[Cite as State v. Jung,
2020-Ohio-186.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108223
v. :
MATTHEW C. JUNG, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: January 23, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-591390-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van and Tasha Forchione,
Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Cullen Sweeney, Assistant Public Defender, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Matthew Jung, appeals from a trial court
judgment ordering that his “original sentence remains imposed,” which was an
indefinite sentence of two to four years in prison. He raises one assignment of error
for our review:
The trial court erred in failing to correct its unauthorized sentence and
void indefinite sentence of imprisonment for a violation of R.C.
3734.03.
Finding merit to his appeal, we reverse and remand with instructions
for the trial court to resentence Jung to a definite sentence of “at least two years, but
not more than four years.”
I. Procedural History and Factual Background
In September 2016, Jung entered into a plea deal involving multiple
cases and charges. In the present case, he pleaded guilty to one count of open
dumping in violation of R.C. 3734.03, an unclassified felony, for dumping 13 tires.
The trial court sentenced him to one-and-a-half years of community control
sanctions. The trial court advised Jung that if he violated the terms of his
community control sanctions, it would impose the maximum prison sentence in
each case, which the trial court stated was “four years” for open dumping. The trial
court also notified Jung that if he violated, it would order that he serve the prison
sentences in the multiple cases consecutively.
Jung subsequently violated the terms of his community control
sanctions. The trial court continued Jung’s community control sanctions in each
case. The trial court again warned Jung that if he violated, he would be facing
serious consequences, including maximum prison time in each case, and that it
would order him to serve the sentences consecutively. This time, however, the trial
court also advised Jung that the maximum prison sentence he was facing for open
dumping was an “indeterminate sentence” of two to four years.
Jung violated the terms of his community control sanctions a second
time. The trial court sentenced Jung to prison “for a term of 2 - 4 years,” and ordered
that it be served concurrent to Jung’s sentences in the other cases. The trial court
also imposed a discretionary three-year period of postrelease control.
Jung appealed his sentences. See State v. Jung, 2018-Ohio-1514,
111
N.E.3d 54 (8th Dist.). With respect to his sentence for open dumping, Jung argued
that the trial court failed to consider the overriding purposes of felony sentencing
under R.C. 2929.11 when it sentenced him to the maximum prison sentence of two
to four years. He also argued that the trial court erred when it imposed postrelease
control for an unclassified felony. We affirmed his prison sentence for open
dumping, but agreed with him that the portion of his sentence that included
postrelease control for a violation of an unclassified felony was contrary to law. We
therefore vacated that portion of his sentence.
The trial court held a hearing on January 25, 2019, stating that the
Ohio Department of Rehabilitation and Correction had notified it that Jung’s
sentence should be a definite sentence rather than an indefinite one. Defense
counsel agreed, arguing that Jung’s sentence should have been a definite sentence
rather than an indefinite one. Defense counsel requested the court to resentence
Jung and impose a definite sentence of “at least two years, but not more than four
years.”
The state did not take a position on the merits of the issue at the
hearing except to say that it was a matter of statutory interpretation that the court
needed to decide.
The trial court considered the fact that Jung had appealed his
sentence and this court upheld it. The trial court stated that the court of appeals
“remained silent as to that indefinite sentence” and concluded because of that, “the
law of the case is that [Jung was] sentenced to an indefinite two-to-four-year
sentence.”
The trial court issued a judgment, stating “Original sentence remains
imposed: 2 to 4 years at Lorain Correctional Institution. Defendant is up for parole
after 2 years. Defendant not to serve longer than 4 years. Parole Board ordered to
set hearing, court and victim to be notified of hearing.” It is from this judgment that
Jung now appeals.
II. Final Appealable Order
We must first address whether there is a final appealable order in this
case because the trial court simply reimposed its original sentence. This court
requested the parties to brief this issue before oral argument. Although there is a
unique procedural posture in this case, both parties agree that the trial court’s order
is final and appealable, and so do we.
Jung did not initiate the proceedings in this case; the Ohio
Department of Rehabilitation and Correction did. Although Jung did not initiate
the proceedings, he orally moved for the trial court to vacate his original sentence
because it was not authorized under R.C. 3734.99. Thus, the trial court’s judgment
in this case is akin to a judgment denying a defendant’s motion to vacate his or her
sentence that is contrary to law. A sentence that is not “in accordance with
statutorily mandated terms” is contrary to law and may be challenged at any time.
State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332, ¶ 8, 39.
III. Law and Analysis
A. Res Judicata
We must first address the state’s argument that because Jung could
have raised this issue in his direct appeal, but did not, his arguments are barred by
res judicata.
Jung argues that his sentence is contrary to law because the trial court
did not follow the mandates of R.C. 3734.99. The law is well settled. As the Ohio
Supreme Court explained in Fischer nearly ten years ago:
Judges have no inherent power to create sentences. Griffin & Katz,
Ohio Felony Sentencing Law (2008) 4, Section 1:3, fn. 1. See also
Woods v. Telb, 89 Ohio St.3d at 507-509, 733 N.E.2d 1103 (describing
the legislative intent behind a new, comprehensive sentencing
structure, including postrelease control). Rather, judges are dutybound to apply sentencing laws as they are written. See State v.
Thomas (1996), 111 Ohio App.3d 510, 512,
676 N.E.2d 903. “[T]he only
sentence which a trial court may impose is that provided for by statute.
A court has no power to substitute a different sentence for that
provided for by statute or one that is either greater or lesser than that
provided for by law.” Colegrove, 175 Ohio St. at 438, 25 O.O.2d 447,
195 N.E.2d 811.
Id. at ¶ 22.
The Ohio Supreme Court had further made it clear that res judicata
does not bar a challenge to a sentence that does not comport with statutory
sentencing mandates because such sentences are contrary to law and “may be
reviewed at any time, on direct appeal or by collateral attack.” Id. at ¶ 40. The
Supreme Court explained that “[a]lthough the interests in finality of a sentence are
important, they cannot trump the interests of justice, which require a judge follow
the letter of the law in sentencing a defendant.” Id. at ¶ 23. Therefore the state’s res
judicata argument is without merit.
We further note that the trial court erred when it denied Jung’s
request to vacate his indefinite sentence and impose a definite one based on the law-
of-the-case doctrine. This doctrine is rooted in the principles of res judicata and
issue preclusion and does not apply to a sentence that does not comply with
statutory sentencing mandates. Id. at ¶ 35.
B. R.C. 3734.99
The penalties for violating open dumping under R.C. 3734.03 are set
forth in R.C. 3734.99. Under R.C. 3734.99, an offender convicted of open dumping
“is guilty of a felony and shall be fined at least ten thousand dollars, but not more
than twenty-five thousand dollars, or imprisoned for at least two years, but not
more than four years, or both.” (Emphasis added.) The issue presented in this case
is whether the language, “imprisoned for at least two years, but not more than four
years,” denotes a definite sentence between two and four years or an indefinite
sentence of two to four years.
Jung argues that State v. Quisenberry, 69 Ohio St.3d 556,
634 N.E.2d
1009 (1994), supports his position that his sentence under R.C. 3734.99 should have
been a definite sentence. We agree.
The defendant in Quisenberry had been convicted of failure to appear
under R.C. 2937.29, which the Ohio Supreme Court explained was an unclassified
felony — just as the offense in the present case. In Quisenberry, the Ohio Supreme
Court analyzed whether R.C. 2937.99, which set forth the penalty for failure to
appear, mandated an indefinite or definite sentence. At the time Quisenberry was
decided, R.C. 2937.99 provided in relevant part that one convicted of failure to
appear “be … imprisoned in the penitentiary not less than one nor more than five
years[.]” The Supreme Court stated that the question presented was whether “the
phrase ‘not less than one nor more than five years’ denotes a definite or indefinite
term.” Id. at 558.
