in an additional term of incarceration, which would be prohibited by the sentencing mandates of the General Assembly, the sentence is not void but voidable.
{¶ 70} Stare decisis commands that I respect our precedent on void sentences. And we have held that absent a lack of subject-matter jurisdiction, the concept of void sentences should not be expanded beyond the “discrete vein of [postrelease-control] cases,” State v. Fischer,
Procedural History
{¶ 71} The Ninth District Court of Appeals summarized the significant procedural history in this case, which includes 18 prior postconviction-relief filings.
{¶ 72} On January 27, 2011, in a motion for resentencing, Williams argued that the three murder offenses he was convicted of “are allied offenses of similar import, and that he should have been sentenced only on one.” The trial court denied his motion. Williams appealed the trial court’s denial of his motion. The court of appeals affirmed the trial court’s holding that his motion was untimely and was a successive motion for postconviction relief that did not satisfy R.C. 2953.23(A). State v. Williams, 9th Dist. Summit No. 25879,
{¶ 73} This case arises from Williams’s 19th postconviction-relief filing. While I agree with the majority’s recitation of the history of this case, I would
{¶ 74} At the sentencing hearing, the trial court stated:
Accordingly, I impose sentence as follows: I’m going to start with Count 3, a special felony of aggravated murder, wherein it was alleged that this defendant caused death while he was under detention, and I impose the sentence of life with parole after 30 years, and I merge into that Counts 1 and 2; Count 2 being another charge of aggravated murder, and I merge the sentence of life with parole after 30 years into Count 3; and as to Count 1, wherein the jury found the lesser-included offense of murder, I merge the 15-year to life sentence that is appropriate and required on that charge into Count 3.
{¶ 75} The court went on to impose sentences for other offenses, not at issue herein, and then summarized all the sentences imposed as follows: “I have thus imposed an additional sentence of 36 years, and that is in addition to the 33 years on the main Count 3.”
{¶ 76} In the judgment entry, the trial court listed the offenses that the jury found Williams guilty of committing. Thereafter, among other sentences, the trial court ordered Williams committed to the Ohio Department of Rehabilitation and Corrections pursuant to the mandatory sentencing guidelines established by the General Assembly in the Revised Code for one count of murder and two counts of aggravated murder. Thereafter, the entry states:
THEREUPON, pursuant to Ohio Revised Code Section 2941.25(A), the Court hereby Orders that the offense of MURDER, as contained in the amended Count 1 of the Indictment and the offense of AGGRAVATED MURDER, as contained in Count 2 of the Indictment be merged into the offense of AGGRAVATED MURDER, as contained in Count 3 of the Indictment for purposes of sentencing and that said sentencing be served concurrently and not consecutively with each other, for a total of LIFE WITH PAROLE AFTER Thirty (30) years for the three counts.
(Capitalization sic.)
{¶ 77} However, the judgment entry does not result in any additional terms of incarceration for any of the allied offenses that were merged for purposes of sentencing.
{¶ 78} We begin with a simple general rule: a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or lacks the authority to act. State v. Payne,
{¶ 79} With regard to criminal cases, R.C. 2931.03 provides: “The court of common pleas has original jurisdiction of all crimes and offenses, except in cases of minor offenses the exclusive jurisdiction of which is vested in courts inferior to the court of common pleas.” A court of common pleas lacks subject-matter jurisdiction, for example, to convict and sentence a juvenile criminal defendant who did not first appear in a juvenile court, and therefore, any judgment of conviction against the juvenile would be void. State v. Wilson,
Expansion of the Void-Judgment Doctrine
{¶ 80} This court first applied the principle of a void sentence in State v. Beasley,
{¶ 81} Twenty years later, this court applied the void-sentence precedent established in Beasley in State v. Jordan,
{¶ 82} Relying on the court’s decision in Bezak, Londen Fischer, an incarcerated individual, successfully mounted a collateral attack on his sentence because the trial court had failed to notify him about postrelease control at his original sentencing hearing. Fischer at ¶ 3. On appeal from resentencing, Fischer argued that “because his original sentence was void, his first direct appeal was ‘not valid’ ” and thus, his appeal from the resentencing was “in fact ‘his first direct appeal’ in which he may raise any and all issues relating to his conviction.” Id. at ¶ 4. In rejecting that argument, this court held that “when an appellate court concludes that a sentence imposed by a trial court is in part void, only the portion that is void may be vacated or otherwise amended.” Id. at ¶ 28. This court in Fischer declared that “in the modern era, Ohio law has consistently recognized a narrow, and imperative, exception to [the] general rule [that sentencing errors do not render a judgment void]: a sentence that is not in accordance with statutorily mandated terms is void.” Id. at ¶ 7-8. But we limited the application of the void-sentence doctrine to “a discrete vein of cases: those in which a court does not properly impose a statutorily mandated period of postrelease control.” Id. at ¶ 31.
