State v. Dawson , 2013 Ohio 1767 ( 2013 )

[Cite as State v. Dawson, 2013-Ohio-1767.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26500
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LARRY DAWSON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 1991-07-1368B
DECISION AND JOURNAL ENTRY
Dated: May 1, 2013
WHITMORE, Judge.
{¶1} Defendant-Appellant, Larry Dawson, appeals from the judgment of the Summit
County Court of Common Pleas, denying his motion to correct a void sentence. This Court
affirms.
I
{¶2} In July 1991 a jury convicted Dawson of: (1) aggravated murder; (2) felonious
assault, with a firearm specification; (3) improper discharge of a firearm into a habitation, with
firearm and physical harm specifications; and (4) drug abuse. The court sentenced Dawson to
prison for: (1) twenty years to life for aggravated murder; (2) eight to fifteen years for felonious
assault, plus three mandatory years for the firearm specification; (3) two years for improper
discharge into a habitation; and (4) one year for drug abuse. The court merged the firearm
specification attached to the improper discharge conviction with the firearm specification
attached to the felonious assault.
2
{¶3} In October 1992, this Court affirmed Dawson’s convictions. State v. Dawson, 9th
Dist. No. 15483, 1992 WL 308549 (Oct. 21, 1992). Dawson filed several petitions for post-
conviction relief and motions for a new trial. The trial court denied each, and this Court
affirmed. See State v. Dawson, 9th Dist. No. 18216, 1997 WL 440937 (July 30, 1997); State v.
Dawson, 9th Dist. No. 19179, 1999 WL 492600 (July 14, 1999).
{¶4} In March 2012, Dawson filed a motion to correct a void sentence, which the trial
court denied. Dawson now appeals and raises one assignment of error for our review.
II
Assignment of Error
THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION
FOR RESENTENCING DUE TO A NON-FINAL APPEALABLE ORDER.
{¶5} In his sole assignment of error, Dawson argues that the trial court erred in not
correcting his void sentencing entry because it is not a final, appealable order.
{¶6} The question of whether a judgment is void is distinct from the question of
whether it is a final, appealable order. “A void sentence is one that a court imposes despite
lacking subject-matter jurisdiction or the authority to act.” State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, ¶ 27. A defendant may challenge a void judgment at any time. See State v.
Baker, 9th Dist. No. 25024, 2010-Ohio-4329, ¶ 9. Dawson does not argue that the trial court
lacked subject-matter jurisdiction. Instead, Dawson argues that his sentencing entry is not final
because it fails to comply with Crim.R. 32(C).
{¶7} To be a final, appealable order a judgment of conviction must include a sentence
and the fact of conviction. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, syllabus.
“Moreover, we have previously concluded that ‘a Journal Entry must dispose of all charges
brought in a single case against a defendant in order to be final.’” State v. Roberson, 9th Dist.
3
No. 09CA009555, 2009-Ohio-6369, ¶ 6, quoting State v. Goodwin, 9th Dist. No. 23337, 2007-
Ohio-2343, ¶ 13.
{¶8} The validity of Dawson’s sentencing entry presents a question of law. See State v.
Abuhilwa, 9th Dist. No. 26183, 2012-Ohio-3441, ¶ 5. We review questions of law de novo.
Ohio Bell Tel. Co. v. Pub. Util. Comm., 64 Ohio St.3d 145, 147 (1992). When reviewing a
matter de novo, this Court does not give deference to the trial court’s decision. State v. Barclay,
9th Dist. No. 25646, 2011-Ohio-4770, ¶ 8.
{¶9} Former R.C. 2941.143 permitted the imposition of an indefinite prison term for
third and fourth degree felonies where the “offender caused physical harm to any person or made
an actual threat of physical harm to any person with a deadly weapon.” An indefinite sentence
was precluded unless “the indictment, count in the indictment, or information charging the
offense” contained a physical harm specification as set forth in R.C. 2941.143, and the defendant
was found guilty of such.
{¶10} Dawson was charged and convicted of the improper discharge of a firearm into a
habitation, in violation of R.C. 2923.161, a felony of the third degree. Dawson was also
convicted of the attendant physical harm specification. In its sentencing entry, the court
sentenced Dawson to a definite prison term of two years for the improper discharge of a firearm,
but did not mention the physical harm specification. Dawson now argues his sentence is not
final because it fails to dispose of all the charges against him. See Roberson at ¶ 6.
R.C. 2941.143 does not prescribe a term of incarceration in addition to the term
on the underlying felony, but permits an indefinite term of incarceration to be
imposed on the underlying felony where the defendant has been indicted, tried and
convicted of the specification. * * * Thus, conviction on the specification under
R.C. 2941.143 permits the imposition of a greater but not additional term of
incarceration.
(Emphasis sic.) State v. Witwer, 64 Ohio St.3d 421, 426 (1992), fn. 4.
4
{¶11} Dawson was sentenced to two years on the underlying felony of improper
discharge of a firearm into a habitation. Dawson’s conviction of the physical harm specification
did not permit the court to impose an additional prison sentence. See id. Dawson’s sentencing
entry disposes of all charges against him, and his argument that his sentencing entry is not a
final, appealable order is without merit.
{¶12} It is well established law in Ohio that res judicata prohibits the consideration of
issues that could have been raised on direct appeal. State v. Saxon, 109 Ohio St.3d 176, 2006-
Ohio-1245, ¶ 16-17, citing State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-5607, ¶ 37; State v.
D’Ambrosio, 73 Ohio St.3d 141, 143 (1995). Because Dawson’s sentencing entry is a final,
appealable order, any challenge to his term of imprisonment could have been raised in his direct
appeal.
{¶13} We conclude that since the trial court did not act without subject matter
jurisdiction, its judgment entry is not void. We further conclude that Dawson’s sentencing entry
disposes of all charges against him, is a final, appealable order, and any challenges to the length
of his imprisonment is barred by the doctrine of res judicata.
{¶14} Dawson’s sole assignment of error is overruled.
III
{¶15} Dawson’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
5
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
MOORE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
JANA DELOACH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.