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Date: 11-08-2018

Case Style:

STATE OF OHIO v. BART W. KEGLEY

Case Number: 3-18-03

Judge: C. Kathryn Preston

Court: COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

Plaintiff's Attorney: Ryan M. Hoovler

Defendant's Attorney: Rhys Brendan Cartwright-Jones

Description:





In 2014, Kegley was convicted of two counts of possession of drugs in
violation of R.C. 2925.11(C)(3)(d) and 2925.11(C)(4)(a), third-degree and fifth
degree felonies, respectively, and one count of the illegal cultivation of marihuana
in violation of R.C. 2925.04(A), (C)(5)(d), a second-degree felony. State v. Kegley,
3d Dist. Crawford No. 3-15-20, 2016-Ohio-2983, ¶ 2; State v. Kegley, 3d Dist.
Crawford No. 3-16-06, 2016-Ohio-8467, ¶ 2-3; (Doc. No. 22). As part of a
negotiated-plea agreement, the trial court accepted the parties’ joint sentencing
recommendation and sentenced Kegley to five years of community control. Kegley,
2016-Ohio-2983, at ¶ 2; Kegley, 2016-Ohio-8467, at ¶ 3; (Doc. Nos. 22, 23).
{¶3} In December 2015, the trial court concluded that Kegley violated the
terms of his community control, revoked Kegley’s community control, imposed the
maximum prison term on each of the three counts, and ordered Kegley to serve the
prison terms consecutively for an aggregate term of 84 months. Kegley, 2016-Ohio
2983, at ¶ 3; Kegley, 2016-Ohio-8467, at ¶ 4-5; (Doc. No. 38). Kegley appealed the
trial court’s decision revoking his community control and imposing the 84-month
prison term. Kegley, 2016-Ohio-2983, at ¶ 3; Kegley, 2016-Ohio-8467, at ¶ 6; (Doc.



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No. 41). On May 16, 2016, this court reversed the trial court’s sentence after
concluding that it was contrary to law because the trial court failed to make the
statutory findings necessary to impose consecutive sentences as required by R.C.
2929.14(C)(4). Kegley, 2016-Ohio-2983, at ¶ 6, 8; Kegley, 2016-Ohio-8467, at ¶ 7;
(Doc. Nos. 48, 49).
{¶4} On May 26, 2016, the trial court resentenced Kegley to an aggregate
67-month prison term. Kegley, 2016-Ohio-8467, at ¶ 8; (Doc. No. 53). On May 31,
2016, Kegley appealed the trial court’s decision imposing the 67-month prison term.
Kegley, 2016-Ohio-8467, at ¶ 1; (Doc. No. 54). On December 29, 2016, this court
affirmed the judgment of the trial court; however, we remanded the case “solely for
the trial court to enter a nunc pro tunc entry that includes the consecutive sentencing
findings that it made at the May 26, 2016 resentencing hearing.” Kegley, 2016
Ohio-8467, at ¶ 33; (Doc. No. 62). The trial court issued its nunc pro tunc
sentencing entry on January 11, 2017. (Doc. No. 63).
{¶5} On December 27, 2017, Kegley filed a motion to vacate his sentence
arguing that his sentence is void because the trial court imposed community control
for a felony offense without ordering or considering a presentence investigation
(“PSI”). (Doc. No. 64). On January 16, 2018, the State filed its memorandum in
opposition to Kegley’s motion. (Doc. No. 65). On January 30, 2018, treating



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Kegley’s motion as a petition for postconviction relief, the trial court denied
Kegley’s petition. (Doc. No. 66).
{¶6} On February 28, 2018, Kegley filed a notice of appeal. (Doc. No. 67).
He raises one assignments of error for our review.
Assignment of Error
The trial court erred in imposing and affirming a probation sentence on Kegley without a pre-sentence investigation; the sentence is void, and all subsequent proceedings and sentences are likewise void.

{¶7} In his assignment of error, Kegley argues that the trial court erred by
recasting his motion as a petition for post-conviction relief and by subsequently
denying his petition. Kegley contends that his sentence is void because the trial
court imposed community control for a felony offense without ordering or
considering a PSI as it is required to do under R.C. 2951.03(A) and Crim.R. 32.2.
{¶8} “‘Ohio’s Criminal Rules and statutes provide for the direct review of
criminal judgments through appeal, and collateral attacks through postconviction
petitions, habeas corpus, and motions to vacate.’” State v. Love, 7th Dist. Mahoning
No. 17 MA 0039, 2018-Ohio-1140, ¶ 17, quoting Lingo v. State, 138 Ohio St.3d
427, 2014-Ohio-1052, ¶ 44. Thus, “[t]he authority to vacate a void judgment is ‘an
inherent power possessed by Ohio courts.’” Id. at ¶ 18, quoting Patton v. Diemer,
35 Ohio St.3d 68 (1988), paragraph four of syllabus, and citing Lingo at ¶ 48.



