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State v. Davies

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 10, 2019

STATE OF OHIO, Plaintiff-Appellee,
ROBERT DAVIES, Defendant-Appellant.

          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 (For Plaintiff-Appellee).

          Robert Davies, pro se, (Defendant- Appellant).



         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} Mr. Davies' first assignment of error states:

         {¶5} "The split sentence of both imprisonment and probation for the same felony offense is contrary to law."

         {¶6} 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.

         {¶7} "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.").

         {¶8} 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.

         {¶9} 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" sentence.

         {¶10} 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. ...

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