Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
APPELLANT Nathaniel Foster, pro se
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Diane Smilanick Assistant County
BEFORE: Laster Mays, J., Stewart, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
LASTER MAYS, J.
Defendant-appellant, Nathaniel Foster ("Foster"),
appeals his conviction and sentence and asks this court to
vacate his sentence. After a review of the record, we affirm.
In 1999, Foster was found guilty of kidnapping ("Count
1"), in violation of R.C. 2905.01; felonious assault
("Count 2"), in violation of R.C. 2903.11;
aggravated robbery ("Count 3"), in violation of
R.C. 2911.01; and possession of criminal tools ("Count
4"), in violation of R.C. 2923.24. Foster was sentenced
to ten years in prison for Count 1, plus nine additional
years for the repeat violent offender specification;
concurrent terms of eight years in prison for Count 2, with
an additional nine years for the repeat violent offender
specification; ten years in prison for Count 3, in addition
to nine years for the repeat violent offender specification;
and 12 months in prison for Count 4. The trial court ordered
that Counts 2, 3, and 4 be served concurrent to each other
but consecutive to Count 1.
In 2000, Foster appealed his conviction and sentence to this
court. In State v. Foster, 8th Dist. Cuyahoga No.
76383, 2000 Ohio App. LEXIS 6077 (Dec. 1, 2000), Foster's
conviction and sentence were affirmed. Foster filed an
application for reopening to this court and was denied in
December 2000. In December 2001, Foster filed a motion to
dismiss the repeat violent offender specifications, and the
trial court denied that motion. He then filed an appeal with
this court, which was dismissed. The Ohio Supreme Court
dismissed Foster's appeal of this court's dismissal.
Foster then filed a motion for correction of void sentence
and order for resentencing in February 2008. In addition, he
filed a supplemental motion in support of his motion for
resentencing. The state also filed a motion for resentencing.
In response, Foster filed a motion for establishment of a
date certain for oral hearing and appointment of counsel. The
trial court denied Foster's motion for correction of void
sentence, supplement in support of appellant's motion for
resentencing, and motion for establishment of a date certain
for a oral hearing and appointment of counsel. However, the
trial court granted the state's motion for correction of
On February 25, 2009, the trial court held a resentencing
hearing and resentenced Foster to the same sentence he
received in 1999, but also sentenced Foster to five years of
postrelease control and advised Foster of the consequences of
violating postrelease control. The trial court also made the
necessary findings on the record for sentencing Foster on the
repeat violent offender specification. Foster then, on
September 5, 2013, filed a motion for allied offense
determination, and the trial court denied this motion. In
2016, Foster filed a motion to vacate void judgment, and the
trial court denied that motion. Foster now appeals the trial
court's denial of his motion to vacate void judgment, and
assigns two errors for our review:
I. The trial court abused its discretion when it denied
appellant's motion to vacate a void judgment;
II. The trial court erred or abused it discretion when it
denied appellant's motion as a postconviction petition.
Motion to Vacate a Void Judgment
In Foster's first assignment of error, he argues that the
trial court abused its discretion when it ...