[Cite as State v. Smith, 2016-Ohio-3191.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 15AP-1142
(C.P.C. No. 03CR-3195)
v. : No. 15AP-1143
(C.P.C. No. 09CR-2547)
General Smith, III, :
(ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 26, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and
Michael P. Walton, for appellee.
On brief: General Smith, III, pro se.
APPEALS from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, General Smith, III, appeals from a judgment of the
Franklin County Court of Common Pleas denying his "motion to vacate void sentence and
to issue revised journal entry." For the reasons that follow, we affirm the judgment of the
trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In State v. Smith, 10th Dist. No. 14AP-247, 2014-Ohio-4228, this court
summarized the procedural history of appellant's convictions and sentence herein as
follows:
On December 5, 2003, appellant entered a guilty plea in case
No. 03CR-3195 ("the 2003 case") to aggravated robbery with
a firearm specification, and a nolle prosequi was entered on
the three remaining indicted counts. On direct appeal, this
Nos. 15AP-1142 and 15AP-1143 2
court rejected appellant's challenge to the legitimacy of his
guilty plea and affirmed appellant's conviction as well as the
ten-year sentence imposed thereon. State v. Smith, 10th Dist.
No. 04AP-326 (Feb. 24, 2005) (memorandum decision)
("Smith I").
In November 2007, consistent with a negotiated agreement
between appellant and the state, appellant was permitted to
withdraw his previously entered guilty plea to aggravated
robbery with a firearm specification, and appellant instead
pleaded guilty to aggravated robbery and attempted having a
weapon while under disability. Thereafter, appellant was
sentenced to an aggregate prison term consisting of nine years
and six months. On December 1, 2008, appellant was granted
judicial release with a two-year period of community control.
A few months later on April 30, 2009, appellant was indicted
and charged with four new criminal counts in case No. 09CR-
2547 ("the 2009 case"). In the 2009 case, appellant pleaded
guilty in January 2010 to attempted felonious assault and was
sentenced to a four-year term of incarceration. Also in
January 2010, the trial court revoked appellant's community
control in the 2003 case and sentenced him to an aggregate
nine-year, six-month term of incarceration to be served
consecutively to the sentence imposed in the 2009 case.
In our disposition of appellant's consolidated appeal, this
court rejected all but one of appellant's eight assignments of
error. State v. Smith, 10th Dist. No. 10AP-143, 2010-Ohio-
4744 ("Smith II"). In Smith II, this court sustained appellant's
assignment of error challenging the trial court's calculation of
jail-time credit and remanded the case to the trial court for it
to review and recalculate, if necessary, the jail-time credit
entitled in the 2003 case. Since that time, appellant has filed
numerous motions attacking both the convictions and
sentences issued in both the 2003 case and the 2009 case;
however, none have been successful.
On February 14, 2014, appellant filed in the 2003 case the
"Motion for Proper Calculation of Jail Time Credit." * * * By
decision rendered on March 3, 2014, the trial court denied
appellant's motion based on the May 2013 nunc pro tunc
entry filed in the 2009 case.
Id. at ¶ 2-6.
Nos. 15AP-1142 and 15AP-1143 3
{¶ 3} In Smith, this court affirmed the judgment of the trial court denying
appellant's motion for proper calculation of jail-time credit. Id. at ¶ 32. On November 6,
2015, appellant filed his "motion to vacate void sentence and to issue revised journal
entry." On December 10, 2015, the trial court determined that res judicata barred
appellant's motion. Accordingly, the trial court denied the motion.
{¶ 4} Appellant timely appealed from the decision of the trial court and this
appeal ensued.
II. ASSIGNMENTS OF ERROR
{¶ 5} Appellant sets forth the following two assignments of error:
[1.] THE FRANKLIN COUNTY TRIAL COUR ERRED WHEN
IT IMPOSED A VOID SENTENCE CONTRARY TO LAW
UNDER OHIO REVISE CODE 2929.13(f)(6).
[2.] THE TRIAL COURT COULD NOT REVOCATE
APPELLANT FOR VIOLATION OF JUDICIAL RELEASE
WHEN IT WAS IMPOSSIBILE FOR APPELLANT' TO GET
JUDICIAL RELEASE FROM A MANDATORY 9 YEAR
SENTENCE PURSUANT TO R.C 2929.139(F)(6) THIS
REVOCATION WAS VOID PURSUANT TO R.C 2929.20.
(Sic passim.)
III. LEGAL ANALYSIS
A. First Assignment of Error
{¶ 6} In his first assignment of error, appellant argues that his sentence in case
No. 03CR-3195 is void because the sentencing court failed to impose a mandatory
sentence as required by R.C. 2929.13(F)(6). Appellant's motion does not challenge the
conviction itself.1
{¶ 7} Appellee agues that appellant's first assignment of error is moot because
appellant acknowledges that he has served his sentence in case No. 03CR-3195. We
agree.
{¶ 8} " ' " 'A moot case is one which seeks to get a judgment on a pretended
controversy, when in reality there is none, or a decision in advance about a right before it
1 In Smith v. Buchanan, 138 Ohio St.3d 364, 2014-Ohio-459, the Supreme Court of Ohio "summarized"
appellant's repeated, unsuccessful challenges to his convictions. Smith v. Warden, S.D.Ohio No. 2:14-cv-
00554 (Aug. 14, 2015).
Nos. 15AP-1142 and 15AP-1143 4
has been actually asserted and contested, or a judgment upon some matter which, when
rendered, for any reason cannot have any practical legal effect upon a then-existing
controversy.' " ' " State v. Marcum, 10th Dist. No. 15AP-421, 2015-Ohio-5237, ¶ 6,
quoting In re L.W., 168 Ohio App.3d 613, 2006-Ohio-644, ¶ 11 (10th Dist.), quoting Grove
City v. Clark, 10th Dist. No. 01AP-1369, 2002-Ohio-4549, ¶ 11, quoting Culver v. Warren,
84 Ohio App. 373, 393 (7th Dist.1948). "Thus, a moot action must be dismissed because it
no longer presents a justiciable controversy for the court to resolve." Id.
{¶ 9} "A person convicted of a felony has a substantial stake in the judgment of
conviction which survives the satisfaction of the judgment imposed upon him or her.
Therefore, an appeal challenging a felony conviction is not moot even if the entire
sentence has been satisfied before the matter is heard on appeal." (Emphasis added.)
State v. Golston, 71 Ohio St.3d 224 (1994), syllabus. "However, a defendant's appeal of a
sentence already served is moot." Marcum at ¶ 7, citing State v. Duff, 10th Dist. No.
04AP-901, 2005-Ohio-2299, ¶ 12. See also State v. Wright, 8th Dist. No. 83781, 2004-
Ohio-4077, ¶ 18. "Such an appeal is moot because 'there is no remedy that can be applied
that would have any effect in the absence of a reversal of the underlying conviction.' "
Marcum at ¶ 7, quoting Duff at ¶ 12. See also State v. Robinson, 11th Dist. No. 2014-L-
028, 2015-Ohio-3217, ¶ 17; State v. Beamon, 11th Dist. No. 2000-L-160 (Dec. 14, 2001).
"A sentence that has already been completed cannot be lessened or negated in any
meaningful way." Marcum at ¶ 7.
{¶ 10} In his motion, appellant acknowledges that he has already served his
sentence in case No. 03CR-3195. As noted above, appellant's motion does not challenge
his conviction. As a result, appellant's argument that the sentencing court should have
imposed a mandatory sentence in case No. 03CR-3195 is moot. Marcum; Duff.
Accordingly, we hold that the trial court did not err when it denied appellant's motion to
vacate the sentence imposed in case No. 03CR-3195, albeit for a different reason than the
trial court.
{¶ 11} For the foregoing reasons, we overrule appellant's first assignment of error.
B. Second Assignment of Error
{¶ 12} Appellant's second assignment of error challenges his sentence in the 2009
case. Appellant argues that because his sentence in case No. 03CR-3195 is void, the
Nos. 15AP-1142 and 15AP-1143 5
sentencing court erred by imposing a consecutive term of imprisonment in case No.
09CR-2547. Appellee argues that appellant failed to make this argument in the trial court
and has waived the argument for purposes of appeal. We agree.
{¶ 13} In accordance with the well-settled doctrine of waiver, sentencing errors not
brought to the attention of the trial court are waived for purposes of appeal. State v.
Silverman, 10th Dist. No. 05AP-837, 2006-Ohio-3826, ¶ 139-41. Appellant's November 6,
2015 "motion to vacate void sentence and to issue revised journal entry" is a one-page
document that makes no reference to case No. 09CR-2547. The two-page "memorandum
in support of law" attached thereto makes no argument regarding the sentence in case No.
09CR-2547.
{¶ 14} Based on the foregoing, we find that appellant waived the argument raised
in his second assignment of error by failing to raise the argument in the trial court.
Accordingly, we overrule appellant's second assignment of error.
IV. CONCLUSION
{¶ 15} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and LUPER SCHUSTER, J., concur.
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