[Cite as State v. Smith,
2025-Ohio-1277.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 30263
:
v. : Trial Court Case No. 2009 CR 04063/1
:
WAYMOND BRISON SMITH : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on April 11, 2025
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WAYMOND BRISON SMITH, Appellant, Pro Se
MATHIAS H. HECK, JR., by TRISTAN D. DIEGEL, Attorney for Appellee
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HANSEMAN, J.
{¶ 1} Defendant-Appellant, Waymond Brison Smith, appeals pro se from a trial
court judgment denying his “motion requesting plain error analysis.” In support of his
appeal, Smith contends the trial court erred because it modified his sentence without his
presence and without counsel, in violation of Crim.R. 43. While Smith’s arguments are
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not entirely clear, he also appears to contend that counsel should have been appointed
and that his sentence was contrary to law because the sentence imposed in the judgment
entry differed from what was announced during the sentencing hearing.
{¶ 2} After reviewing the record, we find Smith’s arguments lack merit. Therefore,
the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} Our prior appeal concerning Smith involved two criminal cases, and we had
consolidated the cases for purpose of appeal. See State v. Smith, 2011-Ohio-3288, ¶ 1
(2d Dist.) (Smith I). In our opinion, we stated that:
In Montgomery County Common Pleas Court Case No. 2009 CR 02679/2,
Smith pled no contest to Aggravated Robbery (Deadly Weapon), with a
firearm specification. Smith also pled no contest in Montgomery County
Common Pleas Court Case No. 2009 CR 04063/1 to Aggravated Robbery
(Physical Harm), Aggravated Robbery (Deadly Weapon), Aggravated
Burglary (Physical Harm), Aggravated Burglary (Deadly Weapon), two
counts of Aggravated Murder, and Tampering with Evidence. The charges
in the latter case, other than the tampering charge, contained firearm
specifications. Smith was found guilty of the charges in both cases. He was
then sentenced to life in prison with the possibility of parole after 37 years
in Case No. 04063/1, to be served concurrently with the nine-year sentence
imposed in Case No. 02679/2.
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Id.
{¶ 4} We further noted that: “[t]he charges in these consolidated cases arose from
events that occurred on August 15 and 16, 2009. On the earlier date, Smith committed
an aggravated robbery (with a deadly weapon) at 1538 Almore Avenue in Dayton, Ohio.
The next day, Smith trespassed in an occupied structure at 1529 Weaver Street in
Dayton, Ohio with the intent to commit aggravated robbery. During the course of the
robbery, an occupant of the house, David Green, was shot and killed.” Id. at ¶ 4.
{¶ 5} Smith was represented by counsel on direct appeal and raised two
assignments of error: (1) “the trial court erred in denying motions to suppress that were
filed in both criminal cases”; and (2) Smith’s “no-contest pleas were not entered
knowingly, voluntarily, and intelligently.” Smith I at ¶ 2. We overruled both assignments of
error and affirmed the trial court’s judgments. Id. at ¶ 87. Smith appealed from our
judgment, but the Supreme Court of Ohio declined to accept the appeal. See State v.
Smith, 2011-Ohio-6124.
{¶ 6} Smith later filed a pro se federal habeas action in which he claimed that: (1)
he was “denied due process and his right to a fair trial when [his] conviction [was] based
upon [the] trial court's failure to suppress [an] involuntary confession”; (2) his “no contest
plea was involuntary and unconstitutional in violation of [his]14th Amendment right to due
process”; and (3) he “was denied effective assistance of Appealate [sic] counsel.” Smith
v. Warden, Warren Corr. Inst., 2012 WL 3308899, *1 (S.D. Ohio Aug.13, 2012). The
magistrate found no merit to Smith’s claims and recommended they be dismissed with
prejudice. The magistrate also recommended that a certificate of appealability be denied.
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Id. at *8.
{¶ 7} Subsequently, the district judge adopted the magistrate’s report and
recommendation, dismissed the habeas petition with prejudice, and denied any request
for a certificate of appealability, finding that an appeal would be frivolous. Smith v.
Warden, Warren Corr. Inst., 2012 WL 5463791, *1 (S.D. Ohio Nov. 8, 2012). No further
appeal was taken.
{¶ 8} Nothing more occurred until April 2020, when Smith filed a motion for judicial
release in the underlying cases. The trial court denied the motion without prejudice in May
2020. After Smith filed another motion in June, the court denied that also. Smith then filed
“objections” to the court’s decision in July 2020, and the court overruled the objections,
stating Smith’s remedy was misplaced. Entry and Order Overruling Defendant’s
Objections (Jan. 20, 2021). No appeal was taken from this decision.
{¶ 9} Shortly thereafter, on June 14, 2021, the trial court clerk filed a May 27, 2021
Notice of Calculation it had received from the Ohio Department of Rehabilitation and
Correction (“DRC”). The Notice stated that it was being updated due to “The Supreme
Court Fraley Decision.” Id. at p. 1. The Notice then said that Smith’s total sentence for
both cases was: “3.00 Gun + 9.00 SB2+ 25.00 - Life,” and that Smith’s “Calculated
Release/Parole Board Date” was “11/22/2046.” This was a total of life in prison with
eligibility for parole after 37 years.
{¶ 10} In contrast, the original DRC Notice filed with the trial court calculated six
years for the gun specifications in the two cases, and the total sentence was calculated
to be: “6 Gun +9.00 TERM + 25.00 - Life.” The ”Calculated Release/Parole Board Date”
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in the original notice was “11/21/49.” DRC Notice of New Calculation of Sentence (Sept,
29, 2010), p. 1. This was a total of life in prison with eligibility for parole after 40 years.
Consequently, the DRC’s 2021 action reduced Smith’s sentence by three years and
subtracted those three years from his calculated release/parole board date.
{¶ 11} On June 18, 2024, Smith filed a motion with the court requesting a “plain
error analysis.” As an exhibit, Smith attached a copy of an institutional “kite” he had sent
on March 21, 2022. Smith’s kite stated that his “sentencing says that supreme court had
approved a Fraley decision.” Ex. A to Plain Error Motion, p. 1. Smith said in the kite that
he did not understand this and asked for assistance. The response given to Smith the
same day was as follows: “On 5/11/21, your Fraley calculation was done and you received
a copy of the change. You have a new board date which is 12/20/46. It changed your
firearm specification from two 3 year consecutive term[s] to one 3 year term so it changed
by three years.” Id. Thus, Smith had waited over two years after receiving this response
to file a motion with the trial court.
{¶ 12} In response to Smith’s motion, the State pointed out that the change in
release date actually benefited Smith and that perhaps he was confused. Response to
Defendant’s Motion Requesting Plain Error Analysis (July 1, 2024), p. 1-2. The trial court
then denied Smith’s motion. Decision, Entry and Order Denying Defendant’s Motion
Requesting Plain Error Analysis (Aug. 15, 2024). Smith timely appealed from the court’s
decision.
II. Sentence Modification
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{¶ 13} Smith’s sole assignment of error states that:
The Trial Court Erred Because It Modified Smith’s Sentence Without
His Presence, and Without Counsel, at Court When the Modification Was
Done.
A. The Original Sentence
{¶ 14} The first comment Smith makes under this assignment of error is that his
sentence was contrary to law because the trial court’s judgment entry differed from the
sentence the court announced during the sentencing hearing. Appellant’s Brief, p. 1.
However, Smith’s argument is barred by res judicata and was forfeited because it could
have been raised on direct appeal.
{¶ 15} “ ‘Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment.’ ” State v.
Bond, 2023-Ohio-3996, ¶ 17 (2d Dist.), quoting State v. Perry,
10 Ohio St.2d 175 (1967),
paragraph nine of the syllabus. Thus, “res judicata bars the consideration of issues that
could have been raised on direct appeal.” State v. Shah,
2023-Ohio-2328, ¶ 12, citing
State v. Saxon,
2006-Ohio-1245, ¶ 17.
{¶ 16} As pertinent here, R.C. 2953.08(A) provides that: “In addition to any other
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right to appeal and except as provided in division (D) of this section, a defendant who is
convicted of or pleads guilty to a felony may appeal as a matter of right the sentence
imposed upon the defendant on one of the following grounds: . . . (4) The sentence is
contrary to law.” “When reviewing felony sentences, appellate courts must apply the
standard of review set forth in R.C. 2953.08(G)(2).” State v. Gilbert, 2024-Ohio-6045, ¶ 6
(2d Dist.), citing State v. Marcum,
2016-Ohio-1002, ¶ 7. “Under that statute, an appellate
court may increase, reduce, or otherwise modify a sentence, or it may vacate the
sentence and remand for resentencing, only if it clearly and convincingly finds either: (1)
the record does not support the sentencing court's findings under certain statutes; or (2)
the sentence is otherwise contrary to law.”
