Court of Appeals of Ohio, Eleventh District, Ashtabula
Criminal Appeal from the Ashtabula County Court of Common
Pleas, Case No. 2001 CR 00165. Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse
Davies, pro se, (Defendant- Appellant).
CYNTHIA WESTCOTT RICE, J.
Appellant, Robert Davies, appeals the May 14, 2018 Judgment
of the Ashtabula County Court of Common Pleas overruling his
motion to withdraw his guilty plea without a hearing. For the
reasons set forth herein, we affirm.
In November 2001, Mr. Davies pleaded guilty to one count of
Possession of Crack Cocaine, a felony of the fifth-degree, in
violation of R.C. 2925.11. He was sentenced to two years of
community control and ordered to serve four to six months at
a correctional treatment facility. He did not appeal this
conviction. Fifteen years later, he requested and received
copies of the incident report and laboratory reports from his
2001 case. Mr. Davies then filed a pro se motion to vacate
his conviction and dismiss the indictment, arguing he
received new information. The trial court treated his motion
as a petition for post-conviction relief and dismissed the
petition as barred by res judicata because the information
that he argues was just received was available to him and his
public defender when he pled guilty in 2001. On appeal, this
court affirmed the trial court's judgment and,
subsequently, denied his motion for reconsideration.
In March 2018, Mr. Davies filed a Motion to Withdraw Plea of
Guilty Pursuant to Crim.R. 32.1, arguing his jury waiver was
not made knowingly, intelligently, and voluntarily. The trial
court overruled his motion in a May 14, 2018 Judgment,
finding his claims were barred by res judicata as he raises
the same arguments he raised in his previous motions. Mr.
Davies filed the instant appeal assigning two assignments of
error for our review.
Mr. Davies' first assignment of error states:
"The split sentence of both imprisonment and probation
for the same felony offense is contrary to law."
Mr. Davies purports his Crim.32.1 motion should be construed
as a presentence motion because, as he argues, his conviction
was void and, therefore, should be treated as if he were
never sentenced. We disagree.
"A void sentence is one that a court imposes despite
lacking subject-matter jurisdiction or the authority to act.
Conversely, a voidable sentence is one that a court has
jurisdiction to impose, but was imposed irregularly or
erroneously." (citations omitted) State v.
Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶27. The
distinction is important for the case sub judice; res
judicata applies to voidable sentences but has not been
applied to void sentences. State v. Simpkins, 117
Ohio St.3d 420, 2008-Ohio-1197, ¶30, superseded on
other grounds by statute. A voidable sentence may only
be set aside if successfully challenged on a timely, direct
appeal. Payne, at ¶28; see also,
Simpkins, at ¶30; State v. Holdcroft, 137
Ohio St.3d 526, 2013-Ohio-5014, ¶¶9, 18 ("But
once the time for filing an appeal has run, Ohio courts are
limited to correcting a void sanction.").
Generally, sentencing errors are voidable, not void.
Simpkins, at ¶13. In Simpkins, the
Supreme Court of Ohio noted an exception to this general
rule: "[b]ecause no judge has the authority to disregard
the law, a sentence that clearly does so is void. * * * If a
judge imposes a sentence that is unauthorized by law, the
sentence is unlawful." Id. at ¶¶20,
21. Thus, we must address whether Mr. Davies' sentence
was expressly permitted by statute or contrary to law in
order to determine whether the alleged sentencing error is a
void or voidable error.
Both Mr. Davies and the prosecution cite State v.
Paige, 153 Ohio St.3d 214, 2018-Ohio-813 in support of
their positions on appeal. In Paige, the Supreme
Court of Ohio stated: "Split sentences are prohibited in
Ohio. Generally, pursuant to the felony-sentencing statutes
[R.C. 2929.11 through R.C. 2929.19], a court must impose
either a prison term or a community-control sanction as a
sentence for a particular felony offense-a court cannot
impose both for a single offense." Id. at
¶6. Mr. Davies asserts his sentence of 4 to 6 months in
a correctional treatment facility, NEOCAP, a residential
community control sanction, is classified as a term of
imprisonment and thus, in combination with his term of
nonresidential community control, his entire sentence was an
impermissible "split" or "blended"
In support of his argument, Mr. Davies cites State v.
Edwards, 11th Dist. Geauga No. 2017-G-0122,
2018-Ohio-2462, in which this court found that "serving
residential sanctions in the Geauga County Safety Center and
in NEOCAP is 'imprisonment,' and the imposition of a
term at one of those facilities is a 'sentence of
imprisonment' under R.C. 2929.41(A)." Id.
at ¶14. However, therein lies the critical distinction:
the application of R.C. 2929.41. Edwards and
Paige both apply R.C. 2929.41, a statute governing
imposition of multiple sentences; the case sub judice
involves a single sentence and, thus, is distinguishable.
See also State v. Reyes, 8th Dist. Cuyahoga No.
107323, 2019-Ohio-1127 (finding a combination of residential
and nonresidential community control sanctions to be allowed
by R.C. 2929.15 and not governed by Paige and R.C.