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{¶9} Kegley’s argument that the trial court erred by recasting his motion to
vacate as a petition for postconviction relief is meritless because Kegley’s sentence
is not void. The Supreme Court of Ohio has concluded that “[a] trial court acts
contrary to law when it imposes a sentence of one or more community-control
sanctions on a felony offender without first ordering and reviewing a presentence
investigation report.” State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, ¶ 16
(O’Neill, J. with three Justices concurring in judgment only).1 Accordingly, “[t]here
is no dispute that the trial court was required by R.C. 2951.03(A)(1) and Crim.R.
32.2 to order and consider a presentence investigation report prior to imposing
community control for a felony offense.” State v. Knuckles, 9th Dist. Summit No.
27571, 2015-Ohio-2840, ¶ 9, citing Amos at ¶ 14-15. It is undisputed that the trial
court did not order or consider a PSI prior to sentencing Kegley to community
control for a felony offense. (See Appellee’s Brief at 14).
{¶10} In light of the trial court’s failure, Kegley urges this court to follow
the Fourth District Court of Appeals and conclude that a trial court’s imposition of
1 “Although the Supreme Court’s decision in Amos is fractured, three Justices agreed with the judgment as set forth in Justice O’Neill’s lead opinion.” State v. Marcum, 10th Dist. Franklin No. 15AP-421, 2015-Ohio5237, ¶ 17. “The sole holding of the Supreme Court was a ‘trial court acts contrary to law when it imposes a sentence of one or more community-control sanctions on a felony offender without first ordering and reviewing a presentence investigation report.’” Id., quoting State v. Amos, 140 Ohio St.3d 238, 2014-Ohio3160, ¶ 16. “Thus, even though the three concurring Justices apparently did not agree with the lead opinion’s reasoning leading to the resolution of the matters, the import of the judgment of the majority is clear—it is reversible error for a trial court to impose a community control sanction on a felony offender without first ordering and considering a presentence investigation report.” Id.





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community control for a felony offense without ordering or considering a PSI as it
is required to do under R.C. 2951.03(A) and Crim.R. 32.2 renders a sentence void.
See State v. Klein, 4th Dist. Meigs No. 15CA12, 2016-Ohio-5315. We decline
Kegley’s invitation. Kegley wholly ignores contradictory precedent of the Ninth
District, which the Fourth District distinguished in its opinion in Klein, concluding
that a trial court’s failure to order and consider a PSI when imposing community
control for a felony offense renders a sentence voidable. Knuckles at ¶ 11.
{¶11} We agree with the Ninth District that a trial court’s failure to order and
consider a PSI as it is required to do under R.C. 2951.03(A) and Crim.R. 32.2 when
imposing community control for a felony offense renders a sentence voidable.
Simply because a sentence can be contrary to law does not also make the sentence
void. See Knuckles at ¶ 10 (noting that the Supreme Court of Ohio’s reference in
its opinion in Amos “to the trial court’s action being ‘contrary to law’ [did] not
suggest that the sentence is void”); State v. Williams, 148 Ohio St.3d 403, 2016
Ohio-7658, ¶ 44 (Lanzinger, J., dissenting) (“A finding that a sentence was ‘contrary
to law’ * * * meant that the sentence could be corrected as a voidable sentence,
rather than that it was a void sentence (i.e., a nullity because of lack of jurisdiction)
that could be collaterally attacked at any time.”). Therefore, we conclude that this
type of sentencing error is not jurisdictional and is correctable on direct appeal. See
Williams at ¶ 40-44 (Lanzinger, J., dissenting).



