State v. Johnson

[Cite as State v. Johnson, 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 108419
                 v.                                :

RICKY JOHNSON,                                     :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: January 23, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-81-164134-ZA


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel T. Van, Assistant Prosecuting
                 Attorney, for appellee.

                 Ricky Johnson, a.k.a. Rodney Knuckles, pro se.


MICHELLE J. SHEEHAN, J.:

                  Defendant-appellant Ricky Johnson, a.k.a. Rodney Knuckles, appeals

pro se from the trial court’s denial of his “motion to vacate void sentence & court

plea hearing” filed after several successive postconviction relief petitions and more
than 30 years after he was sentenced. Because we find Johnson’s sentence was not

void and res judicata bars this appeal, we affirm the trial court.

                                 Procedural History

              Johnson was indicted for murder in 1981. A jury convicted him of

murder, and the court sentenced Johnson to 15 years to life in prison. In 1982, this

court reversed the conviction and remanded the case for a new trial on the ground

that the trial court failed to instruct the jury on the affirmative defense of self-

defense. State v. Johnson, 8th Dist. Cuyahoga No. 44160, 

 (July 15, 1982). Johnson waived his right to a jury in the second trial, which

began in April 1983. Following a new trial, the court found Johnson guilty of murder

and sentenced him to 15 years to life imprisonment.            Johnson appealed his

conviction, raising two assignments of error regarding the admission of testimonial

evidence. Having found no merit to the appeal, we affirmed the judgment of the

trial court. State v. Johnson, 8th Dist. Cuyahoga No. 46837, 

 (Dec. 8, 1983).

              Following his appeal in 1983, Johnson filed several petitions for

postconviction relief, all of which were denied. See State v. Knuckles, 8th Dist.

Cuyahoga No. 101309, 

. In May 2013, Johnson filed a “motion

pursuant to ORC 2945.05, that the trial court was without jurisdiction to conduct a

bench trial.” In this motion, Johnson argued that there was no written jury waiver

executed in his case. The trial court denied the motion, and Johnson appealed. In

November 2013, this court dismissed the appeal for Johnson’s failure to file a brief.
Id. at ¶ 3. In February 2014, Johnson filed another postconviction petition for relief,

raising the same arguments addressed in his May 2013 motion. The trial court

denied Johnson’s motion, and he once again appealed. In September 2014, this

court dismissed Johnson’s appeal, finding Johnson’s “blatant attempt to circumvent

the appellate rules and prior decisions of this court requires the dismissal of the

instant appeal.” Id. at ¶ 8.

              Also in 2014, Johnson filed an application for reopening of his appeal

under App.R. 26(B). Finding Johnson “failed to argue or establish a showing of good

cause for the untimely filing of his application for reopening,” we denied his

application for reopening.     State v. Johnson, 8th Dist. Cuyahoga No. 46837,

.

              In August 2016, Johnson filed another petition for postconviction

relief entitled “postconviction relief pursuant to [R.C.] 2953.21 to 2953.23,” arguing

that the trial court lacked subject-matter jurisdiction and therefore his conviction is

void. And in September 2016, Johnson filed a motion for summary judgment on his

petition for postconviction relief. The trial court denied the petition and the motion.

              In September 2017, Johnson filed a “motion to vacate void sentence

[under] Crim.R. 47,” arguing that a defective jury waiver in his case renders his

conviction void. The trial court denied the motion, and Johnson appealed. In a

journal entry dated November 20, 2017, this court dismissed the appeal, finding that

Johnson raised the same issue concerning the validity of a jury waiver in a prior

appeal and therefore res judicata bars this appeal.
              In March 2019, Johnson filed a “motion to vacate void sentence &

court plea hearing,” which is the subject of this appeal.

                                  Law and Analysis

              Johnson claims in this appeal, for the first time since his conviction

more than 30 years ago, that the trial court imposed a sentence that is not authorized

by law and therefore void because the trial court failed to include the term

“indefinite” in the court’s sentencing entry imposing a 15-year-to-life prison

sentence.   Johnson also contends that the court’s failure to include the term

“indefinite” prevented him from receiving a deduction from his minimum sentence.

              The doctrine of res judicata bars a defendant “from raising and

litigating in any proceeding, except an appeal from [a final] 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, 

, 

 (1967).

And sentencing errors not raised on direct appeal are generally barred by the

doctrine of res judicata. State v. Willard, 8th Dist. Cuyahoga No. 101055, 2014-

Ohio-5278, ¶ 10. Void sentences, however, are an exception to the res judicata

doctrine and may be reviewed at any time, either on direct appeal or by collateral

attack. State v. Fischer, 

, 

, 

, ¶ 30;

State v. Williams, 8th Dist. Cuyahoga No. 105873, 

. “A void

judgment has no legal force or effect, and any party whose rights are affected may

challenge its invalidity at any time and any place.” Willard at ¶ 11.
               Ohio courts have consistently held that a sentence that is not in

accordance with statutorily mandated terms is void. Fischer at ¶ 8, citing State v.

Bezak, 

, 

, 

; State v. Jordan, 

, 

, 

; State v. Beasley, 

, 

 (1984); Colegrove v. Burns, 

, 

(1964). And where a trial court “‘disregard[s] statutory [sentencing] requirements,’”

the sentence imposed is void. State v. Williams, 

, 2016-Ohio-

7658, 

, quoting 

; State v. Houston, 8th Dist.

Cuyahoga No. 107538, 

, ¶ 5.

               Here, Johnson was convicted of murder in violation of R.C. 2903.02,

which, at the time of Johnson’s conviction, provided that “[n]o person shall

purposely cause the death of another.” At the time of Johnson’s sentencing in 1983,

R.C. 2929.02(B), the applicable sentencing statute for murder at that time, provided

that “[w]hoever is convicted of, pleads guilty to, or pleads no contest and is found

guilty of, murder in violation of [R.C.] 2903.02 shall be imprisoned for an indefinite

term of fifteen years to life ….” On April 8, 1983, the trial court sentenced Johnson

to a correctional facility “for a term of fifteen (15) years to life ….”

               Johnson claims that the trial court’s failure to include “indefinite” in

his sentence renders his sentence void. In support, he cites to State v. Banks, 1st

Dist. Hamilton No. C-890219, 

 (July 18, 1990), and

State v. Houston, 8th Dist. Cuyahoga No. 107538, 

.
               In Banks, the defendant was convicted of aggravated murder and

sentenced to “a term of life with parole eligibility after serving twenty (20) full years

of imprisonment.” Id. at 11. The applicable sentencing statute, however, mandated

that the trial court “impose a sentence of life imprisonment with parole eligibility

after serving twenty years of imprisonment.” R.C. 2929.03(C)(1). The First District

Court of Appeals stated that pursuant to R.C. 2967.19(B) and 2967.13(C), the

defendant, who is serving a sentence of life imprisonment with parole eligibility after

20 years imprisonment for aggravated murder is entitled to be eligible for parole

prior to serving 20 years’ imprisonment if he or she “faithfully observes and obeys

the rules of the institution.” Id. at 12-13. But under the sentence imposed by the

trial court of “twenty full years,” the defendant “is not entitled to any diminution in

time and is not eligible for parole until he serves the 20 years in prison.” Id. at 13-

14. Thus, the additional word “full” was not only not in the applicable sentencing

provision, but it effectively prevented the defendant from being eligible for parole

until he served 20 years in prison, contrary to the statute applicable to the

defendant’s sentence. The First District therefore vacated the defendant’s sentence

and remanded for a resentencing. Id. at 14.

