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State of Ohio v. Jeffery L. Shepherd

November 26, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JEFFERY L. SHEPHERD, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Harsha, J.

Cite as State v. Shepherd,

DECISION AND JUDGMENT ENTRY

{¶1} In 2010, Jeffery Shepherd was convicted of various charges and filed an unsuccessful appeal. In a subsequent motion, he argued that his sentence was void because: 1.) the court did not orally announce the jury's findings of guilt for certain charges at the sentencing hearing, and 2.) the sentencing entry did not include all of the necessary elements under Crim.R. 32 for a final, appealable order. After the trial court denied his motion, this appeal follows.

{¶2} Despite his claim to the contrary, the trial court orally announced the jury's findings of guilt at trial. And although a defendant may challenge a void sentence at any time, Shepherd cites no authority that stands for the proposition that the court's failure to repeat this information at the sentencing hearing renders a sentence void. Moreover, the sentencing entry does contain all required elements to constitute a final order. Therefore, the trial court properly denied Shepherd's motion.

I. Facts

{¶3} Following a traffic stop a grand jury indicted Shepherd for: possession of cocaine, trafficking in drugs/cocaine, conspiracy to traffic drugs, tampering with evidence, corrupting another with drugs, conspiracy to corrupt another with drugs, two misdemeanor counts of possession of drugs, and aggravated possession of drugs. Before trial, Shepherd pleaded guilty to one count of misdemeanor drug possession. A jury found him not guilty of the other misdemeanor drug possession and the aggravated possession charges; however, the jury found Shepherd guilty of the remaining counts. After the court merged certain offenses for sentencing, it ordered him to serve an aggregate prison term of eight years and six months. Shepherd appealed and argued that his conviction for possession of cocaine was against the manifest weight of the evidence. We rejected this argument and affirmed the trial court's judgment. State v. Shepherd, 4th Dist. No. 10CA3374, 2011-Ohio-2192, ¶ 1. Shepherd filed an application to reopen his appeal, which we denied.

{¶4} Subsequently, Shepherd filed a "MOTION TO VOID AND/OR VACATE A [INVALID] SENTENCE UNDER R.C. CRIM. RULE 32" in the trial court. Shepherd complained that at the sentencing hearing, the court failed to orally state the fact and manner of conviction for Counts 3-6 of the indictment. He also argued that the court's sentencing entry did not constitute a final, appealable order under Crim.R. 32 for various reasons. Therefore, Shepherd argued his sentence was void and had to be vacated. In its memorandum contra, the State characterized Shepherd's motion as an untimely petition for post-conviction relief and argued that it was also barred by the doctrine of res judicata. The trial court denied Shepherd's motion, finding that his "Petition is untimely filed precluding the Court from considering [it], and * * * Defendant's claim is barred by the doctrine of res judicata." This appeal followed. II. Assignment of Error

{¶5} Shepherd assigns one error for our review:

APPELLANT CONTENDS THAT THE TRIAL COURT DENIED HIM DUE PROCESS, AND EQUAL PROTECTION OF LAW UNDER THE 8TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION[ ] WHEN IT IMPOSED A (1) SENTENCE UPON APPELLANT THAT WAS CONTRARY TO LAW AND (2) WHEN THE TRIAL COURT'S SENTENCE IS CONTRADICTED BY IT'S [sic] JOURNAL ENTRY, (3) THE COURT LACKED SUBJECT MATTER JURISDICTION TO SENTENCE ON COUNTS.*fn1

III. Shepherd's Sentence is Valid

{¶6} Shepherd contends that the trial court erred when it denied his motion to vacate an invalid sentence as untimely and barred by res judicata. At the trial level and on appeal, the State characterizes Shepherd's motion as an untimely petition for post-conviction relief. The trial court appeared to accept this characterization in its decision to deny the motion. However, R.C. 2953.21(A)(1)(a), which describes petitions for post-conviction relief, states:

Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.

{¶7} Although Shepherd attempts to make constitutional arguments on appeal, he did not assert any constitutional arguments in his motion at the trial level. Instead, he argued his sentence was void and should be vacated under the rules of criminal procedure. Therefore, the trial court incorrectly treated his motion as a petition for post-conviction relief. However, " 'when a trial court has stated an erroneous basis for its judgment, an appellate court must affirm the judgment if it is legally correct on other grounds, that is, it achieves the right result for the wrong reason, because such an error is not prejudicial.' " State v. Sebastian, 4th Dist. No. 08CA19, 2009-Ohio-3117, ¶ 25, quoting Reynolds v. Budzik, 134 Ohio App.3d 844, 846, 732 N.E.2d 485 (6th Dist.1999), fn. 3. And as we explain below, the trial court correctly denied Shepherd's motion.

{¶8} Shepherd essentially argues that his sentence is void. " 'In general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act.' " State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio- 6238, 942 N.E.2d 332, ¶ 6, quoting State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio- 1197, 884 N.E.2d 568, ¶ 12. Shepherd is correct that a void sentence "is not precluded from appellate review by principles of res judicata, and may be reviewed at ...


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