The Majority Expands the VoicF-Sentence Doctrine by Declaring Williams’s Sentence Void
{¶ 84} Today’s majority decision breathes new life into claims that a technical mistake in a trial court’s judgment entry makes a sentence void, and it is incongruent with our precedent.
{¶ 85} In State v. Underwood, this court held that courts have a mandatory duty to merge allied offenses at sentencing.
{¶ 86} In keeping with Underwood, in State v. Rogers, we held that “[a]n accused’s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error * * *."
{¶ 87} An R.C. 2953.21 petition for postconviction relief is a motion that is filed subsequent to a direct appeal and that seeks vacation or correction of a sentence on the basis that the defendant’s constitutional rights have been violated. State v. Reynolds,
{¶ 88} The majority’s attempt to distinguish this case from Rogers on the basis that the trial court in this case found the offenses allied and merged the offenses
{¶ 89} This court has treated the failure to merge offenses pursuant to R.C. 2941.25(A), the allied-offense statute, as an error that must be addressed on direct appeal and not as an error that renders the sentence void and subject to collateral attack at any time. See State v. Damron,
[ujnder the doctrine of res judicata, constitutional issues cannot be considered in postconviction proceedings under R.C. 2953.21 et seq. where they have already been or could have already been litigated by the convicted defendant, while represented by counsel, either before conviction or on direct appeal.
State v. Lott,
{¶ 90} Under our holding in Rogers, when a trial court properly analyzes and merges allied offenses pursuant to R.C. 2941.25(A) at the sentencing hearing, correctly restates in its judgment entry that the offenses are merged, but then mistakenly writes immediately thereafter that the sentences will be “served
{¶ 91} Applying the majority’s logic to a hypothetical defendant demonstrates the incongruity between the majority’s holding and our prior holdings. Under our prior holdings, if a trial court fails to recognize that two offenses are allied and sentences a defendant to serve consecutive terms of incarceration for the allied offenses, then the error is limited to a plain-error review if the defendant failed to raise the issue in the trial court. Majority opinion at ¶ 26, citing State v. Holdcroft,
{¶ 92} The determination whether a trial court’s sentencing error renders a judgment void should not turn on whether the trial court recognized that the offenses were allied. In accord with our precedent, it should turn on whether the trial court erred in failing to apply a mandatory sentence. Fischer,
{¶ 93} The majority hopes to “clarify the path going forward for lawyers, litigants, and judges of our state.” Majority opinion at ¶ 34. In my view, however, this decision will further muddy the waters.
{¶ 94} In Fischer, we commented that our work in the area of void sentences might be finished because the legislature had enacted R.C. 2929.191, which permits a trial court to correct a judgment of conviction without having to wait for an appellate court to declare the sentence void for failing to properly impose a statutorily mandated period of postrelease control. Fischer at ¶ 31. If R.C. 2929.191 put the void-sentence genie back in the bottle, then this decision lets it out again.
{¶ 95} Today, trial courts are applying complex sentencing guidelines mandated by the General Assembly. This holding by the majority will open up new avenues for defendants whose deadlines for filing direct appeals have long expired to argue that their sentences are void because the trial court, when imposing a mandatory sentencing provision, mistakenly used the wrong word in
“[Cjases of postconviction relief pose difficult problems for courts, petitioners, defense counsel and prosecuting attorneys alike. Cases long considered to be fully adjudicated are reopened, although memories may be dim and proof difficult. The courts justifiably fear frivolous and interminable appeals from prisoners who have their freedom to gain and comparatively little to lose.”
State v. Calhoun,
Conclusion
{¶ 96} When a trial court states the mandatory terms of incarceration in a sentencing entry and then mistakenly uses the term “concurrently” to describe how the sentences will run for the offenses that the trial court merged for purposes of sentencing pursuant to R.C. 2941.25(A), but the sentence will not result in an additional term of incarceration, which would be prohibited by the sentencing mandates of the General Assembly, the sentence is not void but voidable. Therefore, in response to the certified question, I would hold that the principles of res judicata preclude a defendant from challenging the sentence after direct appeal and affirm the decision of the Ninth District Court of Appeals. Respectfully, I dissent.