[Cite as State v. Barner,
2021-Ohio-654.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
STATE OF OHIO, : Case Nos. 19CA11
19CA12
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
DAVID A. BARNER, :
Defendant-Appellant. : RELEASED 3/3/2021
______________________________________________________________________
APPEARANCES:
James A. Anzelmo, Gahanna, Ohio, for appellant.
James K. Stanley, Meigs County Prosecutor, Pomeroy, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} David A. Barner appeals the denial of his petition for postconviction relief
in which he sought to vacate or set aside his judgment of conviction or sentence. In
2010, Barner was convicted on two counts each of pandering obscenity involving a
minor, pandering sexually oriented matter involving a minor, and gross sexual imposition
and sentenced to serve consecutive prison terms for a cumulative sentence of 19.5
years, with a community control sanction ordered to be served consecutive to the prison
sentence. Barner contends that his sentence is void because the trial court: (1) ordered
consecutive prison terms without making the statutory findings under R.C. 2929.14(C)(4)
and (2) ordered his community control to be served consecutive to his prison term
without any statutory authority to do so.
{¶2} We reject Barner’s contentions because even if his arguments had merit,
his sentence would be “voidable,” not “void.” Barner should have made his challenge
Meigs App. Nos. 19CA11, 19CA12 2
within the time period governing postconviction petitions or he must demonstrate the
existence of facts necessary for the trial court to exercise jurisdiction over the merits of
his untimely claim. His petition failed to do either. Consequently, we affirm the judgment
of the trial court as modified to reflect the dismissal of his petition.
I. FACTS AND PROCEDURAL HISTORY
{¶3} The Meigs County grand jury indicted Barner on two counts of pandering
obscenity involving a minor, two counts of pandering sexually oriented matter involving
a minor, two counts of sexual battery, and two counts of gross sexual imposition, Case
No. 09-CR-003. In a separate case, Case No. 09-CR-114, Barner was charged in a bill
of information with one count of pandering obscenity involving a minor. The trial court
entered a nolle prosequi on the sexual battery charges, and Barner pleaded guilty to the
remaining charges. The trial court merged the relevant counts and sentenced Barner,
in Case No. 09-CR-114, to a prison term of eight years for pandering obscenity
involving a minor, and, in Case No. 09-CR-003, to 18 months for the first count of
pandering obscenity involving a minor, a five-year community control sanction for the
second count of pandering obscenity involving a minor, and five years each on the two
gross sexual imposition counts, all to be served consecutively for a total prison term of
19.5 years, with the community control sanction to be served consecutive to the prison
term. Barner appealed but did not raise any purported sentencing errors and we
affirmed the judgment. State v. Barner, 4th Dist. Meigs No. 10CA9, 2012-Ohio-4584.
{¶4} In 2019, nine years after his conviction, Barner filed a Petition to Vacate or
Set Aside Judgment of Conviction or Sentence in which he contended that the trial court
did not comply with statutory requirements for imposing consecutive sentences. He
Meigs App. Nos. 19CA11, 19CA12 3
argued that he was denied the protections of R.C. 2929.14(C)(4) because the trial court
did not make factual findings before imposing consecutive sentences. He claimed he
“was told at sentencing that the law requiring the fact finding was no longer required” but
in 2014 the Supreme Court of Ohio upheld the factual findings requirement in State v.
Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659. The trial court summarily
found his petition “not well-taken” and denied it. Barner appealed.
II. ASSIGNMENTS OF ERROR
{¶5} Barner assigns the following errors for our review:
1. The trial court erred by denying Barner’s motion to vacate his
sentences because the trial court unlawfully ordered Barner to serve
consecutive sentences, in violation of his rights to due process,
guaranteed by Section 10, Article I of the Ohio Constitution and the Fifth
and Fourteenth Amendments to the United States Constitution.
2. The trial court erred by denying Barner’s motion to vacate his
sentences because the trial court erred by ordering Barner to serve his
prison sentences consecutive to his community control sentence, in
violation of his rights to due process, guaranteed by Section 10, Article I of
the Ohio Constitution and the Fifth and Fourteenth Amendments to the
United States Constitution.
III. STANDARD OF REVIEW
{¶6} We review decisions granting or denying a postconviction relief petition
under an abuse of discretion standard. State v. Rinehart, 4th Dist. Ross No. 17CA3606,
2018-Ohio-1261, ¶ 10. “[A] trial court's decision granting or denying a postconviction
petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a
reviewing court should not overrule the trial court's finding on a petition for postconviction
relief that is supported by competent and credible evidence.” State v. Gondor,
112 Ohio
St.3d 377, 2006–Ohio–6679,
860 N.E.2d 77, ¶ 58. “A trial court abuses its discretion
when its decision is unreasonable, arbitrary, or unconscionable.” State v. Knauff, 4th
Meigs App. Nos. 19CA11, 19CA12 4
Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 19, citing Cullen v. State Farm Mut. Auto
Ins. Co.,
137 Ohio St.3d 373, 2013–Ohio–4733,
999 N.E.2d 614, ¶ 19.
IV. SENTENCING CHALLENGES
{¶7} Barner contends that the trial court failed to make findings under R.C.
2929.14(C)(4) when it ordered consecutive sentences1 and that it erred when it ordered
his community control sanction to be served consecutive to his prison term. He argues
that these purported sentencing errors make his sentence void and void sentences can
be challenged at any time.
{¶8} However, the law on void judgments has been recently clarified by the
Supreme Court of Ohio. When the trial court had both subject matter and personal
jurisdiction, the trial court’s judgment is voidable, not void. See State v. Harper, 160 Ohio
St.3d 480,
2020-Ohio-2913,
159 N.E.3d 248 (“When 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 in imposing postrelease control renders the court's judgment voidable,
permitting the sentence to be set aside if the error has been successfully challenged on
direct appeal.”). Barner does not contest the trial court’s subject-matter or personal
jurisdiction; the trial court had both subject matter and personal jurisdiction over his case.
Thus, his sentencing challenges, if true, would make the trial court’s judgment voidable,
not void:
The traditional rule long followed in Ohio is that a void judgment is one
entered by a court lacking subject-matter jurisdiction over the case or
personal jurisdiction over the parties. See Harper, ––– Ohio St.3d ––––,
2020-Ohio-2913, ––– N.E.3d ––––, at ¶ 4; State v. Perry,
10 Ohio St.2d
175, 178,
226 N.E.2d 104 (1967); Ex parte Shaw,
7 Ohio St. 81, 82
(1857); Sheldon's Lessee v. Newton, 3 Ohio St. 494, 499 (1854). When a
1The state correctly noted in its brief that, at the time Barner was sentenced in 2010, judicial fact finding
was not required and R.C. 2929.14(C) had not yet been enacted.
Meigs App. Nos. 19CA11, 19CA12 5
case is within a court's subject-matter jurisdiction and the parties are
properly before the court, any error in the exercise of its jurisdiction
renders the court's judgment voidable, not void. Harper at ¶ 26; Pratts v.
Hurley, 102 Ohio St.3d 81,
2004-Ohio-1980,
806 N.E.2d 992, ¶ 12. In
general, a voidable judgment may be set aside only if successfully
challenged on direct appeal. Harper at ¶ 26.
State v. Hudson, 161 Ohio St.3d 166,
2020-Ohio-3849,
161 N.E.3d 608, ¶ 11; State v.
Henderson, __Ohio St.3d___,
2020-Ohio-4784, __ N.E.3d___ (sentences based on
an error are voidable, if the court imposing the sentence had jurisdiction over the case
and the defendant, including sentences in which a trial court failed to impose a
statutorily mandated term).
{¶9} Because Barner’s sentencing challenges, if true, would render his
sentence voidable, not void, he must file his postconviction petition within the 365-day
time period set forth in R.C. 2953.21. R.C. 2953.21(A)(2) provides that a petition for
postconviction relief must be filed “no later than three hundred sixty-five days after the
date on which the trial transcript is filed in the court of appeals in the direct appeal of the
judgment of conviction or adjudication.” Barner's petition was untimely because it was
filed over eight years after the expiration of this 365–day period. State v. Rinehart, 4th
Dist. Ross No. 17CA3606, 2018-Ohio-1261, ¶ 13; see, e.g., State v. Heid, 4th Dist.
Scioto No. 15CA3710, 2016–Ohio–2756, ¶ 15.
{¶10} R.C. 2953.23(A)(1) authorizes a trial court to address the merits of an
untimely filed petition for postconviction relief only if: (1) the petitioner shows either that
he was unavoidably prevented from discovery of the facts upon which he must rely to
present the claim for relief or that the United States Supreme Court recognized a new
federal or state right that applies retroactively to him; and (2) the petitioner shows by
clear and convincing evidence that no reasonable factfinder would have found him guilty
Meigs App. Nos. 19CA11, 19CA12 6
but for constitutional error at trial. Barner made no attempt to comply with R.C.
2953.23(A). Therefore, Barner did not establish that the trial court had the authority to
address the merits of his untimely petition for postconviction relief. In the absence of
jurisdiction, the trial court should have dismissed the petition, rather than denying it on
the merits. Upon authority of App.R. 12(A)(1)(a), we modify the trial court's judgment to
reflect the dismissal of the petition, and we affirm the judgment of the trial court as
modified. See State v. Rinehart at ¶ 14-15; State v. Osborn, 4th Dist. No. 18CA1064,
2018-Ohio-3866, ¶ 12 (when defendant fails to argue the applicability of either exception
under R.C. 2953.23(A), we do not apply an abuse of discretion standard, but conclude
that the trial court lacked jurisdiction and modify the judgment pursuant to App.R.
12(A)(1)(a) to reflect the trial court’s dismissal of the petition, rather than the denial of it).
{¶11} Additionally, Barner’s second assignment of error challenging the
community control sanction was not raised in his petition for postconviction relief and is
being raised for the first time on appeal. It is well settled that appellate courts will not
consider errors raised for the first time on appeal. Osborn at ¶ 15, citing State v.
Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034,
19 N.E.3d 900, ¶ 15.
{¶12} Finally, even if the trial court could entertain Barner's petition, the doctrine
of res judicata bars his attempt to challenge his sentence. State v. Harper, 160 Ohio
St.3d 480,
2020-Ohio-2913,
159 N.E.3d 248 (because Harper could have raised his
sentencing challenges on appeal, it is barred by the doctrine of res judicata); see also
State v. Sowards, 4th Dist. Gallia No. 18CA2,
2018-Ohio-4173, ¶ 29-31 (“a change in
case law after a final judgment ordinarily does not prevent the application of res judicata”
citing State v. Moore,
149 Ohio St.3d 557,
2016-Ohio-8288,
76 N.E.3d 1127, ¶ 97 which
Meigs App. Nos. 19CA11, 19CA12 7
held that “a new decision does not apply to convictions that were final when the decision
was announced”).
V. CONCLUSION
{¶13} Barner was not entitled to the relief requested in his untimely
postconviction petition. His sentencing challenges, if meritorious, would render his
sentence voidable, not void. The trial court lacked jurisdiction and should have dismissed
his petition as untimely, rather than denied it as not well-taken. Having overruled the
assignments of error, we affirm the trial court's judgment, as modified.
JUDGMENT AFFIRMED AS MODIFIED.
Meigs App. Nos. 19CA11, 19CA12 8
JUDGMENT ENTRY
It is ordered that the JUDGMENT AFFIRMED AS MODIFIED and that Appellant
shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty-day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
