[Cite as State v. Morse,
2017-Ohio-9300.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28046
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEPHEN H. MORSE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2013 08 2363
DECISION AND JOURNAL ENTRY
Dated: December 29, 2017
HENSAL, Presiding Judge.
{¶1} Defendant-Appellant, Stephen H. Morse, appeals his convictions and sentence
from the Summit County Court of Common Pleas. For the reasons set forth below, we affirm in
part and dismiss in part.
I.
{¶2} The Summit County Grand Jury indicted Morse on two counts of operating a
vehicle under the influence of alcohol or drugs (“OVI”) in violation of Revised Code Section
4511.19(A),1 both fourth-degree felonies, with prior-conviction specifications in violation of
Section 2941.1413, and one count of driving under suspension in violation of Section 4510.11, a
first-degree misdemeanor. Morse initially pleaded not guilty to the charges and the matter
proceeded through the pretrial process.
1
Section 4511.19(A)(1)(a) and Section 4511.19(A)(2), respectively.
2
{¶3} Morse subsequently entered into a plea agreement with the State and pleaded
guilty to one count of driving under suspension and one count of OVI in violation of Section
4511.19(A)(1)(a) along with the attendant prior-conviction specification. In return, the State
dismissed the second OVI count and its accompanying prior-conviction specification. The trial
court accepted Morse’s guilty pleas.
{¶4} At the sentencing hearing, the trial court sentenced Morse to one year in prison on
the OVI count, with 120 days of that sentence being mandatory time, and one year in prison on
the prior-conviction specification. The trial court ordered those sentences to run consecutively
for a total of two years in prison, with 120 days being mandatory. The trial court also sentenced
Morse to 180 days in the Summit County Jail on the driving-under-suspension count. The trial
court informed Morse that it would consider him for judicial release after he served six months
of his two-year sentence. The trial court also suspended Morse’s driver’s license and ordered
him to pay costs and fines.
{¶5} The trial court journalized its sentence on May 27, 2014. Contrary to the sentence
imposed at the sentencing hearing, the sentencing entry ordered Morse to serve one year in
prison, “120 days of which is not a mandatory term” for the OVI count. (Emphasis added.)
Despite this inconsistency, Morse did not pursue a direct appeal of the trial court’s judgment.
{¶6} Morse began serving his prison sentence on July 11, 2014. Months later, he filed
a pro se motion for judicial release. Thereafter, Morse’s attorney filed a supplemental motion for
judicial release. The trial court ultimately denied Morse’s motion for judicial release, noting that
Morse “is serving a mandatory term until June 21, 2015.” Morse then filed a pro se “motion to
withdraw guilty plea pursuant to Crim.R. 32.1 or in the alternative motion for judicial release
pursuant to R.C. 2929.20.” Morse’s attorney then filed a second motion for judicial release,
3
which the trial court granted on September 1, 2015, following a hearing on the matter. On
November 16, 2015, the trial court issued a nunc pro tunc entry correcting the May 27, 2014,
sentencing entry to reflect that 120 days of the one-year prison sentence on the OVI count was
indeed mandatory.
{¶7} Morse filed this timely appeal from the trial court’s nunc pro tunc entry and raises
seven assignments of error for our review. To facilitate our analysis, we elect to address some of
Morse’s assignments of error out of order, and together.
II.
Assignment of Error I
The trial court committed prejudicial error and denied Morse due process of
law by accepting his guilty plea in [case number] CR 2013-08-2363 where the
record does not demonstrate that he understood the nature of the charges
against him. []
Assignment of Error IV
Mr. Morse was denied judicial release in February 2015 when the trial court
unambiguously promised consideration for judicial release after six months
in exchange for a guilty plea. This subsequent breach made Morse’s guilty
plea involuntary, unknowing and unintelligent.
Assignment of Error V
The trial court abused its discretion and committed reversible error when it
did not hold a hearing on Morse’s motion to withdraw his guilty plea[.] []
Assignment of Error VI
The trial court abused its discretion and committed reversible error when it
did not hold a hearing on Morse’s Motion to Contest his three prio[r] DUIs
out of then Cuyahoga Falls Municipal Court.
{¶8} In his first, fourth, fifth, and sixth assignments of error, Morse challenges the trial
court’s acceptance of his guilty plea, denial of judicial release in February 2015, failure to hold a
hearing on his motion to withdraw his guilty plea, and its failure to hold a hearing on his motion
4
to contest his three prior OVI convictions. As explained below, this Court lacks jurisdiction to
consider these assignments of error.
{¶9} It is well-settled that an appellate court lacks jurisdiction to consider the merits of
an untimely appeal. State v. Myers, 9th Dist. Wayne No. 08CA0041, 2009-Ohio-2082, ¶ 7. As it
relates to nunc pro tunc entries, this Court has stated that “[t]he general rule is that a nunc pro
tunc order does not operate to extend the period within which an appeal may be prosecuted.”
State v. Senz, 9th Dist. Wayne No. 02CA0016,
2002-Ohio-6464, ¶ 19, citing Perfection Stove
Co. v. Scherer,
120 Ohio St. 445, 448-449 (1929). Exceptions exist, however, “where the nunc
pro tunc entry creates additional rights, denies an existing right, or the appeal stems from the
nunc pro tunc entry, as distinguished from the original judgment entry.”
Id., citing Perfection
Stove Co. at 449.
{¶10} Here, Morse has appealed from the trial court’s November 16, 2015, nunc pro
tunc entry, which corrected its May 27, 2014, judgment entry to reflect that Morse’s OVI
sentence included 120 days of mandatory, as opposed to not mandatory, time. The rest of the
trial court’s judgment entry remained unchanged. This Court, therefore, lacks jurisdiction to
consider the issues raised in Morse’s first, fourth, fifth, and sixth assignments of error because
they do not relate to the correction the trial court made in its nunc pro tunc entry, nor do they
relate to issues that are otherwise appealable at any time. We, therefore, dismiss Morse’s first,
fourth, fifth, and sixth assignments of error for lack of jurisdiction.
Assignment of Error II
The trial court sentenced Morse to a sentence that was contrary to what was
statutorily required, mandating reversal and a new sentencing hearing.
{¶11} In his second assignment of error, Morse argues that his sentence is void because
the trial court did not sentence him to mandatory time for his prior-conviction specification.
5
Initially, we note that a criminal defendant may challenge a void sentence at any time. State v.
Dawson, 9th Dist. Summit No. 26500, 2013-Ohio-1767, ¶ 6. Thus, the fact that this assignment
of error does not relate to the correction the trial court made in its nunc pro tunc entry does not
affect this Court’s jurisdiction to consider this issue.
{¶12} The State concedes that the trial court was required to sentence Morse to a
mandatory term of one year for his prior-conviction specification because Morse pleaded guilty
to an OVI offense under Section 4511.19(A)(1)(a), and because he has five or more prior OVI
convictions within the past 20 years. We agree. See R.C. 4511.19(G)(1)(d)(i). The trial court,
however, sentenced Morse to a definite term of one year, which is not a mandatory term. The
trial court, therefore, erred in this regard. See State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-
7658, ¶ 2 (“A court only has authority to impose a sentence that conforms to law[.]”).
{¶13} The law is clear that “[w]hen a trial court makes an error in sentencing a
defendant, the usual procedure is for an appellate court to remand to the trial court for
resentencing.” State v. Brooks, 103 Ohio St.3d 134,
2004-Ohio-4746, ¶ 33. The Ohio Supreme
Court, however, has held that “[n]either [its] jurisprudence nor Ohio’s criminal-sentencing
statutes allow a trial court to resentence a defendant for an offense when the defendant has
already completed the prison sanction for that offense.” State v. Holdcroft,
137 Ohio St.3d 526,
2013-Ohio-5014, ¶ 19; see State v. Mockbee, 4th Dist. Scioto No. 14CA3601,
2015-Ohio-3469, ¶
29 (acknowledging that Holdcroft addressed a post-release control issue, but stating that the
general rule the Court relied upon was not limited to post-release control); State v. Metcalf, 12th
Dist. Warren No. CA2015-03-022,
2016-Ohio-4923, ¶ 20 (stating same). This applies even
when the underlying sentence is void. See Holdcroft at paragraphs two and three of the syllabus.
6
{¶14} Despite the trial court’s error, there is no dispute that Morse received judicial
release, and that the trial court subsequently terminated its supervision of him on the basis that he
completed the terms of his community control. Morse, therefore, has completed his sentence.
Holdcroft at ¶ 6, 18 (stating that “incarceration and postrelease control are types of sanctions that
may be imposed and combined to form a sentence” and that “a sentence served is a sentence
completed.”). Thus, while Morse asks this Court to order a new sentencing hearing, the trial
court lacks authority to re-sentence him.
Holdcroft at ¶ 19. Accordingly, Morse’s second
assignment of error is overruled.
Assignment of Error III
The trial court announced a different sentence in its two journal entries than
it did during Morse’s sentencing hearing violating his right to due process
and mandating reversal and a new sentencing hearing. []
{¶15} In his third assignment of error, Morse asserts that his due-process rights were
violated because the trial court’s original sentencing entry and subsequent nunc pro tunc entry
differ from the sentence pronounced at the sentencing hearing. Morse’s assignment of error,
however, fails to indicate how the two sentencing entries differ from the pronouncements at the
sentencing hearing. Indeed, his argument does not contain a single citation to the record. To the
extent that an argument exists in this regard, it is not this Court’s duty to root it out. See
Cardone v. Cardone, 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App. LEXIS 2028, *22
(May 6, 1998), citing App.R. 12(A)(2) and 16(A)(7). Morse’s third assignment of error is
overruled.
Assignment of Error VII
The trial court lacks subject matter jurisdiction because the indictment was
not supported by the evidence needed for a charge of felony 4 prior
conviction, (5 or more in 20 years).
7
{¶16} In his seventh assignment of error, Morse asserts that the trial court lacked subject
matter jurisdiction because the indictment failed to contain “a plain, concise and definite written
statement of the essential facts constituting the events charged[.]” More specifically, Morse
asserts that the indictment failed to set forth the precise dates of his prior OVI convictions for
purposes of the prior-conviction specification. Initially, we note that while this assignment of
error does not relate to the correction the trial court made in its nunc pro tunc entry, a challenge
to subject matter jurisdiction “goes to the power of the court to adjudicate the merits of a case,
[and] can never be waived and may be challenged at any time.” Pratts v. Hurley, 102 Ohio St.3d
81,
2004-Ohio-1980, ¶ 11.
{¶17} Aside from asserting that the indictment failed to comply with Rule 7 of the
Federal Rules of Criminal Procedure, which is inapplicable here, Morse has cited no authority in
support of his position that the lack of precise dates relative to the prior-conviction specification
renders the indictment defective, nor has he cited any authority indicating that such a defect
would deprive the trial court of subject matter jurisdiction. Consistent with our precedent, we
will not develop an argument on his behalf. Cardone at *22. Even if this Court were to take
Morse’s unsupported assertions as true, his assignment of error would still fail because the
alleged deficiencies in the indictment would render the charge voidable, not void, which does not
deprive the trial court of subject matter jurisdiction. State v. Bragwell, 7th Dist. Mahoning No.
06-MA-140,
2008-Ohio-3406, ¶ 14 (“A defective indictment renders the charge voidable, not
void. … The error does not deprive the trial court of subject matter jurisdiction[.]”).
{¶18} Morse’s seventh assignment of error is overruled.
8
III.
{¶19} Morse’s second, third, and seventh assignments of error are overruled. Morse’s
first, fourth, fifth, and sixth assignments of error are dismissed based upon this Court’s lack of
jurisdiction. The Judgment of the Summit County Court of Common Pleas is affirmed in part,
and dismissed in part.
Judgment affirmed in part,
and dismissed in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
9
CARR, J.
CONCURS.
SCHAFER, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶20} I concur as to the majority’s resolution of assignments of error one, three, four,
five, and six. However, I respectfully dissent as to the majority’s resolution of the second
assignment of error. This Court has recognized that a criminal defendant may challenge a void
sentence at any time. Accordingly, I would conclude that Mr. Morse does not have a reasonable,
legitimate expectation of finality in his sentence when he unambiguously argues on appeal that
his sentence was void because the trial court imposed a prison sentence that was contrary to law
and then unambiguously requests this Court to reverse and remand for resentencing. Moreover,
Mr. Morse acknowledged at oral argument that he understood such an action would not reopen
the case below. Therefore, under the specific circumstances of this case, I would sustain Mr.
Morse’s second assignment of error, reverse the trial court’s judgment, and remand for the trial
court to impose a valid sentence for the prior conviction specification. See State v. Ware, 141
Ohio St.3d 160,
2014-Ohio-5201, ¶ 20 (noting that although some courts may find the result
inequitable, “[c]lemency is a function of the Executive branch and the courts are without
authority to free guilty defendants absent a specific legislative enactment.”), quoting State v.
Beasley,
14 Ohio St.3d 74, 76 (1984); see also State v. Tackett, 11th Dist. Ashtabula No. 2012-
A-0015,
2013-Ohio-4286, ¶ 15.
APPEARANCES:
STEPHEN H. MORSE, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
