In re J.S.

[Cite as In re J.S., 136 Ohio St.3d 8, 2013-Ohio-1721.]

IN RE J.S.
[Cite as In re J.S., 136 Ohio St.3d 8, 2013-Ohio-1721.]
Appeal dismissed as having been improvidently accepted.
(No. 2012-0118—Submitted January 9, 2013—Decided May 1, 2013.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 96637, 2011-Ohio-6280.
__________________
{¶ 1} The cause is dismissed as having been improvidently accepted.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, and KENNEDY, JJ., concur.
LANZINGER, FRENCH, and O’NEILL, JJ., dissent.
__________________
LANZINGER, J., dissenting.
{¶ 2} I respectfully dissent from the decision to dismiss this case as
having been improvidently accepted. This case, involving as it does a serious-
youthful-offender (“SYO”) sentence under R.C. 2152.13, is one of public or great
general interest.
{¶ 3} We accepted the state’s proposition of law:

A sentencing error that is not timely appealed, and is
unrelated to a juvenile court’s decision to invoke an adult prison
sentence against a serious youthful offender, cannot be used to
nullify the adult portion of the juvenile’s blended sentence.

In re J.S., 131 Ohio St.3d 1509, 2012-Ohio-1710, 965 N.E.2d 310.
{¶ 4} The court of appeals itself noted the importance of this case: “We
are troubled by the fact that J.S. was serving a void sentence when he committed
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the act constituting rape. We are aware that the SYO law in Ohio is relatively new
and this case appears to be one of first impression.” 2011-Ohio-6280, ¶ 16.
{¶ 5} At the very least, we should answer the appellate court’s concern
over this new type of sentence and explain exactly how the “void/voidable” line
of cases applies or does not apply. Allowing the opinion of the court of appeals to
stand without comment leaves many questions unanswered: What exactly is an
SYO sentence? Is it a single sentence with a juvenile and an adult portion, or is it
instead separately a juvenile and an adult sentence? If it is a sentence with two
portions, as characterized by the court of appeals, id. at ¶ 3, does an error in one
portion cause the SYO sentence to be only partially void, as suggested in State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332?
{¶ 6} This case illustrates again the problems in allowing unlimited
correction of sentences through collateral attack. Rather than dismissing this
appeal as having been improvidently accepted, we should attempt to clarify the
law.
I. This Court’s “Void/Voidable” Decisions Have Generated Confusion
{¶ 7} Recent history has shown that the court’s decisions in this area
have been confusing and inconsistent, weakening res judicata and casting serious
doubt over the jurisdiction of trial courts and courts of appeals. See State v.
Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, at ¶ 20, fn. 3
(Lanzinger, J., concurring in part and dissenting in part). A prime example of
inconsistency can be found in Fischer’s overruling of a critical portion of the
seminal case of State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d
961, and this court’s later citation approving Bezak’s overruled language in
Billiter. Billiter at ¶ 21 (Lanzinger, J., concurring in part and dissenting in part).
In Fischer, this court stated that part of Bezak had been decided
erroneously:

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[W]e now modify the second sentence in the Bezak syllabus as ill-
considered. That sentence states that the offender is entitled to a
new sentencing hearing for the offense for which postrelease
control was not imposed properly. 114 Ohio St.3d 94, 2007-Ohio-
3250, 868 N.E.2d 961. It does not recognize a principle that we
overlooked in Bezak: 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.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 28. But even
though Fischer stated that sentences unauthorized by law are only “in part void,”
Billiter then directly contradicted this notion: “As we have consistently stated, if
a trial court imposes a sentence that is unauthorized by law, the sentence is void.”
(Emphasis added.) Billiter at ¶ 10. It is hard to believe that Fischer has clarified
the law when a later case states that it is being consistent in directly contradicting
it.
{¶ 8} While the inconsistency is troubling, the expansion of Fischer
beyond the boundaries it originally established is even more problematic. Fischer
was explicitly limited to “a discrete vein of cases: those in which a court does not
properly impose a statutorily mandated period of postrelease control.” Fischer at
¶ 31. There the majority stated, “[I]t is likely that our work in this regard is
drawing to a close, at least for purposes of void sentences.” Id. But in spite of
this reassuring language, the court proceeded to expand Fischer’s holding over
the course of the next two years in State v. Harris, 132 Ohio St.3d 318, 2012-
Ohio-1908, 972 N.E.2d 509, ¶ 15 (applying Fischer in concluding that “[b]ecause
a mandatory driver’s license suspension is a statutorily mandated term, we hold
that a trial court’s failure to include this term in a criminal sentence renders the
sentence void in part”); Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980

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N.E.2d 960, at ¶ 13 (“Billiter’s conviction and sentence for escape based on a
postrelease-control error do not fall outside the scope of our decision in Fischer.
Therefore, Billiter is not barred by res judicata from arguing that his plea is void
due to the trial court’s incorrect imposition of postrelease control”); and State v.
Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 14 (“Because [a
statutorily mandated] fine is a statutory punishment, the trial court’s failure to
impose the fine when an affidavit of indigency is not filed with the court prior to
the filing of the trial court’s journal entry of sentencing renders that part of the
sentence void”). This expansion of the rule of Fischer from the original cases, in
which a court does not properly impose a statutorily mandated period of
postrelease control, to an increasing number of non-postrelease-control cases, in
which the court failed to comply with a statute, has led to confusion. It is unclear
whether Fischer truly applies to the “discrete vein of cases” identified in its text,
subject to certain exceptions as recognized by this court, or whether, contrary to
its language, Fischer applies to any case in which a court failed to comply with a
statutory provision.
{¶ 9} Clearly, our work is not concluded, and despite today’s decision,
we will continue to be confronted with cases involving sentencing errors. In fact,
we have recently ordered briefing in a certified-conflict case on the following
question:

Does a trial court have jurisdiction to resentence a
defendant for the purpose of imposing mandatory postrelease
control regarding a particular conviction, when the defendant has
served the stated prison term regarding that conviction, but has yet
to serve the entirety of the aggregate prison sentence, when all of
the convictions which led to the aggregate sentence resulted from a
single indictment?

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State v. Holdcroft, 133 Ohio St.3d 1409, 2012-Ohio-4650, 975 N.E.2d 1028.
Perhaps even more significantly, after oral argument in the present case, a
majority of this court recognized the confusion surrounding our void-sentence
jurisprudence when we accepted jurisdiction in Lingo v. State, Supreme Court
case No. 2012-1774. 134 Ohio St.3d 1448, 2013-Ohio-347, 982 N.E.2d 727,
appeal accepted from 8th Dist. No. 97537, 2012-Ohio-2391. The second
proposition of law accepted in Lingo states, “Any attempt by a municipal court to
impose additional court costs beyond that which is authorized by statute is void
and not merely voidable.” The possibility of expanding Fischer will continue to
prompt parties to argue its application in an even wider range of cases. See, e.g.,
memorandum in support of jurisdiction in State v. Mowery, Supreme Court case
No. 2012-1917, appeal not accepted, 134 Ohio St.3d 1469, 2013-Ohio-553, 983
N.E.2d 369 (arguing that a sentence that does not include the statutorily required
determination of allied offenses is void, is not precluded from appellate review by
principles of res judicata, and may be reviewed at any time, on direct appeal or
collateral attack). These cases are not aberrations, but instead signal that this area
of law is far from settled.
{¶ 10} In the case now before us, neither party appealed the original and
erroneous 2007 sentence within 30 days. Although the majority declines to
consider this case, I believe that it is not entirely clear how precedent should
apply to J.S.’s situation. We should address the merits of these issues raised on
appeal and decide what effect, if any, Fischer has on SYO sentences.
II. The Need to Rectify the “Void/Voidable” Problem
{¶ 11} A decision in this case could help to provide order to this area of
the law. Now is the proper time to closely reexamine the void-sentence doctrine
to reaffirm basic principles of our jurisprudence.

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A. A Sentencing Error Is Voidable and Does Not Mean that the Court Lacked
Jurisdiction
{¶ 12} It is axiomatic that a judgment by a court lacking jurisdiction is
void, and thus subject to collateral attack at any time, while a judgment by a court
that has made an error in exercising jurisdiction is voidable, and thus subject to
correction only on direct appeal. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-
4642, 873 N.E.2d 306, ¶ 27. Stated another way, a court with subject-matter
jurisdiction might impose an erroneous sentence, one that, because it does not
comply completely with a statute, is contrary to law. That error may be corrected
(i.e., the sentence is voidable) and then will have no effect once it is vacated. But
a judgment that is void is rendered by a court without jurisdiction and is of no
effect from the beginning—it was a nullity. Before the recent void-sentence
cases, Ohio law provided that errors made by a court having jurisdiction were
voidable and correctable only on direct appeal, even when the errors involved
significant matters of criminal procedure. We clearly explained the difference
between void and voidable judgments when analyzing a court’s failure to convene
a statutorily mandated three-judge panel in a death-penalty case in Pratts v.
Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992:

The failure of a court to convene a three-judge panel, as
required by R.C. 2945.06, does not constitute a lack of subject-
matter jurisdiction that renders the trial court’s judgment void ab
initio and subject to collateral attack in habeas corpus. It
constitutes an error in the court’s exercise of jurisdiction that must
be raised on direct appeal.

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Id. at syllabus. Likewise, we held that a court’s failure to properly obtain a
waiver of jury trial did not render a sentence void in State ex rel. Waver v.
Gallagher, 105 Ohio St.3d 134, 2005-Ohio-780, 823 N.E.2d 449, ¶ 7:

[E]ven if Waver’s claims could be construed to challenge his 1999
sentence following remand from the court of appeals, his R.C.
2945.05 jury-trial-waiver claim is not cognizable in mandamus or
prohibition. Kelley v. Wilson, 103 Ohio St.3d 201, 2004-Ohio-
4883, 814 N.E.2d 1222, ¶ 7; State ex rel. Billings v. Friedland
(2000), 88 Ohio St.3d 237, 238, 724 N.E.2d 1151 (“any failure to
comply with R.C. 2945.05 may be remedied only in a direct appeal
from a criminal conviction and not by extraordinary writ”); State v.
Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766, paragraph two
of the syllabus (“The failure to comply with R.C. 2945.05 may be
remedied only in a direct appeal from a criminal conviction”).

{¶ 13} The foregoing cases acknowledged the common understanding of
the terms “void” and “voidable.” The United States Supreme Court has made the
same distinction:

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. * * *

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“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).

(Emphasis added.) United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,
270, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010).
B. Felony-Sentencing Error Is to Be Corrected Within Statutory Time
{¶ 14} The principle that a sentence contrary to law may be corrected only
on direct appeal comports with R.C. 2953.08, a statute that allows the state (R.C.
2953.08(B)(2)) as well as the defendant (R.C. 2953.08(A)(4)) to appeal a felony
sentence that is “contrary to law.” What has been overlooked by this court is that
the General Assembly also determined that time limits still apply for these
appeals:

A defendant, prosecuting attorney, city director of law,
village solicitor, or chief municipal legal officer shall file an
appeal of a sentence under this section to a court of appeals within
the time limits specified in Rule 4(B) of the Rules of Appellate
Procedure, provided that if the appeal is pursuant to division
(B)(3) of this section, the time limits specified in that rule shall not
commence running until the court grants the motion that makes the
sentence modification in question.

(Emphasis added.) R.C. 2953.08(E).
{¶ 15} Thus, our earlier precedent—as well as the specific language of
R.C. 2953.08, which broadened the state’s right to appeal felony sentences
contrary to law—made clear that errors were to be appealed within 30 days by
either party. Beginning with the postrelease-control cases, however, by holding

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that sentencing errors are subject to collateral challenge, the court has taken the
word “void,” which has a precise, legal definition referring to instances in which a
court acts without jurisdiction, and has altered its definition to include certain
instances in which a court acts contrary to statute. This has led to a slippery
slope.
{¶ 16} Neither the state nor defendants can be certain when judgments are
final and when they are subject to collateral attack. For instance, if a trial court
fails to convene a three-judge panel as mandated by R.C. 2945.06, is this error
correctable only on appeal pursuant to Pratts or has that case been overruled by
Fischer, meaning that it is subject to collateral attack? And if a trial court fails to
obtain a written waiver of jury trial as mandated by R.C. 2945.05, does the line of
cases culminating in Waver apply, so the error can be addressed only on direct
appeal, or is this yet another case in which Fischer applies? This court has placed
itself in this quandary by explicitly limiting application of Fischer to a “discrete
vein of cases” but then allowing the decisions in Harris, Billiter, and Moore to
poke holes into the limitation. In other words, the court’s recent decisions seem
to imply that Fischer says that all sentencing errors are subject to collateral attack,
but this implication directly contradicts the express limitation contained within
Fischer. Thus, no one knows whether the court might find a judgment subject to
collateral attack from one case to the next, at least until this court makes a
decision on the particular sentencing error at issue in the case.
{¶ 17} And if judgments are subject to collateral attack, it often remains
unclear whether the proper remedy is a de novo resentencing (based upon this
court’s approving citation of Bezak in the opinion in Billiter), a resentencing
pursuant to R.C. 2929.191 (based upon State v. Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434, 920 N.E.2d 958), a limited resentencing by the trial court
(pursuant to Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332), a
correction by the court of appeals without remand (pursuant to Fischer, ¶ 29-30),

