[Cite as State v. Grant, 2013-Ohio-3421.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120695
TRIAL NO. B-9702360-A
Plaintiff-Appellee, :
vs. : O P I N I O N.
JAMES GRANT, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: August 7, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
James Grant, pro se.
Please note: We have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
DEWINE, Judge.
{¶1} Defendant James Grant appeals from the Hamilton County Common
Pleas Court’s judgment overruling his “Motion to Correct Void Sentence.” Mr. Grant
contended that he is entitled to relief because he was convicted and sentenced for
allied offenses of similar import in violation of R.C. 2941.25(A). We conclude that
Mr. Grant’s motion failed to satisfy the time or jurisdictional requirements of Ohio’s
postconviction relief statutes. And while a trial court does have jurisdiction to
correct a void judgment, we conclude that errors involving allied offenses do not
render a judgment void. Accordingly, we affirm the common pleas court’s judgment
as modified.
Background
{¶2} Mr. Grant was convicted in 1997 of involuntary manslaughter,
aggravated burglary, two counts of aggravated robbery, and three counts of
kidnapping. In his direct appeal, this court reversed and remanded for the trial court
to make the then-necessary statutory sentencing findings and to merge the allied
offenses of aggravated robbery and kidnapping as to two of his victims. State v.
Grant, 1st Dist. Hamilton No. C-971001, 2001 Ohio App. LEXIS 1388 (Mar. 23,
2001), appeal not allowed, 92 Ohio St.3d 1443, 751 N.E.2d 482 (2001). After the
trial court resentenced Mr. Grant, he unsuccessfully challenged his convictions in
direct appeals to this court and to the Ohio Supreme Court, State v. Grant, 1st Dist.
Hamilton No. C-010632 (June 5, 2002), appeal not allowed, 96 Ohio St.3d 1524,
2002-Ohio-5099, 775 N.E.2d 864, and, collaterally, in postconviction motions filed
with the common pleas court in 2008 and 2012.
{¶3} In his 2012 “Motion to Correct Void Sentence,” Mr. Grant argued the
trial court should have merged all his convictions together pursuant to R.C. 2941.25
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OHIO FIRST DISTRICT COURT OF APPEALS
on the ground that they are allied offenses of similar import committed with the
same conduct. In a single assignment of error, Mr. Grant challenges the overruling
of his motion.
The Motion Does Not Meet the Prerequisites of Ohio’s
Postconviction-Relief Statutes
{¶4} We will first review Mr. Grant’s motion under Ohio’s postconviction
statutes, R.C. 2953.21 et seq. Mr. Grant filed his postconviction motion well after
the expiration of the time prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely
circumscribes the jurisdiction of a common pleas court to entertain a late
postconviction claim: the petitioner must show either that he was unavoidably
prevented from discovering the facts upon which his claim depends, or that his claim
is predicated upon a new or retrospectively applicable right recognized by the United
States Supreme Court; and he must show “by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have found [him]
guilty of the offense of which [he] was convicted.” Mr. Grant did not satisfy these
requirements, and, as a result, the common pleas court was without jurisdiction to
entertain his postconviction motion. See R.C. 2953.23(A).
The Judgment is Not Void
{¶5} A trial court does have jurisdiction to correct a void judgment. State
ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶
18-19. But this court has previously held that an error involving allied offenses does
not make a sentence void, only voidable. State v. Lee, 1st Dist. Hamilton No. C-
120307, 2013-Ohio-1811, ¶ 8. In Lee, however, we never set forth a rationale for this
conclusion. I think it appropriate to do so now.
{¶6} Historically, a void sentence was understood to be one imposed by a
court that is “lacking subject matter jurisdiction or the authority to act.” State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. “A voidable
sentence,” on the other hand, “is one that a court has jurisdiction to impose, but was
imposed irregularly or erroneously.” Id. Under the traditional view, a sentence that
is not void, but merely voidable, may only be successfully challenged on direct
appeal. Id. at ¶ 28. Errors in the imposition of a sentence generally were considered
nonjurisdictional and simply made the sentence voidable. See, e.g., Majoros v.
Collins, 64 Ohio St.3d 442, 443, 596 N.E.2d 1038 (1992). Such a result was
consistent with principles of res judicata and promoted the interest of finality of
judgments.
{¶7} In recent years, however, the Ohio Supreme Court has been more
willing to conclude that certain sentencing errors render a sentence void. In State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 8-9, the court
explained that despite the general rule that void sentences are “typically” only those
in which a court lacked subject matter jurisdiction, “in the modern era, Ohio law has
consistently recognized a narrow, and imperative, exception to that general rule: a
sentence that is not in accordance with statutorily mandated terms is void.”
