State ex rel. Romine v. McIntosh (Slip Opinion) , 2020 Ohio 6826 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Romine v. McIntosh, Slip Opinion No. 2020-Ohio-6826.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2020-OHIO-6826THE STATE EX REL. ROMINE, APPELLANT, v. MCINTOSH, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Romine v. McIntosh, Slip Opinion No.
2020-Ohio-6826.]
Criminal law—Sentencing—Allied offenses of similar import—Void and voidable
sentences—Imposition of two sentences for allied offenses prior to merger
is a violation of R.C. 2941.25(A)—Imposition of compound sentences for
allied offenses is an error in the exercise of jurisdiction, to be challenged at
sentencing and remedied on direct appeal.
(No. 2020-0369—Submitted August 4, 2020—Decided December 23, 2020.)
APPEAL from the Court of Appeals for Franklin County, No. 19AP-439.
________________
Per Curiam.
{¶ 1} Appellant, Nelson L. Romine Jr., appeals the decision of the Tenth
District Court of Appeals dismissing his complaint for a writ of mandamus or a writ
of prohibition against Judge Stephen McIntosh of the Franklin County Court of
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Common Pleas. For the reasons below, we affirm the judgment of the court of
appeals.
Background
{¶ 2} Romine was the subject of two indictments arising out of the death of
A. Kenneth Jackson and the kidnapping and aggravated robbery of William Farmer.
In the first indictment, which became case No. 09CR-4171, he was charged with
one count of aggravated murder and one count of kidnapping, each with a firearm
specification, plus a felony charge of improperly handling a firearm in a motor
vehicle. In the second indictment, which became case No. 09CR-7222, he was
charged with one count of aggravated murder and one count of aggravated robbery,
each with a firearm specification. On December 23, 2009, a jury found Romine
guilty of all counts in both cases.
{¶ 3} In case No. 09CR-4171, Judge McIntosh sentenced Romine to 25
years to life for aggravated murder, 5 years for kidnapping, and 18 months for the
firearm felony, plus 3 years each for the two firearm specifications. State v.
Romine, 2010 Ohio Misc. LEXIS 6848. Judge McIntosh ordered the aggravated-
murder and kidnapping sentences to be served consecutively but the sentence for
the firearm felony to run concurrently, for a minimum term of 33 years. Id. In case
No. 09CR-7222, Judge McIntosh sentenced Romine to 15 years to life for murder,1
10 years for aggravated robbery, plus 3 years each for the two firearm
specifications, for an aggregate minimum of 18 years. State v. Romine, 2010 Ohio
Misc. LEXIS 9733. Judge McIntosh then merged the aggravated-murder count in
case No. 09CR-4171 with the murder count in case No. 09CR-7222 and imposed
an aggregate prison sentence of 36 years to life. Id.
1. Although the indictment in case No. 09CR-7222 charged Romine with aggravated murder, the
trial court imposed sentence on “Count One of the indictment, to wit, Murder.” Romine alleges that
the jury found him not guilty of aggravated murder but guilty of the lesser-included offense of
murder, but that fact, if true, is not reflected in the sentencing entry.
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{¶ 4} On July 11, 2019, Romine filed an original action in the Tenth District
Court of Appeals seeking a writ of mandamus or a writ of prohibition against Judge
McIntosh. Romine alleged that Judge McIntosh had improperly sentenced him
twice, for murder and aggravated murder, in connection with the death of a single
person. Romine demanded extraordinary relief compelling Judge McIntosh to
vacate or correct what Romine deemed to be void sentences.
{¶ 5} A Tenth District magistrate recommended that the court of appeals
dismiss Romine’s complaint. The magistrate rejected Romine’s contention that he
had been sentenced to serve two separate life sentences for killing the same victim.
Instead, the magistrate reasoned that because the sentences were merged, although
there were two convictions, there was only one sentence. The magistrate viewed
Romine’s claims as a sentencing error that he could have raised on direct appeal
from his convictions.
{¶ 6} Romine did not file objections to the magistrate’s decision. The court
of appeals adopted the magistrate’s recommendation to dismiss the complaint, but
it modified the magistrate’s conclusions law. 10th Dist. Franklin No. 19AP-439.
Specifically, the court of appeals agreed that Romine could have raised the
sentencing error on direct appeal and that mandamus was therefore not available,
but the court pointed out that “contrary to the magistrate’s finding, the trial court
did impose a separate prison sentence both for murder and aggravated murder.” Id.
at ¶ 4. Citing State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d
234, overruled in part on other grounds, State v. Henderson, ___ Ohio St.3d ___,
2020-Ohio-4784, ___ N.E.3d ___, the court of appeals held that Judge McIntosh
erred by merging the two murder counts after imposing sentence, and the court
suggested that as a result, the sentences were void. 10th Dist. Franklin No. 19AP-
439 at ¶ 5-6. “Nevertheless,” the court concluded, “because [Romine] could have
challenged his convictions in a direct appeal, [he] had an adequate remedy at law.”
Id. at ¶ 6. Romine appealed.
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Legal analysis
A. Standard of review
{¶ 7} For a court to dismiss a complaint pursuant to Civ.R. 12(B)(6), it must
appear beyond doubt that the relator can prove no set of facts warranting relief,
after all of the factual allegations in the complaint are presumed to be true and all
reasonable inferences are made in the relator’s favor. State ex rel. Natl. Elec.
Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Servs., 83 Ohio St.3d 179,
181, 699 N.E.2d 64 (1998). We review a dismissal under Civ.R. 12(B)(6) de novo.
State ex rel. Brown v. Nusbaum, 152 Ohio St.3d 284, 2017-Ohio-9141, 95 N.E.3d
365, ¶ 10.
B. Prohibition
{¶ 8} Romine’s complaint sought relief in both mandamus and prohibition.
To state a claim for a writ of prohibition, Romine had to allege the exercise of
judicial power, the lack of authority for the exercise of that power, and the lack of
an adequate remedy in the ordinary course of law. See State ex rel. Elder v.
Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. However,
if the absence of jurisdiction is patent and unambiguous, a relator in prohibition
need not establish the lack of an adequate remedy at law. State ex rel. Sapp v.
Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d
500, ¶ 15.
{¶ 9} The magistrate recommended denying Romine’s request for a writ of
prohibition, because she concluded that the trial court had statutory authority to
merge the convictions and that Romine had had an adequate remedy by way of
appeal. Romine did not file objections. He has therefore waived any argument
with respect to the prohibition claim. State ex rel. Franks v. Ohio Adult Parole
Auth., 159 Ohio St.3d 435, 2020-Ohio-711, 151 N.E.3d 606, ¶ 10.
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C. Mandamus
{¶ 10} To state a claim for a writ of mandamus, the relator must allege (1)
a clear legal right to the requested relief, (2) a clear legal duty on the part of the
respondent to provide it, and (3) the lack of an adequate remedy in the ordinary
course of the law. See State ex rel. Love v. O’Donnell, 150 Ohio St.3d 378, 2017-
Ohio-5659, 81 N.E.3d 1250, ¶ 3. Here again, the magistrate determined that
Romine had an adequate remedy, so as to foreclose extraordinary relief, and
Romine did not file objections. But the court modified the magistrate’s conclusion
of law: in dicta, the court agreed with Romine that the imposition of multiple
sentences for allied offenses rendered his sentences void. The court agreed with
the magistrate, however, that Romine could not satisfy the elements of mandamus
because he had an adequate remedy by way of appeal.
{¶ 11} Romine argues that the court of appeals’ finding that his sentences
are void compels a reversal: by definition, if the sentences are void, he may
collaterally attack them at any time, and therefore the availability of an appeal
should not bar the mandamus action.
{¶ 12} Romine’s ability to collaterally attack his sentences depends on
whether the sentences were void or merely voidable. If a judgment entry is
voidable, then it must be challenged on direct appeal, or else principles of res
judicata will apply, whereas a “defendant’s ability to challenge an entry at any time
is the very essence of an entry being void, not voidable.” State v. Harper, ___ Ohio
St.3d ___, 2020-Ohio-2913, ___ N.E.3d ___, ¶ 18.
{¶ 13} As a general rule, “when a trial court finds that convictions are not
allied offenses of similar import, or when it fails to make any finding regarding
whether the offenses are allied, imposing a separate sentence for each offense is not
contrary to law and any error must be asserted in a timely appeal or it will be barred
by principles of res judicata.” Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71
N.E.3d 234, at ¶ 26. However, once the trial court determines that the offender has
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been found guilty of allied offenses of similar import that are subject to merger,
R.C. 2941.25 prohibits the imposition of multiple sentences. State v. Damron, 129
Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17. And in Williams, we held
that because a trial court has a mandatory duty to merge allied offenses by imposing
a single sentence, “the imposition of separate sentences for those offenses—even if
imposed concurrently—is contrary to law * * *.” Id. at ¶ 28. After holding that the
sentences in Williams were imposed in violation of R.C. 2941.25(A), we concluded
that therefore, “those sentences [were] void.” (Emphasis added.) Williams at ¶ 28,
overruled, Henderson, ___ Ohio St.3d ___, 2020-Ohio-4784, ___ N.E.3d ___.
{¶ 14} The court of appeals relied on Williams when it declared Romine’s
sentence void. In this case, Judge McIntosh found that the two counts were allied
offenses and merged them, but he did so only after imposing two sentences. If
imposing two sentences for allied offenses but running them concurrently is a
violation of R.C. 2941.25(A), then imposing two sentences prior to merger is
equally a violation: in both scenarios, the defendant actually received two separate
sentences, even though he will not have to serve both. Thus, under Williams,
Romine would have been permitted to challenge his sentence in a collateral
proceeding.
{¶ 15} However, that aspect of Williams is no longer good law. Instead,
“when a specific action is within a court’s subject-matter jurisdiction, any error in
the exercise of that jurisdiction renders the judgment voidable, not void.” Harper,
___ Ohio St.3d ___, 2020-Ohio-2913, ___ N.E.3d ___, at ¶ 26; see also Henderson
at ¶ 27. The imposition of compound sentences for allied offenses is an error in the
exercise of jurisdiction, to be challenged at sentencing and remedied on direct
appeal.
{¶ 16} Romine contends that the trial court imposed multiple sentences for
offenses it deemed to be subject to merger under the allied-offenses statute. Such
a claim raises a constitutional challenge that the court has imposed greater
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punishment than the legislature authorized. See State v. Rogers, 143 Ohio St.3d
385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 16; State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31. And as we recently held in State v.
Patrick, R.C. 2953.08(D)(3) does not preclude an appellate court’s review of a
constitutional challenge to a sentence for murder or aggravated murder. ___ Ohio
St.3d ___, 2020-Ohio-6803, ___ N.E.3d ___, ¶ 22. Therefore, because Romine’s
sentencing entry was voidable and he therefore had an adequate remedy by way of
direct appeal, mandamus will not lie.
{¶ 17} For these reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Nelson L. Romine Jr., pro se.
Ron O’Brien, Franklin County Prosecuting Attorney, and Bryan B. Lee,
Assistant Prosecuting Attorney, for appellee.
_________________
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