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or another method of correction. It should come as no surprise then that in this
case, the state has taken a completely different position from the one that it
recently took in oral argument in State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-
1908, 972 N.E.2d 509. In Harris, the state argued that for those sentencing errors
in which a court had a duty to act yet failed to act, a sentence was rendered partly
void pursuant to Fischer. For sentencing errors in which a court issued a sentence
unauthorized by law, the state argued, the sentence was rendered fully void and
subject to de novo resentencing pursuant to State v. Jordan, 104 Ohio St.3d 21,
2004-Ohio-6085, 817 N.E.2d 864. Oral argument in case Nos. 2011-0008 and
2011-0010 (Nov. 15, 2011). But now in J.S., the state argues that a court’s
imposition of a sentence unauthorized by law—in this case, a sentence that
included an unauthorized indefinite prison term—renders the sentence partly void
pursuant to Fischer. The state’s shifting position stems at least partly from our
imprecision in this area.
C. Extension of the Void-Sentence Doctrine Could Have Dire Consequences
{¶ 18} Continued expansion of the void-sentence doctrine beyond the
context of postrelease control weakens Ohio law by further calling into question
the finality of sentences. Besides res judicata, jurisdiction is affected: other
actions of the courts—for example, arraignments and decisions on allied and
lesser included offenses—are at risk of being declared void if a trial court fails to
follow every letter of every statute. This conclusion is almost mandated by
Fischer, which declares that “a sentence that is not in accordance with statutorily
mandated terms is void.” Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, at ¶ 8. Because this court has equated judicial actions that are
contrary to law or “not in accordance with statutorily mandated terms” to actions
that are void, the number of judicial actions subject to collateral attack under this
court’s conception of what is void is limited only by the number of statutes

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mandating that a court act in a specific way and the creativity of the attorney
challenging the court’s action.
{¶ 19} The irony is that by allowing collateral challenges to actions not in
accordance with statutorily mandated terms, this court itself has acted contrary to
law. This is because R.C. 2953.08, in conjunction with the appellate rules,
provides that both the state and defendants may challenge court actions that are
contrary to law only within the 30-day period provided for direct appeal. In
ignoring this time mandate and allowing for court actions that are contrary to law
to be collaterally attacked at any time, this court acts in violation of R.C. 2953.08.
In other words, this court’s decisions allowing for the collateral attack on so-
called void sentences are themselves void because they are not in accordance with
statutorily mandated terms.
{¶ 20} Clearly, this paradoxical result is not desirable, and it is in our best
interest to create a resolution. Holding that the principle of voidness allows for
appellate review of court actions beyond 30 days means holding that the
sentencing court never had the power to act, when in fact, the court merely acted
in error while exercising its power. Raising statutory errors to the level of “super
error” rendering a court’s actions void, as if those actions had not occurred,
weakens the judiciary and raises a separation-of-powers issue. If statutory errors
are not voidable, but rather void, then the General Assembly through its statutes
controls the courts in any number of areas traditionally left to the courts’
discretion.
III. Potential Solutions
{¶ 21} Although the void-sentence doctrine originally began as a way to
correct errors in the imposition of postrelease control beyond the time allotted for
direct appeal, the doctrine has expanded to allow correction of other sentencing
errors. We must limit the misuse of the term “void” before it encompasses any
number of cases in which a court acts contrary to statute.

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{¶ 22} The best option would be for the court to return to the traditional
meanings of “void” and “voidable” and require the correction of all errors during
the 30-day period that the General Assembly has provided for direct appeal. R.C.
2953.08(E). If this court wishes to allow for appeals of sentences at any time,
without limitation, it should amend App.R. 4(B), which is specifically referred to
in R.C. 2953.08(E).
{¶ 23} I offer this suggestion with the caveat that this system has been
tried and rejected by the federal courts. As noted in my dissent in Fischer:

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.

Id., 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 50 (Lanzinger, J.,
dissenting).
IV. The Procedure for Appealing SYO Sentences
{¶ 24} R.C. 2152.13 sets forth the requirements for the SYO dispositional
sentence. The statute states:

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[A] juvenile court may impose a serious youthful offender
dispositional sentence on a child [under circumstances that require
the juvenile court to impose upon the child a serious youthful
offender dispositional sentence under R.C. 2152.11] only if the
prosecuting attorney of the county in which the delinquent act
allegedly occurred initiates the process against the child in
accordance with this division, and the child is an alleged
delinquent child who is eligible for the dispositional sentence.