               In Houston, the defendant was convicted of aggravated murder and

sentenced to prison “for life and three (3) years to run consecutive for gun

specifications ….” Houston, 8th Dist. Cuyahoga No. 107538, 

, at

¶ 7. The applicable sentencing statute in effect at the time of Houston’s sentencing

stated that
      [i]f the indictment or count in the indictment charging aggravated
      murder does not contain one or more specifications of aggravating
      circumstances listed in division (A) of section of 2929.04 of the
      Revised Code, then following a verdict of guilty to the charge of
      aggravated murder, the trial court shall impose a sentence of life
      imprisonment with parole eligibility after serving twenty years of
      imprisonment on the offender.

Houston at ¶ 6, citing R.C. 2929.03(A). This court noted in Houston that the

indictment charging the defendant with aggravated murder “did not allege ‘one or

more specifications of aggravating circumstances listed in division (A) of section of

2929.04 of the Revised Code.’”      Therefore, pursuant to R.C. 2929.03(A), the

defendant’s sentence should have included parole eligibility after serving 20 years

of imprisonment. Because Houston’s sentence did not include parole eligibility as

mandated by statute, his sentence was not authorized by law and therefore void.

Houston at ¶ 7.

              Banks and Houston, however, are distinguishable. The defendants in

Banks and Houston were charged with a different crime (aggravated murder) than

Johnson (murder) and sentenced under different statutes (R.C. 2929.03(C)(1) and

2929.03(A), respectively) than Johnson (R.C. 2929.02(B)).

              “When construing a statute, [a reviewing] court’s paramount concern

is the legislative intent in enacting the statute.” Yonkings v. Wilkinson, 

, 

 (1999), citing State v. S.R., 

,

 (1992). And “‘words must be taken in their usual, normal or

customary meaning.’” Yonkings, quoting S.R. at 595.
               As stated, Johnson was sentenced under R.C. 2929.02(B), which at

the time of Johnson’s sentencing, mandated a sentence of an “indefinite term of

fifteen years to life.” Unlike the statutes in Banks and Houston, the statute under

which Johnson was sentenced does not include language concerning parole

eligibility. Rather, as dictated by the clear language of the statute, the sentence

imposed shall be an indefinite term of 15 years. This court recently recognized the

“legislatively constructed differences between the sentence permitted for aggravated

murder and the sentence permitted for murder,” stating that “the legislature’s

construction of the [the aggravated murder sentencing statute and the murder

sentencing statute], and its decision to use different statutory language in each

sentencing statute, was intentional. One expressly sets forth parole eligibility by

statute, the other does not.” State v. Smith, 

, 

, ¶ 25

(8th Dist.), citing State v. Duncan, 2d Dist. Clark No. 2016-CA-77, 

. Because the statute under which Johnson was sentenced does not expressly

set forth parole eligibility, the trial court’s failure to include that language was proper

and had no bearing on his parole eligibility.

               Johnson further contends that the court’s failure to include the term

“indefinite” in his sentence, in and of itself, renders his sentence void. We find no

merit to this claim. A prison term of “fifteen years to life” for murder is, by its nature,

indefinite because it is a prison range defined by minimum and maximum terms.

Smith at ¶ 24; see 

 (“Referring to a minimum or maximum term of

imprisonment makes sense only when speaking of an indefinite sentence.”). And
because “the indefinite nature of the 15-year-to-life prison term is apparent since the

term is not a specific number of years,” the omission of the term “indefinite” does

not alter the sentence. State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729,

26983, 

, ¶ 14.        Therefore, because the omission of the term

“indefinite” is inconsequential to the nature of the indefinite sentence of “fifteen

years to life,” Johnson’s sentence comports with the statutory language set forth in

R.C. 2929.02(B) and is authorized by law. Thus, Johnson’s sentence is not void.

              Because we find that Johnson’s sentence is not void for the trial

court’s failure to include the term “indefinite” in Johnson’s sentence, res judicata

precludes Johnson from raising this issue on appeal.

              Johnson’s assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue 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.



MICHELLE J. SHEEHAN, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR