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State v. Grant

Court of Appeals of Ohio, First District

August 7, 2013

STATE OF OHIO, Plaintiff-Appellee,
JAMES GRANT, Defendant-Appellant.

Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-9702360-A

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

James Grant, pro se.


DeWine, Judge.

{¶1} Defendant James Grant appeals from the Hamilton County Common Pleas Court's judgment overruling his "Motion to Correct Void Sentence." Mr. Grant contended that he is entitled to relief because he was convicted and sentenced for allied offenses of similar import in violation of R.C. 2941.25(A). We conclude that Mr. Grant's motion failed to satisfy the time or jurisdictional requirements of Ohio's postconviction relief statutes. And while a trial court does have jurisdiction to correct a void judgment, we conclude that errors involving allied offenses do not render a judgment void. Accordingly, we affirm the common pleas court's judgment as modified.


{¶2} Mr. Grant was convicted in 1997 of involuntary manslaughter, aggravated burglary, two counts of aggravated robbery, and three counts of kidnapping. In his direct appeal, this court reversed and remanded for the trial court to make the then-necessary statutory sentencing findings and to merge the allied offenses of aggravated robbery and kidnapping as to two of his victims. State v. Grant, 1st Dist. Hamilton No. C-971001, 2001 Ohio App. LEXIS 1388 (Mar. 23, 2001), appeal not allowed, 92 Ohio St.3d 1443, 751 N.E.2d 482 (2001). After the trial court resentenced Mr. Grant, he unsuccessfully challenged his convictions in direct appeals to this court and to the Ohio Supreme Court, State v. Grant, 1st Dist. Hamilton No. C-010632 (June 5, 2002), appeal not allowed, 96 Ohio St.3d 1524, 2002-Ohio-5099, 775 N.E.2d 864, and, collaterally, in postconviction motions filed with the common pleas court in 2008 and 2012.

{¶3} In his 2012 "Motion to Correct Void Sentence, " Mr. Grant argued the trial court should have merged all his convictions together pursuant to R.C. 2941.25 on the ground that they are allied offenses of similar import committed with the same conduct. In a single assignment of error, Mr. Grant challenges the overruling of his motion.

The Motion Does Not Meet the Prerequisites of Ohio's Postconviction-Relief Statutes

{¶4} We will first review Mr. Grant's motion under Ohio's postconviction statutes, R.C. 2953.21 et seq. Mr. Grant filed his postconviction motion well after the expiration of the time prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the jurisdiction of a common pleas court to entertain a late postconviction claim: the petitioner must show either that he was unavoidably prevented from discovering the facts upon which his claim depends, or that his claim is predicated upon a new or retrospectively applicable right recognized by the United States Supreme Court; and he must show "by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was convicted." Mr. Grant did not satisfy these requirements, and, as a result, the common pleas court was without jurisdiction to entertain his postconviction motion. See R.C. 2953.23(A).

The Judgment is Not Void

{¶5} A trial court does have jurisdiction to correct a void judgment. State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. But this court has previously held that an error involving allied offenses does not make a sentence void, only voidable. State v. Lee, 1st Dist. Hamilton No. C-120307, 2013-Ohio-1811, ¶ 8. In Lee, however, we never set forth a rationale for this conclusion. I think it appropriate to do so now.

{¶6} Historically, a void sentence was understood to be one imposed by a court that is "lacking subject matter jurisdiction or the authority to act." State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. "A voidable sentence, " on the other hand, "is one that a court has jurisdiction to impose, but was imposed irregularly or erroneously." Id. Under the traditional view, a sentence that is not void, but merely voidable, may only be successfully challenged on direct appeal. Id. at ¶ 28. Errors in the imposition of a sentence generally were considered nonjurisdictional and simply made the sentence voidable. See, e.g., Majoros v. Collins, 64 Ohio St.3d 442, 443, 596 N.E.2d 1038 (1992). Such a result was consistent with principles of res judicata and promoted the interest of finality of judgments.

{¶7} In recent years, however, the Ohio Supreme Court has been more willing to conclude that certain sentencing errors render a sentence void. In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ΒΆ 8-9, the court explained that despite the general rule that void sentences are "typically" only those in which a court lacked subject matter jurisdiction, "in the modern era, Ohio law has consistently recognized a narrow, and imperative, exception to that ...

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