State v. Fischer , 181 Ohio App. 3d 758 ( 2009 )

{¶ 15} Fischer's first two assignments of error are the logical extension of the Ohio Supreme Court's decisions in State v. Simpkins, 117 Ohio St.3d 420,2008-Ohio-1197, 884 N.E.2d 568, and State v. Bezak,114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. As noted by Justice Lanzinger in her dissent in Simpkins, however, "[t]he holding that a sentence imposed with a missing mandatory term is void rather than voidable * * * obscures the distinction between these two legal concepts in the context of a criminal case." Simpkins, 117 Ohio St.3d 420,2008-Ohio-1197, 884 N.E.2d 568, at ¶ 40 (Lanzinger, J., dissenting). The trial court had subject-matter jurisdiction when it sentenced Fischer, and its failure to include a mandatory term in that sentence rendered the sentence voidable, not void.

{¶ 16} Abraham Lincoln, when accused of changing his position, said he would rather be right some of the time than wrong all the time. I urge the Ohio Supreme Court to again look at the distinction between void and voidable in this context.