[Cite as State v. Crawford,
2020-Ohio-4897.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190497
TRIAL NO. B-0609524
Plaintiff-Appellee, :
vs. : O P I N I O N.
DAVID CRAWFORD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: October 14, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
David Crawford, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant David Crawford presents on appeal a single
assignment of error challenging the Hamilton County Common Pleas Court’s
judgment overruling his “Motion for Resentencing Based on Void and Nonfinal
Appealable Order.” We sustain the assignment of error in part, affirm in part and
reverse in part the court’s judgment overruling the motion, and we remand for
correction of clerical errors in the judgment of conviction.
Procedural Posture
{¶2} In 2007, Crawford was convicted upon jury verdicts finding him guilty of
aggravated murder, murder, and tampering with evidence. The trial court imposed
concurrent prison terms of life with parole eligibility after 20 years for aggravated
murder and 15 years to life for murder, along with a three-year prison term for a
firearm specification accompanying each offense. The court also imposed a
consecutive five-year prison term for tampering with evidence and a discretionary
period of postrelease control of up to three years. And Crawford was ordered to pay
court costs. We affirmed those convictions in the direct appeal. See State v.
Crawford, 1st Dist. Hamilton No. C-070816, 2008-Ohio-5764, appeal not accepted,
122 Ohio St.3d 1454,
2009-Ohio-3131,
908 N.E.2d 945.
{¶3} In 2009, we reopened the direct appeal. Upon our determination that
the aggravated-murder and murder charges were allied offenses subject to merger
under R.C. 2941.25, we remanded for sentencing on only one of those offenses. State
v. Crawford, 1st Dist. Hamilton No. C-070816 (Nov. 4, 2009). Pursuant to that
mandate, the trial court, in 2010, held a resentencing hearing and entered a
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OHIO FIRST DISTRICT COURT OF APPEALS
judgment of conviction stating that Crawford was convicted of aggravated murder
and tampering. Crawford did not appeal that judgment.
{¶4} The 2010 judgment of conviction did not order costs. Nevertheless,
Crawford filed in 2013 a “Motion to Vacate Unlawfully Imposed Court Cost.” The
trial court overruled that motion and, in 2014, entered a third judgment of
conviction, nunc pro tunc to the 2010 resentencing hearing, that included an order of
costs. Crawford did not appeal that judgment.
{¶5} In 2019, Crawford filed with the common pleas court his “Motion for
Resentencing Based on Void and Nonfinal Appealable Order.” He sought
resentencing and the entry of a final appealable order on the ground that the original
and successive judgments of conviction were void, because they imposed an
“improper[]” prison term for aggravated murder and an incorrect period of
postrelease control, incorrectly stated that he had been convicted upon guilty pleas,
and reimposed court costs without holding a hearing. The common pleas court
overruled the motion. This appeal followed.
Not Void
{¶6} A court has jurisdiction to correct at any time a judgment that is void.
See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,
2006-Ohio-5795,
856 N.E.2d
263, ¶ 18-19. Until the Ohio Supreme Court’s May 2020 decision in State v. Harper,
Slip Opinion No.
2020-Ohio-2913, the imposition of a sentence contrary to statutory
mandates, including those concerning postrelease control, rendered that sentence
void and subject to review and correction at any time before completion of the
journalized sentence. See id. at ¶ 27-40, citing State v. Jordan,
104 Ohio St.3d 21,
2004-Ohio-6085,
817 N.E. 2d 864, and State v. Beasley,
14 Ohio St.3d 74, 75, 471
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OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 774 (1984). The Supreme Court in Harper “realign[ed]” its void-versus-
voidable jurisprudence with “the traditional understanding of what constitutes a void
judgment,” to hold that “[w]hen a case is within a court’s subject-matter jurisdiction
and the accused is properly before the court, any error in the exercise of that
jurisdiction … renders the court’s judgment voidable,” not void. Id. at ¶ 4-5 and
27-43 (overruling Beasley and Jordan and its progeny). See State v. Henderson,
Slip Opinion No.
2020-Ohio-4784, ¶ 40 (following Harper to hold that the trial court
erred in granting the state’s postconviction motion for resentencing, because an
unlawful sentence is voidable, not void).
{¶7} “Subject-matter jurisdiction refers to the constitutional or statutory
power of a court to adjudicate a particular class or type of case.” Id. at ¶ 23. Article
IV, Section 4(B), of the Ohio Constitution and R.C. 2931.03 confer upon a common
pleas court subject-matter jurisdiction over felony cases. And a court has jurisdiction
over a person appearing before it under a valid indictment. See Stacy v. Van Coren,
18 Ohio St.2d 188, 189,
248 N.E.2d 603 (1969); Page v. Green,
174 Ohio St. 178, 178-
179,
187 N.E.2d 592 (1963).
{¶8} Crawford appeared before the trial court under indictment for the
special felonies of aggravated murder and murder and third-degree-felony tampering
with evidence. The trial court acted within its subject-matter jurisdiction in
sentencing him for those offenses. Consequently, any error in imposing those
sentences rendered the sentences voidable, not void. Therefore, the common pleas
court could not have exercised its jurisdiction to correct a void sentence by holding a
new sentencing hearing to correct the mistakes listed by Crawford in his “Motion for
Resentencing Based on Void and Nonfinal Appealable Order.”
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OHIO FIRST DISTRICT COURT OF APPEALS
No Resentencing under Postconviction Statutes or Rules
{¶9} Nor could the common pleas court have resentenced Crawford pursuant
to any postconviction procedure provided by statute or rule. Crawford did not
specify in his motion a statute or rule under which the relief sought may have been
afforded. Thus, the court was left to “recast” the motion “into whatever category
necessary to identify and establish the criteria by which the motion should be
judged.” State v. Schlee, 117 Ohio St.3d 153,
2008-Ohio-545,
882 N.E.2d 431, ¶ 12
and syllabus.
But Crawford’s motion was not reviewable by the common pleas court under
the standards provided by R.C. 2953.21 et seq., governing the proceedings upon a
petition for postconviction relief, because the motion did not seek relief from his
convictions based on a constitutional violation. See State v. Powell, 90 Ohio App.3d
260, 264,
629 N.E.2d 13 (1st Dist.1993) (citing R.C. 2953.21(A)(1) to hold that “the
violation upon which [a postconviction] petitioner relies to establish his right to
relief must be of constitutional dimension, and it must have occurred at the time the
petitioner was tried and convicted of a criminal offense”). Nor was the motion
reviewable as a motion to withdraw a guilty or no-contest plea under Crim.R. 32.1 or
as a motion for a new trial under Crim.R. 33, because Crawford was not convicted
upon guilty or no-contest pleas, but following a jury trial, and the motion did not
seek a new trial. The motion was not reviewable under R.C. Chapter 2731 as a
petition for a writ of mandamus, under R.C. Chapter 2721 as a declaratory judgment
action, or under R.C. Chapter 2725 as a petition for a writ of habeas corpus, because
the motion did not satisfy those statutes’ procedural requirements. See R.C. 2731.04,
2721.12(A), and 2725.04. And Crim.R. 57(B) did not require the common pleas court
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OHIO FIRST DISTRICT COURT OF APPEALS
to entertain the motion under Civ.R. 60(B), because Crawford’s sentences were
reviewable under the procedures provided for a direct appeal.
{¶10} Accordingly, we hold that the common pleas court had no jurisdiction
to grant relief in the form of resentencing upon the grounds presented in the motion.
Authority to Correct Clerical Errors
{¶11} While Crawford is not eligible to be resentenced, we hold that mistakes
in the 2010 judgment of conviction that were then carried into the superseding
judgment of conviction entered in 2014 were subject to correction under Crim.R. 36.
{¶12} The original judgment of conviction, entered in 2007, correctly stated
that Crawford had been found guilty by a jury. The judgment also correctly imposed
for aggravated murder the prison term then mandated by R.C. 2929.03(A)(1)(b):
“life … with eligibility for parole after twenty (20) years.”1 The judgment also
included the postrelease-control period of “up to three years” authorized under R.C.
2967.28(C) for his third-degree-felony tampering offense. And the judgment
ordered him to pay court costs. The 2007 judgment of conviction was initially
affirmed on direct appeal.
{¶13} The 2010 judgment of conviction followed our decision in the
reopened appeal. In that decision, we held that the allied-offenses statute required
the trial court “to impose only one sentence for the offenses of aggravated murder
and murder.” Accordingly, we “reversed” “that part of the … judgment imposing
separate sentences” and “remanded for resentencing consistent with the law and
[our decision in the reopened appeal].”
1 On appeal, Crawford contends that in 2007, “the trial court improperly imposed a sentence of
“life with parole eligibility after 20 years” for aggravated murder. As stated above, that was a
correct sentence. Nevertheless, Crawford was resentenced for aggravated murder in 2010, and he
does not claim that his sentence in the 2010 judgment entry was incorrect.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} In the 2010 judgment of conviction entered on remand, the trial court
“merged” murder with aggravated murder and imposed for aggravated murder a
prison term of “20 years to life.” The court mistakenly indicated in the 2010
judgment of conviction that Crawford had been convicted upon guilty pleas to the
offenses. The court also omitted from the judgment the 2007 order of costs. And
instead of the discretionary three-year period of postrelease control imposed in
2007, the 2010 judgment of conviction imposed a five-year period of postrelease
control that was not authorized for either the unclassified felony of aggravated
murder, see State v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748,
893 N.E.2d 462, ¶
36, or the third-degree felony of tampering with evidence. See R.C. 2968.28(C).
{¶15} The 2010 judgment of conviction was subsequently superseded by the
judgment of conviction filed in 2014, after Crawford had moved to vacate the 2007
order of costs. The 2014 judgment was entered nunc pro tunc to 2010, with the
stated purpose of “correcti[ng]” the 2010 judgment by adding an order of costs. The
2014 judgment otherwise carried forward the mistakes contained in the 2010
judgment.
{¶16} Crim.R. 36 authorizes a court to “correct[] … at any time” “clerical
mistakes in judgments.” That rule permitted the common pleas court to correct
clerical errors in the 2014 judgment of conviction that Crawford complained of in his
2019 motion.
{¶17} As a preliminary matter, we note that the record before us does not
include a transcript of the sentencing proceedings on remand that resulted in the
2010 judgment of conviction. Thus, we are constrained to presume the regularity of
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OHIO FIRST DISTRICT COURT OF APPEALS
those proceedings. See Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199,
400
N.E.2d 384 (1980).
{¶18} Court costs. In crafting the 2010 judgment of conviction on
remand from our decision in the reopened appeal, the trial court was limited to
imposing a sentence for either aggravated murder or murder. In the absence of a
transcript of the proceedings resulting in the 2010 judgment, we are constrained to
presume that the trial court did not intend to exceed the mandate of our decision in
the reopened appeal by omitting from the 2010 judgment of conviction the costs
order imposed in the original judgment of conviction. Moreover, the 2014 judgment
of conviction, which restored the costs order, was prompted by Crawford’s 2013
motion challenging the original costs order. The trial court overruled that motion
upon its express finding that “court costs were imposed” at the 2010 resentencing
hearing.
{¶19} Thus, the record demonstrates that the original costs order was
inadvertently omitted from the 2010 judgment of conviction. Accordingly, we hold
that the trial court, in the 2014 judgment of conviction, properly exercised its
authority under Crim.R. 36 to correct that clerical mistake.
{¶20} Postrelease control. The 2010 judgment of conviction imposed a
mandatory five-year period of postrelease control, instead of the discretionary three-
year term imposed in the 2007 judgment of conviction. As we noted, postrelease
control was not authorized for aggravated murder, and the discretionary three-year
postrelease-control term imposed in the original judgment of conviction was
required for the tampering charge. In the absence of a transcript of the proceedings
resulting in the 2010 judgment, we are constrained to presume that the trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
did not intend to exceed the mandate of our decision in the reopened appeal by
substituting the unauthorized mandatory five-year postrelease-control period for the
authorized discretionary three-year period.
{¶21} In the absence of some suggestion in the record to the contrary, the
trial court is presumed to have proceeded lawfully. Accordingly, we presume that the
substitution in the 2010 judgment of conviction of an unauthorized period of
postrelease control for the statutorily mandated period was inadvertent. Thus, it was
the consequence of a clerical mistake that the common pleas court was authorized to
correct under Crim.R. 36.
{¶22} Misstatement concerning guilty pleas. Finally, the 2010
judgment of conviction mistakenly indicated that Crawford had been found guilty
upon guilty pleas, when the original judgment of conviction properly indicated that
he had been found guilty by a jury. This misstatement was then carried into the 2014
judgment of conviction. There is no dispute that Crawford was convicted by a jury
and not upon guilty pleas. Therefore, Crim.R. 36 authorized the common pleas court
to correct this obvious clerical mistake.
Affirmed in Part, Reversed in Part, and Remanded to Correct
Judgment of Conviction
{¶23} The common pleas court had no jurisdiction to resentence Crawford
on the grounds advanced in his “Motion for Resentencing Based on Void and
Nonfinal Appealable Order.” We, therefore, affirm in part the court’s judgment
overruling the motion.
Crim.R. 36 authorized the correction, in the 2014 judgment of conviction, of the
clerical mistake concerning the order of court costs. The clerical mistakes in that
judgment, in imposing an incorrect period of postrelease control and incorrectly
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OHIO FIRST DISTRICT COURT OF APPEALS
stating that Crawford had been convicted upon guilty pleas, were brought to the
attention of the common pleas court by his 2019 “Motion for Resentencing Based on
Void and Nonfinal Appealable Order.” Crim.R. 36 authorized the court to correct
those mistakes. Accordingly, we reverse in part the court’s judgment overruling the
motion. And we remand to the common pleas court with instructions to enter a
judgment of conviction, nunc pro tunc to the 2010 resentencing, correcting those
mistakes in accordance with the law and this opinion.
Judgment affirmed in part and reversed in part, and cause remanded.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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