The procedure for invoking the adult portion of an SYO sentence is provided in
R.C. 2152.14:

(A)(1) The director of youth services may request the
prosecuting attorney of the county in which is located the juvenile
court that imposed a serious youthful offender dispositional
sentence upon a person under section 2152.121 or 2152.13 of the
Revised Code to file a motion with that juvenile court to invoke the
adult portion of the dispositional sentence if all of the following
apply to the person:
(a) The person is at least fourteen years of age.
(b) The person is in the institutional custody, or an escapee
from the custody, of the department of youth services.
(c) The person is serving the juvenile portion of the serious
youthful offender dispositional sentence.
(2) The motion shall state that there is reasonable cause to
believe that either of the following misconduct has occurred and
shall state that at least one incident of misconduct of that nature
occurred after the person reached fourteen years of age:

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(a) The person committed an act that is a violation of the
rules of the institution and that could be charged as any felony or
as a first degree misdemeanor offense of violence if committed by
an adult.
(b) The person has engaged in conduct that creates a
substantial risk to the safety or security of the institution, the
community, or the victim.

{¶ 25} I maintain my belief that appeals must be filed within 30 days of
the judgment that imposes the sentence. The timing of appeals of SYO sentences,
however, differs slightly from traditional appeals because an SYO sentence has
two parts: a juvenile portion and a stayed adult portion. Although the juvenile
portion must be appealed within 30 days after the sentence is originally imposed,
it is possible that the juvenile need not appeal the adult portion until the court
actually invokes the prison term at the request of the state. See R.C.
2152.13(D)(3). In this way, the adult portions of SYO sentences are akin to
community-control sentences, which may also be appealed if the court imposes a
prison term for violation of the community-control period. See, e.g., State v.
Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 2-3; State v.
Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 5-6 (direct
appeals followed the trial courts’ imposition of prison time for the defendants’
violation of community control).
{¶ 26} In this case, J.S. filed direct appeals each time the juvenile court
granted the state’s motion to invoke the adult portion of his sentence. On the first
appeal, the court of appeals reached a proper conclusion when it remanded the
case because of inconsistencies within the SYO disposition journal entry and

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because that entry contained sentences not authorized by law.1 In re J.S., 8th
Dist. No. 95365, 2010-Ohio-6199, ¶ 6. However, on the second appeal, the court
of appeals concluded improperly that the juvenile court erred when it invoked the
adult portion of J.S.’s sentence. The court of appeals concluded that J.S. had been
serving a void sentence and that because the sentence was void, the adult portion
of his sentence could not be invoked. In re J.S., 8th Dist. No. 96637, 2011-Ohio-
6280, ¶ 16.
{¶ 27} The fault in the Eighth District’s analysis is that J.S.’s sentence
was never void. There were errors in the original sentence, but those errors—
which arose during the juvenile court’s exercise of its valid jurisdiction over
J.S.—made the sentence voidable. In accordance with the proper procedure, J.S.
appealed the invocation of the adult portion of his sentence when the juvenile
court first invoked the adult prison term, and the court of appeals properly
remanded the case so that the errors could be corrected. With the sentence
corrected, the juvenile court was permitted to invoke the adult portion of J.S.’s
sentence, and the court of appeals erred when it held that the juvenile court could
not do so. I would reverse the judgment of the court of appeals on its holding that
J.S.’s sentence was void, and I would hold that the juvenile court had the
authority to invoke the adult portion of the sentence on remand from the first
appeal.
V. Conclusion
{¶ 28} Given the uncertainties surrounding the application of this court’s
void-sentence doctrine involving SYO sentences, I dissent from this court’s
decision to dismiss this appeal as having been improvidently accepted. I would
take the opportunity to clarify Ohio law regarding void sentences. Because the

1. The Eighth District noted that the sentence included a valid agreed sentence of nine years but
also included unauthorized indefinite sentences. In re J.S., 8th Dist. No. 95365, 2010-Ohio-6199,
¶ 7.

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juvenile court did not lack the authority to invoke the adult portion of J.S.’s SYO
sentence after he was resentenced on remand following the first appeal in this
case, I would reverse the decision of the Eighth District and hold that the juvenile
court properly invoked the adult portion of his sentence.
FRENCH and O’NEILL, JJ., concur in the foregoing opinion.
__________________
William Mason, Cuyahoga County Prosecuting Attorney, and Kristen
Sobieski, Assistant Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, and Sheryl A. Trzaska, Assistant
Public Defender, for appellee.
______________________

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