Opinion
No. 108752 No. 108884
11-12-2020
STATE OF OHIO, Plaintiff-Appellee, v. ANTHONY WALKER, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee. Joseph V. Pagano, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-91-268354-D and CR-91-269956-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee. Joseph V. Pagano, for appellant. EILEEN A. GALLAGHER, J.:
{¶ 1} In this consolidated appeal, defendant-appellant Anthony Walker appeals the trial court's denial of his "motion to set aside void sentence and for resentencing to enforce terms of guilty plea" in two cases — Cuyahoga C.P. No. CR- 91-268354-D ("268354") and Cuyahoga C.P. No. CR-91-269956-A ("269956"). Walker contends that his sentence of "fifteen years to life" for murder in 269956 is void because the sentencing statute in effect at the time of his sentencing mandated that he be sentenced to "an indefinite term of fifteen years to life." Walker also contends that the trial court's imposition of consecutive sentences in 268354 violated the terms of his plea agreement in 269956. Walker argues that the improper sentences should be vacated and the matters "returned to the trial court for resentencing." For the reasons that follow, we affirm the trial court.
Procedural History and Factual Background
Walker's First Trial in 268354
{¶ 2} On October 24, 1991, a jury found Walker guilty of one count of aggravated burglary, one count of aggravated robbery, one count of attempted murder and two counts of kidnapping — all with firearm specifications — and two counts of aggravated murder with mass murder, felony murder and firearm specifications. The jury recommended a death sentence on the aggravated murder counts.
{¶ 3} On November 21, 1991, the trial court followed the jury's recommendation and imposed concurrent death sentences on the two aggravated murder counts. It imposed consecutive prison terms of up to twenty-five years, plus an additional three years for the firearm specifications, on each of the remaining counts. Walker appealed his convictions. In October 1993, this court reversed Walker's convictions on the ground that he had been denied the effective assistance of counsel and the case was remanded for further proceedings in the trial court. State v. Walker, 8th Dist. Cuyahoga No. 62862, 1993 Ohio App. LEXIS 5188 (Oct. 28, 1993).
Walker's Guilty Plea in 269956
{¶ 4} In 269956, Walker was charged with one count of aggravated murder with felony murder and firearm specifications, one count of aggravated burglary with a firearm specification and one count of aggravated robbery with a firearm specification. In March 1992, while Walker's appeal in 268354 was pending, the case proceeded to a jury trial. Shortly after trial commenced, the parties reached a plea agreement. Walker agreed to plead guilty to an amended count of murder. In exchange for Walker's guilty plea, the remaining counts were nolled. The trial court sentenced Walker to "a term of fifteen (15) years to life," "[s]entence to run concurrent to CR-268354." The sentencing journal entry was filed on March 18, 1992. Walker did not appeal his conviction.
There is no written plea agreement or transcript of the change-of-plea hearing or the sentencing hearing in 269956 in the record on appeal. On February 13, 2020, Walker filed an App.R. 9(C) statement of proceedings related to his guilty plea in 269956. The statement consisted of an affidavit from Walker in which he averred that, on March 12, 1992, he, through his attorney, "negotiated a deal" with the state "for concurrent time in CR 269956 and 268354." The state filed objections to Walker's statement of proceedings, denying that it was a condition of the plea agreement that the sentences in 269956 and 268354 would be served concurrently. The trial court refused to approve Walker's App.R. 9(C) statement of proceedings, concluding that there was "insufficient evidence" of an agreement between the state and Walker that the sentence imposed in 269956 "was to be run concurrent" with the sentence imposed in 268354.
Walker's Second Trial in 268354
{¶ 5} On or about January 29, 1996, a second jury trial commenced in 268354. The jury found Walker guilty on the aggravated burglary, aggravated robbery, attempted murder and kidnapping counts along with the associated firearm specifications. The jury also found Walker guilty of one count of aggravated murder with the mass murder and firearm specifications (but not guilty of the felony murder specifications). The jury found Walker not guilty on the remaining count of aggravated murder.
{¶ 6} On February 13, 1996, Walker and the state reached a sentencing agreement. The parties stipulated that the state lacked sufficient evidence to demonstrate beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances of the aggravated murder, thereby removing the possibility that Walker could receive a death sentence on the aggravated murder count. The parties also agreed to jointly recommend sentences as follows: (1) a sentence of 33 years on the aggravated murder count (30 years on the underlying offense plus three years on the firearm specification), (2) maximum sentences on each of the remaining counts and (3) that the sentences in 268354 would be served concurrently with one another but consecutively to Walker's sentence in 269956. At the February 13, 1996 hearing, the trial court summarized the terms of the parties' sentencing agreement as follows:
The agreement you are proposing is on count one; ten to twenty-five, count two, ten to twenty-five; count three, ten to twenty-five; count four, ten to twenty-five; count five, eight to fifteen; count seven, three
years for the gun specification, thirty years to life for the substantive offense.The state and defense counsel confirmed this was an accurate recitation of the parties' agreement. Walker likewise confirmed his understanding of the parties' sentencing agreement:
Now, all of those are to run concurrently with each other, but run consecutively with the sentence in Case 269956, and that it is, of course, stipulated that the aggravating factors do not outweigh the mitigating factors beyond a reasonable doubt, that the defendant may retain his right to appeal from the verdict of guilty in the basic case, guilty of the crimes for which he's being prosecuted, but that he does not contest the sentence since he's going to agree to the sentence[.]
THE COURT: Mr. Walker, do you understand what is being proposed here?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions that you want to ask about it?
THE DEFENDANT: No, sir.
{¶ 7} The trial court then proceeded to advise Walker of the rights he was waiving by entering into the sentencing agreement, including his right to a full sentencing hearing and the right to appeal his sentence. Walker indicated that he understood and that he had no questions regarding the waiver of these rights.
{¶ 8} The state pointed out that because the sentences were jointly recommended sentences, the trial court, in its discretion, could impose lesser sentences on the individual counts than what had jointly recommended or could order that the sentences imposed in 268354 be served concurrently, rather than consecutively to the sentence, imposed in 269956. However, the trial court made it clear to Walker that if he entered into the sentencing agreement, the trial court would impose the sentence jointly recommended by the parties on the aggravated murder count, having determined that it was an "appropriate sentence" based on the testimony presented at trial:
THE COURT: * * * I don't want to mislead you in any way. I think we have all discussed this, and we're going to impose this particular sentence. * * * I don't want you to be misled in any way. You are not getting the possibility here that you are going to get 23 years to life instead of 33, or that would run concurrently with the other sentence rather than consecutively. * * * Do you understand?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions?
THE DEFENDANT: No.
{¶ 9} Consistent with the parties' sentencing agreement, the trial court found that the aggravating factors for the aggravated murder did not outweigh the mitigating factors and sentenced Walker to an aggregate prison term of 33 years to life to be served consecutively to the sentence imposed in 269956.
On the aggravated murder count the trial court sentenced Walker to 33 years to life - three years on the firearm specification to be served prior to and consecutive to 30 years to life on the base offense. On the remaining counts, the trial court sentenced Walker to 8 to 15 years or 10 to 25 years on the base offenses. The trial court ordered that "all firearm specifications shall merge at sentencing with three-years mandatory to be served prior to and consecutive with the base counts." The sentences on all counts were ordered to be served concurrently with one other but consecutively to the sentence imposed in 269956.
{¶ 10} Once again, Walker appealed his convictions. Walker claimed that the trial court had erred in refusing to grant a mistrial for jury misconduct, in giving improper jury instructions, in failing to timely journalize his convictions and in allowing irrelevant and prejudicial evidence to be presented at trial. Walker also claimed ineffective assistance of counsel based on defense counsel's failure to object to allegedly incomplete jury instructions. Walker did not raise any issue related to the trial court's imposition of consecutive sentences in his appeal. This court affirmed his convictions. State v. Walker, 8th Dist. Cuyahoga No. 74773, 1999 Ohio App. LEXIS 5225 (Nov. 4, 1999). Walker filed a notice of appeal with the Ohio Supreme Court. The Ohio Supreme Court denied Walker leave to appeal and dismissed the appeal, finding it involved no substantial constitutional question. State v. Walker, 88 Ohio St.3d 1444, 725 N.E.2d 285 (2000).
{¶ 11} On February 14, 2000, Walker filed an application to reopen his appeal with this court, asserting that his appellate counsel was ineffective because counsel had failed to raise additional assignments of error in the appeal related to jury instructions, prosecutorial misconduct during closing argument and the sufficiency and manifest weight of the evidence supporting his convictions. Walker did not raise any issue with his sentencing in his application to reopen the appeal. This court denied the application to reopen the appeal. State v. Walker, 8th Dist. Cuyahoga No. 74773, 2000 Ohio App. LEXIS 2906 (June 20, 2000).
Walker's Postconviction Motions
Prior Postconviction Motions
{¶ 12} In the years that followed, Walker filed a number of postconviction motions with the trial court. On February 28, 2005, Walker filed, pro se, a "motion to vacate void sentence judgment" in 268354, asserting that the sentence the trial court had imposed on the aggravated murder count was "contrary to Ohio law," "unconstitutional" and "void." Walker argued that because the state had stipulated, and the trial court had found, that the aggravating factors did not outweigh the mitigating factors, the "death penalty specification" in the indictment was effectively "dismissed" and the trial court, therefore, could only sentence Walker to life imprisonment with parole eligibility after serving 20 years on the base offense under former R.C. 2929.03(A) and not to 30 years to life. Walker also contended that he was denied effective assistance of trial counsel based on counsel's advice "to accept a plea bargain [sic] agreement involving an unconstitutional hybrid scheme of sentencing," "thereby subject[ing] their client to a sentence that is in effect almost double the sentence which is allowable under the applicable statute." Walker requested that the trial court "vacate the void sentence" and impose "the twenty years to life statutorily allowable sentence." On February 5, 2010, the trial court denied the motion. Walker did not appeal the trial court's ruling.
{¶ 13} On June 22, 2010, Walker filed, pro se, a motion for resentencing and the issuance of a revised judgment entry pursuant to Crim.R. 47 in 268354. Walker asserted that the trial court had failed to enter a final, appealable order in the case because the trial court's judgment entry did not set forth the manner of his conviction and that he was, therefore, entitled to a "complete resentencing" and "the issuance of a revised sentencing entry." The trial court granted the motion, in part, and on February 11, 2011 issued a nunc pro tunc entry to correct the omission of Walker's manner of conviction from its sentencing journal entry. Walker appealed, arguing that "[t]he trial court may not correct a judgment void pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163[,] with a nunc pro tunc entry." This court held that the omission of Walker's manner of conviction was a clerical error that the trial court could correct with a nunc pro tunc entry and affirmed the trial court's ruling. State v. Walker, 8th Dist. Cuyahoga No. 96486, 2012-Ohio-697.
{¶ 14} On November 20, 2012, Walker filed, pro se, a "request to invoke or enforce specific performance of plea agreement entered into in Case Number CR-92-269956" in 269956 and 268354. Walker claimed that, as a condition of his guilty plea in 269956, the parties had agreed that the sentence imposed in 269956 would run concurrently with the sentences imposed in 268354 and that the trial court's imposition of consecutive sentences following his retrial in 268354 violated the terms of that plea agreement. Walker requested that the trial court grant "specific performance of the plea agreement" in 269956 and "amend the judgment entry" in 268354 to reflect that the sentences in the two cases were to run concurrently. The trial court denied Walker's motion in both cases. Walker did not appeal the trial court's rulings.
In support of his contention, Walker submitted copies of the November 21, 1991 sentencing journal entry (after the first trial) in 268354, the March 18, 1992 sentencing journal entry (after his guilty plea) in 269956 and the February 11, 2011 nunc pro tunc sentencing journal entry "as if and for" the March 13, 1996 sentencing journal entry (after the second trial) in 268354.
In 268354, the motion was specifically denied "for not stating a recognized form of relief."
Walker's Motion to Set Aside Void Sentence and for Resentencing
{¶ 15} On June 3, 2019, Walker filed the motion that is the subject of this appeal — a "motion to set aside void sentence and for resentencing to enforce term of guilty plea" — in both cases. Walker asserted that (1) the 15-years-to-life sentence the trial court imposed in 269956 was "not authorized by law" and (2) the trial court's imposition of consecutive sentences in 268354 breached the terms of his plea agreement in 269956. Specifically, Walker contended that the version of R.C. 2929.02(B) that was in effect at the time of his sentencing in 269956 required that he be sentenced to "an indefinite term of fifteen years to life." Because the word "indefinite" was omitted from his sentence, Walker contended his sentence was void and subject to collateral attack at any time.
{¶ 16} Walker also, once again, argued that concurrent service of his sentences in 269956 and 268354 was a condition of his plea agreement in 269956 and that the trial court breached that agreement when, after his retrial in 268354, the trial court ordered that Walker's sentence in 268354 be served consecutively to his sentence in 269956. Walker requested that his sentence in 269956 be vacated and that he be "resentenced accordingly." He further requested that the imposition of consecutive sentences in 268354 "be deemed a breach of his plea agreement" in 269956 and that he be granted one of the following remedies "at his option": (1) that the trial court order specific performance of the plea agreement and resentence him to concurrent sentences in 268354; (2) that he be permitted to withdraw his guilty plea and proceed to trial in 269956 or (3) that he be permitted to "renegotiate the plea" in 269956. The state opposed the motion.
{¶ 17} On June 10, 2019, the trial court denied Walker's motion in 269956. Walker appealed (Appeal No. 108752). On July 19, 2019, the trial court denied the motion in 268354. Once again, Walker appealed (Appeal No. 108884). This court granted Walker's motion to consolidate the appeals for briefing, hearing and disposition.
{¶ 18} Walker raises the following two assignments of error for review:
Assignment of Error No. I: The trial court erred by denying appellant's post-judgment motion because the trial court's sentence in CR-91-269956 is unauthorized by law and is void.
Assignment of Error No. II: The imposition of consecutive sentences in CR-91-269354 [sic] constituted a breach of the terms of the guilty plea in CR-91-269956 and the specific concurrent sentence term that was previously imposed in CR-91-269956, which provided that the sentences in both cases would be concurrent.
Law and Analysis
{¶ 19} In this case, Walker raises two different sentencing errors. In his first assignment of error, Walker contends that his sentence for murder in 269956 is contrary to law and void because the version of R.C. 2929.03 in effect at the time he was sentenced required that he be sentenced to "an indefinite term of fifteen years to life" and the trial court omitted the word "indefinite" when sentencing Walker. Walker requests that this court vacate his sentence in 269956 and remand for resentencing "to impose a sentence in accordance with the statutory terms."
{¶ 20} In his second assignment of error, Walker contends that the trial court breached his plea agreement in 269956 when, after his retrial in 268354, the trial court ordered that Walker's aggregate sentence of 33 years to life in 268354 be served consecutively to his sentence of 15 years to life in 269956, rather than concurrently. Walker requests that this court vacate the imposition of consecutive sentences in 268354 and remand for resentencing to impose concurrent sentences.
{¶ 21} A void sentence can be attacked anytime. See, e.g., State v. Brooks, 8th Dist. Cuyahoga No. 108919, 2020-Ohio-3286, ¶ 7, citing State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22, and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 25. In support of his argument that his sentence in 269956 is void, Walker cites this court's decisions in State v. Houston, 8th Dist. Cuyahoga No. 107538, 2019-Ohio-355, and State v. Smith, 8th Dist. Cuyahoga No. 106893, 2019-Ohio-155.
{¶ 22} In Houston, this court held that where the trial court failed to include a reference to "parole eligibility after serving twenty years of imprisonment" in the defendant's sentence as mandated by former R.C. 2929.03(A), the sentence was "contrary to law and void" because it was "not authorized by law." Houston at ¶ 6-7. Similarly, in Smith, this court held that where the trial court imposed a sentence of "20 years to life" for aggravated murder instead of a sentence of "life imprisonment with parole eligibility after serving twenty years of imprisonment" as mandated by statute, the trial court "exceeded its authority in sentencing" and the sentence was "void." Smith at ¶ 3, 10, 16, 18, 25. In both cases, this court reversed or vacated the "void" sentence and remanded for resentencing. Houston at ¶ 11; Smith at ¶ 25-27.
{¶ 23} However, after Houston and Smith were decided, the Ohio Supreme Court decided State v. Harper, Slip Opinion No. 2020-Ohio-2913. In Harper, the Ohio Supreme Court "realign[ed]" its "void-sentence jurisprudence" in cases involving the imposition of postrelease control with "the traditional understanding of what constitutes a void judgment." Id. at ¶ 4, 39, 43. In that case, the defendant had moved to vacate the portion of his sentence imposing postrelease control after he was charged with violating the conditions of his postrelease control, claiming that it was void because the sentencing journal entry failed to state the consequences of violating postrelease control as required by State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700. Id. at ¶ 9. The Ohio Supreme Court held that the trial court's failure to properly impose postrelease control rendered the defendant's sentence voidable, not void, and that, therefore, the sentence was not subject to collateral attack. Id. at ¶ 5-6. The court explained:
A sentence is void when a sentencing court lacks jurisdiction over the subject-matter of the case or personal jurisdiction over the accused. When the sentencing court has jurisdiction to act, sentencing errors in the imposition of postrelease control render the sentence voidable, not void, and the sentence may be set aside if successfully challenged on direct appeal.Id. at ¶ 42. The court explicitly "overrule[d] [its] precedent to the extent that it holds that the failure to properly impose postrelease control in the sentence renders that portion of a defendant's sentence void." Id. at ¶ 40. The court further stated 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. Because the defendant could have raised, but did not raise, his argument that the trial court failed to properly impose postrelease control in a direct appeal, the defendant was barred from raising the issue by the doctrine of res judicata. Id. at ¶ 41.
