State v. Stamper

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[Cite as State v. Stamper, 2018-Ohio-5376.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY STATE OF OHIO, Plaintiff-Appellee, v. : : Case No. 18CA1065 : JASON STAMPER, Defendant-Appellant. : DECISION AND JUDGMENT ENTRY : RELEASED 12/26/2018 APPEARANCES: Jason Stamper, Chillicothe, Ohio, pro se appellant. David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for appellee. Hoover, PJ. {¶1} Jason Stamper appeals from the Adams County Common Pleas Court’s denial of his Verified Motion to Correct Sentence. On appeal, Stamper contends that the trial court rendered a void judgment when it sentenced him to a mandatory five-year prison term pursuant to R.C. 2925.041(C)(1). We agree. This Court has previously determined that R.C. 2925.041(C)(1) conflicts with R.C. 2929.14(A)(3), that R.C. 2929.14(A)(3) prevails, and that a sentence rendered pursuant to R.C. 2925.041(C)(1) is contrary to law. Because a sentence that is contrary to law and not authorized by law is void, the trial court erred in denying Stamper’s Verified Motion to Correct Sentence. Accordingly, the judgment of the trial court is reversed. I. Facts and Procedural History Adams App. No. 18CA1065 {¶2} 2 In April 2015, the Adams County Grand Jury indicted Stamper on one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041, a felony of the third degree, and one count of illegal manufacture of drugs in violation of R.C. 2925.04, a felony of the second degree. Stamper originally entered a not guilty plea; and the case was set for jury trial on February 4-5, 2016. However, on February 3, 2016, Stamper pleaded guilty to the illegal assembly count, as charged in the indictment. The trial court accepted Stamper’s guilty plea, found him guilty of illegal assembly, and dismissed the illegal manufacture charge. The trial court sentenced Stamper to a five-year mandatory prison term pursuant to R.C. 2925.041(C)(1). The trial court also ordered that Stamper pay fines and costs, and suspended his driving privileges for a period of three years commencing April 1, 2020. In addition, Stamper was granted 312 days of jail-time credit. {¶3} Stamper did not file a direct appeal. {¶4} In August 2016 Stamper filed a Motion for Sentence Modification, asking the trial court to order that his remaining sentence be served as “non-mandatory”, so that he would be eligible to earn “good days” credit. The motion was denied; and he did not file an appeal. {¶5} In June 2017, Stamper filed his Verified Motion to Correct Sentence. In the motion, Stamper asserted that his sentence was “incorrectly imposed” and contrary to law, and thus void. Specifically, he argued that the imposed five-year mandatory prison sentence was outside of the range of sentences permitted for a felony of the third degree. {¶6} In April 2018, the trial court overruled Stamper’s Verified Motion to Correct Sentence. The trial court held, inter alia, that the motion lacked merit because the sentence was valid pursuant to R.C. 2925.041(C)(1), and also that the arguments raised were barred by the doctrine of res judicata. Adams App. No. 18CA1065 {¶7} 3 Stamper filed a timely notice of appeal from the trial court’s denial of his Verified Motion to Correct Sentence. II. Assignments of Error {¶8} Stamper assigns the following errors for our review: First Assignment of Error: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT-APPELLANT’S MOTION TO CORRECT SENTENCE HEARING UNDER THE VOID SENTENCE DOCTRINE AS RES JUDICATA AND TIME BAR AS HIS MOTION CHALLENGES A VOID SENTENCE. (JUDGMENT ENTRY PAGE 6 FILED APR.16, 2018.) Second Assignment of Error: THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY FAILING TO FILE FINDING FACTS AND CONCLUSION OF LAW AND REASONS FOR FIVE YEARS MANDATORY PRISON TERM FOR FELONY OF THE THIRD DEGREE ON COUNT ONE. (JUDGMENT ENTRY ON SENTENCE FILED FEB. 03, 2016) III. Law and Analysis {¶9} Because Stamper’s assignments of error are interrelated, we elect to address them jointly. Stamper contends that the trial court erred in sentencing him to five years in prison under R.C. 2925.04(C)(1) rather than 36 months in prison under R.C. 2929.14(A)(3). Thus, Stamper argues that his sentence is void. He further claims that because his sentence is void, he can challenge it at any time and the principle of res judicata does not apply. For the following reasons, we agree. A. Void Sentences Adams App. No. 18CA1065 4 {¶10} “ ‘In general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act. Unlike a void judgment, a voidable judgment is one rendered by a court that has both jurisdiction and authority to act, but the court’s judgment is invalid, irregular, or erroneous.’ ” (Internal citation omitted.) State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6, quoting State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12. Typically, “sentencing errors are not jurisdictional and do not render a judgment void.” Id. at ¶ 7. However, “a sentence that is not in accordance with statutorily mandated terms is void.” Id. at ¶ 8. Furthermore, “sentences not authorized by statute are void and subject to being vacated.” State v. Stump, 4th Dist. Athens No. 13CA10, 2014-Ohio-1487, ¶ 15, citing State v. Rohda, 135 Ohio App.3d 21, 25, 732 N.E.2d 1018 (3d Dist.1999); see also State v. Klein, 4th Dist. Meigs No. 15CA12, 2016-Ohio-5315, ¶ 17 (holding that a sentence that is not authorized by law is void) and State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 20, quoting Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964) (“ ‘A court has no power to substitute a different sentence for that provided for by statute or one that is either greater or lesser than that provided for by law.’ ”). A void sentence “is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.” Fischer at paragraph one of the syllabus. {¶11} In contrast, arguments challenging the imposition of a voidable sentence are barred by the doctrine of res judicata if not raised on a direct appeal. See State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306, ¶ 30. The doctrine of res judicata bars claims that the defendant raised or could have raised on direct appeal. In re B.C.S., 4th Dist. Washington No. 07CA60, 2008–Ohio–5771, ¶ 14. “[T]he doctrine serves to preclude a defendant who has Adams App. No. 18CA1065 5 had his day in court from seeking a second on that same issue. In so doing, res judicata promotes the principles of finality and judicial economy by preventing endless relitigation of an issue on which a defendant has already received a full and fair opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006–Ohio–1245, 846 N.E.2d 824, ¶ 18. Accord State v. Miller, 4th Dist. Lawrence No. 11CA14, 2012–Ohio–1922, ¶ 5. B. The Trial Court’s Sentence Was Not Authorized By Law and is Void {¶12} When the trial court sentenced Stamper it imposed a five-year mandatory sentence under R.C. 2925.041(C)(1) which states in relevant part: (C) Whoever violates this section is guilty of illegal assembly or possession of chemicals for the manufacture of drugs. Except as otherwise provided in this division, illegal assembly or possession of chemicals for the manufacture of drugs is a felony of the third degree, and * * * the court shall impose a mandatory prison term * * * as follows: (1) Except as otherwise provided in this division, there is a presumption for a prison term for the offense. * * * If the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense and if at least one of those previous convictions or guilty pleas was to a violation of division (A) of this section, a violation of [R.C. 2919.22(B)(6)], or a violation of [R.C. 2925.04(A)], the court shall impose as a mandatory prison term one of the prison terms described for a felony of the third degree that is not less than five years. {¶13} Pursuant to the above statute, Stamper was sentenced to a five-year mandatory prison term due to having two prior convictions for felony drug abuse offenses, including one Adams App. No. 18CA1065 6 under R.C. 2925.041(A). However, R.C. 2929.14(A)(3), which governs prison terms for thirddegree felonies, provides: (a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05, or 3795.04 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fiftyfour, or sixty months. (b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months. The offenses listed in R.C. 2929.14(A)(3)(a) appear to refer to certain vehicular offenses, certain sexual offenses, robbery and burglary. Notably, the illegal assembly of chemicals for the manufacture of drugs is not an offense listed in R.C. 2929.14(A)(3)(a). Therefore, pursuant to R.C. 2929.14(A)(3)(a) and (b), it appears that Stamper’s maximum sentence for violating R.C. 2925.041 is 36 months in prison. {¶14} As such, a conflict exists between R.C. 2929.14(A)(3) and R.C. 2925.041(C)(1), because the maximum sentence authorized for a third-degree felony drug offense under R.C. 2925.04(C)(1) is 5 years, while the maximum sentence authorized under R.C. 2929.14(A)(3) for third-degree felonies, other than those listed in R.C. 2929.14(A)(3)(a), is 36 months. State v. Pribble, 2017-Ohio-8499, 100 N.E.3d 49, ¶ 9 (4th Dist.2017), appeal allowed, 152 Ohio St. 3d Adams App. No. 18CA1065 7 1442, 2018-Ohio-1600, 96 N.E.3d 298, and State v. Clark, 4th Dist. Highland No. 14CA20, 2015-Ohio-5003, ¶ 59. {¶15} In Clark and Pribble, we ultimately determined, for a multitude of reasons, that R.C. 2929.14(A)(3) controls when sentencing a defendant for illegal assembly, and that imposing a sentence pursuant to R.C. 2925.041(C) is contrary to law. Clark at ¶ 68-69; Pribble at ¶ 13-14. We again, reaffirm our prior holdings. {¶16} Therefore, based upon the reasons expressed more thoroughly in Clark and Pribble, we find that Stamper’s five-year mandatory sentence under R.C. 2925.041(C) is contrary to law and is not authorized by law. Consequently, the trial court’s sentence is void; and it erred in denying Stamper’s Verified Motion to Correct Sentence on the merits and on the basis that his argument was barred by the doctrine of res judicata. Stamper’s first and second assignments of error are sustained. {¶17} On a final note, we acknowledge that the Supreme Court of Ohio has accepted jurisdiction to review our decision in Pribble. Nonetheless, while the case is pending, it remains good law in this district and must be afforded precedential value. IV. Conclusion {¶18} Having sustained Stamper’s pro se assignments of error, we reverse the judgment of the trial court that denied Stamper’s Verified Motion to Correct Sentence and remand this matter for resentencing in accordance with the law as set forth in R.C. 2929.14(A)(3)(b). Should the trial court determine that Stamper has already served the maximum possible sentence under R.C. 2929.14(A)(3)(b), as it appears may be the case, it should immediately order him released from control of the Ohio Department of Rehabilitation and Correction. JUDGMENT REVERSED AND CAUSE REMANDED. Adams App. No. 18CA1065 Harsha, J., dissenting: {¶19} I adhere to my view in State v. Clark, 4th Dist. Highland No. 14CA20, 2015Ohio-5003 (Harsha, J., concurring in part and dissenting in part), that both statutory sections were adopted at the time by HB 96 in 2011, and that because R.C. 2925.041(C), which governs sentencing for illegal assembly cases, is more specific than the general felony sentencing provision in R.C. 2929.14(A)(3), it prevails here. The trial court was authorized by R.C. 2925.041(C) to impose five-year mandatory prison sentence. Thus, I respectfully dissent. 8 Adams App. No. 18CA1065 9 JUDGMENT ENTRY It is ordered that the JUDGMENT IS REVERSED and that the CAUSE BE REMANDED for further proceedings consistent with this opinion. Appellee shall pay the costs. The Court finds that reasonable grounds existed for this appeal. It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. McFarland, J.: Concurs in Judgment and Opinion. Harsha, J.: Dissents with Dissenting Opinion. For the Court By: ____________________________ Marie Hoover, Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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