Opinion
Case No. 14CA7
09-28-2015
STATE OF OHIO, Plaintiff-Appellee, v. ALICIA BUTCHER, Defendant-Appellant.
APPEARANCES: Timothy Young, Ohio State Public Defender, and Terrence K. Scott, Assistant State Public Defender, Columbus, Ohio, for Appellant. Colleen S. Williams, Meigs County Prosecutor, and Jeremy L. Fisher, Assistant County Prosecutor, Pomeroy, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
APPEARANCES: Timothy Young, Ohio State Public Defender, and Terrence K. Scott, Assistant State Public Defender, Columbus, Ohio, for Appellant. Colleen S. Williams, Meigs County Prosecutor, and Jeremy L. Fisher, Assistant County Prosecutor, Pomeroy, Ohio, for Appellee. McFarland, A.J.
{¶1} Alicia Butcher filed a notice of appeal from the amended judgment entry filed June 12, 2014, in the Court of Common Pleas, Meigs County, Ohio, General Division. The entry dated June 12, 2014 reflected the findings and sentence of the court after a June 2, 2014 hearing on alleged community control violations. As a result of the hearing, Appellant was ordered to the Ohio Department of Rehabilitation and Corrections for a sentence period of thirteen (13) months. On the basis of res judicata, we affirm the June 12, 2014 judgment of the trial court and overrule Appellant's sole assignment of error.
FACTS
{¶2} As a result of activities which occurred on or about May 27, 2010 and August 4, 2010 in Meigs County, on November 5, 2010 the Meigs County Grand Jury issued the following indictment against Appellant:
Count 1, aggravated possession of drugs, R.C. 2925.11(A), a felony of the fifth degree;
Count 2, aggravated trafficking in drugs, R.C. 2925.03, a felony of the third degree;
Count 3, aggravated possession of drugs, R.C. 2925.11(A), a felony of the fifth degree; and,
Count 4, aggravated trafficking of drugs, R.C.2925.03, a felony of the third degree.
{¶3} On March 9, 2011, Appellant pled guilty to the four offenses. On April 25, 2011 she was sentenced to community control and the court stated:
The record indicates the third degree felonies were amended to felonies of the fourth degree.
"* * * With respect to counts one, two, three and four, you're going to be placed on community control and the Court's going to require you to go to the MonDay Program and successfully complete that program. * * * With respect to count one, I will tell you that if you violate any conditions of community control, you're going to receive a sentence of nine months. On counts one (sic), you're going to receive a sentence of twelve months. On count two...On count three, you're going to receive as sentence of nine months of nine months (sic) and on count four, you're going to receive a sentence of twelve months. The Court, at that point in time, could run those sentences consecutive."The May 17, 2011 sentencing entry, summarizing the April 25, 2011 hearing, states:
"[T]he defendant is sentenced as to Counts 1, 2, 3, and 4 community control for a term of 5 years with an underlying term of 9 months on Count 1; an underlying term of 12 months; an underlying term of 9 months; an underlying term of 12 months upon the Court's terms of community control previously journalized and that said sentences could be ordered to be served consecutive to one another and a fine in the amount of $2,500.00."
At this point in time, there was no discussion of merger of allied offenses. In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, paragraph two of the syllabus, the Supreme Court of Ohio held: "Trafficking in a controlled substance under R.C. 2925.03(A)(2) and possession of that same controlled substance under R.C. 2925.11(A) are allied offenses of similar import under R.C. 2941.25(A), because commission of the first offense necessarily results in commission of the second." R.C. 2941.24 provides as follows: "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them." A defendant bears the burden of proving at the sentencing hearing that he is entitled to merger pursuant to R.C. 2941.25. State v. Cochran, 983 N.E.2d 903, 2012-Ohio-5899, (10th Dist.) ¶ 28, citing State v. Mughni, 33 Ohio St.3d 65, 67, 541 N.E.2d 870 (1987) (pre-Senate Bill 2 case superseded by statute on other grounds as stated in State v. Davis, 12th Dist. Butler No. CA2012-09-194, 2013-Ohio-2637.)
{¶4} On August 9, 2011, Appellee filed the first of three motions to revoke Appellant's community control due to alleged violations of standard terms of probation. On August 17, 2011, the trial court heard Appellee's motion. Based on the evidence and admission of Appellant, the trial court found the motion to be well-taken. Appellant's community control was revoked. This discussion took place amongst the court and counsel: Attorney Baer: She's been sentenced, Your... The Court: Alright. Then what is the sentence? The maximum possible penalty is what I'm trying to get at. Attorney Baer (defense counsel): Two years. The Court: Two years? Attorney Franzmann (assistant prosecutor): Uh Huh. Attorney Baer: Would be my opinion. * * * Attorney Williams (prosecuting attorney): We didn't have a file. Could we look at a copy of the sentencing entry? Attorney Baer: Yeah. Here. This says five years, underlying sentence nine months and twelve months and counts one and two merge and three and four merge. So it'd be...If you stacked them, it'd be twelve months plus twelve months. Attorney Franzmann: So two years? Attorney Baer: Yeah. Attorney Franzmann: Okay. * * * The Court: So she was sentenced to what? Attorney Baer: Two years, if it was run concurrent. * * * The Court: Alright. So it was one year and one year. Attorney Baer: Yes. The Court: So we got two years and they're ran concurrently. Everybody's in agreement, right? Attorney Franzmann: Yes, Your Honor. Attorney Baer: Yes. The Court: So that's the maximum possible penalty. You understand if you make an admission you're subjecting yourself to that possibility of two years? Attorney Baer: Yes. You need to answer yes. Defendant Butcher: Yes. By judgment entry of September 19, 2011, the trial court ordered:
We make the presumption that counsel's reference to "stacking" means consecutive sentencing. See generally, State v. Wilkinson (1969), 17 Ohio St.2d 9, 244 N.E.2d 480, paragraph three of the syllabus. The "stacking" of two twelve-month sentences would ultimately result in a 2-year total prison sentence.
"It is hereby ORDERED that the original sentence of imprisonment is re-imposed and specifically that the said ALICIA BUTCHER be imprisoned and confined at the appropriate state penal institution for a determinate sentence of two (2) years to be served consecutively, with credit for time served * * *."
{¶5} On November 16, 2011, the trial court filed a "Sentencing Entry (Amended) which stated as follows:
"It is hereby ORDERED that the original sentence of imprisonment is re-imposed on Count 1 - Aggravated Possession of Drugs, in violation of Section 2925.11(A) of the Ohio Revised Code, a felony of the fifth degree and Count 2 - Aggravated Trafficking in Drugs, in violation of Section 2725.03 of the Ohio Revised Code, a felony of the fourth degree (Counts 1 and 2 merged); Count 3 - Aggravated possession of Drugs, in violation of Section 2925.11(A) of the Ohio Revised Code, a felony of the fifth degree and Count 4 - Aggravated Trafficking in Drugs, in violation of Section 2925.03 of the Ohio Revised Code, a felony of the fourth degree (Counts 3 and 4 merged) and specifically that the said ALICIA BUTCHER be imprisoned and confined at the appropriate state penal institution for a determinate sentence of two (2) years to be served concurrent, with credit for time served * * *."
{¶6} On January 30, 2012, Appellant filed a motion for judicial release. On February 27, 2012, the matter came on for hearing. The transcript of the judicial release hearing demonstrates the following exchange regarding sentence: The Court: If you violate the terms of your community control, I can also put you on more restrictive terms, while I'm also reserving the right to re-impose the original sentence which as I understand it...She got three years. Is that what I saw? Attorney Williams: I think it was two. The Court: Did you get two years total? Defendant Butcher: Two years. Attorney Williams: Two consec...(sic) The Court: I'm reserving the right to re-impose anything up to and including the full two years.
{¶7} By entry filed April 25, 2012, the trial court found the motion to be well-taken. Appellant was ordered to community control for a period of three years. The entry stated as follows:
"The Court further advised the Defendant that if the Defendant violates any term or condition of community control, the Court specifically reserves the right to impose the balance of the determinate sentence of two (2) years to be served concurrent as previously ordered with credit for time served."
{¶8} On August 8, 2012, Appellee filed a second motion to revoke community control. On October 22, 2012, the matter came on for hearing and the parties, by stipulation, found probable cause that Appellant had violated the terms and conditions of community control as alleged. On November 21, 2012, the trial court ordered that Appellant be continued on community control for a term of three (3) years, "with an underlying sentence of two (2) years." The entry stated:
"The Court further advised the Defendant that if the conditions of community control are violated, if the Defendant commits a violation of any law, or if the Defendant leaves this state without the permission of the Court or the Defendant's probation officer, the Court may impose a longer time under the same violation, may impose a more restrictive sentence, or may impose the balance of the determinate sentence of two (2) yeas to be served concurrent as previously ordered, with credit for time served."
{¶9} On October 30, 2013, the State filed a third motion to revoke community control due to Appellant's positive reading for various drugs after a random drug screening by Children's Services. The matter was set for hearing and continued several times. Finally, on June 2, 2014, the cause came on for hearing and the trial court found Appellant had violated the terms of community control again. The hearing transcript demonstrates this exchange took place regarding sentence: The Court: * * * The Court's going to find...I'm not sure what the balance of... Does anybody know what the balance of prison time that Alicia has? Attorney Williams: Did it indicate that in the PSI? The Court: I don't know that it did. And I don't think it's a matter of consecutive, is it? I think it's just the balance of... Attorney Williams: I can give you the underlying sentence. I won't be able to tell you how much credit she has. Attorney Finley (defense attorney): I believe the underlying sentence is two years. The Court: Two years. Attorney Finley: Seventeen months approximately left, Your Honor. The Court: That strikes me as right. Is that a consecutive sentence? Attorney Finley: I don't believe it is, Your Honor. Attorney Williams: The Court will have to advise her what it is; so, if I could...If you could give me just a moment to look at that. Attorney Finley: I don't believe it is, Judge. * * * Attorney Finley: Judge, I'm looking at a September 19, 2011 entry. I believe that's an original sentencing entry, which has a ... The Court: I think it's two years minus... Attorney Finley: Two-year sentence... The Court: * * * What she served before, before she was judicially released. Attorney Finley: It does say to serve consecutively with credit for time served. But then there's a hand-written (inaudible). The Court: Well, we're going to assume that the Court described the consecutive sentencing. The Court's going to find here that two or more offenses are part of a course of conduct and the harm caused is so great or unusual that a single prison term would not reflect, adequately reflect the seriousness of the conduct. The Court is going to sentence Miss Butcher to thirteen months in prison. * * * The Court: * * * The Court has been made aware of certain issues with regard to the sentencing of this and is mindful of what the concerns are. The Court, however, is going to continue with its...Based upon the Court's understanding of the case is it's twenty-four months minus the time that's been served which is seven months, which arguably would be seventeen months left. The Court is going to sentence the defendant to the thirteen months and proceed accordingly.
{¶10} The trial court's entry dated June 4, 2014, recited the chronology of Appellant's case, referenced the "two year concurrent sentence," and ordered Appellant be sentenced to the Ohio Department of Rehabilitation and Correction for a period of thirteen (13) months. On June 12, 2014, the trial court filed an amended judgment entry which stated in pertinent part:
"The Court further finds that the Defendant has violated the terms of community control sanction order. The Defendant previously entered pleas of guilty to Counts One, Two, Three, and Four herein, as stated above, on March 9, 2011, which was subsequently amended on November 16, 2011, wherein Counts One and Two merged and Counts Three and Four merged with a two-year concurrent sentence so found. * * * The Court upon hearing the evidence and arguments, sentenced Defendant Alicia Butcher to thirteen (13) months in prison."
{¶11} This timely appeal followed. Where relevant below, we will cite to the transcript of the various motion and sentencing hearings referenced herein.
ASSIGNMENT OF ERROR
"I. THE TRIAL COURT ERRED WHEN IT IMPOSED TWO, ONE-YEAR CONCURRENT SENTENCES FOR A TOTAL OF TWO YEARS, THUS CREATING AN ILLEGAL SENTENCE THAT IS VOID, AND NOT SUBJECT TO RES JUDICATA."
STANDARD OF REVIEW
{¶12} In State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, we recently held that when reviewing felony sentences, we apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Pulliam, 4th Dist. Scioto No. 14CA3609, 2015-Ohio-759, ¶ 5; Brewer at ¶ 33 ("we join the growing number of appellate districts that have abandoned the Kalish plurality's two step abuse-of-discretion standard of review; when the General Assembly reenacted R.C. 2953.08(G)(2), it expressly stated '[t]he appellate court's standard of review is not whether the sentencing court abused its discretion' "). See also State v. Graham, 4th Dist. Highland No. 13CA11, 2014-Ohio-3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the court clearly and convincingly finds either that "the record does not support the sentencing court's findings" under the specified statutory provisions or "the sentence is otherwise contrary to law."
LEGAL ANALYSIS
{¶13} Appellant argues her two-year prison sentence is illegal and void because the trial court imposed a "concurrent two-year sentence" comprised of two twelve-month sentences to be served concurrently. Appellant contends that the trial court crafted a prison sentence that was an impossibility. Appellant concludes as such, her sentence is illegal and void.
{¶14} Our review of the transcript leads us to believe that it may have been the intent of the parties, and the judge who originally imposed sentence, that Appellant would receive two twelve-month concurrent sentences. The transcript also reveals that a disconnect occurred somewhere along the way. Between 2011 and 2014, four judges were involved in sentencing Appellant. Also, at least two different prosecutors and two different defense attorneys were involved in Appellant's case.
{¶15} Appellee responds that Appellant was placed on a two-year underlying prison sentence on November 21, 2012, which adequately reflected the original underlying sentence in the case. Appellee points out Appellant failed to appeal any of the entries in the case, prior to the June 12, 2014 entry in which she was sentenced to 13 months. As such, Appellee concludes Appellant should be barred by res judicata from bringing an appeal on the underlying sentence. While we disagree with Appellee that the November 21, 2012 entry is where we place our focus, unfortunately, we must agree that Appellant's argument is, at this point, barred by the doctrine of res judicata.
{¶16} On April 25, 2011, Appellant was originally sentenced to community control for a term of five years. On August 17, 2011, her community control was revoked. Under Ohio law, the trial court has three options for punishing offenders who violate community control sanctions. State v. Guilkey, 4th Dist. Scioto No. 04CA2932, 2005-Ohio-3501, ¶ 5; R.C. 2929.15(B)(1)(a)-(c). The court may: (1) lengthen the term of the community control sanction; (2) impose a more restrictive community control sanction; or (3) impose a prison term on the offender. Id. Currently, R.C. 2929.19(B)(4) provides:
Former R.C. 2929.15(B)(2) provided: If the court elects to impose a prison sentence upon a violator of community control sanctions, it "shall be within the range of prison terms available for the offense for which the sanction that was violated was imposed and shall not exceed the prison term specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(2) of section 2929.19 of the Revised Code."
"If the sentencing court determines at the sentencing hearing that a community control sanction should be imposed and the court is not prohibited from imposing a community control sanction, the court shall impose a community control sanction. The court shall notify the offender that, if the conditions of the sanction are violated, * * * the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation, as selected by the court from the range of prison terms for the offense pursuant to section 2929.14 of the Revised Code."
{¶17} Appellant appeals the June 2014 entry in which she was sentenced to 13 months, yet contends in the assignment of error that her original two-year concurrent sentence is void and illegal. The Supreme Court of Ohio has ruled in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, that a void sentence may be reviewed at any time, either via direct appeal or via collateral attack. See, State v. Haynes, 10th Dist. Franklin No. 14AP-276, 2015-Ohio-183, ¶ 2. " 'In general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act.' " State v. Shepherd, 4th Dist. Scioto No. 12CA3469, 2012-Ohio-5631, ¶ 8, quoting Fischer, supra, at ¶ 6, quoting State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12 (superseded by statute on other grounds in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.)
{¶18} Unlike a void judgment, a voidable judgment is one rendered by a court that has both jurisdiction and authority to act, but the court's judgment is invalid, irregular, or erroneous." Fischer, supra, at ¶ 6. "[I]n the normal course, sentencing errors are not jurisdictional, and do not render a judgment void," and "void sentences are typically those in which a court lacked subject-matter jurisdiction over the defendant." Id. at ¶ 7. We do note that more recent Ohio case law has recognized a narrow exception to the general rule: "a sentence that is not in accordance with statutorily mandated terms is void." Id. at ¶ 8. Any sentence of imprisonment imposed without the statutorily-required notification is void. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085. (Superseded by statute as explained in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.) The remedy the court prescribes for sentences that are void due to the absence of a statutorily mandated term is resentencing. Fischer, supra, at ¶ 10.
{¶19} Since Appellant argues her sentence is void, we begin, therefore, by analyzing whether Appellant's sentence was in accordance with statutorily mandated terms. In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, the Supreme Court of Ohio addressed the statutory notice requirements under R.C. 2929.19(B)(5) and R.C. 2929.15. The Brooks court examined the elements of full compliance under R.C. 2929.19(B)(5). Brooks, supra, at ¶ 12. The first element examined was "time of notification" and the second was "the exact language used in the notification." Id. at ¶ 13. Construing the above statutes, the Brooks court ultimately held that "a trial court sentencing an offender to a community control sanction must, at the time of the sentencing, notify the offender of the specific prison term that may be imposed for a violation of the conditions of the sanction, as a prerequisite to imposing a prison term on the offender for a subsequent violation." Id., at paragraph two of the syllabus. The Brooks court reiterated the dominant purpose of current sentencing procedures is truth in sentencing, which aims to eliminate indefinite sentences in favor of specific terms, to increase certainty and predictability in sentencing. Brooks, supra, at ¶ 25.
After Brooks was released, R.C. 2929.19 was amended without any relevant substantive changes, and R.C. 2929.19(B)(5) was moved to R.C. 2929.19(B)(4). State v. Marshall, 6th Dist. Erie No. E-12-022, 2013-Ohio-1481, ¶ 9.
{¶20} A review of the record herein reveals that Appellant was informed at her original hearing on April 25, 2011, that she was sentenced to community control and if she violated the conditions of community control, she would be subject to a sentence of 9 months on count one, 12 months on count two, 9 months on count three, and 12 months on count four, sentences which could be run consecutively. In sum, at this point, Appellant was on notice she could possibly receive a maximum prison sentence of 42 months. Presumably, merging the allied offenses was not discussed at this time because Appellant was ultimately going to be sentenced to community control. Had the allied offenses discussion occurred, Appellant would likely have been placed on notice at that time that she would be subject to a total 24-month prison sentence. Appellant's notification of the nine month, twelve month, nine month, and twelve-month sentences, subject to possible consecutive sentencing, was reiterated in the court's sentencing entry dated May 27, 2011. Pursuant to the mandates of R.C. 2929.19(B)(4), this notification of a specific prison term was sound. Therefore, we cannot say Appellant's sentence was void for failing to place her on notice of the maximum possible penalty, a statutorily mandated notification.
Presumably, merging the allied offenses was not discussed at this time because Appellant was being sentenced to community control.
Being given notice of a maximum potential prison sentence that was longer than what could be given has been found to be prejudicial error. See State v. Frye, 2nd Dist. Montgomery No. 24976, 2012-Ohio-5101, (Appellate court failed to see where trial court inadvertently misled Frye to believing he had a longer potential prison sentence than was available, that Frye was prejudiced by the misapprehension; State v. Holmes, 159 Ohio App.3d 501, 824 N.E.2d 562, ¶ 32 (Even though trial court incorrectly informed Holmes she could be subject to a post-release control period of up to five years, appellate court found Holmes made no plausible claim that she was prejudiced); State v. Carnicom, 2nd Dist. Miami No. 2003-CA-4, 2003-Ohio-4711, ¶ 16 (Where trial court overstated by three months the potential prison sentence Carnicom could face, appellate court failed to see, in light of surrounding facts, how Carnicom could have been prejudiced by any misapprehension on his part.)
{¶21} On August 9, 2011, Appellee filed the first of three motions to revoke community control due to violation of probationary terms. After the trial court found the motion well-taken and revoked community control, the parties discussed the maximum possible penalty. At this point, defense counsel raised the issue of merger of counts. Determining that counts one and two merged, and counts three and four merged, defense counsel pointed out the maximum possible sentence was "If you stacked them, it'd be twelve months plus twelve months."
Pursuant to R.C. 2929.14(A)(4), for a felony of the fourth degree, Appellant was subject to a prison term range of six months to eighteen months. The trial court chose to impose a twelve month sentences on both felonies of the fourth degree. --------
{¶22} However, we find confusion sets in when defense counsel further provides "Two years, if it was run concurrent." Two twelve-month prison sentences, to be served concurrently, is one year of actual prison time, not two years. Here the record indicates the court and the parties agreed the maximum possible penalty was two years, and Appellant was advised as such on August 17, 2011. This two-year sentence was recited in the September 19, 2011 entry and reiterated in the amended judgment entry of November 19, 2011. From this point on in the proceedings, the transcript reveals Appellant's prison sentence was repeatedly referred to as "a sentence of two (2) years to be served concurrent" or a "two-year concurrent sentence." While Appellant's current argument is that her sentence was intended to be two twelve-month sentences to be served concurrently, for a total of one year of prison, she was on notice of the alleged error in sentencing as early as August 2011.
{¶23} Appellant did not appeal her original "two-year concurrent sentence" imposed on August 17, 2011, and journalized on September 19, 2011 and November 19, 2011. "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 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 trial, which resulted in that judgment of conviction, or on an appeal from that judgment." State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233, syllabus. This assignment of error could have been raised in an appeal from the September 19, 2011 or November 19, 2011 entries.
{¶24} The discussions contained in the record are confusing. The judge who sentenced Appellant on June 2, 2014 did so "based on [his] understanding that she had twenty-four months." The trial court followed up with the June 12, 2014 entry describing a "two-year concurrent sentence."
{¶25} The bottom line is, however, that Appellant was advised on August 17, 2011 the maximum possible sentence was two years. The transcript reveals that on that date, she indicated she understood the maximum possible sentence. Later, at the judicial release hearing on February 27, 2012, in responding to the court's question, she advised she had been given a two-year sentence. This "two-year concurrent" sentence was actually imposed on August 17, 2011 and journalized as such on November 16, 2011. The same facts which Appellant now relies upon to argue that her sentence is void are the same facts of which she was placed on notice as of August 17, 2011. Appellant's argument is therefore barred by the doctrine of res judicata.
{¶26} We recognize R.C. 2929.41 provides that prison terms "shall be served concurrently with any other prison term * * * imposed by a court of this state" unless the court orders the offender to serve the term consecutively to another prison term imposed. See R.C. 2929.41(A), (B)(3). Case law provides that where a court's entry is silent and/or the record is ambiguous as to whether a consecutive or concurrent term applies, a court must resolve the ambiguity in favor of the defendant. State v. Carr, 167 Ohio App.3d 223, 2006-Ohio-3073, 854 N.E.2d 571 (3rd Dist.) at ¶ 4; City of Hamilton v. Adkins, 10 Ohio App.3d 217, 218, 461 N.E.2d 319 (12th Dist.); State v. Marbury, 10th Dist. Franklin No. 03AP-233, 2004-Ohio-3373, at ¶ 67. However, Appellant did not raise this argument in an earlier appeal.
{¶27} Furthermore, the Supreme Court of Ohio has declined to find sentences void based on the court's failure to comply with certain sentencing statutes, including the consecutive sentencing statute. See State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.2d 382, ¶ 8 (challenges to consecutive sentences must be brought on direct appeal). See also State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
{¶28} In conclusion, the transcript reveals that, despite noticeable confusion amongst the parties and the trial court, at all times Appellant has been placed on notice of a two-year maximum sentence. This sentence is within the range of possible prison terms for the offenses to which she pled guilty. Exactly how that sentence has come to be described as a "two year concurrent sentence" is a mystery, but her sentence is not void.
{¶29} Based on the above, we find Appellant's argument that her sentence was intended to be two twelve-month sentences to be served concurrently, for a total stated prison term of one year, is barred by the doctrine of res judicata. As such, we overrule her sole assignment of error and affirm the June 12, 2014 judgment of the trial court.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Harsha, J. & Abele, J.: Concur in Judgment Only.
For the Court,
BY: /s/_________
Matthew W. McFarland,
Administrative Judge
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.