[Cite as State v. Yingling,
2021-Ohio-2972.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-20-074
WD-20-075
Appellee
Trial Court No. 2018CR0104
v. 2018CR0491
Justin Yingling DECISION AND JUDGMENT
Appellant Decided: August 27, 2021
…
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
…
PIETRYKOWSKI, J.
{¶ 1} This is a consolidated appeal from the judgments of the Wood County Court
of Common Pleas, finding appellant, Justin Yingling, in violation of the terms of his
community control, and sentencing him to two consecutive 12-month prison terms. For
the reasons that follow, we affirm, in part, and dismiss the appeal, in part.
I. Facts and Procedural Background
{¶ 2} On March 22, 2018, the Wood County Grand Jury indicted appellant on
multiple charges in case No. 2018CR0104, including failure to comply with an order or
signal of a police officer in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of
the third degree, and operating a vehicle under the influence in violation of R.C.
4511.19(A)(1)(a) and (G)(1)(a), a misdemeanor of the first degree.
{¶ 3} On April 3, 2018, appellant entered an initial plea of not guilty, and bond
was set at his own recognizance.
{¶ 4} On May 1, 2018, appellant failed to appear for a pretrial hearing, and a
nationwide warrant was issued for his arrest. In addition, appellant was charged in case
No. 2018CR0491 with failure to appear as required by recognizance in violation of R.C.
2937.99(A) and (B), a felony of the fourth degree.
{¶ 5} On October 23, 2018, in case No. 2018CR0104, appellant entered a guilty
plea to the amended count of failure to comply in violation of R.C. 2921.331(B) and
(C)(4), a felony of the fourth degree, and the count of operating a motor vehicle under the
influence in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(a), a misdemeanor of the first
degree. At the same time, in case No. 2018CR0491, appellant entered a guilty plea to the
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count of failure to appear in violation of R.C. 2937.99(A) and (B), a felony of the fourth
degree.
{¶ 6} Sentencing on both cases was held on December 4, 2018. At the sentencing
hearing, in case No. 2018CR0104, the trial court sentenced appellant to three years of
community control, and reserved an 18-month prison sentence on the count of failure to
comply, and a six-month sentence on the count of operating a motor vehicle under the
influence. In case No. 2018CR0491, the trial court similarly sentenced appellant to three
years of community control, and reserved an 18-month prison sentence on the count of
failure to appear.
{¶ 7} On July 25, 2019, the state filed a petition for revocation of community
control in both cases. The matter came before the court for a hearing on August 13,
2019, at which appellant admitted that he violated the terms of his community control.
Upon appellant’s admission, the trial court ordered that appellant remain on community
control in both cases, with the added condition that he serve 30 days in jail at the Wood
County Justice Center.
{¶ 8} On June 1, 2020, the state filed a second petition for revocation of
community control in both cases. A community control violation hearing was held on
July 14, 2020, at which appellant admitted to committing the violation. In imposing
sentence, the trial court remarked that it has tried every avenue with appellant: appellant
has been on community control, served time in the local jail, been in the Zeph Recovery
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House, been in the Ohio Treatment Center, has participated in the SEARCH program,
had intense supervision throughout his time on community control, and has had random
testing and weekly reporting. Despite all of these attempts, appellant has continued to
use illicit substances, including fentanyl. Therefore, in case No. 2018CR0104, the trial
court sentenced appellant to serve 12 months in prison on the count of failure to comply,
and six months on the count of operating a vehicle under the influence. The trial court
ordered that those terms be served concurrently. In case No. 2018CR0491, the trial court
ordered appellant to serve 12 months in prison on the count of failure to appear. The
court further ordered that the prison sentences in both cases be served concurrently for a
total prison term of 12 months.
{¶ 9} On September 30, 2020, the trial court held a resentencing hearing in case
No. 2018CR0104 based upon a determination that appellant’s original sentence was void
in that it failed to comply with R.C. 2921.331(D),1 which provides that “[i]f an offender
is sentenced pursuant to division (C)(4) or (5) of this section for a violation of division
(B) of this section, and if the offender is sentenced to a prison term for that violation, the
offender shall serve the prison term consecutively to any other prison term or mandatory
prison term imposed upon the offender.” At the resentencing hearing, the trial court
1
In the resentencing hearing transcript, the court commented that “These matters are
back before the Court based upon a decision by the Court of Appeals indicating that the
Court improperly sentenced the defendant and therefore his sentence was void. So I
guess we’re starting over with sentencing.” Notably, the record contains no indication
that the original July 16, 2020 judgment entry had ever been appealed to this court.
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imposed a 12-month prison sentence on the count of failure to comply, and a six-month
sentence on the count of operating a vehicle under the influence. The court ordered those
sentences to be served concurrently to each other, but consecutive to the 12-month prison
sentence in case No. 2018CR0491, for a total prison term of 24 months.
II. Assignment of Error
{¶ 10} Appellant filed a timely notice of appeal of his September 30, 2020
conviction in case No. 2018CR0104, and a delayed notice of appeal of his July 16, 2020
conviction in case No. 2018CR0491. We granted appellant’s motion for a delayed
appeal, and have consolidated the matters. Appellant now asserts one assignment of error
for our review:
The trial court did not comply with R.C. 2929.11 and R.C. 2929.12
in sentencing appellant to serve a term of twenty-four months in the Ohio
Department of Rehabilitation and Corrections.
III. Analysis
{¶ 11} Although the appeals have been consolidated, because of their unique
procedural postures, we must address each case separately.
1. Case No. 2018CR0104
{¶ 12} First, although not addressed by the parties, we find the trial court’s
September 30, 2020 judgment entry in case No. 2018CR0104 to be a nullity, and thus it
is not a final, appealable order. Because it is not a final, appealable order, we must
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dismiss the appeal for lack of jurisdiction. See State v. Wright, 6th Dist. Lucas No. L-14-
1167, 2015-Ohio-1269, ¶ 4 (“In the absence of a final appealable order, we must sua
sponte dismiss this appeal for lack of subject-matter jurisdiction.”).
{¶ 13} This case provides an illustration of the issues surrounding void and
voidable judgments. “A judgment or sentence is void only if it is rendered by a court that
lacks subject-matter jurisdiction over the case or personal jurisdiction over the
defendant.” State v. Henderson, 161 Ohio St.3d 285,
2020-Ohio-4784,
162 N.E.3d 776,
¶ 43; State v. Harper,
160 Ohio St.3d 480,
2020-Ohio-2913,
159 N.E.3d 248, ¶ 42. “[A
void judgment] is a mere nullity and can be disregarded. It can be attacked in collateral
proceedings.”
Henderson at ¶ 17. A voidable judgment, on the other hand, “is one
pronounced by a court with jurisdiction.”
Id. “[U]nless it is vacated on appeal, a
voidable judgment has the force of a valid legal judgment, regardless of whether it is
right or wrong.”
Id., citing Tari v. State,
117 Ohio St. 481, 494,
159 N.E. 594 (1927).
{¶ 14} Here, the trial court entered a final judgment of conviction on July 16,
2020. The court then determined that its judgment was void because it failed to comply
with R.C. 2921.331(D), and so it resentenced appellant on September 30, 2020. This was
erroneous. Because at the time, the trial court had subject-matter jurisdiction and
personal jurisdiction over appellant, the July 16, 2020 judgment entry was not void, but
merely voidable, even though it failed to comply with R.C. 2921.331(D). Thus, the July
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16, 2020 judgment entry was a final, appealable order, having the force of a valid legal
judgment.
{¶ 15} Importantly, “[o]nce a final judgment has been issued pursuant to Crim.R.
32, the trial court’s jurisdiction ends.” State v. Gilbert, 143 Ohio St.3d 150, 2014-Ohio-
4562,
35 N.E.3d 493, ¶ 9; State v. Raber,
134 Ohio St.3d 350,
2012-Ohio-5636,
982
N.E.2d 684, ¶ 20, quoting State ex rel. White v. Junkin,
80 Ohio St.3d 335, 338,
686
N.E.2d 267 (1997) (“trial courts lack authority to reconsider their own valid final
judgments in criminal cases”). As a result, because the trial court lacked jurisdiction to
resentence appellant on September 30, 2020, its judgment entry was not voidable, but
was void. We cannot review the void judgment, and must dismiss the appeal, because “a
void judgment is necessarily not a final appealable order.” State v. Gilmer,
160 Ohio
App.3d 75,
2005-Ohio-1387,
825 N.E.2d 1180, ¶ 6 (6th Dist.), overruled on other
grounds by
Henderson at ¶ 43.
{¶ 16} Accordingly, the September 30, 2020 judgment entry is void, and
appellant’s appeal from that judgment entry is dismissed.
2. Case No. 2018CR0491
{¶ 17} Turning to appellant’s arguments as they pertain to his July 16, 2020
judgment of conviction in case No. 2018CR0491, appellant contends that his sentence is
contrary to law because the trial court failed to comply with, or reference in any manner,
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the principles and purposes of sentencing in R.C. 2929.11 or the seriousness and
recidivism factors in R.C. 2929.12.
{¶ 18} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶
16. R.C. 2953.08(G)(2) allows us to “increase, reduce, or otherwise modify a sentence,”
or “vacate the sentence and remand the matter to the sentencing court for resentencing” if
we clearly and convincingly find either “(a) That the record does not support the
sentencing court’s findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant,” or “(b) That the sentence is otherwise contrary to
law.”
{¶ 19} We will first address appellant’s contention that the trial court failed to
reference in any manner R.C. 2929.11 and 2929.12. R.C. 2929.11 and 2929.12 are
mandatory provisions that the trial court must consider when imposing sentences. See,
e.g., R.C. 2929.11(A) (“A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing.”); R.C. 2929.12(A) (“In exercising [the
discretion to impose a sentence], the court shall consider the factors set forth in [divisions
(B) through (F)] of this section.”). However, “neither R.C. 2929.11 nor 2929.12 requires
a trial court to make any specific factual findings on the record.” State v. Jones, 163
Ohio St.3d 242,
2020-Ohio-6729,
169 N.E.3d 649, ¶ 20, citing State v. Wilson,
129 Ohio
8.
St.3d 214,
2011-Ohio-2669,
951 N.E.2d 381, ¶ 31. Further, “where the trial court does
not put on the record its consideration of R.C. 2929.11 and 2929.12, it is presumed that
the trial court gave proper consideration to those statutes.” State v. Sims, 6th Dist.
Sandusky No. S-13-037,
2014-Ohio-3515, ¶ 10, quoting State v. Kalish,
120 Ohio St.3d
23,
2008-Ohio-4912,
896 N.E.2d 124, ¶ 18, fn. 4. “It is up to the defendant to rebut this
presumption.” State v. Perkins, 6th Dist. Sandusky No. S-18-010,
2019-Ohio-2049, ¶ 22,
citing State v. Rutherford, 2d Dist. Champaign No. 08CA11,
2009-Ohio-2071, ¶ 34-35.
{¶ 20} Here, the trial court did not expressly state that it considered the principles
and purposes of sentencing in R.C. 2929.11, and the seriousness and recidivism factors in
R.C. 2929.12, at the July 14, 2020 sentencing hearing. However, it did it include such a
statement in its July 16, 2020 judgment entry, and it is axiomatic that “a court speaks
through its journal entries.” State v. Miller, 127 Ohio St.3d 407,
2010-Ohio-5705,
940
N.E.2d 924, ¶ 12. Furthermore, the transcript from the July 14, 2020 community control
violation hearing reveals that the trial court considered appellant’s substance abuse
history, his work situation, the effectiveness of previous community control sanctions,
and the need for punishment. Therefore, we hold that the record demonstrates that the
trial court considered R.C. 2929.11 and 2929.12 when it imposed its sentence, and
consequently appellant’s sentence is not clearly and convincingly contrary to law. See
State v. Penn, 6th Dist. Fulton No. F-20-004,
2021-Ohio-1761, ¶ 37 (“[W]here a trial
court has considered the purposes and principles of sentencing in R.C. 2929.11, has
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considered the sentencing factors listed in R.C. 2929.12, has properly applied postrelease
control, and has sentenced the defendant within the statutorily permissible range, the
sentence was not clearly and convincingly contrary to law.”).
{¶ 21} Relatedly, appellant argues that the trial court erred when it did not give
appropriate weight to the sentencing factors, and that the resulting sentence was too
harsh. Recently, however, the Ohio Supreme Court has clarified that appellant’s
argument is not appropriate for appellate review. In Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729,
169 N.E.3d 649, at ¶ 42, the Ohio Supreme Court held that “[n]othing in R.C.
2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence that
best reflects compliance with R.C. 2929.11 and 2929.12.” Therefore, we will not
consider whether the trial court erred in how it applied R.C. 2929.11 and 2929.12. State
v. Buck, 6th Dist. Wood No. WD-20-031,
2021-Ohio-1073, ¶ 9; State v. Windon, 6th
Dist. Sandusky No. S-20-012,
2021-Ohio-617, ¶ 28.
{¶ 22} Accordingly, because appellant’s sentence in case No. 2018CR0491 is not
clearly and convincingly contrary to law, appellant’s assignment of error is not well-
taken.
IV. Conclusion
{¶ 23} For the foregoing reasons, we find that the September 30, 2020 judgment
of the Wood County Court of Common Pleas in case No. 2018CR0104 is void, and it is
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hereby vacated. The July 16, 2020 judgment of the Wood County Court of Common
Pleas in case No. 2018CR0491 is affirmed. The parties are ordered to evenly split the
costs of this appeal pursuant to App.R. 24.
Judgment affirmed,in part,
and dismissed, in part.
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.
____________________________
Gene A. Zmuda, P.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/.
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