State v. Glover , 2012 Ohio 6006 ( 2012 )

[Cite as State v. Glover, 2012-Ohio-6006.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 12CA7
vs. :
BARNETT W. GLOVER, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
APPELLANT PRO SE: Barnett W. Glover, #547-148, P.O. Box 5500, Chillicothe, Ohio
45601 Pro Se
COUNSEL FOR APPELLEE: James E. Schneider, Washington County Prosecuting
Attorney, and Alison L. Cauthorn, Washington County
Assistant Prosecuting Attorney, 205 Putnam Street,
Marietta, Ohio 45750
_______________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 12-10-12
ABELE, P.J.
{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment that
overruled a motion “to vacate void sentence” filed by Barnett W. Glover, movant below and
appellant herein. Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE IMPOSED ERRONEOUS JUDGMENT, IS VOID [AS]
CONTRARY TO LAW[.]”
SECOND ASSIGNMENT OF ERROR:
WASHINGTON, 12CA7 2
“THE TRIAL COURTS” [sic] JUDGMENT IS VOID, AS
CONTRARY TO LAW, WHERE THE JUDGMENT IS A
SUBSTITUTE FOR THAT WHICH IS REQUIRED BY THE
LAW.”
THIRD ASSIGNMENT OF ERROR:
“THE INCOMPETENT ASSISTANCE OF TRIAL COUNSEL,
RESULTED IN THE INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL[.]”
{¶ 2} Appellant pled guilty in 2007 to two counts of unlawful sexual contact with a
minor. The trial court (1) sentenced him to serve consecutive four year prison terms on each
count; and (2) adjudicated him a “sexually oriented offender.” We affirmed the trial court’s
judgment. State v. Glover, 4th Dist. No. 07CA17, 2007-Ohio-5868 (Glover I).
{¶ 3} Appellant commenced the instant proceeding on November 23, 2011 with his
motion to “vacate void judgment and order new sentencing hearing.” Specifically, appellant
claimed that the trial court failed to give him notice of the sexual offender classification hearing
as the law requires. The appellee did not respond, but on January 4, 2012 the trial court denied
the motion on grounds that (1) appellant was, in fact, given notice, and (2) appellant waived any
deficiency of such notice by neither objecting at the time of the sentencing hearing nor raising it
on appeal in Glover I. This appeal followed.
I
{¶ 4} Appellant’s first two assignments of error assert that his 2007 sentencing entry is
void. That, however, is not the judgment currently before us for review. This appeal has been
taken from the trial court’s January 4, 2012 judgment that overruled his motion. Thus, this is
the judgment to which we confine our review. Therefore, the question is whether the trial ruled
correctly. We conclude that it did.
WASHINGTON, 12CA7 3
{¶ 5} The version of R.C. 2950.09 in effect at the time of appellant's sentence required
the trial court, inter alia, to give “notice of the date, time, and location of the hearing.” Id. at
(B)(1)(b)(2).1 Appellant claims that the precise notices were not given to him, whereas the trial
court claims that they were.2
{¶ 6} Fortunately, we need not resolve this conflict. Even assuming, arguendo, that the
trial court failed to comply with the statutory notice requirements, that issue should have been
raised on appeal in Glover I. Any issue that could have been raised, but was not, in a first appeal
of right is barred from being raised at a later date. State v. Beach, 4th Dist. No. 11CA4,
2012-Ohio-1630, at ¶5; State v. Davis, 4th Dist. No. 10CA9, 2010–Ohio–5294, at ¶41; State v.
Hobbs, 4th Dist. No. 09CA1, 2009–Ohio–7065, at ¶5. Again, no error was raised in Glover I
about a failure to comply with R.C. 2950.09. Thus, appellant cannot now raise the issue.
