State v. Wolke

[Cite as State v. Wolke, 2018-Ohio-2119.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY

STATE OF OHIO, :
: Case No. 17CA1048
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
NICHOLAS WOLKE, :
:
Defendant-Appellant. : Released: 05/25/18
_____________________________________________________________
APPEARANCES:

Nicholas Wolke, Chillicothe, Ohio, Appellant Pro Se.

C. David Kelley, Adams County Prosecuting Attorney, and Jonathan
Coughlan, Adams County Assistant Prosecuting Attorney, West Union,
Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

{¶1} Nicholas Wolke appeals the judgment entry of the Court of

Common Pleas, Adams County, dated July 13, 2017, which denied his

“Verified Motion to Correct Sentence.” On appeal, Appellant asserts the

trial court erred and abused its discretion by denying his motion without

holding a hearing and without “any real review.” However, upon our own

review, we find no merit to Appellant’s arguments. Accordingly, we

overrule Appellant’s sole assignment of error and affirm the judgment of the

trial court.
Adams App. No. 17CA1048 2

FACTS AND PROCEDURAL HISTORY

{¶2} We recount the facts and procedural history as set forth in

Appellant’s previous appeal to this court in State v. Wolke, 4th Dist. Adams

No. 15CA1008, 2016-Ohio-1134 (“Wolke I”). In 2008, Appellant pleaded

guilty to two counts of murder of his estranged girlfriend and her adult son.

Appellant was sentenced to 15 years to life in prison on each count, to be

served consecutively, and he was ordered to pay the costs of prosecution.

Appellant did not file a direct appeal of right following his conviction and

sentence. Id. at ¶ 2.

{¶3} In 2015, Appellant filed a pro se motion seeking a resentencing

on the grounds that his original sentence was void because the trial court did

not inform him at sentencing that the failure to pay the costs of prosecution

could result in court-ordered community service pursuant to R.C.

2947.23(A)(1)(a). On May 18, 2015, the trial court overruled the motion but

did not give any reasons in support of its denial. Appellant timely appealed.

Id. at ¶ 3.

{¶4} In Appellant’s first assignment of error in Wolke I, he contended

that the trial court erred by denying his motion for resentencing because at

his 2008 sentencing hearing, the court failed to notify him of the possible

penalty for failing to pay the costs of prosecution, specifically that he could
Adams App. No. 17CA1048 3

be required to perform community service if he failed to pay the costs. Id. at

¶ 5. In his second assignment of error, Appellant contended that he received

the ineffective assistance of counsel because his trial counsel failed to object

to the imposition of costs and to object to the trial court’s failure to give the

necessary community service notification. Id. at ¶ 10. We construed

Appellant’s motion for resentencing as an untimely petition for post-

conviction relief.

{¶5} In Wolke I, this court concluded that the trial court’s failure to

alert Appellant of the possibility of community service did not render the

sentencing judgment void. We held that the arguments Appellant raised in

his motion for resentencing and the appeal could have been raised in a direct

appeal of his 2008 conviction and sentence. Because Appellant failed to

pursue a direct appeal and because the alleged errors did not render the

sentencing judgment void, we found that Appellant was precluded from

raising them under application of the doctrine of res judicata. We concluded

that the trial court did not abuse its discretion when it denied Appellant’s

motion for resentencing and we affirmed the trial court’s judgment. Id. at

¶ 12.

ASSIGNMENT OF ERROR

“I. THE SENTENCING COURT ERRED AND ABUSED ITS
DISCRETION WHEN IT DENIED DEFENDANT’S
Adams App. No. 17CA1048 4

PROPERLY FILED VERIFIED MOTION TO CORRECT
SENTENCE ALLEGING SENTENCING ERRORS
WITHOUT ANY REAL REVIEW OR EVEN HOLDING A
HEARING; BY INCORRECTLY RULING THAT THE
ORIGINAL SENTENCE IMPOSED WAS NOT CONTRARY
TO LAW AND FURTHER INCORPORATING THE
STATE’S FLAWED ARGUMENT THAT THESE ERRORS
CAN ONLY BE RAISED ON DIRECT APPEAL AND ARE
BARRED FROM REVIEW UNDER PRINCIPLES OF RES
JUDICATA.”

STANDARD OF REVIEW

{¶6} When reviewing felony sentences, we apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Brerecz, 4th Dist.

Washington No. 16CA15, 2016-Ohio-266, ¶ 11; State v. Marcum, 146 Ohio

St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22. Under R.C.

2953.08(G)(2), an appellate court may increase, reduce, or modify a

sentence or may vacate the sentence and remand the matter to the sentencing

court if it clearly and convincingly finds either “[t]hat the record does not

support the sentencing court's findings under division (B) or (D) of section

2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of

section 2929.20 of the Revised Code, whichever, if any, is relevant” or

“[t]hat the sentence is otherwise contrary to law.” Berecz, supra; see State v.

Mullins, 4th Dist. Scioto No. 15CA3716, 2016–Ohio–5486, ¶ 25.
Adams App. No. 17CA1048 5

LEGAL ANALYSIS

{¶7} In Appellant’s Verified Motion to Correct Sentence, and in the

current appeal, he argues that his mandatory and consecutive sentences, and

the judgment entry of sentencing, are statutorily and constitutionally flawed

and contrary to law. As such, he contends his sentences are void and review

of the sentences is not barred by the doctrine of res judicata. Appellant

seeks a hearing to impose a non-mandatory concurrent sentence which

would leave him eligible for judicial release, for participation in certain

rehabilitative programs, and for the ability to receive earned credit for

programs completed in prison. This court was presented with very similar

arguments in State v. Berecz, supra, State v. Hamilton, 4th Dist. Hocking

No. 16CA17, 2017-Ohio-1294, and State v. Craft, 4th Dist. Vinton No.

16CA704, 2017-Ohio-9359.

{¶8} In response, the State of Ohio contends that Appellant’s motion

should be construed as an untimely petition for post-conviction relief. The

State points out that Appellant had the opportunity to raise these issues in a

direct appeal and failed to do so. The State concludes that the doctrine of res

judicata applies in this case and Appellant’s arguments herein should be

barred.
Adams App. No. 17CA1048 6

{¶9} The reasoning of our prior decisions in Berecz, Hamilton, and

Craft is equally applicable herein. We will begin by addressing Appellant’s

non-constitutional claims.

1. Non-constitutional claims.

{¶10} In the verified motion to correct sentence, Appellant

specifically contends in 2008, at his sentencing hearing, the trial court did

not offer statutory findings, such as reasons to impose a mandatory term of

imprisonment pursuant to R.C. 2929.13(F), and did not make specific

findings required for consecutive sentences pursuant to former R.C.

2929.14(E)(4), now R.C. 2929.14(C) (4).1 Appellant also contends he was

not informed of his appellate rights. Appellant argues in addition to not

making the required statutory findings at his sentencing hearing, neither

were these findings nor the notification of appellate rights incorporated into

the judgment entry of sentence. In Hamilton, supra, at ¶ 11, we explained:

1
Former R.C. 2929.14(E)(4) required findings identical to the current R.C. 2929.14(C)(4) for consecutive
sentences but was held unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d
470. In 2009, the reasoning in Foster was partially called into question by Oregon v. Ice, 555 U.S. 160,
129 S.Ct. 711 (2009), where the United States Supreme Court held that a state could require judicial
findings of fact to impose consecutive rather than concurrent sentences without infringing on a defendant's
Sixth Amendment rights. In 2010, the Ohio Supreme Court determined that Foster remained valid after Ice
and the judiciary was not required to make findings of fact prior to imposing maximum or consecutive
sentences in State v. Hodge, 128 Ohio St.3d 1, 941 N.E.2d 768, 2010–Ohio–6320. However, in 2011
Am.Sub. H.B. No. 86, which became effective on September 30, 2011, revived the language provided in
former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The Ohio Supreme Court held because the
General Assembly had expressed its intent to revive some of the language severed by the court in Foster,
the decision in Hodge was no longer controlling and judges were therefore required to adhere to R.C.
2929.14(C)(4) in imposing consecutive sentences and to make the required findings. Thus, Hodge was
superseded by statute in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
Adams App. No. 17CA1048 7

“ ‘Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented by
counsel from raising and litigating in any proceeding except an
appeal from that judgment, any defense or claimed lack of due
process that was raised or could have been raised by the
defendant at the trial, * * * or on appeal from that judgment.’
State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996),
quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104
(1967), paragraph nine of the syllabus; see also State v. Davis,
139 Ohio St.3d 122, 2014–Ohio–1615, 9 N.E.3d 1031, ¶ 28.
‘Res judicata does not, however, apply only to direct appeals,
but to all postconviction proceedings in which an issue was or
could have been raised.’ State v. Heid, 4th Dist. Scioto No.
15CA3710, 2016–Ohio–2756, ¶ 18, quoting State v.
Montgomery, 2013–Ohio–4193, 997 N.E.2d 579, ¶ 42 (8th
Dist.).”

{¶11} Appellant, as did the defendants in Berecz, Hamilton, and Craft,

has also claimed that res judicata does not bar the claims alleged because his

sentences are void and contrary to law.2 The Supreme Court of Ohio has at

times held that “a sentence that is not in accordance with statutorily

mandated terms is void,” which “is not precluded from appellate review by

principles of res judicata, and may be reviewed at any time, on direct appeal

or by collateral attack.” Craft, supra, at ¶ 9, quoting State v. Fischer, 128

Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332, ¶ 8 and paragraph one of

the syllabus. “ ‘In general, a void judgment is one that had been imposed by

a court that lacks subject-matter jurisdiction over the case or the authority to

2
The defendants in Berecz, Hamilton, and Craft, unlike Appellant herein, pursued direct appeals to this
court.
Adams App. No. 17CA1048 8

act. Unlike a void judgment, a voidable judgment is one rendered by a court

that has both jurisdiction and authority to act, but the court's judgment is

invalid, irregular, or erroneous.’ ” Id. at ¶ 6; quoting State v. Simpkins, 117

Ohio St.3d 420, 2008–Ohio–1197, 884 N.E.2d 568, ¶ 12, superseded on

other grounds by statute as stated in State v. Holdcroft, 137 Ohio St.3d 526,

2013–Ohio–5014, 1 N.E.3d 382.

{¶12} We further noted in Berecz at ¶ 15:

“In general, ‘sentencing errors are not jurisdictional and do not
render a judgment void.’ Simpkins, supra, at ¶ 7. But the
Supreme Court of Ohio has at times held that ‘a sentence that is
not in accordance with statutorily mandated terms is void,’
which ‘is not precluded from appellate review by principles of
res judicata, and may be reviewed at any time, on direct appeal
or by collateral attack.’ Id. at ¶ 8, and paragraph one of the
syllabus.”

{¶13} In Berecz at ¶ 16, we also cited Holdcroft, supra, at ¶ 8,

wherein the Supreme Court of Ohio emphasized that the language in Fischer

noting the inapplicability of res judicata, “does not apply to most sentencing

challenges” and instead applied “only in a limited class of cases—all three

cases to which we have applied the Fischer rule have in common the crucial

feature of a void sanction.” (Emphasis added.)

{¶14} A review of the sentencing hearing transcript and the

judgment entry of sentence herein supports Appellant’s contention that the

trial court did not make specific statutory findings prior to imposing the
Adams App. No. 17CA1048 9

mandatory and consecutive sentences. In Berecz, we recognized that the

courts that have addressed these issues have held that a claim that a trial

court erred in imposing consecutive sentences is barred by res judicata when

it either was raised or could have been raised in a direct appeal. Id. at ¶ 18.

See, e.g., State v. Wofford, 5th Dist. Stark No.2016CA00087, 2016–Ohio–

4628, ¶ 21–23; State v. Bowshier, 2nd Dist. Clark No. 2015–CA–53, 2016–

Ohio–1416, ¶ 16. The Wofford and Bowshier courts relied on the Tenth

District's decision in State v. Chapin, 10th Dist. Franklin No. 14AP–1003,

2015–Ohio–3013, at ¶ 9, wherein the court held:

“We note that, in his motion for resentencing, appellant argued
before the trial court that the sentencing court's failure to make
the requisite findings under R.C. 2929.14(C)(4) rendered his
sentence void. However, ‘[t]he Ohio Supreme Court has
declined to find sentences void based on the court's failure to
comply with certain sentencing statutes, including the
consecutive sentencing statute.’ State v. Sanders, 9th Dist. No.
27189, 2014–Ohio–5115, ¶ 5, citing State v. Holdcroft, 137
Ohio St.3d 526, 2013–Ohio–5014, ¶ 8 (noting that challenges to
a sentencing court's judgment as to whether sentences must be
served concurrently or consecutively must be presented in a
timely direct appeal). Thus, because the trial court's ‘alleged
failure to comply with the consecutive sentencing statute does
not render [the] sentence void, res judicata applies.’ Id. at ¶ 6.”

{¶15} Similarly, this court has held that successful challenges to the

imposition of consecutive sentences do not render the sentence void and are

thus barred by res judicata. Berecz at ¶ 19. See, e.g., State v. Pippen, 4th

Dist. Scioto No. 16CA3727, 2016–Ohio–7105, ¶ 20; State v. Butcher, 4th
Adams App. No. 17CA1048 10

Dist. Meigs No. 14CA7, 2015–Ohio–4249, ¶ 27 ; and In re A.M., 4th Dist.

Athens No. 14CA49, 2015–Ohio–5610, ¶ 13, quoting Holdcroft at ¶ 8. In

Berecz, we held that because the appellant could have raised the statutory

sentencing claims in his prior direct appeal, res judicata operated to bar

them. And, even if the claims had merit, we held that fact would only render

his sentence voidable rather than void.

{¶16} Appellant herein has directed our attention to the Ohio Supreme

Court’s decision in State v. Williams, 2016-Ohio-7658. There the Court held

that a trial court’s imposition of separate sentences for offenses, which the

trial court concluded were allied offenses of similar import, violated R.C.

2941.25 and rendered the sentences void, and thus rendering them subject to

attack at any time without being barred by res judicata. However, in Berecz

at ¶ 21, we explained: “* * * Williams does not purport to modify existing

precedent that applies Holdcraft to hold res judicata bars errors relating to

the trial court’ s imposition of consecutive sentences that are not raised in a

timely appeal.”

{¶17} Relying on our previous decisions in Berecz, Hamilton, and

Craft, we find Appellant could have raised his deficient statutory sentencing

claims in a prior appeal. Because he did not do so, his claims are now

barred by principles of res judicata. Even if his claims had been brought
Adams App. No. 17CA1048 11

earlier and were found to be meritorious, they would only render his

sentence voidable not void.

{¶18} Appellant also contends he was not informed of his appellate

rights. A review of the sentencing transcript reveals the trial court did

advise Appellant in detail of his rights to appeal the court’s decisions and the

sentence. In the judgment entry of sentence, however, the only indications

that Appellant was so advised is the reference that the defendant “was

afforded all rights pursuant to Criminal Rule 32.” The defendants in Berecz,

Hamilton, and Craft also raised the same argument. In Craft we stated at

¶ 14:

“Although R.C. 2953.08 confers on a defendant the right to
appeal from the sentence, it contains no requirement that the
court notify the defendant of that right. And any purported
failure by the trial court in its notification obligations under
Crim.R. 32 could not render his sentence void. See, e.g., State v.
Gannon, 4th Dist. Lawrence No. 15CA16, 2016–Ohio–1007, ¶
17 * * *; Berecz at ¶ 23; see also State v. Barnes, 12th Dist.
Warren No. CA2014–03–049, 2015–Ohio–651, ¶ 27 * * *;
State v. Hamilton, supra, at ¶ 18.”