{¶8} Thus, the question before us is whether a trial court’s incorrect
application of the rule regarding allied offenses set forth in R.C. 2941.25 falls within
this “narrow and imperative exception” so as to render a sentence void. For the
reasons that follow, I hold that it does not.
{¶9} A necessary starting place for consideration of the question before us is
a review of the types of cases where the Ohio Supreme Court has found that a
sentencing error renders a sentence void. The court’s work in this area has been
most pronounced in cases dealing with the imposition of postrelease control. In a
series of cases, the court has held that where a trial court fails to comply with its
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OHIO FIRST DISTRICT COURT OF APPEALS
statutory duties relating to the imposition of postrelease control, that portion of the
sentence is void. See, e.g., Fischer at paragraph one of the syllabus; State v.
Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 27-28; State v.
Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 16 (overruled in part
by Fischer).
{¶10} In Fischer, the court traced the “roots” of its postrelease-control
decisions on voidness to two older cases, Colegrove v. Burns, 175 Ohio St. 437, 195
N.E.2d 811 (1964), and State v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774 (1984).
See Fischer at ¶ 9-10 and 22-23. Beasley was a case where the trial court had
disregarded a mandatory two-to-15-year prison term and had imposed only a fine.
The trial court’s sentence was void, said the Supreme Court, because it was “an
attempt to disregard statutory requirements when imposing a sentence.” Beasley at
75. Colegrove was a case where the trial court had imposed a 60-day sentence for a
probation violation without any statutory authority to do so. In finding the
unauthorized sentence to be void, the Supreme Court explained that “a court has no
power to substitute a different sentence for that provided by statute.” Colegrove at
438.
{¶11} The court in Fischer noted that “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.” Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, at ¶ 31. Subsequent to Fischer, however, the court has
extended the doctrine to two other areas involving mandatory sentencing terms.
{¶12} In State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d
509, the court extended the voidness concept to a trial court’s failure to include a
mandatory driver’s license suspension in a sentence. The court explained that,
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OHIO FIRST DISTRICT COURT OF APPEALS
“[l]ike postrelease control, a driver’s license suspension is required by law to be part
of an offender’s sentence,” and if the trial court fails in its duty to impose either
postrelease control or a driver’s license suspension, the executive branch is unable to
impose either sanction after the offender leaves prison. Id. at ¶ 14. Thus, concluded
the court, “[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.” Id. at ¶ 15.
{¶13} The court next held that the failure to impose a statutorily mandated
fine would also render that portion of a sentence void. State v. Moore, 135 Ohio
St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432. “Because the 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.” Id. at ¶ 14.
{¶14} In extending the concept of voidness beyond its traditional
parameters, the court has consistently emphasized the limited nature of the
exception. Thus in Fischer, it described the exception as “narrow.” Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 8. In Harris, it termed its
jurisprudence in this area as “a narrow exception to the general rule that sentencing
errors are not jurisdictional.” Harris at ¶ 7; see also Simpkins, 117 Ohio St.3d 420,
425, 2008-Ohio-1197, 884 N.E.2d 568, at ¶ 14 (characterizing as “narrow” the “vein
of cases * * * [where the] court has held that a sentence that does not contain a
statutorily mandated term is void”).
{¶15} The commonality in the voidness cases is that they all involve
situations where the court has failed to impose a sentence term that it was mandated
by law to impose (postrelease control, driver’s license suspension, statutorily
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OHIO FIRST DISTRICT COURT OF APPEALS
mandated fine), or where a court has attempted to impose a sentence that was
completely unauthorized by statute. They involve instances where a trial court has
refused or neglected to do what the General Assembly has commanded with respect
to a mandatory criminal sentencing term, see Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, at ¶ 15 and fn. 1, rather than where the trial court simply got
the law wrong. Either something that was required was left out of a sentence, or the
trial court simply decided to create its own sentence despite statutory dictates to the
contrary.
{¶16} In contrast, the purported error in this case dealt not with a statutorily
mandated sentencing term or with the imposition of a sentence that was completely
unauthorized by law, but with the application of a general rule prohibiting multiple
convictions for certain offenses. Such an error is of a different sort than those errors
that the Supreme Court has found to render a sentence void.
{¶17} In reaching our decision today, we also must be mindful of the
Supreme Court’s repeated description of the exception to the general rule that
sentencing errors are nonjurisdictional as a “narrow” one. Quite simply, if this court
were to hold that an allied-offenses error renders a sentence void, it would be hard-
pressed to identify any intellectually justifiable stopping point. If a sentence
imposed in contravention of R.C. 2941.25 is void, the logical implication is that all
statutorily-based sentencing errors render a sentence void. A criminal sentence
would be subject to review indefinitely. Such a result would seriously undermine
principles of res judicata, a doctrine that “promotes the principles of finality and
judicial economy by preventing endless relitigation of an issue on which a defendant
has already received a full and fair opportunity to be heard.” State v. Saxon, 109
Ohio St.3d 176, 181, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} This position is consistent with that of the other appellate districts that
have addressed the issue. See, e.g., State v. Moore, 7th Dist. Mahoning No. 12 MA
91, 2013-Ohio-1431, ¶ 15 (holding that, because “[t]here is a fundamental difference
between a void judgment and one that merely contains an alleged error,” an error in
merging firearm specifications “would result in error subject to appellate review and
remand for correction if necessary, rather than a void judgment which would need to
be vacated”); State v. Porter, 6th Dist. Lucas No. L-12-1243, 2013-Ohio-1360, ¶ 12,
quoting State v. Guevara, 6th Dist. Lucas No. L-12-1218, 2013-Ohio-728, ¶ 8
(holding that “the failure to merge allied offenses at sentencing does not render a
sentence void”); State v. Garnett, 10th Dist. Franklin No. 12AP-594, 2013-Ohio-1210,
¶ 10, quoting Guevara at ¶ 8 (holding that “the failure to merge allied offenses at
sentencing does not render a sentence void”); State ex rel. Porterfield v. McKay, 11th
Dist. Trumbull No. 2012-T-0012, 2012-Ohio-5027, ¶ 17 (holding that because “R.C.
2941.25 does not set forth any mandated terms of imprisonment, any violation of its
provisions regarding the merger of allied offenses would have only caused [the
sentence] to be voidable, not void”); State v. Johnson, 9th Dist. Summit No. 26167,
2012-Ohio-4251, ¶ 7 (citing State v. Abuhilwa, 9th Dist. Summit No. 25300, 2010-
Ohio-5997, ¶ 8, to hold that “the failure to merge allied offenses does not result in a
void sentence, which could be corrected notwithstanding [defendant’s] failure to
raise the issue in his second post-trial motion”); State v. Miller, 4th Dist. Lawrence
No. 11CA14, 2012-Ohio-1922, ¶ 6 (holding that defendant’s “argument that the trial
court should have merged his convictions under R.C. 2941.25, if meritorious, would
only render the judgment voidable, not void”); State v. Parson, 2d Dist. Montgomery
No. 24641, 2012-Ohio-730, ¶ 9 (noting, in holding that an allied-offenses error would
render sentences “voidable” and not “void,” that “Defendant does not claim that his
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OHIO FIRST DISTRICT COURT OF APPEALS
sentence is not in conformity with statutorily mandated terms, or is not provided for
by law, or even that the sentence fails to comply with the formal requirements of
2941.25”).1
The Judgment is Affirmed as Modified
{¶19} Therefore, upon our determination that the common pleas court
properly denied Mr. Grant the relief sought in his postconviction motion, we overrule
the assignment of error. Because the court had no jurisdiction to entertain Mr.
Grant’s motion on its merits, the motion was subject to dismissal. Accordingly, upon
the authority of App.R. 12(A)(1)(a), we modify the judgment appealed to reflect the
dismissal of the motion. And we affirm the judgment as modified.
Affirmed as modified.
DINKELACKER, J., concurs in judgment only.
CUNNINGHAM, P.J., concurs in part and dissents in part.
CUNNINGHAM, P.J., concurring in part and dissenting in part.
{¶20} I concur in the majority’s holding that the postconviction statutes did
not confer upon the common pleas court jurisdiction to entertain Grant’s motion.
But I respectfully dissent from its determination that the court lacked any
jurisdiction to entertain his allied-offenses claim.
{¶21} In his opinion, Judge DeWine acknowledges that a court has
jurisdiction to correct a void sentence, but concludes that a sentence imposed in
violation of R.C. 2941.25 is not void. That conclusion is based on a perceived
distinction between a sentence imposed in violation of R.C. 2941.25 and those
1 It is also worth noting that the Ohio Supreme Court has consistently held that allied-offenses
errors are nonjurisdictional and are not cognizable in habeas corpus or other extraordinary writs.
See, e.g., State ex rel. Agosto v. Gallagher, 131 Ohio St.3d 176, 2012-Ohio-563, 962 N.E.2d 796;
State ex rel. Hudson v. Sutula, 131 Ohio St.3d 177, 2012-Ohio-554, 962 N.E.2d 798; Smith v.
Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10.
