State v. Thomas

[Cite as State v. Thomas, 

.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-20-1099

        Appellee                                 Trial Court No. CR0201402811

v.

Carlos Thomas                                    DECISION AND JUDGMENT

        Appellant                                Decided: August 13, 2021


                                             …

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Timothy Young, Ohio Public Defender, and Victoria Bader,
        Assistant Public Defender, for appellant.

                                             …

        MAYLE, J.

        {¶ 1} Defendant-appellant, Carlos Thomas, appeals the May 21, 2020 judgment of

the Lucas County Court of Common Pleas, denying his motion to vacate his sentence.

For the following reasons, we affirm the trial court judgment.
                                      I. Background

      {¶ 2} On November 14, 2014, Carlos Thomas was indicted on four counts of

aggravated arson, violations of R.C. 2909.02(A)(1), first-degree felonies, and one count

of arson, a violation of R.C. 2909.02(A)(2), a second-degree felony. He entered a plea of

no contest to one count of aggravated arson (Count 4) and one count of the lesser-offense

arson, a violation of R.C. 2909.03(A)(1) and (B)(2)(b), a third-degree felony (Count 5).

The court imposed a sentence of five years’ community control, but advised Thomas that

a violation of community control could result in an eight-year term of imprisonment on

Count 4 and a 17-month term of imprisonment on Count 5.

      {¶ 3} On October 15, 2015, Thomas admitted to violating community control.

The court revoked community control on Count 5 and imposed the suspended 17-month

prison sentence. It ordered that Thomas remain on community control on Count 4 after

completing his sentence on Count 5.

      {¶ 4} In 2018, Thomas admitted to three additional community-control violations,

and each time, the trial court continued community control and ordered him to complete

programming at a correctional treatment facility. In 2019, Thomas violated community

control a fifth time. On March 11, 2019, the court revoked Thomas’s community control

on Count 4, terminated community control on Count 5, and imposed Thomas’s suspended

eight-year prison sentence.




2.
       {¶ 5} On October 24, 2019, Thomas moved to vacate his sentence, arguing that the

trial court failed to comply with Crim.R. 32(C) when it imposed a single term of

community control for Counts 4 and 5 rather than imposing separate sentences on each

conviction. He relied on decisions from Ohio’s Third, Fourth, Eighth, and Eleventh

appellate districts, which held that the imposition of a single, blanket sentence of

community control for multiple offenses renders the sentence void.

       {¶ 6} In a May 21, 2020 judgment, relying on conflicting decisions from the Fifth

and Ninth districts, the trial court denied Thomas’s motion. Thomas appealed, assigning

the following error for our review:

              The trial court erred when it sentenced Mr. Thomas to a single,

       lump-sum community control sentence for multiple charges.

                                  II. Law and Analysis

       {¶ 7} In his sole assignment of error, Thomas argues that the imposition of a

single sentence of community control for multiple convictions is contrary to law. He

contends that there is a split among Ohio’s appellate districts whether the failure to

impose separate terms of community control renders the sentence void. He encourages




3.
this court to adopt the position taken by the Third1, Fourth2, Eighth3, and Eleventh4

Districts—finding such a sentence void—and reject the contrary position taken by the

Fifth District5, declining to find it void, and the Ninth District6, explicitly finding it

merely voidable.




1
  State v. Williams, 3d Dist. Hancock No. 5-10-02, 

 (“[A] trial
court’s failure to properly impose a term of community control on each count would
render the sentence void as being contrary to law and would require a de novo
resentencing hearing to impose a sentence on each count.”).
2
 State v. Price, 4th Dist. Athens No. 17CA30, 

 (finding that trial
court erred when it imposed one lump-sum community control sentence for two offenses
instead of imposing a specific sentence for each count, and concluding that “trial court’s
disregard of statutory requirements … rendered that part of his sentence void,”
therefore, permitting appellant to challenge the sentence at any time); State v. Wheatley,
4th Dist. No. 17CA3, 

, 

 (finding that “a court may
not impose one, lump sum community control sentence instead of imposing a
specific community control sentence for each count” and remanding for resentencing).
3
  State v. Blair, 8th Dist. Cuyahoga No. 102548, 

 (observing that
a judge must impose a separate sentence for each offense, even when imposing
community control sanctions, and concluding that because the sentence did not comply
with statutorily-mandated terms, it was void).
4
 State v. Crenshaw, 11th Dist. Lake No. 2018-L-121, 

 (holding that
blanket sentence of three years’ community control for five offenses was void).
5
 State v. Williams, 5th Dist. Stark No. 2018CA00060, 

 (affirming
denial of motion to vacate and void sentence due to imposition of lump-sum community
control, finding no plain error, and concluding that res judicata barred challenge).
6
 State v. Earl, 9th Dist. Lorain No. 18CA011281, 

 (finding that
error in imposing single term of community control for multiple offenses did not render
sentence void, and appellant could not belatedly attack his sentence via a motion to
vacate void judgment because he could have raised his argument on direct appeal).



4.
       {¶ 8} The state acknowledges that a conflict currently exists among the appellate

districts, but it maintains that the Ohio Supreme Court’s decisions in State v. Henderson,

, 

, decided five months after the trial court’s judgment,

and State v. Harper, 

, 

, 

, limit the

scope of Ohio’s void sentence doctrine and elucidate the court’s position, making clear

that the Ohio Supreme Court would find Thomas’s sentence voidable rather than void.

As such, it claims, Thomas was required to raise this error via direct appeal. Because he

failed to do so, res judicata bars him from raising this issue now.

       {¶ 9} In Henderson, following Henderson’s conviction for murder, the trial court

imposed a definite sentence of 15 years, rather than the required indefinite sentence of 15

years to life. Although Henderson raised challenges to various aspects of his sentence

over the years, neither he nor the state filed a direct appeal from the original sentencing

judgment. Just before Henderson’s scheduled release from prison, the state moved for

resentencing to correct the sentence, arguing that the definite 15-year sentence was void.

The trial court granted the state’s motion and the Eighth District affirmed. Henderson

appealed to the Supreme Court of Ohio.

       {¶ 10} In considering Henderson’s appeal, the Ohio Supreme Court took the

opportunity to “consider the last three decades of [its] void-sentence analysis,” decided to

“reject that analysis,” and announced a “return to [its] traditional understanding of the

distinction between void and voidable sentences.” Id. at ¶ 1. Following that analysis, it

held that so long as a trial court has both subject-matter and personal jurisdiction, a



5.
sentence based on an error will be deemed voidable, not void. And where a judgment is

merely voidable, the doctrine of res judicata applies, “bar[ring] a party from raising and

litigating in any proceeding, except a direct appeal, claims that could have been raised in

the trial court.” Id. at ¶ 19, citing State v. Perry, 

, 

(1967), paragraph nine of the syllabus. Because the trial court had subject-matter and

personal jurisdiction, rendering Henderson’s sentence only voidable, the court held that

the state could not challenge the unlawful sentence via a post-conviction motion filed 18

years7 after Henderson’s conviction.

       {¶ 11} In Harper, decided before Henderson, the court considered the void-

voidable analysis in the context of a trial court’s failure to provide notice in its sentencing

entry of the consequences of a violation of postrelease control. It found the judgment

merely voidable. Similar to Henderson, the court professed to “realign” its jurisprudence

with the traditional understanding of void-versus-voidable sentences. In doing so, it

cautioned “prosecuting attorneys, defense counsel, and pro se defendants throughout this

state,” placing them “on notice that any claim that the trial court has failed to properly

impose postrelease control in the sentence must be brought on appeal from the judgment

of conviction or the sentence will be subject to res judicata.”8 Harper at ¶ 43.




7
 Henderson had also received an additional three years’ imprisonment on a firearms
specification.
8
 The Ohio Supreme Court reiterated this caution in State v. Hudson, 

,

, N.E.3d 608, ¶ 170.

6.
       {¶ 12} Thomas acknowledges Henderson and Harper, but insists that the Ohio

Supreme Court has yet to apply these cases in the context of “lump-sum sentencing

errors.” This is true. However, in Henderson, anticipating that parties may “try to

distinguish Harper from cases that do not involve the imposition of postrelease

control,”—and presumably trying to stave off similar attempts by parties to argue that

Henderson is limited to the failure to include a life-tail on a sentence—the court

announced: “Today, we make it clear that sentences based on an error are voidable, if the

court imposing the sentence has jurisdiction over the case and the defendant, including

sentences in which a trial court fails to impose a statutorily mandated term.” 

. In other words, Henderson and Harper are generally applicable to sentencing

errors and are not limited to the specific errors then before the court.

       {¶ 13} We agree with Thomas that it was error for the trial court to impose a

blanket term of community control for his multiple convictions. “[A] judge sentencing a

defendant pursuant to Ohio law must consider each offense individually and impose a

separate sentence for each offense.” State v. Saxon, 

, 2006-Ohio-

1245, 

, ¶ 9. This is true even where the trial court imposes community

control. State v. DeLuca, 11th Dist. Lake No. 2020-L-089, 

. But

given the bright-line rule enunciated by the Ohio Supreme Court in Henderson, and given

that Thomas has not raised any challenges to the trial court’s subject-matter or personal

jurisdiction, we must agree with the state that the judgment here is merely voidable—not




7.
void.9 Because it is merely voidable, the doctrine of res judicata applies. Thomas knew

at the time of his sentencing that the trial court had imposed a lump-sum term of

community control and could have raised this issue in the trial court or on direct appeal.

He did not. Res judicata bars him from doing so now.

       {¶ 14} Accordingly, we find Thomas’s assignment of error not well-taken.

                                     III. Conclusion

       {¶ 15} We find Thomas’s sole assignment of error not well-taken. Although the

trial court erred when it imposed a single term of community control for multiple

convictions, this error rendered Thomas’s sentence voidable—not void. Because his

sentence was merely voidable, and because Thomas did not raise this error in the trial

court or on direct appeal, res judicata bars him from raising it now. We affirm the May

21, 2020 judgment of the Lucas County Court of Common Pleas. Thomas is ordered to

pay the costs of this appeal under App.R. 24.

                                                                      Judgment affirmed.




9
 Despite its decision in Crenshaw, 11th Dist. Lake No. 2018-L-121, 

,
earlier this year, the Eleventh District cited Harper, 

, 2020-Ohio-
2913, 

, for the proposition that any error in imposing a lump-sum
community control sanction would render the sentence voidable, not void. DeLuca, 11th
Dist. Lake No. 2020-L-089, 

. See also State v. Hedges, 11th Dist.
Lake No. 2019-L-135, 

, appeal not allowed, 

,

, 

 (“[F]ollowing the realigned principles concerning
void/voidable errors in Harper, we find the imposition of a sentencing package to be a
voidable error, and not void as Mr. Hedges argues.”).


8.
                                                                       L-20-1099
                                                                       State v. Thomas




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                         ____________________________
                                                         JUDGE
Christine E. Mayle, J.
                                                 ____________________________
Myron C. Duhart, J.                                      JUDGE
CONCUR.
                                                 ____________________________
                                                         JUDGE




          This decision is subject to further editing by the Supreme Court of
     Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
          version are advised to visit the Ohio Supreme Court’s web site at:
                   http://www.supremecourt.ohio.gov/ROD/docs/.




9.