[Cite as State v. Stansell,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109023 v. :

MICHAEL STANSELL, :

Defendant-Appellant. :

EN BANC DECISION AND JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 17, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-97-356129-ZA

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant.

MARY J. BOYLE, A.J.:

Pursuant to App.R. 26(A)(2), Loc.App.R. 26, and McFadden v.

Cleveland State Univ.,

,

,

, the en

banc court has determined that a conflict exists between State v. Stansell, 8th Dist. Cuyahoga No. 100604,

(“Stansell II”), and the reconsidered

opinion in State v. Stansell, 8th Dist. Cuyahoga No. 109023,

(“Stansell III reconsidered opinion”), and frames the question for en banc review as

follows:

Where a defendant’s sentence exceeds statutory limitations, is the sentence void?1

THE EN BANC DECISION

We find that where a defendant’s sentence exceeds statutory

limitations, the sentence is voidable, but not void, unless the sentencing court lacked

subject-matter jurisdiction over the case or personal jurisdiction over the defendant.

In State v. Harper,

,

,

, the Ohio Supreme Court “realign[ed] its void-sentence jurisprudence” with the

“traditional understanding” that a void judgment is one that is rendered without

subject-matter jurisdiction over the case or personal jurisdiction over the parties.

Harper at ¶ 4. The Ohio Supreme Court explained that it had created exceptions to

this traditional rule, but these exceptions “burdened” courts with unnecessary

litigation and “undermin[ed] the finality of criminal judgments.” Id. at ¶ 3. The

1The state claims that the panel’s finding in the Stansell III reconsidered opinion conflicts with Stansell II and State v. Speed, 8th Dist. Cuyahoga No. 105543,

, regarding whether Stansell’s sentence is void due to his sexually violent predator specification and whether his challenge to it is barred by res judicata. The state frames the conflict question as follows: “Whether the Ohio Supreme Court’s decision in State v. Smith,

,

, 818 N.E.2d, applies retroactively to closed cases that became final prior to Smith being decided.” court held that if a trial court has subject-matter jurisdiction over the case and

personal jurisdiction over the accused, an error in the trial court’s imposition of

postrelease control renders the court’s judgment voidable, not void, and not subject

to collateral attack. Id. at ¶ 4-5. The court cautioned “prosecuting attorneys, defense

counsel, and pro se defendants throughout this state that they are now on notice that

any claim that the trial court has failed to properly impose postrelease control in the

sentence must be brought on appeal from the judgment of conviction or the sentence

will be subject to res judicata.” Id. at ¶ 43.

In State v. Brooks, 8th Dist. Cuyahoga No. 108919,

,

this court extended the holding in Harper to apply to sentencing errors outside of

the context of postrelease control. Brooks at ¶ 9. Brooks had filed a petition for

postconviction relief arguing that his sentence of “life, without the possibility of

parole until serving twenty (20) years” was void because it was contrary to the

language of then R.C. 2929.03(C)(2) that stated, “twenty full years.” (Emphasis sic.)

Id. at ¶ 4. This court found that the sentencing court had subject-matter jurisdiction

over Brooks’s case and personal jurisdiction over him, and that pursuant to Harper,

Brooks’s sentence could be challenged only on direct appeal. Id. at ¶ 9.

This court followed Brooks in State v. Starks, 8th Dist. Cuyahoga

No. 109444,

, where Starks was sentenced to life imprisonment,

without the parole eligibility after twenty years that former R.C. 2929.03 required.

Starks argued in a postconviction motion that his sentence was void because it was “not authorized by statute.” Id. at ¶ 10. However, applying Harper and Brooks, we

found that the sentencing court had subject-matter jurisdiction over Starks’s case

and personal jurisdiction over him, and that any sentencing error would render his

sentence voidable, not void. Id. at ¶ 15. We therefore found that Starks could

challenge his sentence only on direct appeal, and his postconviction argument was

barred by the doctrine of res judicata. Id. at ¶ 15-16.

After we released Brooks and Starks, the Ohio Supreme Court also

extended Harper to sentencing errors beyond postrelease control in State v.

Henderson,

,

,

. Former

R.C. 2929.02(B) required the trial court to sentence Henderson to an indefinite

sentence of 15 years to life, but the trial court instead sentenced him to “15 years”

without the life tail. Id. at ¶ 39-40. When the state challenged the sentence via a

postconviction motion, the Ohio Supreme Court found that “there is no dispute that

the sentence is unlawful” but that the error rendered the sentence voidable, not void,

and the state could not correct the error in a postconviction motion. Id. at ¶ 40.

Based on Harper and Henderson, the current void-sentence

jurisprudence of the Ohio Supreme Court is clear: if the sentencing court has

subject-matter jurisdiction over the case and personal jurisdiction over the

defendant, any sentencing error renders the sentence voidable, not void. We must

apply this bright-line rule to the question for en banc review: sentences that exceed

statutory limitations, so long as the trial court had subject-matter jurisdiction over the case and personal jurisdiction over the defendant, are likewise voidable, not

void.

The Ohio Supreme Court created no exception to its realigned void-

sentence jurisprudence for sentences that exceed statutory limitations. Under

Henderson, as long as “the court has jurisdiction over the case and the person, any

error in the court’s exercise of that jurisdiction is voidable.” (Emphasis added.) Id.

at ¶ 34. The court did not limit its holding to specific types of errors or to situations

where an error causes the defendant to spend less time incarcerated than statutorily

mandated. Indeed, the court explained in Henderson that one of the reasons it was

realigning its void-sentence jurisprudence was because the previous case law

“created uncertainty, inconsistency, frustration, and confusion” regarding how to

apply the voidness doctrine to particular judgments. Id. at ¶ 32. By realigning the

void-sentence doctrine to “the traditional understanding of what constitutes a void

judgment,” the court meant to “remove that confusion” and “restore predictability

and finality to trial-court judgments and criminal sentences.” Id. at ¶ 33. It intended

to narrow void judgments to those rendered by a court without subject-matter

jurisdiction over the case or personal jurisdiction over the accused. Id. at ¶ 38.

The Stansell III reconsidered opinion’s holding that sentences

exceeding statutory limitations are void is therefore against the Ohio Supreme

Court’s precedent in Harper and Henderson. The holding also conflicts with this

court’s opinion in Starks that a sentence “not authorized by statute” was voidable, not void, despite the harsh reality that Starks is now spending life in prison without

the parole eligibility to which he was entitled under former R.C. 2929.03.

We recognize that the application of the Ohio Supreme Court’s

current void-sentence jurisprudence can be unjust, especially in cases like this one

and Starks where the sentencing error is not challenged on direct appeal and causes

the defendant to spend “unwarranted time incarcerated.” Henderson,

,

,

(O’Connor, C.J., concurring in

judgment only). We echo the concerns expressed in Chief Justice O’Connor’s

concurring in judgment only opinion in Henderson that the majority opinion

“elevate[s] predictability and finality over fairness and substantial justice.” Id. at

¶ 47. However, we are constrained to follow the Ohio Supreme Court’s holdings in

the majority opinions in Harper and Henderson.

We therefore hold that so long as the sentencing court has subject-

matter jurisdiction over the case and personal jurisdiction over the defendant, any

sentencing error, including the imposition of a sentence that exceeds statutory

limitations, is not void, but voidable. To secure and maintain uniformity of

decisions within the district, we vacate the panel decision issued in State v. Stansell,

8th Dist. Cuyahoga No. 109023,

, and issue this decision as the final

decision in this appeal.

MARY J. BOYLE, ADMINISTRATIVE JUDGE FRANK D. CELEBREZZE, JR., KATHLEEN ANN KEOUGH, EILEEN A. GALLAGHER, EILEEN T. GALLAGHER, MICHELLE J. SHEEHAN, LISA B. FORBES, and EMANUELLA D. GROVES, JJ., CONCUR;

SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE OPINION;

LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION with MARY EILEEN KILBANE and ANITA LASTER MAYS, JJ.

SEAN C. GALLAGHER, J., CONCURRING:

Although I fully concur with the majority’s conclusion that State v.

Harper,

,

,

, and State v.

Henderson,

,

,

(collectively

“Harper/Henderson”), apply to preclude collateral attacks of any sentencing error

and not just those that inure to the benefit of a defendant, there are two additional

points that should be discussed.

First and foremost, the Ohio Supreme Court resolved the question we

are answering in this en banc review even before Stansell III was released. State ex

rel. Romine v. McIntosh, Slip Opinion No.

(imposing sentences

upon allied offenses in violation of R.C. 2941.25 renders the conviction voidable

even though the offender was subject to a greater punishment than the legislature

authorized). Thus, our review is based on correcting an erroneous decision that

contradicted binding authority — no new ground is being trod. More important,

there is a trend, not limited to this case, of appellate panels suggesting that the law

on finality of criminal judgments may be set aside based on policy determinations.

This sets a dangerous precedent that we should strive to curtail. I. The Ohio Supreme Court has already concluded that a sentence punishing an offender in excess of that which is legislatively authorized, renders the sentence voidable and subject to correction only in the direct appeal.

Under Harper/Henderson, any errors in the imposition of the final

sentence are voidable, and can be corrected only through a direct appeal rather than

through a collateral attack in a postconviction proceeding. In the panel decision,

State v. Stansell, 8th Dist. Cuyahoga No. 109023,

(“Stansell III”

reconsidered opinion), the defendant filed a motion to vacate what he asserted to be

a void sentence in 2019. Id. at ¶ 11-13. The sentence was originally imposed in 1998,

so the trial court denied the motion. Id. In the appeal of the collateral proceeding,

the panel concluded that the doctrine of res judicata did not preclude the trial court

from modifying what was deemed to be an erroneous sentence because “res judicata

is generally inapplicable ‘where life or liberty is at stake.’” Id. at ¶ 30, quoting

Sanders v. United States,

,

,

(1963). The

dissent maintains this position in this en banc review. According to the original

panel, “the trial court here imposed a sentence outside of its authority; Harper and

Henderson should not serve as a bar to this court’s review.” Id. at ¶ 31. Stansell III

concluded that the sentence imposed was void and subject to collateral attack

despite Harper/Henderson. Stansell III at ¶ 23 and 29.

No matter how well intentioned, intermediate appellate panels lack

authority to disregard binding precedent. The sole question presented for the

panel’s review was whether the trial court correctly determined that it lacked continuing jurisdiction to modify the final sentence, i.e., erred in determining

whether the imposed sentence was void (in which case the trial court maintained

continuing jurisdiction to modify the sentence) or merely voidable (in which case

the trial court lacked jurisdiction to modify the final sentence). State v. Zaleski,

,

,

. The panel did not resolve

that question, but instead bypassed the jurisdiction issue and concluded that res

judicata did not apply based on issues of equity and fairness, and as a result, the trial

court erred by not modifying the final sentence. Stansell III at ¶ 29.

Lost in this debate is the fact that appellate panels cannot

independently modify or collaterally attack a final judgment that the trial court had

no jurisdiction to alter. In other words, the appellate panel is not an independent

arbiter of the validity of a final sentence and cannot substitute its view for that of the

trial court where the issue was one of continuing jurisdiction. The trial court either

had jurisdiction to modify the underlying sentence or did not have jurisdiction. An

appellate panel cannot create its own jurisdiction merely to modify or change a

result the panel finds unfair or unpalatable; the sole question in this type of case is

whether the trial court correctly resolved the question of its jurisdiction to modify a

final sentence.

This inquiry is not about the constitutionality of a proceeding or the

apparent error in imposing a sentence beyond the maximum permitted by law; it is

about whether a trial court has continuing jurisdiction after entering the final entry of conviction in a criminal case. See, e.g. State v. Apanovitch,

,

,

(trial court lacked jurisdiction to consider

the defendant’s claim as being either a petition for postconviction relief or a motion

for new trial under Crim.R. 33, and without another basis to secure the trial court’s

jurisdiction, the motion must be denied). Once a court of competent jurisdiction

renders a final sentence in a criminal action, that court’s continuing jurisdiction to

act in postconviction proceedings is limited. State v. Simpkins,

,

,

, ¶ 23, citing Zaleski. There must be a

jurisdictional basis for the trial court to act.

.

A defendant can invoke the trial court’s continuing jurisdiction

following the issuance of a final sentencing entry in several ways, for example,

through (1) filing a motion to correct a void judgment under Zaleski; (2) filing a

timely or successive petition for postconviction relief under R.C. 2953.21; (3) filing

a motion for a new trial under Crim.R. 33; or (4) filing a postsentence motion to

withdraw a plea under Crim.R. 32.1. Because the trial court’s jurisdiction to consider

postconviction motions or petitions is limited, the initial inquiry is whether the trial

court may invoke its continuing jurisdiction to consider the particular

postconviction motion filed. If the motion does not demonstrate that the sentence

is void, that it is a timely petition for postconviction relief or motion for a new trial,

or is not properly considered as a postsentence motion to withdraw a plea, the trial court simply lacks jurisdiction to consider the merits of the motion filed following

the final entry of conviction. See, e.g., Apanovitch.

A trial court possesses continuing jurisdiction only for the purposes

of vacating a void judgment.

If the judgment is not void, the court lacks a basis

to assert its continuing jurisdiction to act, and denying the motion merely reflects

the ministerial task of disposing of the active motion on the court’s docket. Although

this concept is derived from the principles of res judicata, it should not be confused

with the affirmative defense of res judicata. Jurisdiction and res judicata are two

distinct concepts. Res judicata may be considered only if the trial court possesses

continuing jurisdiction over the criminal conviction. State v. Holdcroft,

,

,

. The scope of an appeal in this

situation is limited to determining whether the trial court correctly denied the

motion to vacate the void judgment, in other words, whether the trial court correctly

determined that it lacked jurisdiction to modify the final sentence.

Although the doctrine of res judicata can impact the postconviction,

collateral proceedings, that is an affirmative defense and the tribunal must first

possess jurisdiction in order to consider the applicability of the res judicata doctrine.

Simply put, application of res judicata does not exist in a vacuum. State ex rel.

McGirr v. Winkler,

,

,

, citing

State ex rel. Lipinski v. Cuyahoga Cty. Common Pleas Court, Probate Div.,

,

(1995), and State ex rel. Flower v. Rocker,

,

(1977); State v. Perry,

,

(1967) (res judicata applies and “may operate” to prevent consideration of a

collateral attack based on a claim that could have been raised on direct appeal from

the voidable sentence).

In order to apply or consider the doctrine of res judicata to a final

sentence, the trial court must first possess continuing jurisdiction to modify the final

sentence — in other words, res judicata could potentially be considered in situations

in which the trial court is reviewing a void sentence but has no bearing on the trial

court’s lack of continuing jurisdiction to modify a sentence that is merely voidable.

(writ of prohibition was not warranted because the court had

jurisdiction to rule on the affirmative defense of res judicata). The dissent’s

observation regarding an exception to the doctrine of res judicata did not obviate

the impact of Harper/Henderson with respect to the trial court’s lack of continuing

jurisdiction to modify a sentence that is voidable. The affirmative defense of res

judicata is never implicated in that situation because a trial court must possess

continuing jurisdiction to consider the merits of the res judicata defense. Since a

sentence that is merely voidable cannot be collaterally attacked, the doctrine of res

judicata is irrelevant. It is not res judicata that binds the trial court’s action, but

instead is the trial court’s lack of jurisdiction. Holdcraft at ¶ 14.

Further, even if we set aside the issue of the trial court’s lack of

jurisdiction to modify the sentence, the Ohio Supreme Court has already resolved the question posed for our review en banc: Where a defendant’s sentence exceeds

statutory limitations, is the sentence void? In McIntosh, Slip Opinion No. 2020-

Ohio-6826, the Ohio Supreme Court reaffirmed its commitment to the

Harper/Henderson rationale and concluded that that even if a trial court “has

imposed greater punishment than the legislature authorized[,]” such a sentence is

not void Id. at ¶ 15-16. In that case, the defendant was sentenced to what were

deemed allied offenses by the trial court before imposing sentence in direct violation

of R.C. 2941.25. Despite this sentencing error imposing a greater punishment than

authorized, McIntosh concluded that the defendant must timely appeal those

sentences. Id. Importantly, McIntosh did not distinguish Harper/Henderson

based on the fact that the offender was sentenced in excess of that which was legally

permitted. Id. at ¶ 15.

Instead, it was concluded that “[t]he imposition of compound

sentences for allied offenses is an error in the exercise of jurisdiction, to be

challenged at sentencing and remedied on direct appeal.” Id. at ¶ 13. In so

concluding, McIntosh expressly overruled State v. Williams,

,

,

, in which it was concluded that “the imposition

of separate sentences for those offenses — even if imposed concurrently — is

contrary to law” and the sentences are considered void. Sentences exceeding that

which is statutorily permitted necessarily fall under the ambit of

Harper/Henderson.

Under McIntosh, the imposition of separate sentences for allied offenses, even if imposed concurrently, renders the sentence voidable, but not

subject to collateral attack despite the fact that the offender is being punished in

excess of what the law permits. As it applies to our discussion, Stansell’s conclusion,

limiting Harper/Henderson to situations in which the challenged sentence is less

than required by law, was superseded by McIntosh and controls our en banc review.2

The motion to vacate the void sentence at issue in this case was

properly denied by the trial court under Harper/Henderson because the trial court

lacked continuing jurisdiction to modify the final sentence that was merely voidable.

Zaleski,

,

,

.

II. Finality of convictions are essential to the administration of the criminal justice system.

In the panel opinion (Stansell III), Harper/Henderson was

distinguished on the basis that a defendant should not serve a greater punishment

than legislatively authorized because res judicata should not be applied ‘“in

particular situations as fairness and justice require, and * * * is not to be applied so

rigidly as to defeat the ends of justice or so as to work an injustice.’” Stansell III at

2The natural question that arises from this change is, what relief could a defendant who failed to appeal a ruling have if the state moved to impose a penalty that was more than the maximum? In State ex rel. Fraley v. Ohio Dept. of Rehab. & Corr.

,

,

, a writ of mandamus was granted to prevent the Ohio Department of Rehabilitation and Correction (“ODRC”) from adding additional time to the original sentence issued in error, concluding that any errors in the final entry of conviction must be timely challenged and cannot be unilaterally corrected by the trial court or the ODRC. Id. at ¶ 17. It logically follows, that offenders seeking to challenge an allegedly erroneous sentence must do so in a timely direct appeal. If the error is not timely challenged, it could only be raised in a motion to reopen the appeal under App.R. 26(B) or, if no appeal had been filed, as a delayed appeal under App.R. 5(A). ¶ 30, quoting Grava v. Parkman Twp.,

,

(1995) (Douglas, J., dissenting), quoting 46 American Jurisprudence 2d,

Judgments, Section 522, at 785-787 (1994), and Goodson v. McDonough Power

Equip., Inc.,

,

(1983). Omitted from the

quoted language is Justice Douglas’s admonition that “the public policy underlying

the principle of res judicata must be considered together with the policy that a party

shall not be deprived of a fair adversary proceeding in which to present his case.”

Grava at 386. Under Ohio law, all defendants have the opportunity to challenge the

legality of their conviction, at times through multiple means, but the notion

espoused in the panel decision, that justice requires circumvention of finality

through successive appeals twenty years after the imposition of the sentence, seems

to only inure to the benefit of the defendant.

This attempt to obviate principles of finality from criminal

convictions presents a cautionary tale, further exemplified by the dissent’s reliance

on Sanders v. United States,

,

,

(1963), for

the proposition that “[c]onventional notions of finality of litigation have no place

where life or liberty is at stake and infringement of constitutional rights is alleged.”

In Sanders, the Court was discussing the “familiar principle” that res judicata was

inapplicable in habeas proceedings. However, while res judicata may not bar review

in a habeas proceeding, “federal habeas corpus relief does not lie for errors of state

law[,]” including errors in sentencing procedures. Gibboney v. Ransom, E.D.Pa. No. 19-cv-3534,

, 12-13 (Nov. 19, 2019), quoting

Richmond v. Lewis,

,

,

(1992), and

Lewis v. Jeffers,

,

,

(1990). Sanders

is inapplicable.

The principle of finality is “essential to the operation” of the criminal

justice system. Teague v. Lane,

,

,

(1989). “Without finality, the criminal law is deprived of much of its deterrent effect.

The fact that life and liberty are at stake in criminal prosecutions ‘shows only that

“conventional notions of finality” should not have as much place in criminal as in

civil litigation, not that they should have none.’” (Emphasis sic.)

quoting

Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38

U.Chi.L.Rev. 142, 150 (1970); see also State v. Chaney, 8th Dist.

Cuyahoga No. 88529,

(citing Teague with approval). Harper/

Henderson resurrected the lost notion of finality in criminal convictions. Although

the practical applications of Harper/Henderson preclude either the state or the

defendant from perpetually reopening convictions, that does not result in an unjust

application of law. All parties have the opportunity to their day in court to fully

challenge any conviction.

Further, a defendant-centric application of justice generally ignores a

victim’s rights. If, as the Stansell III panel concludes, it would be “unjust” to

preclude a defendant from perpetually challenging his sentence until finding a sympathetic ear, should the victim not be offered that same opportunity to see that

the perpetrator of their crime has been punished within the bounds of the law? In

Henderson, the legislature authorized a life sentence with the possibility of parole

after 15 years. The victim was in a sense entitled to have the perpetrator of the crime

imprisoned for life. Instead, the trial court mistakenly imposed a definite 15-year

term of imprisonment. That sentence, despite not being authorized by law, was

deemed voidable and not subject to collateral attack.

To suspend the rule of

finality for defendants, to the exclusion of victims of the crimes, seems to provide a

class of persons an advantage not available to all. This is not a path taken lightly

considering Ohio’s constitutional amendment to secure victim’s rights in criminal

proceedings. Article I, Section 10a of the Ohio Constitution (“Marsy’s Law”).

From the victim’s perspective, how does justice permit that windfall

to the defendant when the defendant would be entitled to perpetually challenge his

sentence as exceeding that which is authorized? All too often, it seems that the sense

of what is just and fair focuses on the defendant to the exclusion of the victim. The

combination of Harper/Henderson and McIntosh can be deemed many things, but

at the least, it provides an equal playing field for all parties in the criminal justice

system.

III. There is no merit to Stansell’s appeal.

There is no need to dwell on the merits of Stansell’s claims. As the

panel recognized, this is Stansell’s second appeal to this court over the issue of whether the trial court erred by not vacating his sexually violent predator

specifications. Stansell III at ¶ 2. Stansell’s claims rely on application of State v.

Smith,

,

,

, syllabus, in which the

Ohio Supreme Court held that a “[c]onviction of a sexually violent offense cannot

support the specification that the offender is a sexually violent predator as defined

in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the sexually violent

predator specification are charged in the same indictment.” Stansell’s convictions

predated Smith.

In State v. Stansell,

,

, ¶ 14 (8th Dist.)

(“Stansell II”), the panel concluded that “Smith does not have retroactive

application to closed cases.”

citing State v. Draughon, 10th Dist. Franklin Nos.

11AP-703 and 11AP-995,

, and State v. Ditzler, 9th Dist. Lorain

No. 13CA010342,

. Stansell’s claims were overruled, and this ends

any need for further inquiry into this matter. Stansell challenged his conviction and

lost.

delayed appeal denied, State v. Stansell,

, 2014-Ohio-

3785,

. Further, Stansell II’s conclusion was in keeping with

constitutional norms. Styers v. Ryan,

(9th Cir. 2015), citing

Griffith v. Kentucky,

,

,

(1987) (“When

a constitutional rule is announced, its requirements apply to defendants whose

convictions or sentences are pending on direct review or not otherwise final.”).

There is no need for the further expenditure of judicial resources in this matter. Accordingly, I concur with the majority’s conclusion, only insofar as

the Ohio Supreme Court has already resolved the question we are tasked with

answering. Because finality in convictions should be equally applied as against

defendants and the state, which represents Ohio citizens and the victims, the

rationale advanced in the panel decision must be rejected. On this basis, Stansell’s

motion to vacate a void judgment was properly denied. Since there is no need for

the panel to consider anything further, I would affirm on the merits.

LARRY A. JONES, SR., J., DISSENTING:

Respectfully, I dissent. As I said in the Stansell III reconsidered

opinion, I believe this case is distinguishable from Harper and Henderson.

Specifically, unlike the defendants in Harper and Henderson, in this case, Stansell

will end up serving more time that what was statutorily allowed at the time he was

indicted and sentenced. This case is the perfect example of what the United States

Supreme Court spoke about regarding the doctrine of res judicata ─ that is, that

“[c]onventional notions of finality of litigation have no place where life or liberty is

at stake and infringement of constitutional rights is alleged.” Sanders v. United

States,

,

,

(1963).

Accordingly, I dissent.

DECISION OF THE MERIT PANEL

LARRY A. JONES, SR., P.J.: This matter has been returned to the original merit panel3 for

disposition after the en banc court majority opinion determined that where a

defendant’s sentence exceeds statutory limitations, the sentence is voidable; it is

only void if the sentencing court lacked subject-matter jurisdiction over the case or

personal jurisdiction over the defendant. In light of the en banc court’s majority

opinion, we are again called on to apply the law as resolved by the en banc court and

address the other argument raised in Stansell’s original appellate brief. Stansell’s

assignment of error reads: “The trial court erred as a matter of law in denying

Appellant’s Motion to Vacate Sexually Violent Predator Specification and Re-

Sentence Defendant.”

In this appeal, Stansell challenges his sentence on two grounds: first,

contending that it is void and, second, contending that it is a violation of ex post

facto law. As the writer of this majority merit panel opinion, I am constrained to

follow the law as determined by the en banc majority court; consequently, this

majority opinion of the merit panel affirms the trial court’s decision.

Factual and Procedural History

In 1997, Stansell was sentenced for certain rape offenses that included

two “life-tail” sexually violent predator specifications. The law at the time did not

allow the specifications for offenders who had not previously been convicted of a

3At the time the last opinion in this case was issued, State v. Stansell, 8th Dist. Cuyahoga No. 109023,

, Judge Patricia Blackmon was on the merit panel for this case. Judge Blackmon has since retired, and Judge Emanuella Groves has assumed Judge Blackmon’s docket. sexually oriented offense. Stansell did not have any prior convictions for a sexually

oriented offense. Stansell filed a direct appeal from his convictions, but did not

challenge the sexually violent predator specifications. State v. Stansell, 8th Dist.

Cuyahoga No. 75889,

(Apr. 20, 2000) (“Stansell I”).

In 2004, in State v. Smith,

,

,

,

the Ohio Supreme Court found that the specifications could not be applied to

defendants who, like Stansell, lacked prior convictions for sexually oriented

offenses.

In 2014, Stansell brought his first challenge to his specifications in

State v. Stansell, 8th Dist. Cuyahoga No. 100604,

(“Stansell II”).

This court declined to adopt Stansell’s argument that his sentence was void and

refused to apply the Ohio Supreme Court’s decision in Smith retroactively.

This appeal started in 2019, when Stansell again challenged the

specifications. State v. Stansell,

,

(8th Dist.)

(“Stansell III”). In the original panel opinion, the majority found Stansell’s sentence

to be void under an ex post facto rationale and vacated his sexually violent predator

specifications. In doing so, the majority relied on the void sentencing doctrine as it

existed prior to the Ohio Supreme Court’s decisions in State v. Harper,

,

,

, and State v. Henderson,

,

,

. Upon reconsideration, the panel issued a reconsidered opinion

distinguishing the holdings in Harper and Henderson from this case based on the

fact that the trial court exceeded its statutory authority in sentencing Stansell in

1997. State v. Stansell, 8th Dist. Cuyahoga No. 109023,

(“the

reconsidered opinion”). The reconsidered opinion acknowledged that it was not

following the decision in Stansell II in regards to voidness.

As discussed in the en banc portion of this opinion, the reconsidered

opinion’s interpretation of Harper and Henderson conflicted with State v. Brooks,

8th Dist. Cuyahoga No. 108919,

, and State v. Starks, 8th Dist.

Cuyahoga No. 109444,

. It has now been decided by a majority of

this court en banc that where a defendant’s sentence exceeds statutory limitations,

the sentence is voidable; it is only void if the sentencing court lacked subject- matter

jurisdiction over the case or personal jurisdiction over the defendant. We now apply

that law to Stansell’s contention raised in his original brief that his sentence is void,

and address the remaining issue of whether his sentence was in violation of ex post

facto principles.

Analysis

In regard to the void and voidable distinction, the common pleas

court had subject-matter jurisdiction over Stansell’s case. The court also had

personal jurisdiction over Stansell. Thus, the sentence cannot be void; if anything,

it could only be subject to vacation on the ground that it was voidable. Under Harper, “[w]hen the sentencing court has jurisdiction to act, sentencing errors * * *

render the sentence voidable, not void, and the sentence may be set aside if

successfully challenged on direct appeal.” Id. at ¶ 42. Because Stansell did not

challenge his sentence on direct appeal, it must stand.

We likewise find that Stansell’s appeal does not withstand a challenge

based on ex post facto law. Article I, Section 10, U.S. Constitution forbids state

legislatures from passing any ex post facto law. “The Clause is aimed at laws that

‘retroactively alter the definition of crimes or increase the punishment for criminal

acts.’” California Dept. of Corr. v. Morales,

,

,

(1995), quoting Collins v. Youngblood,

,

,

(1990); see also Beazell v. Ohio,

,

,

(1925). “Of central concern in an Ex Post Facto Clause analysis is

whether the defendant had ‘fair warning’ and therefore notice of the change in the

law.” State v. Townsend, Slip Opinion No.

, quoting Weaver

v. Graham,

,

,

(1981).

Here, the version of R.C. 2971.01(H)(1) in effect when Stansell

committed the crimes defined a sexually violent predator as a person who had

previously been convicted of a sexually oriented offense. Although it is true that

Stansell did not fit the definition of sexually violent predator because he did not have

a prior conviction, the law was not applied retroactively to him; therefore, there was

no ex post facto implication. Stansell cites the following cases in support of his ex post facto

challenge: State v. Clipps, 8th Dist. Cuyahoga No. 107747,

, State v.

Frierson, 8th Dist. Cuyahoga No. 10682, 2019-317, and State v. Townsend, 8th Dist.

Cuyahoga No. 107186,

.4 Those cases are all distinguishable from

this case, however, because the successful ex post facto challenge in those cases

related to crimes that were committed before the April 2005 amendment to the

definition of a sexually violent predator, but upon which the state sought to have the

amended statute apply. The court elaborated, for example, in Townsend as follows:

In this case, the statutory change created more than “a sufficient risk of a higher sentence” by actually imposing a sexually-violent-predator specification on Townsend that had not applied when he committed his crimes. Townsend received a harsher sentence based on the difference between the sentencing scheme in place when he committed his crimes and the sentencing scheme in place when he was indicted. The amendments to R.C. 2971.01(H)(1) resulted in a new definition of “sexually violent predator” that allowed, for the first time, the underlying conduct in an indictment to satisfy the specification without a prior conviction. As a result, the amendment enhanced Townsend’s punishment by subjecting him to indefinite sentencing under R.C. 2971.03. Without the sexually-violent-predator specification, Townsend would have faced a definite term of three to 10 years for the first-degree felony offenses (rape and kidnapping) that he committed before April 29, 2005. Here, the trial court imposed a prison sentence of five years to life for each of the 2003 offenses in Counts 1, 2, 3, 7, and 11 and ten years to life for the 2005 offense in Count 9. Given the harsh consequences that the new sentencing scheme imposed on Townsend, we have no difficulty concluding that enforcing the new sentencing

4Clipps, Townsend, and Frierson were accepted by the Ohio Supreme Court for review. The court has affirmed this court’s decisions in all three cases vacating certain sexually violent predator specifications as violating ex post facto law. See State v. Clipps,

,

,

; State v. Townsend, Slip Opinion No.

; and State v. Frierson,

,

,

. scheme against him did not comport with “principles of ‘fundamental justice.’”

(Citations omitted) Townsend at ¶ 12, quoting Peugh v. United States,

,

,

(2013), and

, quoting Carmell v.

Texas, 529 U.S.513, 531,

,

(2000). Here, Stansell was

not sentenced to a higher sentence because of a statutory change; thus ex post facto

law is not implicated here.

Conclusion

For the reasons discussed above, the sentence was not void because

the trial court had subject-matter jurisdiction over the case and personal jurisdiction

over Stansell. Any argument that it was voidable is res judicata since Stansell failed

to raise it in his direct appeal. Further, because Stansell was not sentenced to a

higher sentence due to a statutory change, there was no ex post facto violation. Thus,

Stansell’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 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. LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., and EMANUELLA D. GROVES, J., CONCUR