Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas APPEAL NO.
C-160864 TRIAL NOS. B-9802147 B-9800321
T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for
Ingels, pro se.
CUNNINGHAM, PRESIDING JUDGE.
Defendant-appellant Earl Ingels presents on appeal four
assignments of error that, distilled to their essence,
challenge the Hamilton County Common Pleas Court's
judgments overruling his "Motion[s] to Set Aside a Void
Violent Sexual Predator Sanction." We remand for
resentencing on the kidnapping offenses charged in counts one
and three of the indictment in the case numbered B-9800321,
because those sentences are void when R.C. Chapter 2971 did
not confer upon the trial court the authority to enhance the
sentences based on specifications that Ingels was a
"sexually violent predator."
In 1998, following a joint trial on the charges contained in
the indictments in the cases numbered B-9800321 and
B-9802147, Ingels was convicted on five counts of kidnapping,
two counts of gross sexual imposition, and a single count of
attempted kidnapping. We affirmed those convictions on direct
appeal. State v. Ingels, 1st Dist. Hamilton Nos.
C-980673 and C-980674, 1999 WL 1488934 (Dec. 3, 1999),
appeal not accepted, 99 Ohio St.3d 1539,
2003-Ohio-4671, 795 N.E.2d 679. Thereafter, we twice remanded
for correction of postrelease control. See State v.
Ingels, 1st Dist. Hamilton No. C-130311, 2014-Ohio-363;
State v. Ingels, 1st Dist. Hamilton Nos. C-140312,
C-140313 and C-140328, 2015-Ohio-1621, appeal not
accepted, 143 Ohio St.3d 1447, 2015-Ohio-3427, 36 N.E.3d
193. See also State v. Ingels, 1st Dist. Hamilton
Nos. C-160295, C-160303 and C-160304 (Oct. 7, 2016)
(affirming the second correction of postrelease control). The
other postconviction challenges to his convictions advanced
in motions filed between 2005 and 2016 were unavailing.
See State v. Ingels, 1st Dist. Hamilton No.
C-100297, 2011-Ohio-2901, appeal not accepted, 130
Ohio St.3d 1418, 2011-Ohio-5605, 956 N.E.2d 309; State v.
Ingels, 1st Dist. Hamilton No. C-120052 (Dec. 7, 2012),
appeal not accepted, 134 Ohio St.3d 1509,
2013-Ohio-1123, 984 N.E.2d 1102; State v. Ingels,
1st Dist. Hamilton No. C-120238, 2013-Ohio-1460, appeal
not accepted, 137 Ohio St.3d 1411, 2013-Ohio-5096, 998
In his 2016 "Motion to Set Aside a Void Violent Sexual
Predator Sanction, " filed in each of the cases numbered
B-9802147 and B-9800321, Ingels sought
"correction]" of the sentences imposed for the
kidnapping offenses charged in counts one and three of the
indictment in the case numbered B-9800321, on the ground that
those sentences are void because the trial court lacked the
statutory authority to impose them. Citing the Ohio Supreme
Court's decision in State v. Smith, 104 Ohio
St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, Ingels argued that
the sentence-enhancement provisions of R.C. Chapter 2971 in
effect in 1998, when he was sentenced, had not conferred upon
the trial court the authority to enhance his kidnapping
sentences based on the specifications that he was a
"sexually violent predator, " because those
specifications were not, as R.C. 2971.03 then required, based
on a sexually-violent-offense conviction that had existed
before the indictment charging the sexually-violent-predator
specification, but were instead based on the conduct
underlying the sexually-violent-offense charges contained in
the jointly-tried indictments in the cases numbered B-9800321
and B-9802147. The motion sought relief in the form of
"removing [the] Sexual Violent Predator sanction"
from the judgment of conviction and a declaration that the
state had "forfeited any rights" to so sanction him
or to classify him as a sexual predator under R.C. 2950.09.
Ingels presented Smith claims on direct appeal from
the second correction of postrelease control and in
postconviction motions filed in 2009, 2011, and 2012. In
2011, we affirmed the dismissal of Ingels's 2009 motion,
upon our determination that the claimed error did not render
his sentences void. See Ingels, 1st Dist. Hamilton
No. C-100297, 2011-Ohio-2901. We then relied on that
determination to hold that the law of our 2011 decision
precluded the trial court, in correcting postrelease control,
and the common pleas court, in deciding Ingels's
subsequent postconviction motions, from granting relief on
that ground. See Ingels, 1st Dist. Hamilton Nos.
C-160295, C-160303 and C-160304; Ingels, 1st Dist.
Hamilton No. C-120238, 2013-Ohio-1460; Ingels, 1st
Dist. Hamilton No. C-120052.
In this appeal from the overruling of Ingels's 2016
motion, we revisit that determination. We conclude that the
sentences imposed for the kidnapping offenses charged in
counts one and three of the indictment in the case numbered
B-9800321 are void, because the trial court lacked the
statutory authority to impose them. And on that basis, we
overrule our prior decisions to the extent that they hold to
Statutory Authority to Enhance the Kidnapping Sentences
The kidnapping charges in counts one and three of the
indictment in the case numbered B-9800321 each carried a
sexual-motivation specification and a
sexually-violent-predator specification. With respect to each
offense, the jury found that Ingels had acted with a sexual
motivation, and the trial court found that Ingels was a
"sexually violent predator" for purposes of the
sentencing-enhancement provisions of R.C. Chapter 2971. Thus,
the trial court, pursuant to R.C. 2971.03(A)(3), enhanced
Ingels's sentences for the sexually motivated
kidnappings, imposing for each offense a prison term of nine
years to life, instead of a definite prison term of up to ten
years prescribed for first-degree-felony kidnapping.
See R.C. 2929.14(A)(1).
R.C. 2971.03, in relevant part, mandates an enhanced sentence
upon a guilty verdict or plea on a kidnapping charge if the
offender also "is convicted of or pleads guilty to both
a sexual motivation specification and a sexually violent
predator specification that were included in the * * * count
in the indictment * * * charging that offense." R.C.
2971.03(A). R.C. 2971.01(H)(1), as it provided in 1998 when
Ingels was sentenced, defined a "sexually violent
predator" as "a person who has been convicted
of or pleaded guilty to committing, on or after January
1, 1997, a sexually violent offense and is likely to engage
in the future in one or more sexually violent offenses."
(Emphasis added.) In 2005, the General Assembly amended the
statute to define a "sexually violent predator" as
"a person who, on or after January 1, 1997,
commits a sexually violent offense and is likely to
engage in the future in one or more sexually violent
offenses." (Emphasis added.) R.C. 2971.01(H)(1).
The 2005 amendment was prompted by the Ohio Supreme
Court's 2004 decision in State v. Smith, 104
Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283. In
Smith, the court held that a "[c]onviction of a
sexually violent offense cannot support the specification
that the offender is a sexually violent predator as defined
in R.C. 2971.01(H)(1) if the conduct leading to the
conviction and the * * * specification are charged in the
same indictment." Id. at syllabus. That holding
derived from the court's reading of former R.C.
2971.01(H)(1) to require that a sexually-violent-predator
specification be ...