[Cite as State v. Cover,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109959 v. :

JEFFERY COVER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: April 15, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-19-642333-A and CR-19-643403-A ______________________

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.

Fred D. Middleton, for appellant.

SEAN C. GALLAGHER, P.J.:

Jeffery Cover appeals the trial court’s decision deeming his two-year

aggregate sentence in CR-19-642333-A to be mandatory. The final aggregate term

of imprisonment is comprised of an 18-month sentence imposed upon a violation of R.C. 2921.331(B), for the failure to comply with an order or signal of a police officer,

and a six-month term of imprisonment imposed upon a violation of R.C. 2925.11(A),

for felony drug possession. Both sentences were imposed to be served consecutive

to each other and to a 12-month term of imprisonment Cover was already serving in

CR-19-637096-A, but concurrent with the 12-month term of imprisonment imposed

in CR-19-643403-A, which was also based on his failing to comply with an order or

signal from a police officer. In this appeal, Cover claims the trial court erroneously

imposed the two-year term of imprisonment as a mandatory sentence. We need not

delve too deeply in this matter; the state concedes the error and the disposition.

Cleveland v. Andujar, 8th Dist. Cuyahoga No. 106867,

.

The conduct underlying the charges against Cover in CR-19-

642333-A involved his attempting to elude a police officer after the officer initiated

a traffic stop. Cover reached speeds in excess of 100 miles per hour during the

pursuit that occurred throughout the Rocky River, Ohio area. In light of the threat

caused by Cover’s conduct, the police officer ended the pursuit and Cover was

apprehended at a later time. The events underlying the charges in CR-19-643403-A

were similar, involved speeds nearing 90 m.p.h., and occurred in Independence,

Ohio. The officers also ended the pursuit in light of the danger to the public. Cover

fled from the officers in the attempt to evade an arrest warrant that had been issued.

It is undisputed that Cover pled guilty to a violation R.C. 2921.331(B),

which criminalizes eluding or fleeing “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 subdivision (C)(5)(a), that violation is a felony of the third degree if the trier

of fact determines, or the offender pleads guilty to the fact, that the offender’s

operation of the vehicle was either the “proximate cause of serious physical harm to

persons or property” or “caused a substantial risk of serious physical harm to

persons or property.” R.C. 2921.331(D), the sentencing provision under which

Cover was sentenced, provides that “if the offender is sentenced to a prison term for

[a violation of R.C. 2921.331(C)], the offender shall serve the prison term

consecutively to any other prison term or mandatory prison term imposed upon the

offender.” Thus, it is undisputed that the prison term imposed in CR-19-642333-A

had to be imposed consecutive to “any other prison term” imposed upon the

offender.

Despite the statutory language, the trial court imposed the 12-month

prison term in CR-19-643403-A to be served concurrent with the 24-month prison

term imposed in CR-19-642333-A. Without objection, and after explaining the

ramifications of the trial court’s belief that the two-year term was considered a

mandatory sentence and providing a notice of the right to appeal, Cover failed to

take any action until his motion for judicial release was denied based on the trial

court designating the 24-month sentence to be mandatory. Cover then filed this

delayed appeal claiming that the term of imprisonment imposed in CR-19-642333-A

was contrary to law. Leave for the delayed appeal was granted.

“Once granted, a delayed appeal proceeds as any timely appeal would

proceed, and the assertion of error is virtually the same as it would have been but for the delayed filing.” State v. Silsby,

,

,

. Accordingly, the Ohio Supreme Court’s recent decision in State v.

Henderson,

,

,

, in which it was

concluded that “sentences based on an error, including sentences in which a trial

court fails to impose a statutorily mandated term, are voidable if the court imposing

the sentence has jurisdiction over the case and the defendant[,]” does not preclude

Cover’s challenge.

; State v. Harper,

, 2020-

Ohio-2913,

.

There is one issue not addressed by the parties that requires further

attention. R.C. 2921.331(D) requires the trial court to impose the sentences in CR-

19-642333-A to be served consecutive to any other prison term imposed on the

offender, including the sentence imposed in CR-19-643403-A. McKinney v.

Haviland, Slip Opinion No.

; State v. Smith, 8th Dist.

Cuyahoga No. 108379,

, citing State v. Parker, 8th Dist.

Cuyahoga No. 105361,

, and State v. Whittsette, 8th Dist.

Cuyahoga No. 85478,

. Application of R.C. 2921.331(D)

should have resulted in consecutive terms of imprisonment totaling four years,

instead of the three-year aggregate term imposed for all cases. The trial court

erroneously imposed the sentence in CR-19-643403-A concurrent to the two-year

term of imprisonment imposed in CR-19-642333-A.

The state, however, failed to timely appeal the trial court’s

misapplication of R.C. 2921.331(D) through the imposition of concurrent sentences as between the two cases. Without a timely cross-appeal filed under App.R. 3(C),

this court is without jurisdiction to review the concurrent nature of the sentence

imposed in CR-19-643403-A that was included in this consolidated appeal. State v.

Burge, 9th Dist. Lorain No. 16CA010936,

(failure to timely

file a cross-appeal deprived the court of jurisdiction to review the claimed error);

State v. Hill, 1st Dist. Hamilton No. C-180114,

(state failed to

perfect a cross-appeal to challenge the trial court’s decision granting leave to file a

new trial, and was, therefore, limited to addressing the merits of the motion for new

trial in the defendant’s appeal of the adverse decision); State v. Bosher, 10th Dist.

Franklin No. 13AP-1000,

(defendant is precluded from

challenging the finding of reasonable suspicion for the initial stop, in the state’s

appeal of the motion to suppress evidence procured through the detention of the

defendant, based on the failure to file a cross-appeal); see also State v. Finger, 8th

Dist. Cuyahoga No. 106352,

, ¶ 4; State v. Brazil, 6th Dist. Wood

No. WD-13-040,

, ¶ 14. The trial court’s erroneous sentence, which

is not considered void and subject to collateral attack at any time, cannot be

challenged at this juncture. Henderson. The erroneous sentence is merely voidable

subject to a timely appeal, of which the state did not partake.

As a result, we are limited to reviewing whether the trial court erred

by imposing the two-year aggregate term of imprisonment as a mandatory sentence.

On this point, the parties agree that such a sentence was improper

and the appropriate remedy is to reverse the sentences, and remand for the trial court to impose the consecutive service of the sentences imposed in CR-19-

642333-A without the “mandatory” designation. Although the sentences imposed

for CR-19-642333-A must be served consecutively to all other prison terms, that

does not transform the sentences into mandatory ones. “R.C. 2929.13(F) addresses

mandatory prison terms and lists offenses for which a sentencing court is obligated

to impose a prison term.” State v. Johnson,

,

,

, ¶ 9. No provision under R.C. 2929.13(F) provides that the consecutive

sentences required under R.C. 2921.331(D) are excluded from those sentences that

may be reduced under other statutory provisions — in other words, R.C. 2929.13(F)

does not expressly provide that the sentences imposed in this case are mandatory.

Accordingly, we agree with the parties that the trial court designating the sentences

imposed under R.C. 2921.331(D) to be “mandatory” was in error.

Cover advanced four assignments of error all premised on the error

with respect to the mandatory nature of the sentences imposed. The trial court erred

in designating the two-year aggregate term of imprisonment in CR-19-642333-A as

a mandatory sentence. We reverse and remand for the sole purpose of the trial court

issuing a new final entry of conviction that omits any notation that the sentences are

mandatory. All other assigned errors, if not specifically addressed herein, are

overruled as moot. Reversed and remanded.

This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out 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.

_____ SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and MICHELLE J. SHEEHAN, J., CONCUR