[Cite as State v. McCall, 2012-Ohio-5604.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 12 MA 57
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
DAMON McCALL, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 90CR493.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Damon McCall, Pro se
#233-304
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: November 30, 2012
[Cite as State v. McCall, 2012-Ohio-5604.]
VUKOVICH, J.
{¶1} Defendant-appellant Damon McCall appeals the decision of the
Mahoning County Common Pleas Court which denied his motion to correct a portion
of his sentence which he claimed was void. Appellant contends that the sentencing
court erred by running two firearm specifications consecutively because they were
part of the same act or transaction under former R.C. 2929.71(B). He urges that this
rendered one of the three-year sentences void and thus constitutes an issue that can
be raised at any time. From this, he concludes that the trial court erred in
characterizing his motion as an untimely petition for post-conviction relief because it
was actually a motion to vacate a void sentence, which is not subject to the post-
conviction relief statutes.
{¶2} We conclude that a violation of R.C. 2929.71(B) would not render a
firearm specification sentence void. Rather, making an erroneous decision by
applying the statute to the facts of a particular case would only render a sentence
voidable. Thus, a defendant cannot file a motion to vacate a void judgment on the
basis that R.C. 2929.71(B) was violated by the sentencing court; rather the trial court
properly recharacterized this motion as an untimely petition for post-conviction relief.
Accordingly, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{¶3} Appellant was convicted of aggravated murder for the death of a store
clerk, felonious assault for the shooting of another store clerk, and aggravated
robbery. The surviving clerk testified that he was in a car outside of the store on July
19, 1990, when he heard gunfire and approached the store. He identified appellant
as the man who shot the other clerk, wounded himself, and took money from the
cash register.
{¶4} On April 4, 1991, appellant was sentenced on the three counts as
follows: life with parole eligibility after twenty years plus a three-year firearm
specification; eight to twenty-five years plus a three-year firearm specification; and
ten to twenty-five years plus a three-year firearm specification. Counts one and two
were run consecutively as were their firearm specifications. Count three was run
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concurrently with count one, and count three’s gun specification was run concurrent
as it was found to be part of the same act or transaction as count one.
{¶5} Appellant’s conviction was affirmed by this court in State v. McCall, 7th
Dist. No. 91CA66 (May 3, 1993). A new sentencing entry was entered by the trial
court on June 9, 2010 to add that appellant was convicted by jury verdict in order to
comply with State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163
and Crim.R. 32(C).
{¶6} On January 3, 2012, appellant filed a motion asking for a new
sentencing hearing in order to correct a void portion of his sentence. He claimed that
the state’s version of the evidence showed that the firearm specifications on counts
one and two should not have been run consecutively because they were part of the
same act or transaction under former R.C. 2929.71(B). He claimed that the
imposition of an extra three-year sentence in violation of R.C. 2929.71(B) rendered
his sentence void and was thus an issue that can be raised at any time.
{¶7} The state filed a motion to dismiss urging that appellant’s motion did not
deal with a void judgment and therefore was actually an untimely petition for post-
conviction relief. The state argued that the trial court had no jurisdiction to address
the untimely petition because appellant failed to explain how any exceptions to the
time requirements applied. The state added that appellant’s argument was barred by
res judicata because he could have but did not raise the issue in his direct appeal.
{¶8} On February 9, 2012, the trial court characterized appellant’s motion as
an untimely petition for post-conviction relief (thus finding that it did not deal with a
void sentence) and denied the motion as appellant failed to explain whether any
exception applied. Appellant filed a notice of appeal, which this court found timely
due to the clerk’s late service of the entry upon appellant.
ASSIGNMENT OF ERROR
{¶9} Appellant urges that the underlying felonies in counts one and two were
part of the same act or transaction and thus the sentencing court violated former R.C.
2929.71(B) by running the two specifications consecutively. He argues that the
sentencing court’s failure to adhere to the mandatory sentencing provisions of former
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R.C. 2929.71(B) renders the one firearm specification void rather than merely
voidable and violated a protected liberty interest. He urges that if part of his sentence
is void, a motion to correct the sentence is the proper remedy and that this remedy
can be invoked at any time. Thus, he contends that the trial court erred in
recharacterizing the motion as an untimely petition for post-conviction relief.
LAW & ANALYSIS
{¶10} Former R.C. 2929.71(B) provided that if an offender is convicted of two
or more felonies and two or more firearm specifications, each of the three-year terms
of actual incarceration shall be served consecutively with, and prior to, the life
sentences or indefinite terms of imprisonment that were imposed unless any of the
felonies were committed as part of the same act or transaction. “If any of the felonies
were committed as part of the same act or transaction, only one three-year term shall
be served consecutively with, and prior to, the life sentences or indefinite terms of
imprisonment imposed * * *.” R.C. 2929.71(B).
{¶11} A “transaction” for purposes of this statute is defined as “a series of
continuous acts bound together by time, space and purpose, and directed toward a
single objective.” State v. Wills, 69 Ohio St.3d 690, 691, 635 N.E.2d 370 (1994). This
statutory test for determining whether to run firearm specifications consecutively is
distinct from the separate animus test used when applying the statute relevant to the
merger of offenses. State v. Moore, 161 Ohio App.3d 778, 2005-Ohio-3311, 832
N.E.2d 35, ¶ 38-39, 43-46 (7th Dist.).
{¶12} Whether appellant’s firearm specifications should have been run
consecutively is not the question before us. The trial court never ruled on this
question because the court agreed with the state that the motion to correct the
sentence was actually an untimely petition for post-conviction relief. Thus, we are not
reviewing the merits of the question presented to the trial court.
{¶13} We are also not reviewing whether the motion was untimely if it was
properly characterized as one for post-conviction relief. This is because appellant
does not contest that he did not set forth any explanation for why his motion was
untimely and does not refute that an untimely motion without proper explanations in
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support can be denied due to the trial court’s lack of jurisdiction. See R.C. 2953.23
(A)(1)(a) (court may not entertain an untimely petition unless the petitioner shows he
was unavoidably prevented from discovering the facts upon which the claim is based
or the United States Supreme Court recognized a new right and he shows by clear
and convincing evidence that, but for constitutional error at trial, no reasonable fact-
finder would have found him guilty); State v. Johnson, 144 Ohio App.3d 222, 226,
759 N.E. 2d 889 (7th Dist.2001). Appellant also does not deny that most issues
which could have been raised on direct appeal are barred in post-conviction
proceedings by res judicata principles. See, e.g., State v. Hutton, 100 Ohio St.3d
176, 2003-Ohio-5607, 797 N.E.2d 948, ¶ 37.
{¶14} The state generally posits that a motion seeking to correct or vacate a
portion of a sentence due to a constitutional rights violation is actually a post-
conviction relief petition under R.C. 2953.21. See State v. Reynolds, 79 Ohio St.3d
158, 160-161, 679 N.E.2d 1131 (1997). The state acknowledges, however, that a
partially void sentence can be remedied by way of a motion filed at any time and thus
is not subject to the post-conviction relief statutes and that a void sentence
constitutes an exception to the res judicata doctrine. See State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 25, 30.
{¶15} Thus, the crux of the issue on appeal is whether a violation of R.C.
2929.71(B) results in a void sentence (which can be raised at any time and is not
subject to the time requirements of a petition for post-conviction relief) or a voidable
sentence (which would be subject res judicata).
{¶16} A void sentence is one imposed by a court that lacks subject-matter
jurisdiction or the authority to act. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-
4642, 873 N.E.2d 306, ¶ 27. A voidable sentence is one imposed by a court that has
both jurisdiction and authority to act but was imposed in an invalid, irregular, or
erroneous manner. Id.; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884
N.E.2d 568, ¶ 12. In accordance, where a trial court has both jurisdiction and
authority to act but erroneously exercises that jurisdiction, the sentence is not void
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and the sentence can be vacated only if successfully challenged on direct appeal.
Payne, 114 Ohio St.3d 502 at ¶ 28.
