[Cite as State v. Wurzelbacher,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-130011 TRIAL NO. B-0009162 Plaintiff-Appellee, :

vs. : O P I N I O N. LEE F. WURZELBACHER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified and Cause Remanded

Date of Judgment Entry on Appeal: September 18, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Lee F. Wurzelbacher, pro se.

Please note: we have removed this case from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

DEWINE, Judge.

{¶1} Lee F. Wurzelbacher went to a prison in 2001 after being convicted of

drug trafficking and receiving stolen property. Eight years after being released, he

asked the trial court to declare that his sentences are partly void based upon various

errors he claimed the court had made when it imposed his sentences. The trial court

denied the motion, and Mr. Wurzelbacher challenges that decision in this appeal.

{¶2} We conclude that Mr. Wurzelbacher is right, to an extent. The trial

court committed two errors when it sentenced him that render portions of his

sentences void. It neglected to suspend his driver’s license or to include notification

about postrelease control in his sentencing entry. But it is too late to fix these errors

because Mr. Wurzelbacher has been released from prison. We affirm the judgment

below as modified and remand to the common pleas court with instructions to note

on the record that, because Mr. Wurzelbacher has been discharged on his

convictions, his sentences may not now be corrected to impose postrelease control or

the license suspension.

Background

{¶3} Mr. Wurzelbacher pled guilty in 2001 to two counts of drug trafficking

and a single count of receiving stolen property. He was sentenced to concurrent

prison terms totaling one year. He did not appeal his convictions. In 2012, Mr.

Wurzelbacher collaterally challenged his convictions by filing with the common pleas

court his “Motion for Declaratory Judgment That Sentence is Void.” The common

pleas court overruled the motion, and this appeal ensued.

2 OHIO FIRST DISTRICT COURT OF APPEALS

Neither the Declaratory Judgment Act nor the Postconviction Statutes Conferred Jurisdiction to Entertain the Motion

{¶4} In his motion, Mr. Wurzelbacher sought to invoke the court’s

“jurisdiction * * * to correct a void judgment” and sought “a declaratory judgment

resolving the fact that [his sentences are] void” because the trial court had failed to

merge allied offenses, to impose a mandatory driver’s license suspension, or to notify

him concerning postrelease control, his appeal rights, the requirement that he give a

DNA specimen, or the possible imposition of community service in lieu of court

costs. In this appeal, he advances four assignments of error that, read together,

challenge the overruling of his motion.

{¶5} The first question we face is how to characterize Mr. Wurzelbacher’s

motion. Although styled a “Motion for Declaratory Judgment,” the filing did not

properly institute a claim for declaratory judgment. Nor will such a proceeding

provide a substitute for an appeal, or a means to collaterally challenge a criminal

conviction. See State v. Braggs, 1st Dist. Hamilton No. C-130073,

.

{¶6} Mr. Wurzelbacher’s claims are best cast as raising a claim for relief

under Ohio’s postconviction statutes, R.C. 2953.21 et seq. See State v. Schlee,

,

,

, ¶ 12. But Mr. Wurzelbacher’s

motion was filed too late to meet the statute’s requirements, and he did not satisfy

the statutory prerequisites to allow the court to entertain a late postconviction claim.

See R.C. 2953.21(A)(2) and 2953.23(A). Thus, the court lacked jurisdiction to

consider the claim under the postconviction statutes.

3 OHIO FIRST DISTRICT COURT OF APPEALS

The Sentences are Void in Part

{¶7} But even though the postconviction statutes are said to provide “the

exclusive remedy by which a person may bring a collateral challenge to the validity of

a conviction in a criminal case,” it is the law in Ohio that a court may correct a “void

judgment” even in the absence of compliance with the jurisdictional requirements of

the postconviction statutes. State ex rel. Cruzado v. Zaleski,

,

,

.

{¶8} The general rule is that a sentence is void only if the trial court lacked

subject-matter jurisdiction or the authority to act. State v. Payne,

,

,

. In recent years, however, the Ohio

Supreme Court has been more willing to find sentences void and has “recognized a

narrow, and imperative, exception to that general rule: a sentence that is not in

accordance with statutorily mandated terms is void.” State v. Fischer,

,

,

, ¶ 8. That exception has been applied to

hold void a sentence that is completely unauthorized by statute, Colgrove v. Burns,

, 438,

(1964), that does not include a statutorily

mandated prison term, State v. Beasley,

,

(1984),

that lacks a mandatory driver’s license suspension, State v. Harris,

,

,

, paragraph one of the syllabus, or a fine, State

v. Moore,

,

,

, syllabus, or that fails

to include statutorily mandated notification concerning postrelease control. State v.

Jordan,

,

,

.

{¶9} Allied offenses. This court has held that an error involving the

allied-offenses statute, R.C. 2941.25, renders a sentence voidable, not void. State v.

4 OHIO FIRST DISTRICT COURT OF APPEALS

Grant, 1st Dist. Hamilton No.

; State v. Lee, 1st Dist.

Hamilton No. C-120307,

. Therefore, the common pleas court had no

jurisdiction to entertain Mr. Wurzelbacher’s allied-offenses claim.

{¶10} Notification of appeal rights, DNA specimen, or

community service in lieu of court costs. Our decisions in Lee and Grant

also compel the conclusion that Mr. Wurzelbacher’s sentences were not void as a

consequence of the trial court’s failure to notify him concerning his appeal rights, the

DNA-specimen requirement, or the possibility of community service in lieu of court

costs. In Lee, we held simply that an allied-offenses sentencing error does not render

a sentence void because no decision of the Ohio Supreme Court has held that such

an error makes a sentence void. Lee at ¶ 8. The lead opinion in Grant set forth a

rationale for finding that such a sentence is not void, based on a distinction between

a trial court’s error in applying the allied-offenses statute’s general rule prohibiting

multiple convictions and a court’s imposition of a sentence that is void because it did

not include a statutorily mandated term (postrelease control, driver’s license

suspension, statutorily mandated fine) or was completely unauthorized by law.

Grant at ¶ 15-16.

{¶11} The Ohio Supreme Court has not held that the failure to provide

notification concerning appeal rights, the DNA-specimen requirement, or

community service in lieu of costs renders a sentence void. Nor do these omissions

involve the failure to impose a statutorily mandated sentencing term or a sentence

that is completely unauthorized by statute. Thus, the common pleas court had no

jurisdiction to review these claims.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶12} Driver’s license suspension and postrelease control. We

find curious, at best, Mr. Wurzelbacher’s objection to the trial court’s failure to

suspend his driver’s license or to provide the requisite notification that would have

allowed the Ohio Adult Parole Authority to impose postrelease control. Obviously,

the errors committed in these regards inured to his benefit. But based upon

Supreme Court precedent, we are compelled to find that these errors render his

sentences void in part.

{¶13} Under R.C. 2925.03(D)(2), the trial court was required to suspend Mr.

Wurzelbacher’s driver’s license in sentencing him for his felony drug offenses. A

review of the sentencing entry indicates that the court failed to do so. Accordingly, to

the extent that those sentences lacked a license suspension, they are void. Harris,

,

,

, at paragraph one of the

syllabus.

{¶14} Similarly, the trial court was required to include a term of postrelease

control in each of Mr. Wurzelbacher’s felony sentences, by notifying him about

postrelease control at his sentencing hearing and by incorporating postrelease-

control notification in his judgment of conviction. R.C. 2967.28, 2929.14(F), and

2929.19(B)(3)(c) through (B)(3)(e); Jordan,

,

,

, at paragraph one of the syllabus. We do not have before us a

transcript of Mr. Wurzelbacher’s sentencing hearing, because he did not pursue a

direct appeal from his convictions, and because he did not request that a transcript be

prepared for the common pleas court’s decision on his postconviction motion. We

must, therefore, presume that he was properly notified concerning postrelease control

at sentencing. But the trial court failed to include any postrelease-control notification

6 OHIO FIRST DISTRICT COURT OF APPEALS

in the judgment of conviction. Thus, to the extent that his sentences lacked

postrelease-control notification, they are void as well.

{¶15} Of course, these errors do not make any of the three sentences Mr.

Wurzelbacher received void in their entirety. Instead, only “that part of the sentence

[that fails to include the statutorily-mandated term] is void and must be set aside.”

Fischer,

,

,

, at ¶ 26 (emphasis in

original); see Harris,

,

,

.

In other words, that portion of each sentence that does not exist, but that should

exist, is void.

{¶16} The void portion of a sentence is subject to review at any time, whether

on direct appeal or in a collateral proceeding. Fischer,

, 2010-

Ohio-6238,

, at paragraph one of the syllabus and ¶ 26-27.

Therefore, the common pleas court had jurisdiction to review and to set aside the

offending portions of Mr. Wurzelbacher’s sentences.

{¶17} But the void portion of a sentence must be corrected before the

offender has completed his sentence. State v. Bloomer,

, 2009-

Ohio-2462,

; State v. Bezak,

, 2007-Ohio-

3250,

(modified on other grounds in Fischer,

,

,

, paragraph two of the syllabus). Mr.

Wurzelbacher was long ago discharged on his convictions. Accordingly, the common

pleas court had no jurisdiction to correct his sentences to impose the mandatory

license suspension or postrelease control. Nor could the Ohio Adult Parole Authority

place him under postrelease-control supervision or sanction him for any postrelease-

control violation. See

;

.

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶18} Decision affirmed as modified with instructions. The trial

court properly denied Mr. Wurzelbacher the relief he sought in his motion, and we,

therefore, overrule his four assignments of error. Because the trial court lacked

jurisdiction to entertain the motion under the postconviction statutes or to grant the

declaratory relief sought by Mr. Wurzelbacher, the motion was subject to dismissal.

Accordingly, upon the authority of App.R. 12(A)(1)(a), we modify the judgment

appealed from to reflect the dismissal of the motion. And we affirm the judgment as

modified. Consistent with the actions of the Supreme Court in the Bloomer and

Bezak cases, we remand this case to the common pleas court with instructions to

note on the record that, because Mr. Wurzelbacher has been discharged, the court

may not now correct the sentences to impose the license suspension or postrelease

control. See

;

.

Judgment accordingly.

DINKELACKER, J., concurs. CUNNINGHAM, P.J., concurs in part and dissents in part.

CUNNINGHAM, P.J., concurring in part and dissenting in part.

{¶19} I concur with the majority’s holding that Wurzelbacher’s motion was

subject to dismissal because neither the Declaratory Judgment Act nor the

postconviction statutes conferred upon the common pleas court jurisdiction to

entertain the motion. I also agree that the common pleas court had no jurisdiction to

review, because the judgment of conviction was not rendered void by, the trial court’s

failure to notify Wurzelbacher concerning his appeal rights, the DNA-specimen

requirement, or the possibility of community service in lieu of court costs. And I

agree that his sentences are void, but not subject to correction, to the extent that the

8 OHIO FIRST DISTRICT COURT OF APPEALS

trial court did not impose a mandatory driver’s license suspension or postrelease

control.

{¶20} But for the reasons set forth in my concurring and dissenting opinions

in State v. Lee, 1st Dist. Hamilton No. C-120307,

, and State

v. Grant, 1st Dist. Hamilton No. C-120695,

, I would hold that the

common pleas court had jurisdiction to entertain Wurzelbacher’s allied-offenses

claim, because a sentence imposed in contravention of R.C. 2941.25 is void and thus

subject to review at any time. I would also go on to hold that R.C. 2941.25 did not

preclude the trial court from sentencing Wurzelbacher for both trafficking offenses

and for receiving stolen property, because it is apparent from the record that the

charges were based on separate conduct. See State v. Johnson,

,

,

(1st Dist.), citing State v. Johnson,

,

,

, ¶ 49 and 51.

{¶21} Finally, based upon the conflict noted in Lee, I would, under the

authority of the Ohio Constitution, Article IV, Section 3(B)(4), certify to the Ohio

Supreme Court the following question: “Are sentences imposed in violation of R.C.

2941.25 void and thus subject to review at any time?” See Lee at ¶ 31.

Please note:

The court has recorded its entry on the date of the release of this opinion.

9