State v. Ali

[Cite as State v. Ali, 

.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                  :

                 Plaintiff-Appellee,            :
                                                            No. 110624
                 v.                             :

OSIRIS ALI,                                     :

                 Defendant-Appellant.           :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 9, 2021


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CR-05-465969-A


                                          Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Mary M. Frey, Assistant Prosecuting
                 Attorney, for appellee.

                 Osiris Ali, pro se.


EILEEN T. GALLAGHER, J.:

                This appeal is before the court on the accelerated docket pursuant to

App.R. 11.1 and Loc. App.R. 11.1. The purpose of an accelerated appeal is to allow

this court to render a brief and conclusory opinion. State v. Priest, 8th Dist.

Cuyahoga No. 100614, 

.
              Defendant-appellant, Osiris Ali (“Ali”), appeals pro se from the trial

court’s denial of his pro se motion to correct a void sentence. He raises the following

assignment of error for review:

       The trial court erred in denying defendant’s motion to void sentence
       where defendant’s sentence is void as a matter of law.

              After careful review of the record and relevant case law, we affirm the

trial court’s judgment.

                       I. Procedural and Factual History

              In May 2005, Ali was named in a 79-count indictment, charging him

with various counts of rape, gross sexual imposition, kidnapping, and unlawful

sexual conduct with a minor. The indictment stemmed from allegations that Ali

sexually abused his minor adopted sister and his minor niece between December

2002 and May 2005.

              The matter proceeded to a bench trial in February 2006. At the

conclusion of trial, Ali was found guilty of four counts of rape of a person under 13

years of age with force specifications; one count of rape of a person under 13 years

of age (no force specification); seven counts of kidnapping with sexual motivation

specifications; seven counts of unlawful sexual conduct with a minor; and one count

of gross sexual imposition.

              In April 2006, Ali was classified as a sexual predator and sentenced to

life in prison.
             This court affirmed his convictions and sentence in State v. Ali, 8th

Dist. Cuyahoga No. 88147, 

, appeal not accepted, 

, 

, 

. Ali has since filed numerous challenges to

his convictions and sentence, all of which have been denied or dismissed. See, e.g.,

State v. Ali, 8th Dist. Cuyahoga No. 88147, 

 (application to reopen

denied); State ex rel. Ali v. McMonagle, 8th Dist. Cuyahoga No. 95059, 2010-Ohio-

3514 (writ of mandamus denied); State v. Ali, 8th Dist. Cuyahoga No. 97612, 2012-

Ohio-2510 (postconviction relief denied); State v. Ali, 8th Dist. Cuyahoga No.

99062, 

 (postconviction relief dismissed); State v. Ali, 8th Dist.

Cuyahoga No. 101129, 

 (postconviction relief denied); State ex rel.

Ali v. Clancy, 8th Dist. Cuyahoga No. 103328, 

 (mandamus

dismissed and warned of being declared a vexatious litigator); State v. Ali, 8th Dist.

Cuyahoga No. 105534, 

 (denial of motion to vacate a void sentence

pursuant to Crim.R. 6(C) and (F) and R.C. 2939.22); State v. Ali, 8th Dist. Cuyahoga

No. 109580, 

 (denial of motion to vacate an unlawful void

sentence).

             Notwithstanding his previously unsuccessful efforts, Ali filed a pro se

motion to correct a void sentence in May 2021. The trial court summarily denied

the motion in June 2021. Ali now appeals from the trial court’s judgment.

                              II. Law and Analysis

             In his sole assignment of error, Ali argues the trial court erred by

denying his motion to correct his void sentence. Ali contends that his sentence is
facially invalid because “the court failed to include parole eligibility in his sentence

as required by the relevant sentencing statute in effect when he was sentenced in

2006.” Ali suggests that he should have been sentenced to life with the possibility

of parole after serving ten years in prison.1

              Ali’s motion to vacate is a petition for postconviction relief under R.C.

2953.21(A)(1) because it (1) was filed subsequent to a direct appeal, (2) claimed a

denial of constitutional rights, (3) sought to render the judgment void, and (4) asked

for a vacation of the judgment and sentence. State v. Reynolds, 

, 

 (1997); see also State v. Meincke, 8th Dist. Cuyahoga No.

96407, 

.

              Typically, a reviewing court reviews a trial court’s decision granting or

denying a petition for postconviction relief for an abuse of discretion. However,

whether the trial court possessed subject-matter jurisdiction to entertain an

untimely petition for postconviction relief is a question of law, which appellate

courts review de novo. State v. Apanovitch, 

, 

,

.

              As he has previously argued, Ali maintains that he is not barred from

challenging his sentence because a void sentence can be challenged at any time.

Again, we reiterate that the Ohio Supreme Court has realigned its void-sentence

jurisprudence, making clear that if a sentencing court had jurisdiction over the case



      1 We note that Ali’s sentence, which was imposed pursuant to R.C. 2907.02(B), is
separate and distinct from the parole eligibility mandates set forth under R.C. 2967.13.
and the defendant, sentencing errors are voidable, not void, and can be challenged

only on direct appeal. See State v. Harper, 

, 

,

, and State v. Henderson, 

, 

, 

.

              Consistent with our holding in Ali, 8th Dist. Cuyahoga No. 109580,

, we emphasize that the sentencing court here had jurisdiction over

Ali and his felony case. R.C. 2931.03; Smith v. Sheldon, 

, 2019-Ohio-

1677, 

, ¶ 8 (“[A] common pleas court has subject-matter jurisdiction

over felony cases.”). Any sentencing error would therefore be voidable, not void. Ali

is limited to challenging his voidable sentence via a direct appeal; under the Ohio

Supreme Court’s current jurisprudence, he cannot challenge the sentence at any

time like he claims. Because the trial court lacked jurisdiction to consider Ali’s

untimely and successive petition for postconviction relief, the court did not err by

summarily denying Ali’s motion to correct his sentence.

              Ali’s sole 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 out 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.



EILEEN T. GALLAGHER, JUDGE

ANITA LASTER MAYS, P.J., and
LISA B. FORBES, J., CONCUR