State v. Smith , 2020 Ohio 914 ( 2020 )

[Cite as State v. Smith, 2020-Ohio-914.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108379
v. :
DEVANTE SMITH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 12, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-624387-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Lindsay Raskin, Assistant Prosecuting
Attorney, for appellee.
Jordan | Sidoti, and Marcus S. Sidoti, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Devante Smith appeals from his sentence for
drug trafficking in violation of R.C. 2925.03(A)(2). Because we find Smith’s initial
sentence was void and the trial court therefore had authority to correct the sentence,
we affirm.
Procedural History and Substantive Facts
On January 8, 2018, the Cuyahoga County Grand Jury returned an 11-
count indictment against Smith, including four counts of drug trafficking, four
counts of drug possession, one count of possessing criminal tools, one count of
receiving stolen property, and one count of having weapons while under disability.
On September 27, 2018, Smith agreed to plead guilty to an amended Count 1, drug
trafficking in violation of R.C. 2925.03(A)(2). In exchange, the state agreed to
dismiss the remaining charges as well as the firearm specification in Count 1. The
plea agreement included an agreed recommended two-year prison sentence. At the
plea hearing, the trial court stated that it planned to abide by the recommended
sentence. The matter was then scheduled for sentencing in October but the hearing
was twice continued, until November 27, 2018. At some point, apparently
unbeknownst to the state, Smith appeared in Lake County to resolve charges
brought by way of an information that had been filed on November 6, 2018, in that
county. The record shows that on November 27, 2018, the trial court in this case
issued a capias for Smith’s failure to appear on November 27, 2018, and ordered
Smith returned from Lake County for sentencing.
On December 18, 2018, the court held a sentencing hearing on this
case. Prior to the prosecutor’s appearance at the hearing, defense counsel thanked
the court for permitting Smith to “complete the matter [pending in] Lake County,”
asked the court to accept the agreed two-year sentence, and requested the court run
the sentence in this case concurrently with the 18-month sentence imposed in Lake
County. Thereafter, according to the court transcript, the prosecutor, who was not
the assigned prosecutor, entered the room. He noted the two-year agreed sentence
with no judicial release and advised the court of the items that had been forfeited.
The court imposed the two-year agreed recommended sentence and ordered the
sentence to run concurrently with the Lake County case.
On January 24, 2019, the court held another hearing in this matter,
advising the parties that it had received a letter from the Ohio Department of
Rehabilitation and Correction (“ODRC”), which stated that Smith’s sentence on the
Cuyahoga County case was improper. According to the ODRC, Smith had been
sentenced in Lake County for domestic violence (six months) and failure to comply
(one year), and a sentence for the failure to comply charge must be served
consecutively to any other prison term imposed on the offender. Upon defense
counsel’s request, the court continued the hearing until March 5, 2019.
At the March hearing, both defense counsel and the prosecutor denied
knowledge of Smith’s failure to comply conviction in Lake County at the time Smith
was sentenced in Cuyahoga County. After hearing from the prosecutor and defense
counsel, the trial court resentenced Smith, imposing a two-year prison term, as
initially agreed. The court then ordered the sentence to run concurrently with
Smith’s Lake County domestic violence conviction but consecutively to the Lake
County failure to comply charge.
Smith now appeals, arguing in one assignment of error that the trial
court erred in resentencing Smith. He contends the court had no jurisdiction to
modify his sentence.
Law and Analysis
Trial courts generally lack authority to reconsider their own final
judgments in criminal cases unless it is to correct a clerical error or a void sentence.
State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 20; State v.