The Ohio Supreme Court discussed how R.C. 2937.99 was first
enacted in 1965 and had never been amended, not even as part of the 1973 overhaul
of felony sentencing. Id. It stated, “As a result, R.C. 2739.29 and 2739.99 are now
somewhat anomalous. The felony is not classified by degree and the penalty is not
described in language consistent with the rest of the Code.”
Id. The Supreme Court
explained how the “rest of the Code,” specifically former R.C. 2929.11, used “the
words ‘minimum’ and ‘maximum’ in describing indefinite terms of incarceration.”
Id. For example, former R.C. 2929.11(A) stated:
“Whoever is convicted of or pleads guilty to a felony other than
aggravated murder or murder, except as provided in division (D), (E),
or (H) of this section or section 2929.23 of the Revised Code, shall be
imprisoned for an indefinite term …. The indefinite term of
imprisonment shall consist of a maximum term as provided in this
section and a minimum term fixed by the court as provided in this
section. …”
(Emphasis sic.) Id., quoting former R.C. 2929.11(A).
The Ohio Supreme Court then explained how the remainder of former
R.C. 2929.11 proceeded “to provide penalties for felonies according to their degree,”
but because R.C. 2937.99 had “no degree,” former R.C. 2929.11 was inapplicable.
Id. The Supreme Court reasoned, however, that former R.C. 2929.11 provided
guidance in determining whether R.C. 2937.99 mandated a definite or indefinite
sentence. The Supreme Court explained:
We note that R.C. 2929.11 uses the words “minimum” and “maximum”
in describing indefinite terms of incarceration. Moreover, not a single
subsection of [former] R.C. 2929.11(B) omits these words when
mandating an indefinite term. Conversely, R.C. 2937.99, the
controlling statute, makes no such reference to “minimum” and
“maximum” terms.
Instead, we consider the definite penalties for nonviolent third and
fourth degree felonies, which are provided in R.C. 2929.11(D), to be
more analogous. In discussing the definite penalties involved for these
crimes, the General Assembly did not use the words “minimum” and
“maximum.”
Id. at 558-559.
After reviewing the sentencing statutes at that time, the Ohio
Supreme Court concluded that the relevant language in R.C. 2937.99(A) meant that
“the trial court shall impose a definite sentence of at least one year but no greater
than five years.” Id. at 559.
In the present case, the statute at issue has not been amended since
1994, well before S.B. 2 became effective in mid-1996. See Am.Sub.S.B. No. 2
(effective July 1, 1996). The hallmark of S.B. 2 was “truth in sentencing,” which it
accomplished in part by eliminating indefinite sentences. Woods, 89 Ohio St.3d at
508,
733 N.E.2d 1103.
Because R.C. 3734.99 was not amended as part of S.B. 2 (or since its
passage), one might think that R.C. 3734.99 requires trial courts to impose an
indefinite sentence as many sentencing statutes did before S.B. 2. However,
Quisenberry was also decided in 1994, before S.B. 2 was enacted, which was also the
same year that R.C. 3734.99 was last amended. And in Quisenberry, the Supreme
Court addressed whether an unclassified felony under pre-S.B. 2 law mandated an
indefinite or definite sentence. Again, many sentencing statutes before S.B. 2
required trial courts to impose indefinite sentences, and yet despite this, the Ohio
Supreme Court still interpreted the language in R.C. 2927.99 to denote a definite
sentence between one and five years. Because of this, we find Quisenberry to be
highly instructive to our analysis in this case.
The relevant language in Quisenberry was: “not less than one nor
more than five years[.]” The relevant language here is “at least two years, but not
more than four years.” We find the language of these statutes to be nearly identical.
And thus, Quisenberry provides the answer to the question presented in this case.
If the legislature had intended for R.C. 3734.99 to denote that a trial court impose
an indefinite sentence, it would have used the phrase “indefinite sentence” prior to
the language “at least two years, but not more than four years,” and it would have
used “the words ‘minimum’ and ‘maximum’ in describing indefinite terms of
incarceration.” Quisenberry, 69 Ohio St.3d at 558,
634 N.E.2d 1009.
The state argues that comparing R.C. 3734.99 to other statutes in
1994 establishes that the trial court did not err when it imposed an indefinite
sentence of two to four years. The state cites to the penalties set forth in former
R.C. 2929.11(D) regarding fourth- and fifth-degree felonies. Based upon these
comparisons, the state argues that R.C. 3734.99 denotes an indefinite sentence
because it does not “provide a term of imprisonment of two, three, or four years,” as
former R.C. 2929.11(D)(1) and (2) did for fourth- and fifth-degree felonies.
However, as the Supreme Court noted in Quisenberry, R.C. 3734.99 is an
unclassified felony and thus, the state’s analogy does not apply. Quisenberry at 558.
Moreover, the state is ignoring the fact that the Ohio Supreme Court specifically
discussed R.C. 2929.11(D) regarding fourth- and fifth-degree felonies in
Quisenberry and held just the opposite. See
id. Thus, the state’s arguments have
no merit.
We note that the trial court stated at the January 25, 2019 hearing
that it would not have helped Jung even if it had agreed with him that R.C. 3734.99
mandated a definite sentence because it “had put in [its] journal entry” that he would
receive the maximum time of “four years” if he violated. But the trial court is
incorrect. A trial court has to notify a defendant of the maximum time he could
receive for violating at his original sentencing hearing, but if a defendant violates
and the court imposes a prison sentence, it can impose less time. R.C. 2929.15(B)(3)
(“The prison term, if any, imposed upon a violator pursuant to this division and
division (B)(1) of this section shall be within the range of prison terms described in
this division 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.”). (Emphasis added.) Indeed, the trial court also told Jung at
his original sentencing hearing as well as at the second-violation hearing that if he
violated, it would order the prison sentences in the multiple cases to be served
consecutively, but it did not; it ordered them to be served concurrently as it was
permitted to do under R.C. 2929.15(B)(3).
As the Ohio Supreme Court explained in Quisenberry,
[P]enal laws “shall be strictly construed against the state, and liberally
construed in favor of the accused.” R.C. 2901.04(A). A definite term of
imprisonment is more advantageous to a defendant because he does
not have to appear before the parole board. Once the sentence is
served, the defendant is released and the state loses supervision over
the defendant.
Id. at 557.
The trial court explicitly stated at the January 25, 2019 hearing, Jung
is “an excellent candidate” for release. The trial court could promptly ensure that
occurs.
We further note that we agree with the dissent that the distinction
between void and voidable “continues to bedevil Ohio courts.” But the Ohio
Supreme Court has continued to adhere to its void-sentencing doctrine despite
having many opportunities to abandon it. Although newer members of the Ohio
Supreme Court have recently criticized the doctrine (see State v. Straley, Slip
Opinion No. 2019-Ohio-5206 (DeWine, J., concurring)), these criticisms have
existed since the Supreme Court first applied it. See State v. Bezak,
114 Ohio St.3d
94,
2007-Ohio-3250,
868 N.E.2d 961, ¶ 31 (Lanzinger, J., dissenting) (“I am
extremely troubled by the majority’s application of the term ‘void’ to Bezak’s case.”);
State v. Simpkins,
117 Ohio St.3d 420,
2008-Ohio-1197,
884 N.E.2d 568, ¶ 39, 47
(Lanzinger, J., dissenting) (“There is danger in the majority’s holding” that
“Simpkins’s sentence was ‘void’ and a nullity from the beginning.”); State v.
Williams,
148 Ohio St.3d 403,
2016-Ohio-7658,
71 N.E.3d 234, ¶ 38 (Lanzinger, J.,
dissenting) (“I have consistently maintained my position that this court has
erroneously held that errors in sentencing render a sentence void, subject to
collateral attack at any time, when at most, the error was voidable, subject to
correction on direct appeal.”). And until the Supreme Court decides to overrule its
void-sentencing doctrine, we are bound by it.
Accordingly, we sustain Jung’s sole assignment of error.
Judgment reversed and remanded. The trial court is instructed to
resentence Jung to a definite sentence of “at least two years, but not more than four
years.”
It is ordered that appellant recover of appellee 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
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.
MARY J. BOYLE, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION
SEAN C. GALLAGHER, J., DISSENTING:
Although the majority’s analysis regarding the nature of the sentence
imposed under R.C. 3734.99 is cogent and well reasoned, I would conclude that this
particular sentence is not facially void. As a result, the trial court was without
jurisdiction to offer any relief and correctly denied Jung’s oral motion to correct a
void sentence. I dissent. I also write separately to highlight the confusion that
persists over the never-ending void-voidable debate. Tellingly, the trial court in this
case believed that the unsuccessful direct appeal of Jung’s sentence controlled the
outcome and the majority comes to a different conclusion. If separate courts can
arrive at different conclusions based on the same law, it may be time to seek clarity
on the topic. I believe the Ohio Supreme Court should consider this case as a vehicle
to clarify the distinction between void and voidable that continues to bedevil Ohio
courts. See State v. Straley, Slip Opinion No. 2019-Ohio-5206, ¶ 47 (DeWine, J.,
concurring).
It is well settled that any sentence that is “facially void” is subject to
collateral attack at any time. In order for a sentence to be deemed facially void, it
must be apparent from the sentencing entry that the trial court exceeded its
sentencing authority or failed to impose that which is required by law. Fischer, 128
Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332, at ¶ 25 (a trial court possesses
jurisdiction to consider the “claim that a sentence is facially illegal at any time.”).
Nevertheless, if the sentence is not facially void, the trial court must possess
jurisdiction to correct the sentence. A void sentence, in pertinent part, is one in
which the trial court failed to adhere to the statutory limitations. In this case, the
trial court imposed a sentence that comports with the statutory language — the trial
court imposed a sentence of “two to four years.” The applicable statute requires the
trial court to impose a sentence of “at least two years, but not more than four.” Thus
the issue of whether the statutory language requires an indefinite or definite
sentence goes beyond any facial challenge for which the trial court possesses
inherent jurisdiction to remedy. This issue — whether the sentence is a definite one
— is an issue of first impression with respect to this particular offense. As a result,
Jung’s sentence is not facially illegal.
Determining whether Jung received the correct sentence requires the
court to interpret the legislative intent behind the statute. In other words, the error
in imposing a sentence in this case addresses the trial court’s exercise of jurisdiction,
which only renders the decision voidable and not subject to collateral attack.
Johnson v. Sloan, 154 Ohio St.3d 476,
2018-Ohio-2120,
116 N.E.3d 91, ¶ 39, citing
State ex rel. Tubbs Jones v. Suster,
84 Ohio St.3d 70, 75,
701 N.E.2d 1002 (1998),
and State v. Filiaggi,
86 Ohio St.3d 230, 240,
714 N.E.2d 867 (1999); Dunbar v.
State,
136 Ohio St.3d 181,
2013-Ohio-2163,
992 N.E.2d 1111, ¶ 15. Jung’s claim
potentially renders the original sentence voidable, not void. “‘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.’”
Straley at ¶ 25, quoting State v. Simpkins,
117 Ohio St.3d 420,
2008-Ohio-1197,
884
N.E.2d 568, ¶ 12.
And even if the sentence imposed was void, the trial court lacked
inherent authority to correct that judgment. For example, it has been concluded
that if there is an Ohio Supreme Court decision that could render a sentence void if
such a decision is declared to be retroactive, any challenges to the previously
imposed sentences must adhere to the limitations of the trial court’s postsentencing
jurisdiction, which is the exclusive remedy to collaterally challenge a sentence under
R.C. 2953.21(K). See generally State v. Parker, Slip Opinion No. 2019-Ohio-3848.
Parker is a plurality opinion. Although there is limited authoritative value to the
decision, at the least, the justices’ separate decisions are instructive — if the Parker
court intended otherwise, there would have been little reason for the release of the
separate opinions.
The issue in Parker focused on whether the trial court possessed
jurisdiction to correct a sentence based on a subsequent Ohio Supreme Court case
that declared the statute upon which the defendant’s sentence was based
unconstitutional. The lead opinion, authored by Justice Kennedy and joined by
Justice DeWine, concluded that the defendant was precluded from seeking relief
under the postconviction relief statute because none of the exceptions to the time
limitations applied to Parker’s case. Thus, according to the lead opinion, the trial
court lacked jurisdiction to consider whether the Ohio Supreme Court decision at
issue was retroactive, which had the potential to render Parker’s conviction to be
void because the sentence was imposed upon a statute determined to be
unconstitutional. Montgomery v. Louisiana, 577 U.S. ___,
136 S.Ct. 718, 730,
193
L.Ed.2d 599 (2016) (concluding that a conviction under an unconstitutional law is
void).
The first dissent, authored by Chief Justice O’Connor, opined that the
lead opinion incorrectly interpreted the legislative language, which should be
interpreted to permit the defendant to invoke the trial court’s jurisdiction to
consider the merits of the argument. According to the first dissent, the lead
opinion’s application of the plain language led to an “absurd or unreasonable result”
because only Supreme Court decisions could be used to invoke the trial court’s
jurisdiction. Parker at ¶ 48 (O’Connor, C.J., dissenting); but see Beverage Holdings
L.L.C. v. 5701 Lombardo, L.L.C., Slip Opinion No. 2019-Ohio-4716, ¶ 20 (absurdity
doctrine is extremely narrow and language is not absurd when it is unreasonable,
but only when it is “ridiculously unreasonable, unsound, or incongruous”).
According to that analysis, the trial court possessed jurisdiction under the
postconviction relief statute to consider whether the Ohio Supreme Court decision
was retroactive.
The second dissent, authored by Justice Donnelly, tacitly agreed that
R.C. 2953.23 did not provide the trial court with jurisdiction. Instead, Justice
Donnelly concluded that the trial court’s jurisdiction was authorized through the use
of Civ.R. 60(B) despite the opposite conclusion being reached in State v. Schlee, 117
Ohio St.3d 153,
2008-Ohio-545,
882 N.E.2d 431 (concluding that the defendant’s
Civ.R. 60(B) motion was essentially one for postconviction relief under R.C. 2953.21
and subject to the same time limitations).
Thus, although there is no binding authority from the Parker
decision, a majority of the justices reached the conclusion that a potentially void
sentence is not subject to the inherent powers of the trial court to correct, but
requires some statutory or other legal triggering event that invokes the trial court’s
postdispositive jurisdiction. Only the third dissenting opinion, authored by Justice
Stewart, would have concluded that the trial court had inherent, continuing
jurisdiction to correct the sentence based on the later declaration that the sentence
was imposed based on an unconstitutional statute.
In this case, the only triggering event arguably invoking the trial
court’s jurisdiction was initiated by a nonparty to the action, the Ohio Department
of Rehabilitation and Correction (“DRC”). The prosecutor, charged with
representing the state of Ohio in criminal actions, disagreed with the DRC’s
intervention and opposed the DRC’s recommendation to alter the sentence. After
the trial court set the matter for a hearing, Jung joined the DRC bandwagon and
orally claimed his indefinite sentence was void based on his interpretation of the
statutory language. During the hearing on the matter, the trial court indicated it
would have imposed a maximum definite sentence if given the opportunity, but
instead ordered the DRC to permit Jung the opportunity for parole. Judicial release
under R.C. 2929.20 is not an option for Jung. See R.C. 2929.01(FF) (“stated prison
terms” for the purposes of R.C. 2929.20 do not include unspecified felony
sentences).
Nevertheless, Jung’s sentence is not facially void, and therefore, the
trial court lacked jurisdiction to consider the arguments presented by the DRC and
Jung. The trial court complied with the letter of the applicable law by imposing a
sentence of at least two years, but not more than four. That the trial court’s
interpretation of the statutory language could be called into doubt based on
adoption of the rationale advanced in an almost three-decades-old decision, that
doubt does not render the sentence as being void. Jung’s sentence is merely
voidable, and I would affirm.
