[Cite as State v. Duncan,

.]

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

STATE OF OHIO : : Appellee : C.A. No. 2022-CA-82 : v. : Trial Court Case Nos. 91CR0367; : 91CR436; 92CR0218 JOHNNY T. DUNCAN : : (Criminal Appeal from Common Pleas Appellant : Court) :

...........

OPINION

Rendered on May 19, 2023

...........

ANDREW PARKER PICKERING, Attorney for Appellee

JOHNNY T. DUNCAN, Pro Se Appellant

.............

LEWIS, J.

{¶ 1} Defendant-Appellant Johnny T. Duncan appeals from an order of the Clark

County Common Pleas Court denying his motion to withdraw his guilty pleas and his

motion for specific performance of the plea agreement. For the following reasons, we

affirm the judgment of the trial court.

I. Facts and Course of Proceedings -2-

{¶ 2} On May 6, 1992, Duncan was convicted of aggravated murder in two Clark

County cases: Clark C.P. Nos. 91-CR-436 and 92-CR-218. Duncan, who was facing the

death penalty, entered into a plea agreement with the State to resolve the cases.

{¶ 3} The written “Plea Agreement, Stipulation, and Waiver of Rights” (“plea

agreement”) executed by Duncan, his counsel, and counsel for the State, provided that

Duncan would be sentenced to (1) life in prison with parole eligibility after serving a

minimum of 30 years in Case No. 91-CR-436 and (2) life in prison with parole eligibility

after serving 20 years in Case No. 92-CR-218; these two life sentences would be served

concurrently with each other but consecutively with a sentence in Clark C.P. No. 91 CR-

367. Further, the plea agreement stated that if a sentence were imposed other than that

contemplated by the plea agreement, then the State and Duncan would join in a motion

to vacate the guilty pleas entered pursuant to the plea agreement.

{¶ 4} The trial court’s written judgment entry sentenced Duncan precisely as the

plea agreement provided. However, the trial court’s oral pronouncement of Duncan’s

sentences at the sentencing hearing provided that he would be “sentenced to a life prison

term with parole eligibility after serving a minimum of 20 full years on this indictment and

on this charge and plea of guilty thereto in 91-CR-436.” In short, there was a discrepancy

between the written judgment entry in Case No. 91-CR-436 (life sentence with parole

eligibility after serving a minimum of 30 years) and the oral pronouncement of the

sentence at the sentencing hearing (life sentence with parole eligibility after serving a

minimum of 20 years).

{¶ 5} Duncan did not file a direct appeal from his judgments of conviction. Rather, -3-

on February 25, 2022, Duncan filed in the trial court motions for leave to withdraw his

guilty pleas or, in the alternative, to grant specific performance of the plea agreement.

Duncan argued that the trial court’s imposition of a life sentence with a minimum prison

term of 30 years before parole eligibility in Case No. 91-CR-436 was a sentence other

than that contemplated by the plea agreement.

{¶ 6} On November 2, 2022, the trial court denied Duncan’s motions to withdraw

his guilty pleas or grant specific performance of the plea agreement. The court found, in

pertinent part:

Duncan’s motion is barred on the grounds of res judicata. The

defendant does not claim that the issue, outlined above, was unknown to

him, or for some reason could not have been pursued, in a direct appeal.

However, no direct appeal was taken with the time allowed. Accordingly,

the alleged error[s] raised herein are overruled on the basis of res judicata.

Further, a defendant seeking to withdraw a guilty plea after

sentencing must establish the existence of a manifest injustice—none has

been shown here. Any error in the pronouncement of the sentence on the

record was absent in the court’s journal entry, through which the court

speaks. In addition, the sentence imposed on the defendant was the same

sentence agreed to and later memorialized in the journal entry of conviction,

rather than the allegedly misspoken sentence pronounced on the record.

Nov. 2, 2022 Decision, p. 2. The trial court also found that any claimed constitutional

error was barred by res judicata, because Duncan failed to file an appeal from the -4-

judgment. Id. at 3.

{¶ 7} Duncan filed a timely notice of appeal from the trial court’s order.

II. The Trial Court Did Not Err in Denying Duncan’s Requested Relief

{¶ 8} Duncan’s sole assignment of error states: “A defendant has a contractual

right to enforcement of the prosecutor’s obligations under the plea agreement after the

plea has been accepted by the court.”

{¶ 9} According to Duncan, the State was required, pursuant to the terms of the

plea agreement, to join in a motion to vacate Duncan’s guilty pleas. He bases his

argument on the plea agreement’s provision requiring “ ‘if any other sentence is imposed

other than that contemplated by the Plea Agreement, Stipulation and Waiver, then the

plaintiff, State of Ohio, and the defendant, Johnny T. Duncan will join in a motion to vacate

the guilty pleas entered pursuant to this agreement.’ ” Appellant’s Brief, p. 4-5, quoting

the plea agreement. But it is undisputed that the trial court imposed in its written

judgment entry the precise sentence contemplated by the plea agreement. Therefore,

the provision of the plea agreement that required the State to join in a motion to vacate

the guilty pleas if a sentence were imposed that was different than the one contemplated

by the plea agreement does not apply to the facts before us. However, that does not

end our analysis.

