[Cite as State v. Cochran, 2021-Ohio-692.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109771
v. :
ROBERT COCHRAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 11, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-05-467979-D
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Robert Cochran, pro se.
LISA B. FORBES, J.:
Robert Cochran (“Cochran”) appeals the trial court’s denial of his
motion to vacate a void sentence. After reviewing the facts of the case and the
pertinent law, we affirm the trial court’s judgment, because Cochran’s collateral
attack on his life prison sentence is barred by the doctrine of res judicata.
I. Facts and Procedural History
On August 23, 2006, Cochran pled guilty to murder in violation of
R.C. 2903.02(B) and aggravated robbery in violation of R.C. 2911.01(A)(1). That
same day, the trial court sentenced Cochran as follows:
The court imposes a prison sentence at the Lorain Correctional
Institution of life. (As to count 2, life in prison with parole opportunity
after 15 years and as to count 5, defendant sentenced to 3 years to be
served consecutive to sentence in count 2. Aggregate sentence of life
imprisonment with parole opportunity after 18 years) * * *.
On December 4, 2006, Cochran filed a pro se motion for leave to file
a delayed direct appeal, which this court denied on January 24, 2007.
Thirteen years after he was sentenced, on October 8, 2019, Cochran
filed a motion to vacate a void sentence, arguing that the trial court imposed a prison
sentence for his aggravated murder that was contrary to law under R.C. 2929.02(B).
The trial court denied Cochran’s motion on October 18, 2019, and it is from this
denial that Cochran appeals.
II. Law and Analysis
Former R.C. 2929.02(B) that was in effect when the trial court
imposed Cochran’s sentence in 2006, states in part that “[w]hoever is convicted of
or pleads guilty to murder in violation of R.C. 2903.02 of the Revised Code shall be
imprisoned for an indefinite term of fifteen years to life * * *.” Cochran’s sentence
of “life in prison with parole opportunity after 15 years” is worded differently than
the statutory indefinite term of 15-years-to-life. The state concedes that, in the case
at hand, “the court’s sentence does not comport precisely with the statutory
language * * *.”
On appeal of the trial court’s denial of his motion to vacate his
sentence, Cochran argues that, pursuant to this court’s decision in State v. Kemp,
8th Dist. Cuyahoga No. 97913, 2013-Ohio-167, his sentence is void and must be
vacated. In Kemp, this court found that the defendant’s prison sentence for murder
was contrary to law where the trial court imposed a sentence of “[l]ife in prison with
eligibility of parole after 15 years” on the murder count instead of imposing “an
indefinite term of fifteen to life” as stated in R.C. 2929.02(B)(1). Id. at ¶ 75. In a
direct appeal, this court reversed and vacated Kemp’s sentence and remanded the
matter to the trial court for resentencing. Id. at ¶ 76. See also State v. Smith, 8th
Dist. Cuyahoga No. 106893, 2019-Ohio-155, ¶ 25 (applying Kemp to conclude that
“the sentence imposed by the trial court is void; Smith should have been sentenced
to ‘life imprisonment with parole eligibility after serving twenty years of
imprisonment’”).
Recently, the Ohio Supreme Court realigned its jurisprudence on
when sentencing decisions must be challenged on direct appeal (as in Kemp), and
when they may be questioned in a collateral attack (as in the case at hand). State v.
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. The answer
depends on whether the allegedly erroneous sentence is void or voidable. Id. at ¶ 42.
“A sentence is void when a sentencing court lacks jurisdiction over the subject-
matter of the case or personal jurisdiction over the accused.” Id. However, “[w]hen
a case is within a court’s subject-matter jurisdiction and the accused is properly
before the court, any error in the exercise of that jurisdiction in imposing [a
sentence] renders the court’s judgment voidable * * *.” Id. at ¶ 4.
Void sentences “may be reviewed at any time, on direct appeal or by
collateral attack.” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71
N.E.3d 234, ¶ 22. Voidable sentences, on the other hand, “may be set aside if
successfully challenged on direct appeal”; otherwise, they are “barred by the
doctrine of res judicata.” Harper at ¶ 41-42.
In Harper, the sentencing error at issue concerned the imposition of
postrelease control. The Harper Court found that the trial court had jurisdiction to
sentence the defendant, therefore, any sentencing error rendered the judgment
voidable, rather than void. Id. at ¶ 41. Harper could have raised his argument that
the trial court failed to properly impose postrelease control on direct appeal.
Because he had not, he was barred from doing so by the doctrine of res judicata. Id.
The Ohio Supreme Court issued the following admonition in Harper:
“we caution prosecuting attorneys, defense counsel, and pro se defendants
throughout this state that they are now on notice that any claim that the trial court
has failed to properly imposed postrelease control in the sentence must be brought
on appeal from the judgment of conviction or the sentence will be subject to res
judicata.” Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, at ¶ 43.
Since deciding Harper, the Ohio Supreme Court has expanded the
application of the void-voidable analysis to sentencing in general. State v.
Henderson, Slip Opinion No. 2020-Ohio-4784. “Today, we make it clear that
sentences based on an error are voidable, if the court imposing the sentence has
jurisdiction over the case and the defendant, including sentences in which a trial
court fails to impose a statutorily mandated term.” Id. at ¶ 27. See also State v.
Dowdy, Slip Opinion No. 2020-Ohio-4789.
Following the dictates of the Ohio Supreme Court, this court recently
considered whether “the trial court’s omission of the word ‘full’ in the sentencing
entry” rendered a sentence void or voidable. State v. Brooks, 8th Dist. Cuyahoga
No. 108919, 2020-Ohio-3286, ¶ 6. In 1988, the trial court sentenced Brooks to “life,
without the possibility of parole until serving twenty (20) years,” which is different
than “twenty full years,” as stated in former R.C. 2929.03(C)(2). Id. at ¶ 4. Applying
Harper, this court concluded that the sentence was voidable, and res judicata barred
the postconviction challenge some thirty years after Brooks was sentenced. Brooks
at ¶ 10.
We find that Harper and its progeny dictate the outcome of Cochran’s
appeal. It is undisputed that the trial court had subject-matter and personal
jurisdiction to sentence Cochran. Thus, any error resulting from Cochran’s sentence
being worded differently than mandated by the sentencing statute renders his
sentence voidable, subject to challenge only on direct appeal. Cochran’s direct
appeal following his plea and sentencing was dismissed as untimely. Cochran’s 2019
motion to vacate his sentence is a collateral attack on his prison sentence that is
barred by the doctrine of res judicata.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
LISA B. FORBES, JUDGE
MICHELLE J. SHEEHAN, P.J., and
MARY EILEEN KILBANE, J., CONCUR