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OHIO FIRST DISTRICT COURT OF APPEALS
sentences that the Ohio Supreme Court has held to be void. “The commonality in the
voidness cases” that my colleague insists distinguishes the voidness cases from this
case “is that [the voidness cases] all involve situations where the court has failed to
impose a sentence term that it was mandated by law to impose (postrelease control,
driver’s license suspension, statutorily mandated fine), or where a court has
attempted to impose a sentence that was completely unauthorized by statute,” while
“the purported error in this case dealt * * * with the application of a general rule
prohibiting multiple convictions for certain offenses.”
{¶22} To me, what the voidness cases have in common is that they are all
grounded in the long-recognized “vital principle,” announced in 1964 in Colgrove v.
Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964), and “reaffirm[ed]” in 2010 in
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 23, that
“[n]o court has the authority to impose a sentence that is contrary to law.” Id., citing
Colgrove at 438; accord State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985
N.E.2d 432, ¶ 14; State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d
509, ¶ 7 and 15 (citing Colgrove and State v. Beasley, 14 Ohio St.3d 74, 75, 471
N.E.2d 774 [1984]). This principle led the Ohio Supreme Court to carve out “a
narrow, and imperative, exception to th[e] general rule” that “sentencing errors are
not jurisdictional and do not render a judgment void.” Fischer at ¶ 7-8.
{¶23} But the exception is broader than Judge DeWine would have it. It
applies not only “where the court has failed to impose a sentence term that it was
mandated by law to impose.” It also applies when a court has imposed “a sentence
that is not in accordance with statutorily mandated terms.” (Emphasis added.) Id.,
citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 14;
State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961; State v. Jordan,
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OHIO FIRST DISTRICT COURT OF APPEALS
104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864; Woods v. Telb, 89 Ohio St.3d
504, 2000-Ohio-171, 733 N.E.2d 1103 (2000); State v. Beasley, 14 Ohio St.3d 74, 75,
471 N.E.2d 774 (1984); Colegrove v. Burns, 175 Ohio St. 437, 195 N.E.2d 811 (1964).
By its terms, the allied-offenses statute mandates a sentence on only one of multiple
offenses if the offenses are allied offenses of similar import committed neither
separately nor with a separate animus as to each. It follows that sentences that are
not in accordance with those statutorily mandated terms are void.
{¶24} Moreover, as my colleague acknowledges, the exception also applies
“where a court has attempted to impose a sentence that was completely unauthorized
by statute.” A court must be said to be acting outside the authority conferred by the
allied-offenses statute when it imposes separate sentences for multiple offenses
despite a clear demonstration on the record that the state had relied upon the same
conduct to prove the offenses, and that the offenses had been committed neither
separately nor with a separate animus as to each. State v. Johnson, 195 Ohio App.3d
59, 2011-Ohio-3143, 958 N.E.2d 977, ¶ 78 (1st Dist.), citing State v. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 49 and 51.
{¶25} For these reasons, along with the reasons set forth in my concurring
and dissenting opinion in State v. Lee, 1st Dist. Hamilton No. C-120307, 2013-Ohio-
1811, ¶ 21-30, I would hold that the common pleas court had jurisdiction to entertain
Grant’s allied-offenses claim, because a sentence imposed in contravention of R.C.
2941.25 is void and thus subject to review at any time.
{¶26} I would also go on to hold that R.C. 2941.25 did not preclude the trial
court from imposing separate sentences for the aggravated robbery pertaining to
Frazier and the aggravated robbery pertaining to Franklin, when the record shows
that each offense involved a different victim.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} But Grant was convicted of involuntary manslaughter, aggravated
burglary, and kidnapping for the death of a single victim, Antwaun Gilliam. The
record shows that the state relied upon the same conduct to prove involuntary
manslaughter and aggravated burglary, and that the offenses had been committed
neither separately nor with a separate animus as to each. But the record may also be
said to permit a conclusion that Gilliam’s kidnapping had been committed separately
from the other two offenses. Therefore, I would hold that a sentence may be
imposed for either involuntary manslaughter or aggravated burglary, and I would
remand for resentencing on those offenses consistent with R.C. 2941.25 and for a
determination of whether Grant could, consistent with R.C. 2941.25, also be
sentenced for Gilliam’s kidnapping.
{¶28} Finally, based on the conflict noted in Lee, I would, upon the authority
conferred by the Ohio Constitution, Article IV, Section 3(B)(4), certify to the Ohio
Supreme Court the following question: “Are sentences imposed in violation of R.C.
2941.25 void and thus subject to review at any time?” See Lee at ¶ 31.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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State v. Grant
Combined Opinion