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State v. Wurzelbacher

Court of Appeals of Ohio, First District

September 18, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
LEE F. WURZELBACHER, Defendant-Appellant.

Criminal Appeal From: Hamilton County Court of Common Pleas, TRIAL NO. B-0009162

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

Lee F. Wurzelbacher, pro se.

OPINION

DeWine, Judge.

(¶1} Lee F. Wurzelbacher went to a prison in 2001 after being convicted of drug trafficking and receiving stolen property. Eight years after being released, he asked the trial court to declare that his sentences are partly void based upon various errors he claimed the court had made when it imposed his sentences. The trial court denied the motion, and Mr. Wurzelbacher challenges that decision in this appeal.

(¶2} We conclude that Mr. Wurzelbacher is right, to an extent. The trial court committed two errors when it sentenced him that render portions of his sentences void. It neglected to suspend his driver's license or to include notification about postrelease control in his sentencing entry. But it is too late to fix these errors because Mr. Wurzelbacher has been released from prison. We affirm the judgment below as modified and remand to the common pleas court with instructions to note on the record that, because Mr. Wurzelbacher has been discharged on his convictions, his sentences may not now be corrected to impose postrelease control or the license suspension.

Background

(¶3} Mr. Wurzelbacher pled guilty in 2001 to two counts of drug trafficking and a single count of receiving stolen property. He was sentenced to concurrent prison terms totaling one year. He did not appeal his convictions. In 2012, Mr. Wurzelbacher collaterally challenged his convictions by filing with the common pleas court his "Motion for Declaratory Judgment That Sentence is Void." The common pleas court overruled the motion, and this appeal ensued.

Neither the Declaratory Judgment Act nor the Postconviction Statutes Conferred Jurisdiction to Entertain the Motion

(¶4} In his motion, Mr. Wurzelbacher sought to invoke the court's "jurisdiction * * * to correct a void judgment" and sought "a declaratory judgment resolving the fact that [his sentences are] void" because the trial court had failed to merge allied offenses, to impose a mandatory driver's license suspension, or to notify him concerning postrelease control, his appeal rights, the requirement that he give a DNA specimen, or the possible imposition of community service in lieu of court costs. In this appeal, he advances four assignments of error that, read together, challenge the overruling of his motion.

(¶5} The first question we face is how to characterize Mr. Wurzelbacher's motion. Although styled a "Motion for Declaratory Judgment, " the filing did not properly institute a claim for declaratory judgment. Nor will such a proceeding provide a substitute for an appeal, or a means to collaterally challenge a criminal conviction. See State v. Braggs, 1st Dist. Hamilton No. C-130073, 2013-Ohio-3364, ¶ 5-7.

(¶6} Mr. Wurzelbacher's claims are best cast as raising a claim for relief under Ohio's postconviction statutes, R.C. 2953.21 et seq. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. But Mr. Wurzelbacher's motion was filed too late to meet the statute's requirements, and he did not satisfy the statutory prerequisites to allow the court to entertain a late postconviction claim. See R.C. 2953.21(A)(2) and 2953.23(A). Thus, the court lacked jurisdiction to consider the claim under the postconviction statutes.

The Sentences are Void in Part

(¶7} But even though the postconviction statutes are said to provide "the exclusive remedy by which a person may bring a collateral challenge to the validity of a conviction in a criminal case, " it is the law in Ohio that a court may correct a "void judgment" even in the absence of compliance with the jurisdictional requirements of the postconviction statutes. State ex rel. Cruzado v. ...


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