Id., citing
Marcum at ¶ 9.
{¶ 17} According to the Supreme Court of Ohio, “ ‘otherwise contrary to law’ means
‘ “in violation of statute or legal regulations at a given time.” ’ ” State v. Bryant, 2022-Ohio-
1878, ¶ 22, quoting State v. Jones, 2020-Ohio-6729, ¶ 34, quoting Black's Law Dictionary
(6th Ed.1990). We have held that “a trial court's sentence is contrary to law when it
imposes a sentence in the sentencing entry different from the sentence announced at the
sentencing hearing.” State v. Duncan,
2023-Ohio-1684, ¶ 10 (2d Dist.), citing State v.
Jackson,
2014-Ohio-5008, ¶ 22 (1st Dist.).
{¶ 18} In Duncan, we considered whether the defendant could collaterally attack
this type of error when he failed to raise it on direct appeal. Id. at ¶ 11. In this regard, we
reviewed the Ohio Supreme Court decisions in State v. Henderson, 2020-Ohio-4784, and
State v. Harper,
2020-Ohio-2913, which clarified the distinction between void and
voidable judgments.
Duncan at ¶ 13-14. Henderson stated that “ ‘[a] void judgment is
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rendered by a court without jurisdiction. It is a mere nullity and can be disregarded. It can
be attacked in collateral proceedings. . . . A voidable judgment is one pronounced by a
court with jurisdiction.” Id. at ¶ 13, quoting Henderson at ¶ 17.
{¶ 19} Based on this guidance from the Supreme Court of Ohio, we concluded
that:
There is no dispute that the trial court had jurisdiction over both the case
and Duncan when it accepted Duncan's guilty pleas and entered its written
judgment. Therefore, the trial court's imposition of a sentence that was
contrary to law rendered the sentence voidable, not void. Duncan's failure
to timely raise the voidable nature of the trial court's judgment amounted to
a forfeiture of any objection to his sentence.
Duncan at ¶ 15, citing Henderson at ¶ 17.
{¶ 20} The same reasoning applies here. The trial court clearly had jurisdiction
over Smith in 2010 when sentence was imposed. By failing to raise the alleged
discrepancy between the sentencing hearing and the court’s judgments on appeal, he
forfeited the right to challenge it. Moreover, having reviewed the record, we also agree
with the State that even if this matter could be considered, there was no discrepancy
between the sentence announced during the sentencing hearing and the final judgment
entries. See State’s Brief, p. 6; Transcript of Proceedings, Motion to Suppress, Plea
Hearing, and Sentencing (Feb. 16, Aug. 16, and Aug. 31, 2010), 110-112; Termination
Entry, Case No. 2009 CR 04063/2 (Sept. 3, 2010); and Termination Entry, Case No. 2009
CR 02679/2 (Sept. 3, 2010).
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B. Modification of Sentence
{¶ 21} Smith also claims his sentence was improperly modified without his
presence in violation of Crim.R. 43. “An accused has a fundamental right to be present at
all critical stages of his criminal trial.” State v. Frazier, 2007-Ohio-5048, ¶ 139, citing
Section 10, Article I, Ohio Constitution and Crim.R. 43(A). In this respect, Crim.R. 43(A)(1)
states that: “Except as provided in Crim.R. 10 and divisions (A)(2) and (A)(3) of this rule,
the defendant must be physically present at every stage of the criminal proceeding and
trial, including the impaneling of the jury, the return of the verdict, and the imposition of
sentence, except as otherwise provided by these rules.”
{¶ 22} Contrary to Smith’s claim, Crim.R. 43 does not apply here. The change in
question (which benefited Smith) was not made by the trial court. Instead, the DRC
recalculated Smith’s sentence in order to comply with the September 2020 decision in
State ex rel. Fraley v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-4410. In that case, Fraley,
an inmate at DRC, filed an action in mandamus to compel the department to revise its
calculation of his prison sentence. Fraley’s situation was quite similar to the case before
us, as he was also sentenced in two separate cases. As here, each case involved
imposition of a three-year firearm specification, and the trial court imposed the sentence
in one case to run concurrent with the sentence in the other. Fraley believed the total
sentence for both cases, therefore, would be 10 years, while the DRC believed its
calculation of 13 years was correct. This was because the DRC believed the two firearm
specifications should run consecutively to each other, rather than concurrently.
Id. at ¶ 2-
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4.
{¶ 23} The Supreme Court of Ohio noted that “[t]he sentence for a firearm
specification must be served consecutively to and prior to the sentence that is imposed
for the underlying felony.” Id. at ¶ 11, citing R.C. 2929.14(C)(1)(a). In addition, the court
remarked that “R.C. 2929.14(C)(1)(a) also states that a sentence for a firearm
specification must be served ‘consecutively to any other prison term or mandatory prison
term previously or subsequently imposed upon the offender.’ ” Id. at ¶ 12. As a result, the
court found that DRC was legally correct in believing the sentences for the two firearm
specifications should be served consecutively. Id.
{¶ 24} That was not the end of the matter, however. In this vein, the court first
observed that “[w]hen a statute requires sentences to be served consecutively and the
sentencing entry is silent as to how the sentences are to run, the statute controls.” Id. at
¶ 13, citing State ex rel. Thompson v. Kelly, 2013-Ohio-2444, ¶ 10. The court then
commented that in the cases before it, “neither entry is silent: each entry orders ‘the
sentence’ in each case to be served concurrently with the sentence in the other, and
neither entry excludes the three-year sentences for the firearm specifications from the to-
be-served-concurrently order.”
Id. As a result, the court granted the writ and ordered the
DRC to correct its records. Id. at ¶ 18.
{¶ 25} In granting the writ, the court stressed 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, and the entries in
Fraley's cases are not ambiguous: they order his sentences to be served
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concurrently and do not separately address the sentences for the firearm
specifications. If the entries contained a legal error favoring Fraley, then the
state should have appealed the error. But it failed to do so. DRC's role is
not to correct a sentencing court's errors and impose the sentence it
believes the court should have imposed. To the contrary, DRC is obliged to
execute the sentence imposed by the court. State v. Grimes, 151 Ohio St.3d
19,
2017-Ohio-2927,
85 N.E.3d 700, ¶ 21.
Fraley,
2020-Ohio-4410, at ¶ 17.
{¶ 26} Fraley was a unanimous decision of the court. After the decision was issued
in September 2020, the DRC apparently checked its records and corrected its sentencing
calculations; this was merely a recalculation by the DRC, not a modification of the actual
sentence imposed by the trial court, and the trial court was not involved. Likewise, in
Smith’s case, the sentence the trial court imposed was not changed; it remained, as it
was from the outset, a total of life in prison with eligibility for parole after 37 years.
Consequently, Crim.R. 43 did not apply, and Smith’s objection is without merit. There is
no true basis for an objection, as the DRC’s calculation of Smith’s sentence and parole
hearing date were reduced by three years (not increased), to come into conformity with
the actual sentence imposed by the trial court.
C. Request for Counsel
{¶ 27} Smith’s final claim is that he was entitled to have counsel appointed to
represent him in these proceedings. However, “the right to appointed counsel extends to
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the first appeal as of right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). Accord State v. Buell,
70 Ohio St.3d 1211, 1212 (1994); State v. Carter,
93 Ohio
St.3d 581, 582 (2001); Morgan v. Eads,
2004-Ohio-6110, ¶ 20. Ohio does allow counsel
to be appointed in limited situations in post-conviction proceedings. For example, this will
occur when a court of appeals grants a defendant’s motion to reopen an appeal. In that
situation, “App.R. 26(B)(6)(a) directs that court to ‘appoint counsel to represent the
applicant if the applicant is indigent and not currently represented.’ ”
Eads at ¶ 19.
{¶ 28} Likewise, trial courts are required to notify the public defender of a pending
hearing if they find that a petitioner in a postconviction proceeding is entitled to an
evidentiary hearing under R.C. 2953.21(C) and (E). If the public defender finds the
petitioner’s issues have arguable merit, the petitioner is entitled to representation by the
public defender under R.C. 120.16(A)(1) and (D). State v. Crowder, 60 Ohio St.3d 151,
153 (1991). The case before us, however, does not involve such situations. Therefore,
the trial court was not required to appoint counsel for Smith.
{¶ 29} Based on the preceding discussion, Smith’s sole assignment of error is
overruled.
III. Conclusion
{¶ 30} Smith’s sole assignment of error having been overruled, the judgment of the
trial court is affirmed.
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EPLEY, P.J. and HUFFMAN, J., concur.
