[Cite as State v. Braggs,

.]

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

STATE OF OHIO, : APPEAL NO. C-130073 TRIAL NO. B-8903470 Plaintiff-Appellee, :

vs. : O P I N I O N. ROBERT BRAGGS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: August 2, 2013

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

Gregory A. Cohen, for Defendant-Appellant.

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

FISCHER, Judge.

{¶1} Defendant-appellant Robert Braggs appeals the Hamilton County

Common Pleas Court’s judgment overruling his “Motion for Declaratory Judgment

That Sentence is Void.” We affirm the court’s judgment as modified.

{¶2} Braggs was convicted of drug abuse in December 1989 and was placed

on probation for three years. He unsuccessfully challenged his conviction in his

direct appeal to this court, see State v. Braggs, 1st Dist. Hamilton No. C-900003

(Nov. 9, 1990), and, collaterally, in a series of postconviction petitions and motions

filed with the common pleas court. See, e.g., State v. Braggs, 1st Dist. Hamilton No.

C-120487 (Feb. 27, 2013); State v. Braggs, 1st Dist. Hamilton No. C-120137 (June

27, 2012); State v. Braggs, 1st Dist. Hamilton No. C-950436 (Dec. 22, 1995). In

1992, Braggs’s probation was “terminated” and his “case [was] closed.”

{¶3} In his “Motion for Declaratory Judgment That Sentence is Void,” filed

September 4, 2012, Braggs invoked the “jurisdiction [of a court] * * * to correct a

void judgment” and sought relief in the form of “a declaratory judgment resolving the

fact that [he had been] improperly given four hundred hours of community service in

violation of [former] R.C. 2951.02(H)(1)(a) which statutory limitation is * * * two

hundred hours.” In this appeal, he advances two assignments of error that, distilled

to their essence, challenge the overruling of his motion. We find no merit to this

challenge, because the common pleas court lacked jurisdiction to afford Braggs the

relief sought.

{¶4} Declaratory relief. Ohio’s Declaratory Judgment Act, found in

R.C. Chapter 2721, plainly “contemplate[s] a distinct proceeding * * * initiated by the

filing of a complaint.” Thus, “[a] ‘motion’ for a declaratory judgment is procedurally

2 OHIO FIRST DISTRICT COURT OF APPEALS

incorrect and inadequate to invoke the jurisdiction of [a] court pursuant to R.C.

Chapter 2721.” Fuller v. German Motor Sales, Inc.,

,

(1st Dist. 1988); accord State v. Nemitz, 1st Dist. Hamilton No. C-970561,

(Aug. 7, 1998). Braggs sought declaratory relief by

means of a motion filed in his criminal case. Therefore, he failed to invoke the

jurisdiction conferred by the act.

{¶5} Moreover, even if Braggs had satisfied the act’s procedural and

jurisdictional requirements, he would not have been entitled to the relief sought.

The Declaratory Judgment Act is “remedial; its purpose is to settle and to afford

relief from uncertainty and insecurity with respect to rights, status and other legal

relations.” Radaszewski v. Keating,

,

(1943)

(quoting former G.C. 12102-12); accord Mid-American Fire & Cas. Co. v. Heasley,

,

,

. Thus, a declaratory

judgment may serve to “relieve parties from acting at their own peril in order to

establish their legal rights.” Gray v. Willey Freightways, Inc.,

,

(6th Dist. 1993); accord Steinriede v. Cincinnati, 1st Dist.

Hamilton No. C-100289,

, ¶ 11.

{¶6} But the Declaratory Judgment Act does not authorize a court to render

an advisory opinion. A declaratory judgment action must instead “satisfy a threshold

requirement of * * * justiciability.” Arnott v. Arnott,

, 2012-Ohio-

3208,

, ¶ 10. Thus, a declaratory judgment action will lie to

determine only “an actual controversy, the resolution of which will confer certain

rights or status upon the litigants.” Corron v. Corron,

,

(1988); see Schaefer v. First Natl. Bank,

,

3 OHIO FIRST DISTRICT COURT OF APPEALS

(1938), paragraph three of the syllabus (requiring a showing that “a real controversy

between adverse parties exists which is justiciable in character and [that] speedy

relief is necessary to the preservation of rights that may be otherwise impaired or

lost”). Accord Mallory v. Cincinnati, 1st Dist. Hamilton No. C-110563, 2012-Ohio-

2861, ¶ 10-16.

{¶7} Because of the justiciability requirement, a declaratory judgment

action does not provide a means for determining whether previously-adjudicated

rights were properly decided. State v. Stewart, 2d Dist. Montgomery No. 98-CA-116,

, *8 (Feb. 5, 1999). It follows then that a declaratory

judgment action will not, as Braggs would have it, provide a substitute for an appeal

of, or a means for mounting a collateral challenge to, a criminal conviction. See

Wilson v. Collins, 10th Dist. Franklin No. 10AP-511,

, ¶ 9; Gotel v.

Ganshiemer, 11th Dist. Ashtabula No. 2008-A-0070,

, ¶ 47; Moore

v. Mason, 8th Dist. Cuyahoga No. 84821,

; State v. Zizelman,

3d Dist. Auglaize No. 2-98-33,

, *7 (Apr. 9, 1999); State

v. Brooks,

,

(4th Dist. 1999), citing

Tootle v. Wood,

,

(4th Dist. 1974); Stewart at

*8.

{¶8} Postconviction relief. Rather, “the exclusive remedy by which a

person may bring a collateral challenge to the validity of a conviction or sentence in a

criminal case” is provided by R.C. 2953.21 et seq., governing the proceedings upon a

petition for postconviction relief. R.C. 2953.21(J). Therefore, Braggs’s motion was

reviewable under the standards provided by the postconviction statutes. See State v.

Schlee,

,

,

, ¶ 12.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶9} But Braggs filed his postconviction motion well after the expiration of

the time prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the

jurisdiction of a common pleas court to entertain a late postconviction claim: the

petitioner must show either that he was unavoidably prevented from discovering the

facts upon which his claim depends, or that his claim is predicated upon a new or

retrospectively applicable right recognized by the United States Supreme Court since

the time for filing a postconviction petition expired or since he filed his last

postconviction petition; and he must show “by clear and convincing evidence that,

but for constitutional error at trial, no reasonable factfinder would have found [him]

guilty of the offense of which [he] was convicted.”

{¶10} The record before us does not, as it could not, demonstrate that, but

for the claimed sentencing error, no reasonable factfinder would have found Braggs

guilty of the offense of which he was convicted. Because Braggs satisfied neither the

time restrictions of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.

2953.23, the postconviction statutes did not confer upon the common pleas court

jurisdiction to entertain Braggs’s postconviction motion. See R.C. 2953.23(A).

{¶11} Void sentence. Finally, a court has jurisdiction to correct a void

judgment. See State ex rel. Cruzado v. Zaleski,

,

,

. But the Ohio Supreme Court has not held that the

imposition of a term of community service exceeding the term provided by statute

renders a judgment of conviction void. Compare State v. Moore,

,

,

, syllabus (holding that, in the absence of an

affidavit of indigency, a sentence is void to the extent that it does not include the fine

mandated by R.C. 2925.11[E][1][a] and 2929.18[B][1]); State v. Harris,

OHIO FIRST DISTRICT COURT OF APPEALS

St.3d 318,

,

, paragraph one of the syllabus (holding

that a sentence is void to the extent that it does not include a mandatory driver’s

license suspension); State v. Fischer,

,

,

, paragraph one of the syllabus (holding that a sentence is void to the

extent that it was imposed without proper postrelease-control notification).

{¶12} Affirmed as modified. Therefore, upon our determination that

the common pleas court properly denied Braggs the relief sought in his

postconviction motion, we overrule the assignments of error. Because the court had

no jurisdiction to entertain Braggs’s motion on its merits, the motion was subject to

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

judgment from which Braggs has appealed to reflect the dismissal of the motion.

And we affirm the judgment as modified.

Affirmed as modified.

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

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

{¶13} I concur in the majority’s holding that neither the Declaratory

Judgment Act nor the postconviction statutes conferred upon the common pleas

court jurisdiction to entertain Braggs’s motion. But I respectfully dissent from the

majority’s conclusion that the court had no jurisdiction to entertain the challenge to

his community-service sentence advanced in his motion.

{¶14} The Ohio Supreme Court has long recognized and has continued to

“reaffirm” the “vital principle” that “[n]o court has the authority to impose a sentence

that is contrary to law.” State v. Fischer,

,

,

, at ¶ 8 and 23, citing Colgrove v. Burns,

, 438, 195

6 OHIO FIRST DISTRICT COURT OF APPEALS

N.E.2d 811 (1964); accord State v. Moore,

,

,

; State Harris,

,

,

, ¶ 7 and 15, citing Colgrove and State v. Beasley,

,

(1984). The Supreme Court has applied this principle to carve out an

exception to the general rule that sentencing errors do not render a judgment void,

holding that “a sentence that is not in accordance with statutorily mandated terms is

void.” Fischer at ¶ 7-8, citing State v. Simpkins,

, 2008-Ohio-

1197,

, ¶ 14; State v. Bezak,

,

,

(modified on other ground in Fischer at paragraph two of the syllabus);

State v. Jordan,

,

,

; Woods v.

Telb,

,

(2000); Beasley; Colegrove. In turn, this

court has followed the Supreme Court to hold that a sentence imposed outside the

statutory range is void. See State v. Harmon, 1st Dist. Hamilton No. C-070585,

; State v. Washington, 1st Dist. Hamilton No. C-050462, 2006-

Ohio-4790; State v. Tenhundfeld, 1st Dist. Hamilton No. C-850661,

(Apr. 23, 1986).

{¶15} The version of R.C. 2951.02 in effect when Braggs was sentenced

authorized a term of community service “not exceed[ing] an aggregate of 200 hours.”

R.C. 2951.02(H)(1)(a) (repealed in July 1, 1996). In sentencing Braggs to 400 hours

of community service, the trial court exceeded its statutory authority. Thus, to the

extent that Braggs was sentenced to a term of community service that was not in

accordance with the statutorily mandated terms, the sentence 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, and “must be set aside.” Fischer at

7 OHIO FIRST DISTRICT COURT OF APPEALS

paragraph one of the syllabus and ¶ 26-27. But the correction of the offending part

of the sentence must be accomplished before the offender has completed his

sentence. State v. Bloomer,

,

,

; Bezak at ¶ 18; Hernandez v. Kelly,

,

,

; accord State v. Qualls,

,

,

, ¶ 24.

{¶17} Braggs’s sentence was void to the extent that the term of community

service exceeded the statutory range. I would, therefore, hold that the common pleas

court had jurisdiction to review the challenge advanced in Braggs’s postconviction

motion and to vacate that portion of the sentence. But because Braggs’s “case [was]

closed” in 1992, the void portion of his sentence could not be corrected. I would,

therefore, remand this matter to the common pleas court with instructions to vacate

the void portion of the sentence and to note on the record that, because Braggs has

completed his sentence, he cannot be resentenced to community service. See

; Bezak at ¶ 18; accord State v. McCall, 5th Dist. Muskingum No.

CT2013-0014,

; State v. Pullen, 7th Dist. Mahoning No. 11 MA 10,

; State v. Stewart, 12th Dist. Butler No. CA2010-08-215, 2011-Ohio-

2211; see also Hernandez at ¶ 32 (granting a writ of habeas corpus and ordering

defendant’s release from imprisonment for a postrelease-control violation and from

further postrelease control, because postrelease-control notification was not given

and defendant’s journalized sentence had expired); State v. Laney, 6th Dist. Lucas

No. L-10-1151,

(declaring the imposition of postrelease control void,

when postrelease control was not properly imposed before defendant had served his

sentence); State v. Biondo, 11th Dist. Portage No. 2008-P-0028,

8 OHIO FIRST DISTRICT COURT OF APPEALS

(ordering that postrelease control be terminated because postrelease control was not

properly imposed before defendant had served his sentence).

{¶18} Finally, the Second Appellate District in State v. Brandon, 2d Dist.

Greene No. 2005-CA-117,

, held that the defendant could

collaterally challenge the imposition of a term of community service that exceeded

the maximum term authorized by R.C. 2929.27, because that part of his sentence was

void. The majority’s holding here, that Braggs’s sentence was not void to the extent

that it imposed a term of community service exceeding the term provided by statute,

conflicts with the Second District’s decision in Brandon. Therefore, the majority

should, as mandated by the Ohio Constitution, Article IV, Section 3(B)(4), certify to

the Ohio Supreme Court the following question: “Is a term of community service

imposed outside the statutory range void and thus subject to review at any time?”

Please note:

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

9