{¶19} In Craft, at ¶14, we held: “Our prior reasoning set forth in both

Berecz and Hamilton lead us to the same conclusion here, which dictates

that Appellant's claim related to the trial court's failure to advise him of his

right to appeal his sentence is barred by res judicata.” Similarly, we find

although not set forth specifically in the judgment entry of sentencing,
Adams App. No. 17CA1048 12

Appellant was notified of his appellate rights. Even if this notification was

somehow deficient, we find any purported failure to notify him does not

render his sentence void. As in our prior decisions, we find Appellant’s

claim related to alleged failure to advise him of his appellate rights is barred

by res judicata.

2. Constitutional claims.

{¶20} Appellant also makes the above arguments on constitutional

grounds. Appellant contends that the trial court’s failure to make the

statutory findings relating to imposition of the mandatory and consecutive

sentences, as well as the court’s failure to notify him of his appellate rights,

violated his 5th, 6th, and 14th amendment rights. In Craft, we pointed out at

¶ 15:

“ ‘[I]f a criminal defendant, subsequent to his or her direct
appeal, files a motion seeking the vacation or correction of his
or her sentence on the basis that his or her constitutional rights
have been violated, then such a motion is a petition for
postconviction relief.’ ” Berecz at ¶ 25; quoting State v.
Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997),
syllabus. Thus, to the extent that Appellant's motion raised
constitutional claims, it constituted an untimely petition for
postconviction relief that the trial court could not address. R.C.
2953.23(A)(1) and (2); Berecz at ¶ 25; citing State v.
McDougald, 4th Dist. Scioto No. 16CA3736, 2016–Ohio–5080,
¶ 22–23; see also Hamilton, supra, at ¶ 20. As a result,
Appellant has not established that the trial court erred by not
granting his motion to correct his sentence.”

{¶21} Our prior reasoning in the aforementioned cases leads us to the
Adams App. No. 17CA1048 13

same conclusion as in those cases. Construing Appellant’s verified motion

to correct sentence as a motion for post-conviction relief, we find to the

extent his motion raised constitutional claims, the motion is untimely. As

such, the trial court could not address his constitutional claims.

3. Review and hearing.

{¶22} Appellant has argued the trial court failed to undertake “any

real review” of his motion and failed to conduct a hearing. A trial court may

dismiss a petition for post-conviction relief without holding an evidentiary

hearing when the claims raised in the petition are barred by the doctrine of

res judicata. State v. Canada, 10th Dist. Franklin No. 16AP-7, 2016-Ohio-

5948, at ¶ 23. When a trial court dismisses a post-conviction relief petition

without holding an evidentiary hearing, it must enter findings of fact and

conclusions of law. R.C. 2953.21(C). State v. Jackson, 10th Dist. No. 03AP–

1065, 2004–Ohio–6438, ¶ 11 citing State v. Lester, 41 Ohio St.2d. 51

(1975), paragraph two of the syllabus. Although not specifically captioned

“Findings of Fact and Conclusions of Law,” the trial court’s entry denying

Appellant’s motion did contain the court’s reasoning and conclusions. And,

given that Appellant’s claims are barred by res judicata, the court was not

required to hold a hearing. Nothing in the record suggests to us that the trial

court did not give Appellant’s motion a meaningful review.
Adams App. No. 17CA1048 14

CONCLUSION

{¶23} After review of this record, we have determined Appellant was

not entitled to the relief requested in his “Verified Motion to Correct

Sentence.” To the extent that Appellant raised non-constitutional claims, the

trial court correctly denied the motion based upon principles of res judicata.

To the extent that Appellant’s motion raised constitutional claims, we have

construed it to be a time-barred petition for post-conviction relief. Based on

this court’s precedent in Craft and our other prior decision, we find the trial

court could not address the claims. Therefore, upon the authority of App. R.

12(A)(1)(a), we modify the judgment of the trial court to reflect dismissal of

the “Verified Motion to Correct Sentence” insofar as it raised constitutional

claims via an untimely petition for post-conviction relief. Accordingly, we

affirm the judgment of the trial court, as modified.

JUDGMENT AFFIRMED AS MODIFIED.
Adams App. No. 17CA1048 15

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED AS MODIFIED
and that costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Adams County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment Only.

For the Court,

BY: ______________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.