[Cite as State v. Morrison,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15 CAA 07 0059 JAMES F. MORRISON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 11 CRI 06 0302

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 24, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN JAMES F. MORRISON PROSECUTING ATTORNEY PRO SE DOUGLAS N. DUMOLT RICHLAND CORR. INSTITUTION ASSISTANT PROSECUTOR 1001 Olivesburg Road 140 North Sandusky Street, 3rd Floor Post Office Box 8107 Delaware, Ohio 43015 Mansfield, Ohio 44901 Delaware County, Case No. 15 CAA 07 0059 2

Wise, J.

{¶1} Appellant James F. Morrison appeals the denial of his motion for felony

resentencing in the Court of Common Pleas, Delaware County. Appellee is the State of

Ohio. The relevant facts leading to this appeal are as follows:

{¶2} On June 3, 2010, the Delaware County Grand Jury returned a multiple-

count indictment against Appellant Morrison, charging him with six counts of pandering

sexually oriented material involving a minor, R.C. 2907.322(A)(1); nineteen counts of

illegal use of a minor in nudity oriented material, R.C. 2907.323(A)(3); eight counts of

attempted pandering sexually oriented material involving a minor, R.C. 2907.322(A)(1);

one count of identity fraud and falsification, R.C. 2913.49(B)(2) and 2921.13(A)(3); and

one count of illegal use of a minor in nudity oriented material, R.C. 2907.323(A)(2).

{¶3} On May 7, 2012, pursuant to a plea agreement, appellant entered an Alford

plea to four counts of attempted pandering sexually oriented material involving a minor,

each a third-degree felony. The remaining counts were dismissed. The trial court

thereafter sentenced appellant to thirty months in prison on each count to run

consecutively, for a total prison term of ten years. Appellant was also designated a Tier II

sex offender.

{¶4} Appellant thereafter appealed to this Court, contending the trial court had

erred in failing to merge the counts of attempted pandering sexually oriented material

involving a minor. We disagreed with appellant’s position and affirmed the trial court’s

decision via an opinion issued on May 24, 2013. See State v. Morrison, 5th Dist. Delaware

No. 12 CAA 08 0053,

. The Ohio Supreme Court did not thereafter accept

any appeals. Delaware County, Case No. 15 CAA 07 0059 3

{¶5} On July 25, 2013, appellant filed a pro se motion to reopen his appeal, which

this Court denied on August 27, 2013.

{¶6} On July 1, 2015, appellant filed a collateral motion for resentencing with the

trial court. Appellant therein argued that the trial court had failed to consider the issue of

proportionality of sentencing and the purposes and principles of felony sentencing. The

State filed a memoranda contra on July 2, 2015, and the trial court on the same day

denied appellant’s motion for resentencing.1

{¶7} Appellant filed a notice of appeal on July 24, 2015. He herein raises the

following two Assignments of Error:

{¶8} “I. THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE THE

ABUSE OF DISCRETION EVIDENT BY THE GROSS DISPROPORTIONATE

SENTENCE APPELLANT RECEIVED.

{¶9} “II. THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE IT’S [SIC]

OWN BLATANT DISREGARD TO PROVIDE EVIDENCE TO SUPPORT THE IMPOSED

SENTENCE WHEN IT FAILED TO BE GUIDED BY THE OVERRIDING PURPOSES OF

FELONY SENTENCING.”

I., II.

{¶10} In his First Assignment of Error, appellant contends the trial court erred in

failing to impose a sentence consistent with sentences imposed for similar crimes by

similar offenders. In his Second Assignment of Error, appellant argues the trial court erred

in failing to consider the overriding purposes of felony sentencing.

1 Appellant fails to include or attach with his brief a copy of the judgment entry under appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original trial court judgment entry in the record. Delaware County, Case No. 15 CAA 07 0059 4

{¶11} We reiterate that appellant filed his motion for resentencing in the trial court

more than two years after this Court issued its decision upon his unsuccessful direct

appeal. The Ohio Supreme Court has clearly indicated that trial courts lack authority to

reconsider their own valid final judgments in criminal cases. State ex rel. White v. Junkin,

,

, 1997–Ohio–340. Similarly, as a general rule,

once a valid sentence has been executed, a trial court no longer has the power to modify

the sentence except as provided by the Ohio General Assembly. See State v. Hayes

(1993),

.

{¶12} There are two main exceptions to this general rule. See State v. Marshall,

5th Dist. Richland No. 14 CA 37,

, ¶ 26. The first is the void sentence

doctrine. See State ex rel. Cruzado,

, 2006–Ohio–5795,

. The Ohio Supreme Court has thus recognized: “ * * * [I]n the normal course,

sentencing errors are not jurisdictional and do not render a judgment void. * * * But in the

modern era, Ohio law has consistently 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,

, 2010–Ohio–6238, ¶ 7–¶ 8. However, the

rule of Fischer was originally limited to “a discrete vein of cases: those in which a court

does not properly impose a statutorily mandated period of postrelease control.” See

.

{¶13} The other main exception to the general rule is that a trial court has

jurisdiction to correct clerical errors in its judgments. See State ex rel.

, citing Crim.R. 36. A nunc pro tunc order can be used to supply information which Delaware County, Case No. 15 CAA 07 0059 5

existed but was not recorded, and to correct typographical or clerical errors. See Jacks v.

Adamson (1897),

,

.

{¶14} Neither exception applies in this instance. Thus, under the circumstances

of the case sub judice, we hold appellant’s motion for resentencing based on claims of

disproportionality and the overriding purposes of sentencing was properly rejected by the

trial court as outside the void sentence exception and thus not under said court’s

jurisdiction.

{¶15} Appellant’s First and Second Assignments of Error are therefore overruled.

{¶16} For the reasons stated in the foregoing opinion, the decision of the Court of

Common Pleas, Delaware County, is hereby affirmed.

By: Wise, J.

Baldwin, J., concurs.

Hoffman, P. J., concurs separately.

JWW/d 0222 Delaware County, Case No. 15 CAA 07 0059 6

Hoffman, P.J., concurring

{¶17} I agree with the majority’s conclusion Appellant’s claims of disproportionality

and improper application of the overriding purposes of sentencing are outside the void

sentence exception.

{¶18} Having so concluded, I find Appellant’s two assignments of error are barred

by application of res judicata. Delaware County, Case No. 15 CAA 07 0059 7