[Cite as State v. Stevens,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27872 : v. : Trial Court Case No. 1996-CR-395/1 : JEFFREY E. STEVENS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 2nd day of November, 2018.

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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JEFFREY E. STEVENS, Inmate No. 339-120, Marion Correctional Institution, P.O. Box 57, Marion, Ohio 43302 Defendant-Appellant, Pro Se

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WELBAUM, P.J. -2-

{¶ 1} Defendant-appellant, Jeffrey E. Stevens, appeals pro se from a judgment of

the Montgomery County Court of Common Pleas overruling his motion for resentencing.

For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} In 1996, Stevens was convicted of three counts of aggravated robbery, one

count of attempted aggravated murder, one count of aggravated murder, one count of

having weapons under disability, and multiple firearm and prior-offense-of-violence

specifications. As a result of his conviction, the trial court sentenced Stevens to an

aggregate term of life in prison plus an indefinite prison term of 36 to 58 years. Following

his sentencing, Stevens filed a direct appeal from his conviction raising several

assignments of error, none of which challenged the validity of his sentence. On April 3,

1998, this court issued an opinion affirming Stevens’s conviction. State v. Stevens, 2d

Dist. Montgomery No. 16509,

(Apr. 3, 1998) (“Stevens I”).

{¶ 3} Approximately 16 years later in 2014, Stevens filed two successive motions

for resentencing. As part of these motions, Stevens claimed his sentence for aggravated

murder was void because the judgment entry did not state that he would be eligible for

parole after 20 years. The trial court overruled both of Stevens’s motions for

resentencing in separate entries.

{¶ 4} After Stevens’s resentencing motions were overruled, Stevens filed a motion

requesting a re-entry of judgment. In that motion, Stevens moved the trial court to re-

issue one of its entries overruling his motion for resentencing on grounds that he was not -3-

served a copy of the entry. The trial court overruled the motion for re-entry of judgment,

and Stevens appealed.

{¶ 5} On appeal, Stevens challenged the merits of the trial court’s decision

overruling his motion for resentencing as opposed to the decision he appealed from—the

trial court’s decision overruling his motion for re-entry of judgment. Specifically, Stevens

argued that the life sentence he received for aggravated murder was void because the

sentencing entry failed to comply with R.C. 2929.03(A)(1) in that the entry imposed a life

sentence without stating that he would be eligible for parole after 20 years.

{¶ 6} After reviewing the matter, this court affirmed the trial court’s judgment

overruling Stevens’s motion for re-entry of judgment. State v. Stevens, 2d Dist.

Montgomery No. 26328,

(“Stevens II”). We affirmed the trial court on

grounds that this court lacked jurisdiction to address Stevens’s argument since it

concerned the trial court’s judgment overruling Stevens’s motion for resentencing, which

was not the judgment designated in Stevens’s notice of appeal. Id. at ¶ 8-9.

{¶ 7} We also held that even if we had jurisdiction to address Stevens’s argument

on appeal, the argument was barred by res judicata. Id. at ¶ 10. Specifically, we found

that the trial court’s failure to state in its judgment entry that Stevens would become

eligible for parole after 20 years only rendered Stevens’s sentence voidable, and that

voidable sentences may only be challenged on direct appeal. Id. at ¶ 11, citing State v.

Johnston, 2d Dist. Montgomery No. 25652,

. Because Stevens did

not raise this argument in his direct appeal, we found that res judicata barred him from

raising it in his subsequent appeal.

{¶ 8} On December 13, 2017, two years after this court’s decision in Stevens II, -4-

Stevens filed another motion for resentencing. In that motion, Stevens argued that his

life sentence for aggravated murder was contrary to law and void because the version of

R.C. 2929.03(A) in effect at the time of his sentencing did not authorize a definite term of

life in prison. The trial court found otherwise and overruled Stevens’s motion for

resentencing. The instant appeal followed, in which Stevens raises a single assignment

of error for review.

Assignment of Error

{¶ 9} Under his sole assignment of error, Stevens contends the trial court erred in

overruling the motion for resentencing he filed in 2017. Specifically, Stevens claims the

trial court incorrectly determined that the version of R.C. 2929.03(A) in effect at the time

he was sentenced authorized a definite term of life in prison for aggravated murder. In

support of this claim, Stevens relies on the language of R.C. 2929.03(A), which states:

“the trial court shall impose a sentence of life imprisonment with parole eligibility after

serving twenty years of imprisonment on the offender.” (Emphasis added.) R.C.

2929.03(A). According to Stevens, this language does not authorize a definite life term.

Therefore, Stevens claims the trial court failed to comply with the statute when it

sentenced him to life in prison without specifying his eligibility for parole.

{¶ 10} In essence, Stevens is arguing exactly what he argued in Stevens II, namely

that his life sentence for aggravated murder was void because the trial court sentenced

him to life in prison without specifying that he was eligible for parole after serving 20 years.

We find that this argument fails for the same reasons discussed in Stevens II, as the

argument should have been raised on direct appeal and is barred by res judicata. -5-

Stevens II, 2d Dist. Montgomery No. 26328,

at ¶ 11, citing Johnston, 2d

Dist. Montgomery No. 25652,

.

{¶ 11} Regardless, even if Stevens’s argument were not barred by res judicata, it

otherwise lacks merit. As previously noted, the version of R.C. 2929.03(A) in effect at

the time of Stevens’s sentencing provided that, for a charge of aggravated murder, “the

trial court shall impose a sentence of life imprisonment with parole eligibility after serving

twenty years of imprisonment on the offender.” The substance of former R.C.

2929.03(A) has been codified in Ohio Adm.Code 5120-2-10(B), which provides, in

relevant part, as follows:

A sentence of life imprisonment imposed pursuant to section 2929.03 of the

Revised Code for the offense of aggravated murder shall be presumed to

be a sentence of life imprisonment with parole eligibility after twenty years,

subject to diminution under rules 5120-2-05, 5120-2-06 and 5120-2-07 of

the Administrative Code, unless the journal entry of the court specifies that

parole eligibility is to be after twenty full years or thirty full years.

{¶ 12} Pursuant to the plain language of Ohio Adm.Code 5120-2-10(B), Stevens’s

parole eligibility on the aggravated murder charge is presumed under the law. See State

v. Perry, 11th Dist. Trumbull No. 2016-T-0098,

(appellant’s 1994

life sentence for aggravated murder “carries a presumption of parole eligibility after twenty

years despite the [sentencing entry’s] silence regarding parole eligibility”); State v. Brown,

7th Dist. Mahoning No. 14 MA 37,

, ¶ 36 (appellant’s 1996 life sentence

for aggravated murder “must necessarily read as life with [parole] eligibility after twenty

years and cannot be read in any other manner under the applicable statutes [including -6-

Ohio Adm.Code 5120-2-10(B)]”). Therefore, even though the trial court did not indicate

at sentencing that Stevens would become eligible for parole on his aggravated murder

conviction after serving 20 years in prison, such eligibility is presumed since the

sentencing entry did not indicate otherwise.

{¶ 13} Because Stevens’s argument is barred by res judicata and otherwise lacks

merit, Stevens’s sole assignment of error is overruled.

Conclusion

{¶ 14} Having overruled Stevens’s sole assignment of error, the judgment of the

trial court overruling his motion for resentencing is affirmed.

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DONOVAN, J. and TUCKER, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Jeffrey E. Stevens Hon. Michael W. Krumholtz