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{¶12} The void-voidable concept is rooted in the trial court’s jurisdiction to
impose a sentence. See id. at ¶ 40-44 (Lanzinger, J., dissenting). “Under traditional
jurisprudence, sentencing errors were not jurisdictional.” Id. at ¶ 40 (Lanzinger, J.,
dissenting), citing Ex Parte Shaw, 7 Ohio St. 81 (1857). Indeed, “‘a void sentence
is one that a court imposes despite lacking subject-matter jurisdiction or the
authority to act.’” Id., quoting State v. Payne, 14 Ohio St.3d 502, 2007-Ohio-4642,
¶ 27, citing State v. Wilson, 73 Ohio St.3d 40, 44 (1995). “‘Conversely, a voidable
sentence is one that a court has jurisdiction to impose, but was imposed irregularly
or erroneously.’” Id., quoting Payne at ¶ 27, citing State v. Filiaggi, 86 Ohio St.3d
230, 240 (1999).
{¶13} The Supreme Court of Ohio departed from the “clear principles” of
traditional jurisprudence “with the attempts to remedy a trial court’s error in
imposing postrelease control as part of a sentence or in failing to impose mandatory
postrelease control.” Id. at ¶ 46 (Lanzinger, J., dissenting), citing State v. Simpkins,
117 Ohio St.3d 420, 2008-Ohio-1197.2 The court’s departure from the traditional
understanding of void and voidable sentences resulted in mass confusion as to what
mistakes by a trial court rendered a sentence void or voidable. See id. at ¶ 55
(Lanzinger, J., dissenting). In an attempt to return the proverbial horse to the barn,
at least partially, the court limited the vein of nonjurisdictional-void sentencing
2 This writer fully concurs with Justice DeWine’s concurring opinion in State v. Grimes. 151 Ohio St. 3d 19, 2017-Ohio-2927, ¶ 28 (DeWine, J., concurring).



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errors to cases “‘in which a court does not properly impose a statutorily mandated
period of postrelease control.’” Id. at ¶ 51 (Lanzinger, J., dissenting) (discussing
the Supreme Court of Ohio’s intent to limit nonjurisdictional-void sentencing errors
to postrelease-control errors), quoting State v. Fischer, 128 Ohio St.3d 92, 2010
6238, ¶ 31.
{¶14} Notwithstanding the court’s limiting language, the court has carelessly
taken quotations from its opinion in Fischer “out of context” and expanded “their
meanings * * * beyond the original intent.” Id. at ¶ 54 (Lanzinger, J., dissenting)
(noting that the Supreme Court has misquoted Fischer “to say that any sentencing
error or any failure to comply with a statutory provision makes a sentence void and
subject to correction at any time”). This sloppiness has expanded the void
sentencing-error concept beyond postrelease-control cases to include other random
nonjurisdictional-sentencing errors. See, e.g., id. at ¶ 28 (Lanzinger, J., dissenting);
State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, ¶ 15 (holding that a sentence
was void in part for failure to include a mandatory driver’s license suspension); State
v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, ¶ 13 (holding that res judicata did
not bar a defendant from arguing that his guilty plea to a charge of escape was void
due to a postrelease-control-sentencing error); State v. Moore, 135 Ohio St.3d 151,
2012-Ohio-5479, ¶ 14 (holding that the failure to impose a mandatory fine when no
affidavit of indigency had been filed renders that part of the sentence void).



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However, the court has not misapplied its limiting language in Fischer to expand
the scope of nonjurisdictional-void sentencing errors to include a trial court’s failure
to order a PSI as required by R.C. 2951.03(A) and Crim.R. 32.2 when imposing
community control for a felony offense. See, e.g., Williams at ¶ 54 (Lanzinger, J.,
dissenting) (discussing the non-postrelease-control-sentencing errors that the
Supreme Court has determined renders a sentence void).
{¶15} A trial court’s inadvertent failure to comply with the mandate of R.C.
2951.03(A) and Crim.R. 32.2 is not a jurisdictional error. “Erroneous judgments,
procedural mistakes, and sentencing errors can all arise because a mandatory
statutory requirement was not followed. But these errors are not necessarily the
result of attempts to act without authority or to disregard statutory requirements.”
Id. at ¶ 55 (Lanzinger, J., dissenting). In other words, a trial court’s inadvertent
failure to comply with a statutory requirement is not akin to a trial court’s intentional
attempt to circumvent a known statutory requirement. Id. (“Attempting to disregard
a statute is not the same as making an inadvertent error.”). In this case, the trial
court did not lack jurisdiction to impose community control for Kegley’s felony
offenses. There is no evidence in the record that the trial court intentionally
attempted to disregard the requirement of R.C. 2951.03(A) and Crim.R. 32.2. That
is, there is no evidence in the record that the trial court’s error is anything but an



Case No. 3-18-03


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inadvertent mistake. Inadvertent mistakes are not jurisdictional and do not render a
sentence void.
{¶16} Defendants suffering from a sentence that was imposed irregularly or
erroneously by a court with jurisdiction to impose that sentence may seek remedial
relief as provided by App.R. 4(A), Crim.R. 36, or R.C. 2953.21. Id. at ¶ 65
(Lanzinger, J., dissenting) (“Voidable sentences * * * may be modified or corrected
within the time limits provided for appeal pursuant to App.R. 4(A), clerical error
pursuant to Crim.R. 36, or postconviction relief pursuant to R.C. 2953.21.”). In
contrast, truly void errors can be collaterally attacked at any time because they are
jurisdictional. Id. at ¶ 44 (Lanzinger, J., dissenting). See also Love, 2018-Ohio
1140, at ¶ 19 (“When a judgment is void * * *, the issue can be raised at any time.”),
citing Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 17, citing
Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11, and Lingo, 138 Ohio
St.3d 427, 2014-Ohio-1052, at ¶ 44 (“A void judgment is a nullity and open to
collateral attack at any time.”). “In other words, this inherent power of a court is
not subject to a time limitation.” Love at ¶ 19.
{¶17} “Furthermore, the doctrine of res judicata can be surmounted where a
judgment is void for lack of subject matter jurisdiction.” Id., citing Kuchta at ¶ 17,
Wilson, 73 Ohio St.3d at 44-45, fn. 6, and State v. Perry, 10 Ohio St.2d 175, 178
179 (1967). “Under the doctrine of res judicata, a final judgment of conviction bars



Case No. 3-18-03


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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 * *
* on an appeal from that judgment.” Perry at paragraph nine of the syllabus.
{¶18} Because Kegley’s sentence was imposed irregularly or erroneously by
way of inadvertent mistake, his remedy was to modify or correct his sentence on
direct appeal.
Ohio’s rules and statutes do not allow for correction of sentences “at
any time.” Both the state and the defendant have the right to appeal
sentences on grounds that the “sentence is contrary to law.” R.C.
2953.08(B)(2) and 2953.08(A)(4). However, both parties are
expected to follow the time limits expressed in R.C. 2953.08(E). That
means, within 30 days from the entry of the judgment of conviction,
a party who wishes to challenge a sentence must file an appeal.
App.R. 4(A). Sentences are considered res judicata if no appeal is
taken within that time. See State v. Saxon, 109 Ohio St.3d 176, 2006
Ohio-1245, ¶ 19 (a sentence from which no direct appeal is taken is
considered res judicata).
Williams at ¶ 58 (Lanzinger, J., dissenting). Kegley failed to raise his argument in
either of his direct appeals that his sentence is contrary to law because the trial court



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failed to order a PSI when it imposed community control for his felony offenses.
Therefore, Kegley’s argument is barred by the doctrine of res judicata. See
Knuckles, 2015-Ohio-2840, at ¶ 12.
{¶19} Although the trial court could have denied Kegley’s motion to vacate
because his sentencing argument is barred by the doctrine of res judicata, a trial
“court faced with a motion filed after a conviction can proceed to analyze the motion
under the postconviction relief statutes where the defendant’s voidness argument
fails.” Love, 2018-Ohio-1140, at ¶ 21. For these reasons, we conclude that the trial
court did not err by recasting his motion to vacate as a petition for postconviction
relief. Therefore, we will address the propriety of the trial court’s denial of Kegley’s
petition. Id. at ¶ 27 (concluding that, when motions that do “not raise an issue that
would void the conviction, the motion [can] then be evaluated as a postconviction
relief petition”).
{¶20} R.C. 2953.21, the statute which governs petitions for postconviction
relief, sets forth who may petition for postconviction relief:
Any person who has been convicted of a criminal offense * * * and
who claims that there was such a denial or infringement of the
person’s rights as to render the judgment void or voidable under the
Ohio Constitution or the Constitution of the United States * * * may
file a petition in the court that imposed sentence, stating the grounds



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for relief relied upon, and asking the court to vacate or set aside the
judgment or sentence or to grant other appropriate relief. The
petitioner may file a supporting affidavit and other documentary
evidence in support of the claim for relief.
R.C. 2953.21(A)(1)(a). The statute sets forth the time requirements for filing a
petition for postconviction relief and provides, in relevant part,
a petition under division (A)(1) of this section shall be filed no later
than three hundred sixty-five days after the date on which the trial
transcript is filed in the court of appeals in the direct appeal of the
judgment of conviction or adjudication * * *. If no appeal is taken,
except as otherwise provided in section 2953.23 of the Revised Code,
the petition shall be filed no later than three hundred sixty-five days
after the expiration of the time for filing the appeal.
R.C. 2953.21(A)(2).
{¶21} A trial court lacks jurisdiction to entertain an untimely petition for
postconviction relief unless the defendant demonstrates that one of the R.C.
2953.23(A) exceptions applies. State v. Martin, 10th Dist. Franklin No. 17AP-6,
2017-Ohio-5657, ¶ 9; R.C. 2953.23(A). A trial court may not entertain an untimely
postconviction petition unless the petitioner initially demonstrates either (1) he was
unavoidably prevented from discovering the facts necessary for the claim for relief,



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or (2) the United States Supreme Court recognized a new federal or state right that
applies retroactively to persons in the petitioner’s situation. R.C. 2953.23(A)(1)(a).
“If the petitioner is able to satisfy one of these threshold conditions, he must then
demonstrate by clear and convincing evidence that, but for the constitutional error
at trial or the sentencing hearing, no reasonable fact-finder would have found him
guilty of the offenses.” State v. Cunningham, 3d Dist. Allen No. 1-15-61, 2016
Ohio-3106, ¶ 13; R.C. 2953.23(A)(1)(b).
{¶22} “Once a court has determined that a petition is untimely, no further
inquiry into the merits of the case is necessary.” State v. Morgan, 3d Dist. Shelby
No. 17-04-11, 2005-Ohio-427, ¶ 6, citing State v. Beaver, 131 Ohio App.3d 458
(11th Dist.1998). Trial courts should dismiss untimely postconviction petitions for
lack of jurisdiction; nevertheless, a trial court does not commit reversible error by
denying an untimely postconviction petition. State v. Hatfield, 10th Dist. Franklin
No. 07AP-784, 2008-Ohio-1377, ¶ 8, citing State v. Hamilton, 10th Dist. Franklin
No. 03AP-852, 2004-Ohio-2573, ¶ 9 and State v. Hensley, 9th Dist. Lorain No.
03CA008293, 2003-Ohio-6457, ¶ 7.
{¶23} “‘“[A] trial court’s decision granting or denying a postconviction
petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of
discretion; a reviewing court should not overrule the trial court’s finding on a
petition for postconviction relief that is supported by competent and credible



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evidence.”’” State v. Baker, 3d Dist. Auglaize No. 2-16-07, 2016-Ohio-5669, ¶ 10,
quoting State v. Sidibeh, 10th Dist. Franklin No. 12AP-498, 2013-Ohio-2309, ¶ 7,
quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58.
{¶24} The trial court did not abuse its discretion by denying Kegley’s
petition for postconviction relief. Even if we give Kegley the benefit of calculating
his statutory window of time from the time that the trial transcripts were filed in his
latest appeal—July 21, 2016,—Kegley’s petition, filed on December 27, 2017, was
filed more than 365 days after the date on which those transcripts were filed in this
court. As such, the trial court lacked jurisdiction to consider Kegley’s untimely
petition for postconviction relief unless he demonstrated that one of the exceptions
in R.C. 2953.23(A)(1) applies.
{¶25} Kegley’s sentencing argument does not satisfy any of the timeliness
exceptions under R.C. 2953.23(A). Kegley neither asserted that the United States
Supreme Court recognized a new federal or state right that applies retroactively to
persons in Kegley’s situation, nor argued that he was unavoidably prevented from
discovering the trial court’s failure to order and consider a PSI before sentencing
him to community control for his felony offenses. Indeed, “‘“[t]he phrase
‘unavoidably prevented’ means that a defendant was unaware of those facts and was
unable to learn of them through reasonable diligence.”’” State v. Aultman, 2d Dist.
Champaign No. 2016-CA-14, 2017-Ohio-758, ¶ 19, quoting State v. Rainey, 2d



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Dist. Montgomery No. 23851, 2010-Ohio-5162, ¶ 13, quoting State v. McDonald,
6th Dist. Erie No. E-04-009, 2005-Ohio-798, ¶ 19. Kegley makes no argument that
he was unaware of the trial court’s failure to order and consider the PSI or unable
to learn of the trial court’s omission through the exercise of reasonable diligence.
Rather, an argument regarding the trial court’s omission was available to Kegley at
the time of sentencing.
{¶26} For these reasons, we conclude that the trial court lacked jurisdiction
to consider Kegley’s untimely petition. Because the trial court lacked jurisdiction
to consider Kegley’s petition, the trial court should have dismissed his petition.
State v. Draper, 3d Dist. Putnam No. 12-10-07, 2011-Ohio-773, ¶ 12; Morgan,
2005-Ohio-427, at ¶ 5-6. Nevertheless, the trial court did not commit reversible
error by denying Kegley’s petition in this case. Hatfield, 2008-Ohio-1377, at ¶ 8,
citing Hamilton, 2004-Ohio-2573, at ¶ 9 and Hensley, 2003-Ohio-6457, at ¶ 7.
{¶27} Kegley’s assignment of error is, therefore, overruled.

Outcome: Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.

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