[Cite as State v. Dawson,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26500

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE LARRY DAWSON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 1991-07-1368B

DECISION AND JOURNAL ENTRY

Dated: May 1, 2013

WHITMORE, Judge.

{¶1} Defendant-Appellant, Larry Dawson, appeals from the judgment of the Summit

County Court of Common Pleas, denying his motion to correct a void sentence. This Court

affirms.

I

{¶2} In July 1991 a jury convicted Dawson of: (1) aggravated murder; (2) felonious

assault, with a firearm specification; (3) improper discharge of a firearm into a habitation, with

firearm and physical harm specifications; and (4) drug abuse. The court sentenced Dawson to

prison for: (1) twenty years to life for aggravated murder; (2) eight to fifteen years for felonious

assault, plus three mandatory years for the firearm specification; (3) two years for improper

discharge into a habitation; and (4) one year for drug abuse. The court merged the firearm

specification attached to the improper discharge conviction with the firearm specification

attached to the felonious assault. 2

{¶3} In October 1992, this Court affirmed Dawson’s convictions. State v. Dawson, 9th

Dist. No. 15483,

(Oct. 21, 1992). Dawson filed several petitions for post-

conviction relief and motions for a new trial. The trial court denied each, and this Court

affirmed. See State v. Dawson, 9th Dist. No. 18216,

(July 30, 1997); State v.

Dawson, 9th Dist. No. 19179,

(July 14, 1999).

{¶4} In March 2012, Dawson filed a motion to correct a void sentence, which the trial

court denied. Dawson now appeals and raises one assignment of error for our review.

II

Assignment of Error

THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION FOR RESENTENCING DUE TO A NON-FINAL APPEALABLE ORDER.

{¶5} In his sole assignment of error, Dawson argues that the trial court erred in not

correcting his void sentencing entry because it is not a final, appealable order.

{¶6} The question of whether a judgment is void is distinct from the question of

whether it is a final, appealable order. “A void sentence is one that a court imposes despite

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

,

, ¶ 27. A defendant may challenge a void judgment at any time. See State v.

Baker, 9th Dist. No. 25024,

, ¶ 9. Dawson does not argue that the trial court

lacked subject-matter jurisdiction. Instead, Dawson argues that his sentencing entry is not final

because it fails to comply with Crim.R. 32(C).

{¶7} To be a final, appealable order a judgment of conviction must include a sentence

and the fact of conviction. State v. Lester,

,

, syllabus.

“Moreover, we have previously concluded that ‘a Journal Entry must dispose of all charges

brought in a single case against a defendant in order to be final.’” State v. Roberson, 9th Dist. 3

No. 09CA009555,

, ¶ 6, quoting State v. Goodwin, 9th Dist. No. 23337, 2007-

Ohio-2343, ¶ 13.

{¶8} The validity of Dawson’s sentencing entry presents a question of law. See State v.

Abuhilwa, 9th Dist. No. 26183,

. We review questions of law de novo.

Ohio Bell Tel. Co. v. Pub. Util. Comm.,

(1992). When reviewing a

matter de novo, this Court does not give deference to the trial court’s decision. State v. Barclay,

9th Dist. No. 25646,

.

{¶9} Former R.C. 2941.143 permitted the imposition of an indefinite prison term for

third and fourth degree felonies where the “offender caused physical harm to any person or made

an actual threat of physical harm to any person with a deadly weapon.” An indefinite sentence

was precluded unless “the indictment, count in the indictment, or information charging the

offense” contained a physical harm specification as set forth in R.C. 2941.143, and the defendant

was found guilty of such.

{¶10} Dawson was charged and convicted of the improper discharge of a firearm into a

habitation, in violation of R.C. 2923.161, a felony of the third degree. Dawson was also

convicted of the attendant physical harm specification. In its sentencing entry, the court

sentenced Dawson to a definite prison term of two years for the improper discharge of a firearm,

but did not mention the physical harm specification. Dawson now argues his sentence is not

final because it fails to dispose of all the charges against him. See Roberson at ¶ 6.

R.C. 2941.143 does not prescribe a term of incarceration in addition to the term on the underlying felony, but permits an indefinite term of incarceration to be imposed on the underlying felony where the defendant has been indicted, tried and convicted of the specification. * * * Thus, conviction on the specification under R.C. 2941.143 permits the imposition of a greater but not additional term of incarceration.

(Emphasis sic.) State v. Witwer,

(1992), fn. 4. 4

{¶11} Dawson was sentenced to two years on the underlying felony of improper

discharge of a firearm into a habitation. Dawson’s conviction of the physical harm specification

did not permit the court to impose an additional prison sentence. See

Dawson’s sentencing

entry disposes of all charges against him, and his argument that his sentencing entry is not a

final, appealable order is without merit.

{¶12} It is well established law in Ohio that res judicata prohibits the consideration of

issues that could have been raised on direct appeal. State v. Saxon,

, 2006-

Ohio-1245, ¶ 16-17, citing State v. Hutton,

,

, ¶ 37; State v.

D’Ambrosio,

(1995). Because Dawson’s sentencing entry is a final,

appealable order, any challenge to his term of imprisonment could have been raised in his direct

appeal.

{¶13} We conclude that since the trial court did not act without subject matter

jurisdiction, its judgment entry is not void. We further conclude that Dawson’s sentencing entry

disposes of all charges against him, is a final, appealable order, and any challenges to the length

of his imprisonment is barred by the doctrine of res judicata.

{¶14} Dawson’s sole assignment of error is overruled.

III

{¶15} Dawson’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 5

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

MOORE, P. J. HENSAL, J. CONCUR.

APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.