{¶ 10} Although there was no discrepancy between the sentences contemplated

in the plea agreement and the sentences ultimately imposed in the written judgment entry,

we do acknowledge that there was a discrepancy between the oral pronouncement of the -5-

sentences by the trial court at the sentencing hearing and the sentence actually imposed

in the written judgment entry. This is concerning given that “[a] trial court cannot impose

a sentence in the sentencing entry that differs from that it imposed at the sentencing

hearing.” State v. Vaughn, 8th Dist. Cuyahoga No. 103330,

.

“Crim.R. 43 requires the defendant’s presence at every stage of trial, including the

imposition of sentence. Crim.R. 43(A)(1). Thus, a trial court’s sentence is contrary to

law when it imposes a sentence in the sentencing entry different from the sentence

announced at the sentencing hearing.” (Citations omitted.) State v. Jackson, 1st Dist.

Hamilton No. C-140178,

.

{¶ 11} The question arises whether a defendant is precluded from arguing his

sentence was contrary to law when he failed to raise this issue on direct appeal from his

conviction. The trial court found that Duncan was foreclosed by the doctrine of res

judicata from raising this error, because he failed to file a direct appeal. “Under the

doctrine of res judicata, a final judgment of conviction bars a convicted defendant who

was represented by counsel from raising and litigating in any proceeding except an

appeal from that judgment, any defense or any claimed lack of due process that was

raised or could have been raised by the defendant at the trial, * * * or on an appeal from

that judgment.” State v. Perry,

,

(1967), paragraph

nine of the syllabus. “Res judicata does not, however, apply only to direct appeals, but

to all postconviction proceedings in which an issue was or could have been raised. Thus,

res judicata bars the assertion of claims in a motion to withdraw a guilty plea that were,

or could have been, raised in a prior proceeding.” State v. Montgomery, 2013-Ohio- -6-

4193,

, ¶ 42 (8th Dist.).

{¶ 12} We note that the Eleventh District Court of Appeals has concluded that an

argument to withdraw a defendant’s plea on the grounds that the oral pronouncement of

a sentence controls over the trial court’s written entry is subject to being barred by the

doctrine of res judicata. State v. Pough, 11th Dist. Trumbull No. 2015-T-0095, 2016-

Ohio-1315, ¶ 16, 23. Since the Pough decision, the Ohio Supreme Court has provided

additional guidance on what an appellate court should do when faced with a collateral

attack on a sentence that is contrary to law.

{¶ 13} In State v. Henderson,

,

,

, the Ohio Supreme Court addressed whether sentences deemed to be contrary to

law were void or voidable. The Court explained the importance of determining whether

the judgment was void or just voidable:

In Tari v. State,

,

(1927), we explained

the difference between a void judgment and a voidable judgment and the

rationale behind the distinction. The question simply turns on whether the

court had jurisdiction over the subject matter and the person.

.

A void judgment is rendered by a court without jurisdiction. It is a mere

nullity and can be disregarded. It can be attacked in collateral

proceedings.

. A voidable judgment is one pronounced by a

court with jurisdiction. The Tari court reiterated that unless it is vacated on

appeal, a voidable judgment has the force of a valid legal judgment,

regardless of whether it is right or wrong.

The failure to timely—at the -7-

earliest available opportunity—assert an error in a voidable judgment, even

if that error is constitutional in nature, amounts to the forfeiture of any

objection.

.

.

{¶ 14} Henderson noted that its “modern void-sentence decisions” were creating a

situation where neither the State nor defendants could be certain when judgments were

final and when they were subject to collateral attack. Id. at ¶ 25, citing In re J.S.,

,

,

(Lanzinger, J., dissenting). Citing

its recent decision in State v. Harper,

,

,

, the Supreme Court stated that “we corrected the error in our postrelease-control

cases and we ‘realign[ed] our precedent in cases involving the imposition of postrelease

control with the traditional understanding of what constitutes a void judgment.’ ”

, quoting Harper at ¶ 4. The Court explained, “[n]ow, under Harper, if

a court has jurisdiction over the case and the defendant, any sentence based on an error

in the court’s imposition of postrelease control is voidable. The sentence may be set

aside only if it is successfully challenged on direct appeal.” Id.

{¶ 15} We believe the Ohio Supreme Court’s guidance on how to approach

voidable judgments resolves the current appeal. There is no dispute that the trial court

had jurisdiction over both the case and Duncan when it accepted Duncan’s guilty pleas

and entered its written judgment. Therefore, the trial court’s imposition of a sentence

that was contrary to law rendered the sentence voidable, not void. Duncan’s failure to

timely raise the voidable nature of the trial court’s judgment amounted to a forfeiture of -8-

any objection to his sentence. Id. at ¶ 17, citing

. Consequently, his sole

assignment of error is overruled.

III. Conclusion

{¶ 16} Having overruled Duncan’s assignment of error, the judgment of the trial

court is affirmed.

.............

TUCKER, J. and HUFFMAN, J., concur.