Kalinowski, 8th Dist. Cuyahoga No. 98922, 2013-Ohio-1453, ¶ 8. A trial court
therefore retains continuing jurisdiction to correct a void sentence or to correct
clerical errors in judgments. State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,
2006-Ohio-5795, 856 N.E.2d 263, ¶ 19. And the state’s failure to appeal an illegal,
or void, sentence does not affect the trial court’s duty to impose a sentence in
accordance with the law. See State v. Thomas, 111 Ohio App.3d 510, 512, 676 N.E.2d
903 (8th Dist.1996), appeal not accepted, 77 Ohio St.3d 1469, 673 N.E.2d 135 (1996)
(stating that the failure of a prosecutor to raise an issue either before the sentencing
court or on appeal does not in any way change the duty of the court to impose a
mandatory sentence prescribed by the legislature). Indeed, “[a] trial court’s
authority to correct a void sentence does not hinge upon how the court became
aware of its illegality.” State v. Ramey, 10th Dist. Franklin No. 06AP-245, 2006-
Ohio-6429, ¶ 13, citing State v. Bush, 10th Dist. Franklin No. 99AP-4, 1999 Ohio
App. LEXIS 5593 (Nov. 30, 1999) (involving officials at the Correctional Reception
Center who informed the court a sentencing error had occurred).
Ohio courts have consistently held that a sentence that is not in
accordance with statutorily mandated terms is void. State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 8, citing State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-
6085, 817 N.E.2d 864; State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984);
Colegrove v. Burns, 175 Ohio St. 437, 195 N.E.2d 811 (1964). And when a sentence
is void, and the matter has come to the attention of the trial court, “the court ‘cannot
ignore’ the matter.” Kalinowski at ¶ 8, quoting State v. Boswell, 121 Ohio St.3d 575,
2009-Ohio-1577, 906 N.E.2d 422, ¶ 12. The trial court must therefore correct the
“‘offending portion’” of the sentence. Id., quoting Fischer at ¶ 27. Thus, the proper
remedy for a trial court’s failure to comply with mandatory sentencing laws is a
resentencing hearing limited to correcting the void sentence. State v. Williams, 148
Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 30, citing Fischer at ¶ 29.
Smith was convicted in Lake County of failure to comply in violation
of R.C. 2921.331(B), a felony of the third degree, which provides that “[n]o person
shall operate a motor vehicle so as willfully to elude or flee a police officer after
receiving a visible or audible signal from a police officer to bring the person’s motor
vehicle to a stop.” Under R.C. 2921.331(D), an offender who is sentenced to a prison
term for violation of the above section, “shall serve the prison term consecutively to
any other prison term or mandatory prison term imposed upon the offender.”
Therefore, Smith’s failure to comply charge “cannot be served concurrently [with]
any other sentence.” State v. Parker, 8th Dist. Cuyahoga No. 105361, 2018-Ohio-
579, ¶ 29; State v. Whittsette, 8th Dist. Cuyahoga No. 85478, 2005-Ohio-4824, ¶ 10
(stating that “a trial court has no discretion in the decision to impose a consecutive
sentence for a violation of R.C. 2921.331(B)”).
This consecutive service mandate applies where a defendant is being
sentenced in two or more separate cases, as well as in cases that occurred in a
different county and predate the failure to comply charge. State v. Spicer, 8th Dist.
Cuyahoga Nos. 92384 and 92385, 2010-Ohio-61, ¶ 19 (finding that pursuant to
R.C. 2921.331(D), a term of imprisonment for failure to comply must run
consecutive to that of any other term of imprisonment, “no matter if the sentence is
being imposed in the same or different case”); State v. Perry, 8th Dist. Cuyahoga
No. 101667, 2015-Ohio-1542, ¶ 11 (finding the consecutive sentence mandate in
R.C. 2921.331(D) applies “even if the defendant’s other offenses occurred in a
different county and predate[] the charge of failure to comply in the present case”).
Here, Smith’s original Cuyahoga County two-year agreed sentence was
ordered to be served concurrently with the sentence on his Lake County failure to
comply conviction. Because this sentence did not comply with the consecutive
service mandate of R.C. 2921.331(D), the sentence was void. Therefore, the trial
court properly exercised its continuing jurisdiction to correct a void sentence when
it ordered Smith’s Cuyahoga County sentence to be served consecutive to his
sentence for the failure to comply charge in Lake County. State ex rel. Cruzado v.
Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19 (a trial court
retains continuing jurisdiction to correct a void sentence); Beasley, 14 Ohio St.3d at
75, 471 N.E.2d 774 (a trial court is authorized to correct a void sentence).
Smith’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR