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State v. McGee

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
BELVIN MCGEE, DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-99-383003-ZA.

          FOR APPELLANT Belvin McGee, pro se Inmate No. 379965 Grafton Correctional Institution

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Brett Hammond Assistant Prosecuting Attorney Justice

          BEFORE: S. Gallagher, J., McCormack, P.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE

         {¶1} Appellant Belvin McGee appeals from the denial of his motion to vacate a void sentence. Upon review, we affirm the decision of the trial court. We remand the case to the trial court, however, for the sole purpose of vacating the Tier III sex-offender classification and to reflect the automatic imposition of the sexual-predator classification in accordance with former R.C. 2950.09(A).

         {¶2} In December1999, appellant was convicted of multiple sexual offenses committed against his five children. He since has filed multiple appeals with our court, including but not limited to the following: State v. McGee, 8th Dist. Cuyahoga No. 77463, 2001-Ohio-4238 (affirmed convictions); State v. McGee, 8th Dist. Cuyahoga No. 82092, 2003-Ohio-1966 (affirmed denial of motion to withdraw guilty plea); State v. McGee, 8th Dist. Cuyahoga No. 83613, 2004-Ohio-2856 (affirmed denial of motion to withdraw guilty plea); State v. McGee, 8th Dist. Cuyahoga No. 77463, 2005-Ohio-3553 (denied application to reopen appeal); State v. McGee, 8th Dist. Cuyahoga No. 89133, 2007-Ohio-6655 (declared sentence void and remanded for full resentencing); State v. McGee, 8th Dist. Cuyahoga No. 91638, 2009-Ohio-3374 (affirmed denial of motion to withdraw guilty plea); State v. McGee, 8th Dist. Cuyahoga No. 91638, 2009-Ohio-6637 (denied application to reopen appeal); State v. McGee, 8th Dist. Cuyahoga No. 101307, 2014-Ohio-5289 (affirmed imposition of postrelease control, but remanded for issuance of nunc pro tunc order); State v. McGee, 8th Dist. Cuyahoga No. 102740, 2015-Ohio-4908 (affirmed denial of motion to withdraw guilty plea).

         {¶3} Relative to this appeal, on May 20, 2008, the trial court resentenced appellant after this court found that postrelease control had not been properly imposed. Following a subsequent appeal, on February 6, 2015, the trial court issued a nunc pro tunc entry clarifying that appellant was advised of five years of mandatory postrelease control and of the potential consequences of violating postrelease control. On March 30, 2016, appellant filed a motion to vacate void sentences and remand for resentencing. The trial court denied the motion on May 9, 2016. Appellant then filed the instant appeal from that entry.

         {¶4} Appellant raises four assignments of error for our review. Initially, we recognize that this appeal was taken from the denial of appellant's motion to vacate void sentences and remand for resentencing that was filed on March 30, 2016. A motion to correct a void sentence is limited to the narrow function of correcting only an illegal sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 25. A motion to correct a void sentence "does not permit reexamination of all perceived errors at trial or in other proceedings prior to sentencing." Id. at ¶ 31.[1]

         {¶5} Under his first assignment of error, appellant claims that the trial court lacked jurisdiction over the sexually violent predator specifications and that he "is actually innocent of the indictments that finds [sic] and specified that he is a sexually violent predator." He claims that former R.C. 2971.01(H)(1) required a prior conviction of a sexually violent offense in order to be convicted of a sexually violent predator specification. He relies on State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, and argues that he should not be classified as a sexually violent predator.

         {¶6} A review of the docket in this case indicates that appellant was never convicted of a sexually violent predator specification. Rather, the journal entry from December 17, 1999, indicates that all specifications were deleted as part of the plea and appellant stipulated to a sexual predator classification.[2] Although appellant phrases the argument as a jurisdictional issue, at best this was a matter pertaining to his plea agreement. Accordingly, the issue is not properly raised under a motion to correct a void sentence.

         {¶7} Rather, the argument is barred by res judicata. Appellant has previously raised variations of this argument that have been rejected. See McGee, 8th Dist. Cuyahoga No. 102740, 2015-Ohio-4908, at ¶ 8-11; McGee, 8th Dist. Cuyahoga No. 89133, 2007-Ohio-6655, at ¶ 9. Res judicata bars the assertion of claims from a valid, final judgment of conviction that have been raised or could have been raised on direct appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). "Although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence." Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at paragraph three of the syllabus. Appellant's first assignment of error is overruled.

         {¶8} Under his second assignment of error, appellant claims his due process rights were violated because the trial court disregarded the requirements of R.C. 2971.03 and 2907.02(B), which were in effect at the time of his resentencing. Appellant never challenged the length of his sentence on direct appeal. Further, as applicable to this case, R.C. 2941.148 precludes application of R.C. Chapter 2971 where the offense under R.C. 2907.02(A)(1)(b) for child rape was "committed on or after January 2, 2007." Likewise, R.C. 2971.03(B)(1) is limited to those violations of R.C. 2907.02(A)(1)(b) "committed on or after January 2, 2007." Therefore, appellant's life sentence was not unauthorized by law. See State v. White, 5th Dist. Muskingum No. CT11-0051, 2012-Ohio-1490, ¶ 14. Appellant's second assignment of error is overruled.

         {¶9} Under his third assignment of error, appellant claims that the trial court erred in classifying him as a Tier III sex offender under the Adam Walsh Act upon resentencing in 2008. The state concedes the error, but it ...


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