{¶ 7} Appellant attempts to circumvent the application of res judicata and asserts that
the trial court’s failure to follow the statute renders his sentence void and that a void entry may
be vacated at any time. Appellant, however, cites no authority to support his premise that the
trial court’s failure to give notice renders the sentence void. Indeed, the Lorain County Court of
Appeals rejected this argument several years ago and held that any failure to give notice under
that statute made the judgment voidable, rather than void. Thus, res judicata barred
consideration if the issue had not been raised on direct appeal.3 See State v. Harris, 9th Dist. No.
1
The statute was repealed in its entirety effective January of 2008. See Am.Sub.S.B. 10, 2007 Ohio Laws File 10.
2
The State takes no position on this issue in its brief and relies, instead, on waiver and res judicata.
3
Some may argue that our application of the doctrine of res judicata in this case may run afoul of the reasoning of
Ohio Supreme Court’s rulings in State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, and State v. Jordan, 104
WASHINGTON, 12CA7 4
07CA009130, 2007-Ohio-4915, at ¶5. We agree with Harris.
{¶ 8} For these reasons, we hereby overrule appellant’s first and second assignments of
error.
II
{¶ 9} Appellant asserts in his third assignment of error that he received ineffective
assistance from trial counsel in 2007. We reject this argument for several reasons. First,
appellant did not raise this argument in his motion and we do not consider issues raised for the
first time on appeal. See e.g. State v. Musser, 4th Dist. No. 08CA3077, 2009-Ohio-4979, at ¶6;
State v. Stephens, 4th Dist. No. 08CA776, 2009-Ohio-750, at ¶7; State v. Jones, 4th Dist. No.
04CA9, 2005-Ohio-768, at ¶18. Second, appellant raised the issue of ineffective assistance of
counsel in Glover I, 2007-Ohio-5868 at ¶¶10-12. We rejected it then and res judicata bars him
from attempting to re-argue it here. See, generally, State ex rel. Harsh v. Sheets, ___Ohio St.3d
___, 2012-Ohio-236, ___N.E.2d ___ at ¶1 (doctrine of res judicata bars successive appellate
review of the same claims) Additionally, even though appellant's ineffective assistance of
Ohio St.3d 21, 2004-Ohio-6085,817 N.E.2d 864. With respect, however, we conclude that this point is unpersuasive.
Fischer and Jordan both held the judgments were “void” (rather than “voidable”) when a trial court fails to give proper notice of
post-release control. The Ohio Supreme Court has since walked-back this ruling a bit, in Fischer, supra at paragraph four of
the syllabus, by saying that only the portion of the judgment that does not comply with statutory notice is void, not the
remainder of the judgment. This prompted the Ashtabula County Court of Appeals to quip that the Ohio Supreme Court has
wrought upon us an entirely “new legal concept: the doctrine of partial voidness.” State v. Turner, 11th Dist. Nos.
2010–A–0034, 2010–A–0039 & 2010–A–0040, 2011-Ohio-2993, at ¶16. Because a void judgment may be challenged at
any time – theoretically, even decades after a conviction – the holdings in Fischer and Jordan could, if applied broadly, lead to a
finding of partial voidness of any judgment rendered in Ohio when a trial court has made even the slightest of statutory
missteps. Given that these cases cast the distinction between “void” and “voidable" in a new light, and because of their
potential to unsettle judgments once thought settled, (as in this case), we decline to apply Fischer and Jordan outside the
narrow statutory confines under which they were decided, unless and until we receive further instruction to do so. Thus,
because this case involves the application of R.C. 2950.09 rather than the notice of post-release control, we are reluctant to
apply in this case the Court’s reasoning in Fischer and Jordan.
WASHINGTON, 12CA7 5
counsel claim in Glover I did not raise the particular issue that he raises here, res judicata
nevertheless bars it from our consideration now because appellant could have raised that issue on
direct appeal. Thus, we hereby overrule appellant's third assignment of error.
{¶ 10} Having considered all of the errors appellant assigned and argued, we hereby
affirm the trial court's judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington
County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, J.: Concurs in Judgment & Opinion
Harsha, J.: Dissents
For the Court
BY:
Peter B. Abele
Presiding Judge
WASHINGTON, 12CA7 6
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.