State v. Gaskins , 2022 Ohio 3688 ( 2022 )

[Cite as State v. Gaskins, 2022-Ohio-3688.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-12-073
: OPINION
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:
RICHARD GASKINS, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2018 CR 01104
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant
Prosecuting Attorney, for appellee.
Christopher Bazeley, for appellant.
BYRNE, J.
{¶1} Richard Gaskins appeals from a decision of the Clermont County Court of
Common Pleas which denied his "Motion to Vacate Post Release Control Sanctions." The
trial court found Gaskins' motion to be an untimely-filed petition for postconviction relief and
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further found that res judicata barred Gaskins' arguments set forth in the motion. For the
reasons described below, we affirm the trial court's decision.
I. Procedural History
{¶2} Gaskins served a 13-year prison term for involuntary manslaughter in a case
that originated in Hamilton County, Ohio. In 2017, the Hamilton County Court of Common
Pleas discharged Gaskins from prison on that offense and placed him on a five-year term
of postrelease control.
{¶3} In December 2018, in Clermont County, the state charged Gaskins in a bill of
information with two counts of pandering obscenity involving a minor, in violation of R.C.
2907.321(A)(5). Gaskins subsequently pleaded guilty to both counts. The Clermont County
Court of Common Pleas sentenced Gaskins to 18 months in prison on both counts, served
consecutively, for a total of 36 months. The Clermont County court further noted that as of
the date of the sentencing hearing, Gaskins still had 1,199 days of postrelease control
remaining with respect to the previous Hamilton County sentence. Accordingly, the
Clermont County court ordered that Gaskins serve that remaining 1,199 days of postrelease
control time in prison, consecutive to the prison terms imposed for the pandering obscenity
offenses, as a judicial sanction for violating the terms of his postrelease control.1
{¶4} In February 2019, Gaskins directly appealed his sentence to this court.
Gaskins assigned one error, contending that the trial court erred by imposing a maximum
prison sentence that was excessive and not supported by the record. We overruled
Gaskins' assignment of error and found that the trial court correctly imposed sentences on
1. R.C. 2929.141(A)(1) provides that if a person on postrelease control commits a new felony, a court may (1)
impose prison time for the new felony, and (2) terminate the existing postrelease control and impose additional
prison time equaling up to the greater of 12 months or "the period of post-release control for the earlier felony
minus any time the person has spent under post-release control for the earlier felony." R.C. 2929.141(A)(1).
This additional prison sentence under R.C. 2929.141(A)(1) is sometimes referred to as a "judicial sanction."
State v. Miller, 12th Dist. Brown No. CA2021-10-014, 2022-Ohio-1798, ¶ 11.
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the pandering charges within the permissible statutory range. We further found that the trial
court properly imposed a judicial sanction prison term of 1,199 days for Gaskins' violation
of postrelease control. State v. Gaskins, 12th Dist. Clermont No. CA2019-02-015, 2019-
Ohio-3830, ¶ 12, 17.
{¶5} Afterwards, Gaskins filed with this court a pro se motion to reopen his appeal,
arguing ineffective assistance of appellate counsel and setting forth various arguments,
including that he did not waive his right to an indictment, that he did not knowingly and
voluntarily enter his plea, and that his counsel failed to object to "wrong post-release control
sanctions." We denied Gaskins' motion to reopen.
{¶6} In February 2021, in the trial court, Gaskins filed a pro se "Motion to Vacate
Post Release Control Sanctions." In it, Gaskins argued that the term of postrelease control
imposed by the Hamilton County Court of Common Pleas was void because the trial court
judge in that case never informed him that postrelease control was mandatory or of the
length of postrelease control. As a result, Gaskins argued, the Clermont County court could
not lawfully impose a judicial sanction for Gaskins' violation of that void postrelease control
sentence.
{¶7} The Clermont County trial court denied Gaskins' "Motion to Vacate Post
Release Control Sanctions." As an initial matter, the court indicated that it would construe
Gaskins' motion as an irregularly-cast petition for postconviction relief. The trial court found
that Gaskins had not timely filed his petition pursuant to the timeliness requirements set
forth under R.C. 2953.21(A)(2). The court further found that Gaskins had not demonstrated
that any of the R.C. 2953.23(A)(1) exceptions to the R.C. 2953.21(A)(2) timeliness
requirements applied. On this basis, the court found that it lacked jurisdiction to consider
the merits of Gaskins' "Motion to Vacate Post Release Control Sanctions."
{¶8} The trial court further found that even if Gaskins' motion was not an untimely
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petition for postconviction relief, res judicata barred the arguments set forth in the motion.
The court found that res judicata applied because Gaskins could have challenged the
imposition of the judicial sanction during his direct appeal. Citing the Ohio Supreme Court's
decision in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, the trial court observed
that even if it had erred in imposing the judicial sanction for Gaskins' violation of the terms
of postrelease control, the error did not render Gaskins' sentence void, but rather only
voidable. This was the case because the trial court had imposed the judicial sanction in an
exercise of its jurisdiction and the purported error was thus only subject to review on direct
appeal. Accordingly, the trial court found that res judicata barred Gaskins' argument
challenging its imposition of the judicial sanction.
{¶9} Gaskins appealed, raising two assignments of error. We address those
assignments of error out of the order presented by Gaskins.
II. Law and Analysis
A. Res Judicata
{¶10} Assignment of Error No. 2:
{¶11} THE TRIAL COURT ERRED IN FINDING THAT GASKINS' MOTION TO
VACATE [POSTRELEASE CONTROL] IS BARRED BY RES JUDICATA.
{¶12} As explained above, Gaskins argued in his motion that the Clermont County
trial court could not lawfully impose a judicial sanction for Gaskins' violation of the terms of
his Hamilton County postrelease control sentence because the postrelease control
sentence itself was void. The Clermont County trial court found that, even if Gaskins' motion
was not an untimely petition for postconviction relief, res judicata barred Gaskins' argument
because that argument could have been raised on direct appeal.
{¶13} "Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
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proceeding except an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment." State v. Perry,
10 Ohio St. 2d 175, 176 (1967). A determination of whether the doctrine of res judicata
bars an action is a question of law which this court reviews de novo. State v. Lindsey, 12th
Dist. Brown No. CA2002-02-002, 2003-Ohio-811, ¶ 21.
{¶14} A voidable conviction or sentence may only be challenged on direct appeal,
and res judicata bars later attempts to make arguments that could have been raised on
direct appeal. State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 17, 19. A void
conviction or sentence may be challenged at any time, including after the conviction or
sentence has become final. See Harper, 2020-Ohio-2913 at ¶ 18. Res judicata does not
bar subsequent, post-direct appeal challenges to void convictions or sentences. See
Henderson at ¶ 17.
{¶15} The trial court's conclusion that Gaskins' argument was barred by res judicata
because Gaskins could have raised that argument in his direct appeal was a straightforward
application of res judicata. Henderson at ¶ 17, 19; Harper at ¶ 41. In fact, Gaskins
anticipated the trial court's conclusion and argued in his motion that res judicata was not
available in this case because the judicial sanction itself was "void" (rather than "voidable")
and could be challenged at any time.2 Gaskins relied on State v. Billiter, 134 Ohio St.3d
103, 2012-Ohio-5144, in support of his argument. In that case the Ohio Supreme Court
held that "[w]hen a criminal defendant is improperly sentenced to postrelease control, res
judicata does not bar the defendant from collaterally attacking his conviction for escape due
2. Gaskins appears to argue that the Hamilton County postrelease control sentence and the Clermont County
judicial sanction were both "void."
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to an earlier postrelease-control [sic] sentencing error." Id. at the syllabus.
{¶16} The trial court did not analyze whether Billiter truly supported Gaskins'
argument; instead, the court simply—and correctly—noted that Billiter was overruled by the
Ohio Supreme Court's decision in Harper, 2020-Ohio-2913.3 The trial court then found that
Harper permitted the application of res judicata in this case.
{¶17} In Harper, the Ohio Supreme Court overruled its prior case law regarding the
effect of the improper imposition of postrelease control. Id. at ¶ 4, 40, 42-43. The supreme
court held that so long as a case is within a court's subject-matter jurisdiction and the court
has personal jurisdiction over the accused, any error in imposing postrelease control
renders the judgment voidable, rather than void, and the sentence may be set aside if the
error has been successfully challenged on direct appeal. Id. at ¶ 4-5, 42-43. The supreme
court further held that a voidable error in imposing postrelease control is not subject to
collateral attack and that because Harper did not challenge the imposition of postrelease
control in his direct appeal, res judicata precluded him from attempting to challenge it
afterward. Id. at ¶ 5, 41.
{¶18} Gaskins does not dispute that if Harper applies here, his argument is barred
by res judicata. Instead, Gaskins argues that Harper is inapplicable because his conviction
became final in March 2020, and the Ohio Supreme Court did not release Harper until two
months later, in May 2020. Gaskins argues that a court can only apply Harper prospectively
3. Our conclusion that Harper overruled Billiter is well supported. In Harper, the supreme court held that
"Because the [trial] court had the constitutional and statutory power to enter a finding of guilt and impose a
sentence, any error in the exercise of its jurisdiction in failing to properly impose postrelease control rendered
the judgment of conviction voidable, not void, and it is not subject to collateral attack. Therefore, to the extent
any prior case conflicts with our holding today, it is overruled." Id. at ¶ 5. In State v. Hudson, 161 Ohio St.3d
166, 2020-Ohio-3849, the Ohio Supreme Court acknowledged that Harper overruled Billiter. Id. at ¶ 12-14.
Other courts have reached the same conclusion. State v. Taylor, 2d Dist. Greene Nos. 2019-CA-77 and 2020-
CA-6, 2021-Ohio-1670, ¶ 45 (acknowledging that Harper overruled Billiter); State v. Hedges, 11th Dist. Lake
No. 2019-L-135, 2020-Ohio-4528, ¶ 10; State v. Shaffer, 5th Dist. Stark Nos. 2019-CA-00149, 2019-CA-
00189 thru 192, 2020-Ohio-4386, ¶ 14.
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and that the law in effect at the time of his conviction and sentence—that is, Billiter—was
that the improper imposition of postrelease control made his sentence void (not merely
voidable) and subject to collateral attack at any time, and thus not subject to res judicata.
In essence, Gaskins argues that even if Harper overruled Billiter, Billiter should still apply in
his case and bar the application of res judicata because his conviction became final before
Billiter was overruled.
{¶19} Gaskins is incorrect. The Ohio Supreme Court has already, on two occasions,
applied Harper to convictions that became final before the supreme court issued Harper.
First, in Henderson, 2020-Ohio-4784, the Ohio Supreme Court applied, clarified, and
expanded on its decision in Harper, holding that "sentences"—that is, all sentences, not just
those involving postrelease control—"based on an error, including sentences in which a trial
court fails to impose a statutorily mandated term, are voidable if the court imposing the
sentence has jurisdiction over the case and the defendant." Id. at ¶ 1. The conviction at
issue in Henderson was made final before the supreme court issued Harper, and yet the
supreme court did not hesitate to apply Harper's reasoning to that sentence. Id. at ¶ 2.
Second, in State v. Hudson, 161 Ohio St.3d 166, 2020-Ohio-3849, the supreme court again
applied Harper in holding that res judicata barred an argument regarding a sentencing error
in a conviction that became final more than a decade before Harper was issued. Id. at ¶ 5,
8, 9, 19.
{¶20} The Tenth District Court of Appeals, in applying Harper to a sentence that
became final before Harper was issued, correctly noted that if Harper were not to be applied
"retroactively," then "Henderson would have been decided differently." In re D.M., 10th
Dist. Franklin No. 21AP-118, 2022-Ohio-108, ¶ 8, 10. The same is true with regard to
Hudson.
{¶21} In arguing that Harper is inapplicable, Gaskins cites Ali v. State, 104 Ohio
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St.3d 328, 2004-Ohio-6592. In Ali, the defendant requested resentencing based on a
supreme court case issued after the defendant's conviction had become final, wherein the
supreme court held that sentencing courts were required, pursuant to R.C. 2929.14(E)(4)
and 2929.19(B)(2)(c), to make certain statutorily enumerated findings before imposing
consecutive sentences. Id. at ¶ 3-4. The court rejected the defendant's demand for
resentencing, holding that "[a] new judicial ruling may be applied only to cases that are
pending on the announcement date." Id. at ¶ 6. However, there is no retroactivity problem
here because, unlike in Ali, the Ohio Supreme Court did not announce a new rule of law in
Harper. Instead, it overruled its previous case law. See Peerless Elec. Co. v. Bowers, 164
Ohio St. 209, 210 (1955) ("The general rule is that a decision of a court of supreme
jurisdiction overruling a former decision is retrospective in its operation, and the effect is not
that the former was bad law, but that it never was the law").
{¶22} Henderson and Hudson demonstrate that Harper applies to sentences that
became final before the court issued Harper. We conclude that, contrary to Gaskins'
argument, Harper has retrospective effect. Accordingly, the date Gaskins' sentence
became final is irrelevant for purposes of considering whether res judicata bars his collateral
attack on the judicial sanction prison term for violation of postrelease control.
{¶23} Upon review, we find that the trial court did not err in holding that Gaskins'
argument in his "Motion to Vacate Post Release Control Sanctions" was barred by res
judicata. Pursuant to Harper, the trial court correctly determined that res judicata barred
Gaskins' post-direct appeal, collateral challenge to the imposition of a judicial sanction for
Gaskins' violation of postrelease control. Assuming, without deciding, that the trial court
erred in imposing a judicial sanction prison term, such a decision was within the subject-
matter jurisdiction of the trial court and Gaskins was properly before that court. Any error,
if such existed, would render Gaskins' sentence merely voidable, not void. Harper, 2020-
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Ohio-2913 at ¶ 4-5, 42-43. Res judicata therefore barred Gaskins from raising in his motion
the argument that the Clermont County trial court could not impose a judicial sanction for
his violation of his postrelease control because of an error in the Hamilton County court's
imposition of postrelease control. Id. at 5, 41. This argument could have been raised by
Gaskins during his direct appeal, and in fact, in deciding that appeal, we found that the trial
court properly imposed a judicial sanction prison term of 1,199 days for Gaskins' violation
of postrelease control. Gaskins, 2019-Ohio-3830 at ¶ 12, 17.
{¶24} We overrule Gaskins' second assignment of error.
B. Untimeliness
{¶25} Assignment of Error No. 1:
{¶26} THE TRIAL COURT'S DETERMINATION THAT GASKINS' MOTION TO
VACATE PRC WAS A PETITION FOR POST-CONVICTION RELIEF WAS AN ABUSE OF
DISCRETION.
{¶27} Gaskins contends that the trial court abused its discretion in construing his
"Motion to Vacate Post Release Control Sanctions" as a petition for postconviction relief.
However, our decision above with respect to the effect of res judicata renders this argument
moot. That is, whether or not the trial court erred in construing Gaskins' motion as a petition
for postconviction relief, res judicata still barred his argument that the Clermont County court
could not impose a judicial sanction sentence because the Hamilton County court failed to
properly impose postrelease control. Harper at ¶ 43. We need not resolve an assignment
of error mooted by the resolution of another assignment of error. App.R. 12(A)(1)(c). We
therefore decline to address Gaskins' first assignment of error.
III. Conclusion
{¶28} The trial court properly found that res judicata barred Gaskins' collateral attack
on the imposition of a judicial sanction. Accordingly, the court did not abuse its discretion
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in denying Gaskins' motion.
{¶29} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.
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