[Cite as State v. Smith,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108379 v. :

DEVANTE SMITH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 12, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-624387-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Lindsay Raskin, Assistant Prosecuting Attorney, for appellee.

Jordan | Sidoti, and Marcus S. Sidoti, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant Devante Smith appeals from his sentence for

drug trafficking in violation of R.C. 2925.03(A)(2). Because we find Smith’s initial

sentence was void and the trial court therefore had authority to correct the sentence,

we affirm. Procedural History and Substantive Facts

On January 8, 2018, the Cuyahoga County Grand Jury returned an 11-

count indictment against Smith, including four counts of drug trafficking, four

counts of drug possession, one count of possessing criminal tools, one count of

receiving stolen property, and one count of having weapons while under disability.

On September 27, 2018, Smith agreed to plead guilty to an amended Count 1, drug

trafficking in violation of R.C. 2925.03(A)(2). In exchange, the state agreed to

dismiss the remaining charges as well as the firearm specification in Count 1. The

plea agreement included an agreed recommended two-year prison sentence. At the

plea hearing, the trial court stated that it planned to abide by the recommended

sentence. The matter was then scheduled for sentencing in October but the hearing

was twice continued, until November 27, 2018. At some point, apparently

unbeknownst to the state, Smith appeared in Lake County to resolve charges

brought by way of an information that had been filed on November 6, 2018, in that

county. The record shows that on November 27, 2018, the trial court in this case

issued a capias for Smith’s failure to appear on November 27, 2018, and ordered

Smith returned from Lake County for sentencing.

On December 18, 2018, the court held a sentencing hearing on this

case. Prior to the prosecutor’s appearance at the hearing, defense counsel thanked

the court for permitting Smith to “complete the matter [pending in] Lake County,”

asked the court to accept the agreed two-year sentence, and requested the court run

the sentence in this case concurrently with the 18-month sentence imposed in Lake County. Thereafter, according to the court transcript, the prosecutor, who was not

the assigned prosecutor, entered the room. He noted the two-year agreed sentence

with no judicial release and advised the court of the items that had been forfeited.

The court imposed the two-year agreed recommended sentence and ordered the

sentence to run concurrently with the Lake County case.

On January 24, 2019, the court held another hearing in this matter,

advising the parties that it had received a letter from the Ohio Department of

Rehabilitation and Correction (“ODRC”), which stated that Smith’s sentence on the

Cuyahoga County case was improper. According to the ODRC, Smith had been

sentenced in Lake County for domestic violence (six months) and failure to comply

(one year), and a sentence for the failure to comply charge must be served

consecutively to any other prison term imposed on the offender. Upon defense

counsel’s request, the court continued the hearing until March 5, 2019.

At the March hearing, both defense counsel and the prosecutor denied

knowledge of Smith’s failure to comply conviction in Lake County at the time Smith

was sentenced in Cuyahoga County. After hearing from the prosecutor and defense

counsel, the trial court resentenced Smith, imposing a two-year prison term, as

initially agreed. The court then ordered the sentence to run concurrently with

Smith’s Lake County domestic violence conviction but consecutively to the Lake

County failure to comply charge. Smith now appeals, arguing in one assignment of error that the trial

court erred in resentencing Smith. He contends the court had no jurisdiction to

modify his sentence.

Law and Analysis

Trial courts generally lack authority to reconsider their own final

judgments in criminal cases unless it is to correct a clerical error or a void sentence.

State v. Raber,

,

,

; State v.

Kalinowski, 8th Dist. Cuyahoga No. 98922,

. A trial court

therefore retains continuing jurisdiction to correct a void sentence or to correct

clerical errors in judgments. State ex rel. Cruzado v. Zaleski,

,

,

. And the state’s failure to appeal an illegal,

or void, sentence does not affect the trial court’s duty to impose a sentence in

accordance with the law. See State v. Thomas,

,

(8th Dist. 1996), appeal not accepted,

,

(1996)

(stating that the failure of a prosecutor to raise an issue either before the sentencing

court or on appeal does not in any way change the duty of the court to impose a

mandatory sentence prescribed by the legislature). Indeed, “[a] trial court’s

authority to correct a void sentence does not hinge upon how the court became

aware of its illegality.” State v. Ramey, 10th Dist. Franklin No. 06AP-245, 2006-

Ohio-6429, ¶ 13, citing State v. Bush, 10th Dist. Franklin No. 99AP-4,

(Nov. 30, 1999) (involving officials at the Correctional Reception

Center who informed the court a sentencing error had occurred). Ohio courts have consistently held that a sentence that is not in

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

,

,

, ¶ 8, citing State v. Bezak,

,

,

; State v. Jordan,

, 2004-Ohio-

6085,

; State v. Beasley,

,

(1984);

Colegrove v. Burns,

,

(1964). And when a sentence

is void, and the matter has come to the attention of the trial court, “the court ‘cannot

ignore’ the matter.” Kalinowski at ¶ 8, quoting State v. Boswell,

,

,

. The trial court must therefore correct the

“‘offending portion’” of the sentence.

quoting Fischer at ¶ 27. Thus, the proper

remedy for a trial court’s failure to comply with mandatory sentencing laws is a

resentencing hearing limited to correcting the void sentence. State v. Williams,

,

,

, citing Fischer at ¶ 29.

Smith was convicted in Lake County of failure to comply in violation

of R.C. 2921.331(B), a felony of the third degree, which provides that “[n]o person

shall operate a motor vehicle so as willfully to elude or flee a police officer after

receiving a visible or audible signal from a police officer to bring the person’s motor

vehicle to a stop.” Under R.C. 2921.331(D), an offender who is sentenced to a prison

term for violation of the above section, “shall serve the prison term consecutively to

any other prison term or mandatory prison term imposed upon the offender.”

Therefore, Smith’s failure to comply charge “cannot be served concurrently [with]

any other sentence.” State v. Parker, 8th Dist. Cuyahoga No. 105361, 2018-Ohio- 579, ¶ 29; State v. Whittsette, 8th Dist. Cuyahoga No. 85478,

(stating that “a trial court has no discretion in the decision to impose a consecutive

sentence for a violation of R.C. 2921.331(B)”).

This consecutive service mandate applies where a defendant is being

sentenced in two or more separate cases, as well as in cases that occurred in a

different county and predate the failure to comply charge. State v. Spicer, 8th Dist.

Cuyahoga Nos. 92384 and 92385,

, ¶ 19 (finding that pursuant to

R.C. 2921.331(D), a term of imprisonment for failure to comply must run

consecutive to that of any other term of imprisonment, “no matter if the sentence is

being imposed in the same or different case”); State v. Perry, 8th Dist. Cuyahoga

No. 101667,

, ¶ 11 (finding the consecutive sentence mandate in

R.C. 2921.331(D) applies “even if the defendant’s other offenses occurred in a

different county and predate[] the charge of failure to comply in the present case”).

Here, Smith’s original Cuyahoga County two-year agreed sentence was

ordered to be served concurrently with the sentence on his Lake County failure to

comply conviction. Because this sentence did not comply with the consecutive

service mandate of R.C. 2921.331(D), the sentence was void. Therefore, the trial

court properly exercised its continuing jurisdiction to correct a void sentence when

it ordered Smith’s Cuyahoga County sentence to be served consecutive to his

sentence for the failure to comply charge in Lake County. State ex rel. Cruzado v.

Zaleski,

,

,

(a trial court retains continuing jurisdiction to correct a void sentence); Beasley,

,

(a trial court is authorized to correct a void sentence).

Smith’s sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MICHELLE J. SHEEHAN, JUDGE

ANITA LASTER MAYS, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR