State v. Walker , 2013 Ohio 1967 ( 2013 )

[Cite as State v. Walker, 2013-Ohio-1967.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120549
TRIAL NO. B-9207726-A
Plaintiff-Appellee, :
vs. : O P I N I O N.
LEONARD WALKER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: May 15, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Leonard Walker, pro se.
Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
HENDON, Presiding Judge.
{¶1} Defendant-appellant Leonard Walker appeals from the Hamilton
County Common Pleas Court’s judgment overruling his “Motion for Modification of
Sentence and for Resentencing Based on Void Judgment Entry * * * in Violation of
R.C. 2941.25 (Allied Offense).” We affirm the court’s judgment.
{¶2} Walker was convicted in 1993 upon jury verdicts finding him guilty of
aggravated murder, aggravated robbery, and kidnapping. He unsuccessfully
challenged his convictions in direct appeals to this court and the Ohio Supreme
Court, State v. Walker, 1st Dist. Nos. C-930461 and C-930465, 1994 Ohio App.
LEXIS 3451 (Aug. 10, 1994), appeal dismissed, 73 Ohio St.3d 1434, 653 N.E.2d 393(1995), and collaterally, in a petition pursuant to R.C. 2953.21 et seq. for
postconviction relief, filed in 1996.
{¶3} In his “Motion for Modification of Sentence * * *,” filed in 2012, he
contended that because his offenses are allied offenses of similar import committed
with the same conduct, the trial court could not, consistent with R.C. 2941.25, have
imposed a sentence for each offense. In this appeal, Walker presents a single
assignment of error, challenging the overruling of his motion. The challenge is
untenable.
{¶4} Walker did not specify in his motion the statute or rule under which he
sought postconviction relief. R.C. 2953.21 et seq., governing the proceedings upon a
postconviction petition, provide “the exclusive remedy by which a person may bring a
collateral challenge to the validity of a conviction or sentence in a criminal case.”
R.C. 2953.21(J). Therefore, Walker’s motion was reviewable under the standards
provided by the postconviction statutes. See State v. Schlee, 117 Ohio St.3d 153,
2008-Ohio-545, 882 N.E.2d 431, ¶ 12.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} But Walker filed his postconviction motion well after the expiration of
the time prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the
jurisdiction of a common pleas court to entertain a late postconviction claim: the
petitioner must show either that he was unavoidably prevented from discovering the
facts upon which his claim depends, or that his claim is predicated upon a new or
retrospectively applicable federal or state right recognized by the United States
Supreme Court since the expiration of the time prescribed by R.C. 2953.21(A)(2) or
since the filing of his last postconviction claim; and he must show “by clear and
convincing evidence that, but for constitutional error at trial, no reasonable
factfinder would have found [him] guilty of the offense of which [he] was convicted.”
{¶6} The record before us does not, as it could not, demonstrate that, but
for the claimed sentencing errors, no reasonable factfinder would have found Walker
guilty of the offenses of which he was convicted. Because Walker satisfied neither
the time restrictions of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.
2953.23, the postconviction statutes did not confer upon the common pleas court
jurisdiction to entertain Walker’s postconviction motion. See R.C. 2953.23(A).
{¶7} A court nevertheless has jurisdiction to correct a void judgment. See
State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d
263, ¶ 18-19. But the Ohio Supreme Court has not held that the imposition of a
sentence in violation of R.C. 2941.25 renders a judgment of conviction void. See
State v. Lee, 1st Dist. No. C-120307, 2013-Ohio-1811, ¶ 8.
{¶8} Upon our determination that the common pleas court properly denied
Walker the relief sought in his postconviction motion, we overrule the assignment of
error. Because the court had no jurisdiction to entertain Walker’s motion on its
merits, the motion was subject to dismissal. Accordingly, upon the authority of
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OHIO FIRST DISTRICT COURT OF APPEALS
App.R. 12(A)(1)(a), we modify the judgment from which Walker has appealed to
reflect the dismissal of the motion. And we affirm the judgment as modified.
Affirmed as modified.
HILDEBRANDT, J., concurs.
CUNNINGHAM, J., concurs in part and dissents in part.
CUNNINGHAM, J., concurring in part and dissenting in part.
{¶9} I concur in the majority’s holding that the postconviction statutes did
not confer upon the common pleas court jurisdiction to entertain Walker’s “Motion
for Modification of Sentence * * * .” But I respectfully dissent from its determination
that the court lacked jurisdiction to entertain his allied-offenses claim because a
sentence imposed in violation of R.C. 2941.25 is not void. For the reasons set forth in
my concurring and dissenting opinion in State v. Lee, 1st Dist. No. C-120307, 2013-
Ohio-1811, ¶ 21-30, I would instead hold that the common pleas court had
jurisdiction to entertain the claim because a sentence imposed in contravention of
R.C. 2941.25 is void and thus subject to review at any time. But I would ultimately
affirm the denial of the relief sought, because R.C. 2941.25 authorized the trial court
to impose a sentence for each offense, when the record shows that the offenses were
committed separately.
{¶10} And based on the conflict noted in Lee, I would, upon the authority
conferred by the Ohio Constitution, Article IV, Section 3(B)(4), certify to the Ohio
Supreme Court the following question: “Are sentences imposed in violation of R.C.
2941.25 void and thus subject to review at any time?” See Lee at ¶ 31.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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