Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
T. Deters, Hamilton County Prosecuting Attorney, and Melynda
J. Machol, Assistant Prosecuting Attorney, for
R. Perkins and Michael K. Allen, for Defendant-Appellant.
Defendant-appellant David Foster appeals from the Hamilton
County Common Pleas Court's judgment overruling his
"Motion to Vacate, Set-Aside, and Resentence Due to Void
Judgment." We affirm the court's judgment as
modified, but remand for correction of the sentencing entry.
Foster was convicted in 2005 of conspiracy, drug possession,
and drug trafficking. In his direct appeal, we vacated his
sentences and remanded for resentencing in light of the Ohio
Supreme Court's decision in State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. State v.
Foster, 1st Dist. Hamilton No. C-050378, 2006-Ohio-1567,
appeal not accepted, 110 Ohio St.3d 1439,
2006-Ohio-3862, 852 N.E.2d 188. Then, in his appeal from his
2006 resentencing, we vacated his sentences and remanded for
merger consistent with R.C. 2941.25. State v.
Foster, 1st Dist. Hamilton No. C-060720 (June 27, 2007),
affd, 118 Ohio St.3d 265, 2008-Ohio-2542, 888 N.E.2d
411. The trial court resentenced Foster on September 4, 2008,
merging the possession and conspiracy charges into the
trafficking charge and imposing consecutive prison terms of
ten years for trafficking and seven years for the
major-drug-offender specification accompanying that charge.
We affirmed that conviction on appeal. State v.
Foster, 1st Dist. Hamilton No. C-080929 (Aug. 8, 2009),
appeal not accepted, 123 Ohio St.3d 1511,
2009-Ohio-6210, 917 N.E.2d 812.
Foster unsuccessfully challenged his trafficking conviction
in postconviction motions filed with the common pleas court
in 2006, 2007, 2013, and 2015. See State v. Foster,
1st Dist. Hamilton No. C-130369 (Feb. 26, 2014), appeals
not accepted, 139 Ohio St.3d 1419, 2014-Ohio-2487, 10
N.E.3d 738; State v. Foster, 1st Dist. Hamilton No.
C-070518 (June 11, 2008), appeal not accepted, 119
Ohio St.3d 1488, 2008-Ohio-5273, 894 N.E.2d 1245; State
v. Foster, 1st Dist. Hamilton Nos. C-060065 and C-060121
(Jan. 10, 2007). In this appeal from the overruling of his
2015 "Motion to Vacate, Set-Aside, and Resentence Due to
Void Judgment, " he advances two assignments of error.
In his first assignment of error, Foster contends that the
common pleas court erred in failing to afford him the relief
sought in his motion. The assignment of error is well taken
In his motion, Foster sought correction of that part of the
2008 judgment of conviction that stated that he was "not
eligible for intensive prison program, transitional control,
judicial release, or any other early release program and is
to serve this sentence in its entirety." He argued that
those portions of his sentence were void, because the trial
court was not authorized by law to effectively "require
him to serve * * * as if it were a mandatory sentence"
the seven-year prison term imposed for the
major-drug-offender specification, because the court,
prematurely and without findings, disapproved transitional
control, and because the court acted without statutory
authority when it effectively excluded him from eligibility
for any present or future early-release program, such as the
earned-days-of-credit program under R.C. 2967.193, by
expressly declaring him "not eligible" for early
release and by ordering him "to serve his prison
sentence in its entirety."
Judgment of conviction not correctable under any statute or
criminal rule. Foster did not specify in his postconviction
motion a statute or rule under which the relief sought might
have been afforded, leaving the common pleas court free to
"recast" the motion "into whatever category
necessary to identify and establish the criteria by which the
motion should be judged." State v. Schlee, 117
Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and
syllabus. But the motion was not reviewable under the
standards provided by R.C. 2953.21 et seq., governing the
proceedings upon a petition for postconviction relief, when
the motion alleged statutory, rather than constitutional,
violations. See R.C. 2953.21(A)(1). The motion was
not reviewable under Crim.R. 32.1, as a motion to withdraw a
guilty plea, or under Crim.R. 33, as a motion for a new
trial, when Foster had been convicted of trafficking
following a jury trial, and the motion sought resentencing
rather than a new trial. Nor was the motion reviewable under
R.C. Chapter 2731 as a petition for a writ of mandamus, under
R.C. Chapter 2721 as a declaratory judgment action, or under
R.C. Chapter 2725 as a petition for a writ of habeas corpus,
when the motion did not satisfy those statutes'
procedural requirements. See R.C. 2731.04,
2721.12(A), and 2725.04. And Crim.R. 57(B) did not require
the common pleas court to review pursuant to the procedures
provided under Civ.R 60(B) the challenges advanced in the
motion, because Foster's judgment of conviction had been
reviewable under the procedures provided for a direct appeal.
See State v. Smith, 1st Dist. Hamilton Nos. C-150445
and C-150446, 2016-Ohio-3521, ¶ 19. Accordingly, the
postconviction statutes and rules did not confer upon the
common pleas court jurisdiction to entertain the challenges
advanced in Foster's motion.
Jurisdiction to correct void portions of the judgment of
conviction. But a court always has jurisdiction to correct a
void judgment. See State ex rel. Cruzado v. Zaleski,
111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶
18-19. And we conclude that the common pleas court had
jurisdiction to correct as void that portion of Foster's
judgment of conviction that excluded him from "any * * *
early release program" and ordered him "to serve
his prison sentence in its entirety."
In State v. Livingston, 2014-Ohio-1637, 9 N.E.3d
1117 (1st Dist.), the trial court had included the following
language in the judgment of conviction entered upon
Livingston's guilty plea to voluntary manslaughter:
"Pursuant to a plea agreement between the parties, the
defendant herein is not eligible for risk reduction,
intensive prison programs, earned days of credit,
transitional control, judicial release, or any other early
release program and is to serve this sentence in its
entirety." Id. at ¶ 2. In his direct
appeal, Livingston argued that the trial court had lacked the
authority to limit his eligibility to earn credit against his
prison term under R.C. 2967.193 for participating in approved
prison programs. Livingston at ¶ 3. Because the
earned-credit statute identified eligible offenders and
conferred upon the department of rehabilitation and
correction, not the trial court, the authority to determine
and award the credit, we concluded that that portion of
Livingston's sentence declaring him ineligible for earned
days of credit was not authorized by law and was thus subject
to review on direct appeal. Id. at ¶ 4-7,
citing R.C. 2953.08(D)(1). And we vacated and remanded for
correction that portion of his sentence. Id. at
Our holding in Livingston was based on principles,
recently reaffirmed by the Ohio Supreme Court in State v.
Williams,148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d
234, that the Ohio General Assembly is vested with the power
to define criminal offenses and prescribe punishment, and
that the only sentence that a trial court may impose is that
authorized by statute. Id. at ¶ 20 and 22,
citing Colegrove v. Burns,175 Ohio St. 437, 438,
195 N.E.2d 811 (1964), and State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21-22.
See Livingston at ¶ 6. The court in
Williams also reaffirmed principles pertinent to our
review here of Foster's collateral attacks on his
sentence, that a sentence that is not authorized by statute
is void and thus reviewable at any time, but a sentence
imposed by a trial court with jurisdiction and the statutory
authority to act is not rendered void by an error in imposing
the sentence and may only ...