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State v. Foster

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 25, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
NATHANIEL FOSTER DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-98-370295-B

          FOR APPELLANT Nathaniel Foster, pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Diane Smilanick Assistant County Prosecutor

          BEFORE: Laster Mays, J., Stewart, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, J.

         {¶1} 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.

         {¶2} 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.

         I. Facts

         {¶3} 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 void sentence.

         {¶4} 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.

         II. Motion to Vacate a Void Judgment

         {¶5} In Foster's first assignment of error, he argues that the trial court abused its discretion when it ...


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