[Cite as State v. Starks, 2013-Ohio-4496.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99501
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RONALD E. STARKS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-176103
BEFORE: E.T. Gallagher, J., Jones, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 10, 2013
FOR APPELLANT
Ronald Starks, pro se
Inmate No. A171-539
Grafton Correctional Institution
2500 S. Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Ronald E. Starks (“Starks”), appeals the denial of a
motion to correct his sentence. We find merit to the appeal and reverse.
{¶2} In December 1982, Starks pleaded guilty in CR-176103-A to one count of
trafficking in violation of R.C. 2925.03. The offense was a third-degree felony and the
court sentenced him to 5 to 15 years in prison and ordered a mandatory minimum of three
years.
{¶3} In 1983, while serving his drug conviction, Starks was convicted of two
counts of aggravated murder and two counts of aggravated robbery in CR-83-186387 for
acts he committed before going to prison. The court sentenced him to concurrent terms
of 4 to 25 years for each of the robbery counts, and concurrent terms of life imprisonment
for the aggravated murder charges. Those convictions were affirmed on appeal. State v.
Starks, 8th Dist. Cuyahoga No. 50087, 1986 Ohio App. LEXIS 5845 (Mar. 6, 1986).
{¶4} In 2012, Starks filed a motion to correct his sentence in CR-176103, arguing
that he was improperly sentenced for a second-degree felony even though he was
convicted of a third-degree felony. The trial court denied the motion as moot on grounds
that he had already served his entire sentence in CR-176103. This appeal followed.
{¶5} In his sole assignment of error, Starks argues the trial court erred in denying
his motion to correct his sentence. He contends that because the court erroneously
imposed a second-degree felony sentence for his third-degree felony conviction, his
sentence is contrary to law and void.
{¶6} R.C. 2929.11, which governed penalties for felonies at the time Starks’s
sentence was imposed in December 1982, provided in relevant part:
(B) Terms of imprisonment for felony shall be imposed as follows:
***
(2) For a felony of the second-degree, the minimum term shall be two,
three, four, or five years, and the maximum term shall be fifteen years;
(3) For a felony of the third-degree, the minimum term shall be one year,
eighteen months, two years, or three years, and the maximum term shall be
ten years.
{¶7} In CR-176103, Starks pleaded guilty to a third-degree felony. The court
sentenced him to a prison term of 5 to 15 years and ordered a mandatory three-year
minimum. The mandatory three-year minimum was within the range of maximum
minimum sentences for third-degree felonies under the statute. However, the maximum
penalty for a third-degree felony under the statute was only 10 years. The 5 to 15 year
sentence the court imposed on Starks falls within the range for second-degree felonies.
Therefore, the sentence failed to include the correct statutorily mandated term.
{¶8} Starks argues the erroneous sentence was a clerical error and the trial court
should have corrected his sentence pursuant to Crim.R. 36. Crim.R. 36 provides:
“Clerical mistakes in judgments, orders, or other parts of the record, and errors in the
record arising from oversight or omission, may be corrected by the court at any time.”
The term “clerical mistake” refers to “a mistake or omission, mechanical in nature and
apparent on the record, which does not involve a legal decision or judgment.” State ex
rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19.
Imposing a sentence requires the court to apply the sentencing statute to the conviction.
Therefore, it involves a legal decision or judgment and is not a clerical error.
{¶9} The court denied Starks’s motion to correct the sentence as moot because
Starks had already served the sentence in its entirety and was serving concurrent life
sentences for two counts of aggravated murder in another case. Generally, an “appeal of
a sentence already served is moot.” State v. Wright, 8th Dist. Cuyahoga No. 83781,
2004-Ohio-4077, ¶ 18. However, where a court fails to comply with statutory
requirements when imposing a sentence, “the attempted sentence [is] a nullity or void.”
State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, 863 N.E.2d 120, ¶ 23,
quoting State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984). The effect of
determining that a judgment is void is that the parties are in the same position as if there
had been no judgment. Beasley at ¶ 12. Thus, “where a sentence is void because it does
not contain a statutorily mandated term, the proper remedy is * * * to resentence the
defendant.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23.
{¶10} Therefore, the trial court erred in concluding that Starks’s motion to correct
his sentence was moot. The original sentence is void, and the proper remedy is to
resentence Starks within the statutory range for third-degree felonies.
{¶11} Judgment reversed and case remanded to the trial court for resentencing.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR