[Cite as State v. Braggs, 2013-Ohio-3364.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130073
TRIAL NO. B-8903470
Plaintiff-Appellee, :
vs. :
O P I N I O N.
ROBERT BRAGGS, :
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 2, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Gregory A. Cohen, for Defendant-Appellant.
Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Robert Braggs appeals the Hamilton County
Common Pleas Court’s judgment overruling his “Motion for Declaratory Judgment
That Sentence is Void.” We affirm the court’s judgment as modified.
{¶2} Braggs was convicted of drug abuse in December 1989 and was placed
on probation for three years. He unsuccessfully challenged his conviction in his
direct appeal to this court, see State v. Braggs, 1st Dist. Hamilton No. C-900003
(Nov. 9, 1990), and, collaterally, in a series of postconviction petitions and motions
filed with the common pleas court. See, e.g., State v. Braggs, 1st Dist. Hamilton No.
C-120487 (Feb. 27, 2013); State v. Braggs, 1st Dist. Hamilton No. C-120137 (June
27, 2012); State v. Braggs, 1st Dist. Hamilton No. C-950436 (Dec. 22, 1995). In
1992, Braggs’s probation was “terminated” and his “case [was] closed.”
{¶3} In his “Motion for Declaratory Judgment That Sentence is Void,” filed
September 4, 2012, Braggs invoked the “jurisdiction [of a court] * * * to correct a
void judgment” and sought relief in the form of “a declaratory judgment resolving the
fact that [he had been] improperly given four hundred hours of community service in
violation of [former] R.C. 2951.02(H)(1)(a) which statutory limitation is * * * two
hundred hours.” In this appeal, he advances two assignments of error that, distilled
to their essence, challenge the overruling of his motion. We find no merit to this
challenge, because the common pleas court lacked jurisdiction to afford Braggs the
relief sought.
{¶4} Declaratory relief. Ohio’s Declaratory Judgment Act, found in
R.C. Chapter 2721, plainly “contemplate[s] a distinct proceeding * * * initiated by the
filing of a complaint.” Thus, “[a] ‘motion’ for a declaratory judgment is procedurally
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OHIO FIRST DISTRICT COURT OF APPEALS
incorrect and inadequate to invoke the jurisdiction of [a] court pursuant to R.C.
Chapter 2721.” Fuller v. German Motor Sales, Inc., 51 Ohio App.3d 101, 103, 554
N.E.2d 139 (1st Dist.1988); accord State v. Nemitz, 1st Dist. Hamilton No. C-970561,
1998 Ohio App. LEXIS 3590 (Aug. 7, 1998). Braggs sought declaratory relief by
means of a motion filed in his criminal case. Therefore, he failed to invoke the
jurisdiction conferred by the act.
{¶5} Moreover, even if Braggs had satisfied the act’s procedural and
jurisdictional requirements, he would not have been entitled to the relief sought.
The Declaratory Judgment Act is “remedial; its purpose is to settle and to afford
relief from uncertainty and insecurity with respect to rights, status and other legal
relations.” Radaszewski v. Keating, 141 Ohio St. 489, 496, 49 N.E.2d 167 (1943)
(quoting former G.C. 12102-12); accord Mid-American Fire & Cas. Co. v. Heasley,
113 Ohio St.3d 133, 136, 2007-Ohio-1248, 863 N.E.2d 142. Thus, a declaratory
judgment may serve to “relieve parties from acting at their own peril in order to
establish their legal rights.” Gray v. Willey Freightways, Inc., 89 Ohio App.3d 355,
362, 624 N.E.2d 755 (6th Dist.1993); accord Steinriede v. Cincinnati, 1st Dist.
Hamilton No. C-100289, 2011-Ohio-1480, ¶ 11.
{¶6} But the Declaratory Judgment Act does not authorize a court to render
an advisory opinion. A declaratory judgment action must instead “satisfy a threshold
requirement of * * * justiciability.” Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-
3208, 972 N.E.2d 586, ¶ 10. Thus, a declaratory judgment action will lie to
determine only “an actual controversy, the resolution of which will confer certain
rights or status upon the litigants.” Corron v. Corron, 40 Ohio St.3d 75, 79, 531
N.E.2d 708 (1988); see Schaefer v. First Natl. Bank, 134 Ohio St. 511, 18 N.E.2d 263
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OHIO FIRST DISTRICT COURT OF APPEALS
(1938), paragraph three of the syllabus (requiring a showing that “a real controversy
between adverse parties exists which is justiciable in character and [that] speedy
relief is necessary to the preservation of rights that may be otherwise impaired or
lost”). Accord Mallory v. Cincinnati, 1st Dist. Hamilton No. C-110563, 2012-Ohio-
2861, ¶ 10-16.
{¶7} Because of the justiciability requirement, a declaratory judgment
action does not provide a means for determining whether previously-adjudicated
rights were properly decided. State v. Stewart, 2d Dist. Montgomery No. 98-CA-116,
1999 Ohio App. LEXIS 323, *8 (Feb. 5, 1999). It follows then that a declaratory
judgment action will not, as Braggs would have it, provide a substitute for an appeal
of, or a means for mounting a collateral challenge to, a criminal conviction. See
Wilson v. Collins, 10th Dist. Franklin No. 10AP-511, 2010-Ohio-6538, ¶ 9; Gotel v.
Ganshiemer, 11th Dist. Ashtabula No. 2008-A-0070, 2009-Ohio-5423, ¶ 47; Moore
v. Mason, 8th Dist. Cuyahoga No. 84821, 2005-Ohio-1188, ¶ 14; State v. Zizelman,
3d Dist. Auglaize No. 2-98-33, 1999 Ohio App. LEXIS 1769, *7 (Apr. 9, 1999); State
v. Brooks, 133 Ohio App.3d 521, 524-526, 728 N.E.2d 1119 (4th Dist.1999), citing
Tootle v. Wood, 40 Ohio App.2d 576, 577, 321 N.E.2d 623 (4th Dist.1974); Stewart at
*8.
{¶8} Postconviction relief. Rather, “the exclusive remedy by which a
person may bring a collateral challenge to the validity of a conviction or sentence in a
criminal case” is provided by R.C. 2953.21 et seq., governing the proceedings upon a
petition for postconviction relief. R.C. 2953.21(J). Therefore, Braggs’s motion was
reviewable under the standards provided by the postconviction statutes. See State v.
Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} But Braggs 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 since
the time for filing a postconviction petition expired or since he filed his last
postconviction petition; 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.”
{¶10} The record before us does not, as it could not, demonstrate that, but
for the claimed sentencing error, no reasonable factfinder would have found Braggs
guilty of the offense of which he was convicted. Because Braggs satisfied neither the
time restrictions of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.
2953.23, the postconviction statutes did not confer upon the common pleas court
jurisdiction to entertain Braggs’s postconviction motion. See R.C. 2953.23(A).
{¶11} Void sentence. Finally, a court has jurisdiction to correct a void
judgment. See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795,
856 N.E.2d 263, ¶ 18-19. But the Ohio Supreme Court has not held that the
imposition of a term of community service exceeding the term provided by statute
renders a judgment of conviction void. Compare State v. Moore, 135 Ohio St.3d 151,
2012-Ohio-5479, 985 N.E.2d 432, syllabus (holding that, in the absence of an
affidavit of indigency, a sentence is void to the extent that it does not include the fine
mandated by R.C. 2925.11[E][1][a] and 2929.18[B][1]); State v. Harris, 132 Ohio
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OHIO FIRST DISTRICT COURT OF APPEALS
St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, paragraph one of the syllabus (holding
that a sentence is void to the extent that it does not include a mandatory driver’s
license suspension); State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, paragraph one of the syllabus (holding that a sentence is void to the
extent that it was imposed without proper postrelease-control notification).
{¶12} Affirmed as modified. Therefore, upon our determination that
the common pleas court properly denied Braggs the relief sought in his
postconviction motion, we overrule the assignments of error. Because the court had
no jurisdiction to entertain Braggs’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 from which Braggs has appealed to reflect the dismissal of the motion.
And we affirm the judgment as modified.
Affirmed as modified.
HILDEBRANDT, P.J., concurs.
CUNNINGHAM, J., concurs in part and dissents in part.
CUNNINGHAM, J., concurring in part and dissenting in part.
{¶13} I concur in the majority’s holding that neither the Declaratory
Judgment Act nor the postconviction statutes conferred upon the common pleas
court jurisdiction to entertain Braggs’s motion. But I respectfully dissent from the
majority’s conclusion that the court had no jurisdiction to entertain the challenge to
his community-service sentence advanced in his motion.
