Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
APPELLANT Belvin McGee, pro se Inmate No. 379965 Grafton
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Brett Hammond Assistant Prosecuting
BEFORE: S. Gallagher, J., McCormack, P.J., and E.T.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, JUDGE
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).
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
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
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.
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.
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. 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.
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.
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.
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 ...