{¶17} As a general rule, sentencing errors are not jurisdictional. Simpkins,
117 Ohio St.3d 420 at ¶ 13. A narrow exception applies in cases where a sentence
is not in accordance with statutorily-mandated terms. Fischer, 128 Ohio St.3d 92 at ¶
8, 31. Thus, a sentencing entry that fails to properly impose post-release control
where it is statutorily required has been labeled a void sentence to the extent of the
failure. Id. at ¶ 26-27. And, a failure to impose a mandatory driver’s license
suspension renders that sentence void to the extent of the failure. State v. Harris,
132 Ohio St. 3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 17. Additionally, “imposing
a sentence outside the statutory range, contrary to the statute, is outside a court's
jurisdiction, thereby rendering the sentence void ab initio.” Payne, 114 Ohio St.3d
502 at fn.3.
{¶18} Appellant believes that a violation of R.C. 2929.71(B) similarly imposes
a sentence in violation of statutorily-mandated terms. Appellant cites Hairston in
support of his position that a violation of R.C. 2929.71(B) renders one of the firearm
specification sentences void. State v. Hairston, 10th Dist. Nos. 07AP-160, 07AP-161,
2007-Ohio-5928. That case was a direct appeal where the state conceded a
violation of the statute but urged forfeiture for failing to raise the issue to the
sentencing court. Id. at ¶ 33. The appellate court believed that in order to answer
this question, it must evaluate whether the violation rendered the portion of the
sentence void or voidable. Id. at ¶ 35. The court concluded that the trial court had
no jurisdiction to impose the sentence, the erroneous sentence was void, and
appellant did not forfeit his right to challenge the sentence on appeal. Id. at ¶ 38.
{¶19} However, the analysis in Hairston is not persuasive. Firstly, this court,
although not specifically analyzing whether R.C. 2929.71(B) violations result in a void
sentence, did hold that a post-trial motion raising a R.C. 2929.71(B) violation is
properly characterized as a petition for post-conviction relief, which must be timely
filed or provide explanations for the delay. State v. Gilmore, 7th Dist. No. 04MA214,
2005-Ohio-2936, ¶ 7. See also State v. Bellish, 7th Dist. No. 94 CA157 (Sept. 9,
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1997) (holding that issue of whether actual incarceration should have been imposed
on second gun specification should have been raised on direct appeal).
{¶20} Likewise, the Fifth District has held that a claim of improper sentencing
on a firearm specification under R.C 2929.71 is subject to res judicata and cannot be
raised in a post-appeal motion. State v. Mayle, 5th Dist. No. 2006-CA-00084, 2006-
Ohio-3269, ¶ 9, 27-31. See also State v. Barber, 2d Dist. No. 24770, 2012-Ohio-
2332, ¶ 15 (failure to comply with the formal requirements of R.C. 2941.25 renders a
sentence merely voidable, not void).
{¶21} The Supreme Court created a narrow exception for finding part of a
sentence void where there is a failure to impose a sentence in accordance with
statutorily-mandated terms. See Harris, 2010-Ohio-1908 at ¶ 7. A motion to correct
a void sentence is essentially reserved for cases where there is a “facially illegal”
sentence. Fischer, 128 Ohio St.3d 92 ¶ 25.
{¶22} Here, there was no failure to impose a statutorily-mandated term.
Appellant’s sentence did not fall outside of the sentencing range. And, the sentence
was not otherwise “facially illegal” as the facts from trial must be evaluated to
determine whether the shooting of each clerk was committed as part of the same act
or transaction. Appellant is arguing the misapplication of a statute based upon the
factual background of his case by way of trial testimony. In other words, his claim is
merely that the sentence was invalid under the particular factual circumstances of his
offenses, not a claim that the trial court sentenced him without statutory authority.
{¶23} In conclusion, a trial court has the jurisdiction and the statutory authority
to sentence a defendant on more than one firearm specification. Whether a court
correctly exercises this authority in each particular case is a different question: a
question of whether the sentence is voidable, not whether the sentence is void. Thus,
a violation of R.C. 2929.71(B) does not result in a void sentence on a firearm
specification and any violation of this statute would render that part of the sentence
merely voidable and thus subject to res judicata principles and the time requirements
for post-conviction petitions.
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{¶24} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
Waite, P.J., concurs.