{¶14} The Ohio Supreme Court has long recognized and has continued to
“reaffirm” the “vital principle” that “[n]o court has the authority to impose a sentence
that is contrary to law.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, at ¶ 8 and 23, citing Colgrove v. Burns, 175 Ohio St. 437, 438, 195
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N.E.2d 811 (1964); accord State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985
N.E.2d 432, ¶ 14; State 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). The Supreme Court has applied this principle to carve out an
exception to the general rule that sentencing errors do not render a judgment void,
holding that “a sentence that is not in accordance with statutorily mandated terms is
void.” Fischer at ¶ 7-8, 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 (modified on other ground in Fischer at paragraph two of the syllabus);
State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864; Woods v.
Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000); Beasley; Colegrove. In turn, this
court has followed the Supreme Court to hold that a sentence imposed outside the
statutory range is void. See State v. Harmon, 1st Dist. Hamilton No. C-070585,
2008-Ohio-4378; State v. Washington, 1st Dist. Hamilton No. C-050462, 2006-
Ohio-4790; State v. Tenhundfeld, 1st Dist. Hamilton No. C-850661, 1986 Ohio App.
LEXIS 6471 (Apr. 23, 1986).
{¶15} The version of R.C. 2951.02 in effect when Braggs was sentenced
authorized a term of community service “not exceed[ing] an aggregate of 200 hours.”
R.C. 2951.02(H)(1)(a) (repealed in July 1, 1996). In sentencing Braggs to 400 hours
of community service, the trial court exceeded its statutory authority. Thus, to the
extent that Braggs was sentenced to a term of community service that was not in
accordance with the statutorily mandated terms, the sentence is void.
{¶16} The void portion of a sentence is subject to review at any time, whether
on direct appeal or in a collateral proceeding, and “must be set aside.” Fischer at
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paragraph one of the syllabus and ¶ 26-27. But the correction of the offending part
of the sentence must be accomplished before the offender has completed his
sentence. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254,
¶ 70; Bezak at ¶ 18; Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844
N.E.2d 301, ¶ 28; accord State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967
N.E.2d 718, ¶ 24.
{¶17} Braggs’s sentence was void to the extent that the term of community
service exceeded the statutory range. I would, therefore, hold that the common pleas
court had jurisdiction to review the challenge advanced in Braggs’s postconviction
motion and to vacate that portion of the sentence. But because Braggs’s “case [was]
closed” in 1992, the void portion of his sentence could not be corrected. I would,
therefore, remand this matter to the common pleas court with instructions to vacate
the void portion of the sentence and to note on the record that, because Braggs has
completed his sentence, he cannot be resentenced to community service. See
Bloomer at ¶ 73; Bezak at ¶ 18; accord State v. McCall, 5th Dist. Muskingum No.
CT2013-0014, 2013-Ohio-2653; State v. Pullen, 7th Dist. Mahoning No. 11 MA 10,
2012-Ohio-1498; State v. Stewart, 12th Dist. Butler No. CA2010-08-215, 2011-Ohio-
2211; see also Hernandez at ¶ 32 (granting a writ of habeas corpus and ordering
defendant’s release from imprisonment for a postrelease-control violation and from
further postrelease control, because postrelease-control notification was not given
and defendant’s journalized sentence had expired); State v. Laney, 6th Dist. Lucas
No. L-10-1151, 2011-Ohio-135 (declaring the imposition of postrelease control void,
when postrelease control was not properly imposed before defendant had served his
sentence); State v. Biondo, 11th Dist. Portage No. 2008-P-0028, 2008-Ohio-6560
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(ordering that postrelease control be terminated because postrelease control was not
properly imposed before defendant had served his sentence).
{¶18} Finally, the Second Appellate District in State v. Brandon, 2d Dist.
Greene No. 2005-CA-117, 2006-Ohio-4930, held that the defendant could
collaterally challenge the imposition of a term of community service that exceeded
the maximum term authorized by R.C. 2929.27, because that part of his sentence was
void. The majority’s holding here, that Braggs’s sentence was not void to the extent
that it imposed a term of community service exceeding the term provided by statute,
conflicts with the Second District’s decision in Brandon. Therefore, the majority
should, as mandated by the Ohio Constitution, Article IV, Section 3(B)(4), certify to
the Ohio Supreme Court the following question: “Is a term of community service
imposed outside the statutory range void and thus subject to review at any time?”
Please note:
The court has recorded its entry on the date of the release of this opinion.
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