{¶ 24} In State v. Henderson, Slip Opinion No. 2020-Ohio-4784, the Ohio Supreme Court took "the next and final step" toward a return to the "traditional understanding of the distinction between void and voidable sentences" and held 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." Id. at ¶ 1.
In Henderson, two justices signed onto the lead opinion authored by Justice French. Justice Donnelly concurred with a separate opinion. He "concur[red] in the majority's judgment and agree[d] with its determination that the state could not challenge [the defendant's] voidable sentence through a postconviction motion for resentencing" but wrote separately "to note that the majority reaches its decision without expressly applying the doctrine of res judicata against the state for its failure to file a direct appeal from the trial court's sentencing error." Id. at ¶ 89-91. Chief Justice O'Connor and Justice Kennedy concurred in judgment only with separate opinions. Chief Justice O'Connor maintained that the court's "void-sentence jurisprudence was correct" and expressed concern that the majority's "easier or more 'pragmatic approach'" would leave certain sentencing errors without a remedy. However, she found that the state was not entitled to resentencing in this case because the defendant had already completed his sentence. Id. at ¶ 45-49. Justice Kennedy asserted that the court should have simply applied the "binding precedent" in Harper "to resolve this case." Id. at ¶ 50-73. Justice Stewart concurred in judgment only without a separate opinion.
{¶ 25} In Henderson, instead of sentencing the defendant to an indefinite sentence of 15 years to life on a murder charge as required by statute, the trial court sentenced the defendant to an "unlawful" definite sentence of 15 years (plus an additional three-year mandatory consecutive sentence for a firearm specification). Id. at ¶ 1-2, 40. There was no direct appeal. Id. at ¶ 2. Nearly 18 years after sentencing, shortly before the defendant was due to be released from custody, the state filed a motion for resentencing, seeking to correct the sentencing error on the ground that the sentence was void. Id. at ¶ 8. The trial court granted the motion and resentenced the defendant to a term of 15 years to life on the murder charge and three years on the firearm specification, to run consecutively. Id. at ¶ 12. The defendant appealed the trial court's decision to resentence him. Id. at ¶ 13.
{¶ 26} On appeal, this court affirmed, in part, the trial court's decision, applying R.C. 5145.01 to automatically transform the defendant's sentence from the definite 15-year sentence originally imposed by the trial court into the statutorily mandated indefinite 15-years-to-life sentence. Id. at ¶ 14. Based on R.C. 5145.01, the court found that the original sentence was not void; it was "always correct," but, nevertheless, affirmed the trial court's resentencing. Id. The Ohio Supreme Court reversed, vacated the resentencing by the trial court and remanded for the trial court to reinstate its original sentence. Id. at ¶ 44.
{¶ 27} The majority opinion "ma[d]e it clear" that "[a] sentence is void only if the sentencing court lacks jurisdiction over the subject matter of the case or personal jurisdiction over the accused":
If the court has jurisdiction over the case and the person, any sentence based on an error in the court's exercise of that jurisdiction is voidable. Neither the state nor the defendant can challenge the voidable sentence through a postconviction motion.Id. at ¶ 27, 43. Because the sentencing error rendered the defendant's sentence voidable, the court held that the state could not "correct the error" through a postconviction motion for resentencing. Id. at ¶ 40; see also State v. Dowdy, 2020-Ohio-4789 (reversing State v. Dowdy, 8th Dist. Cuyahoga No. 107844, 2019-Ohio-3570 — in which this court, following Smith, 2019-Ohio-155, had vacated the defendant's "void" sentence where the trial court had failed to use statutorily mandated language when imposing a sentence for aggravated murder — on the authority of Harper and Henderson).
{¶ 28} Since Harper was decided, this court has applied the reasoning of that decision to other types of alleged sentencing errors.
{¶ 29} In Brooks, 2020-Ohio-3286, the defendant argued that his sentence of "life, without the possibility of parole until serving twenty (20) years" was "void and illegal, subject to correction at any time" because it was contrary to the language of former R.C. 2929.03(C)(2) that required a sentence of "twenty full years" and that the trial court, therefore, had erred in denying his motion to vacate his sentence. Id. at ¶ 4-5. The court found that the trial court had subject matter jurisdiction over the defendant's case and had personal jurisdiction over him. Id. at ¶ 9. Based on Harper, this court held that "[e]ven if the trial court's omission of the term 'full' from [the defendant's] sentence was contrary to former R.C. 2929.03(C)(2), the sentencing error would render [the] sentence voidable, not void. Thus, [the] sentence could be challenged only on direct appeal." Id. Because the defendant had not challenged his sentence on that basis on direct appeal, the court held that the issue was barred by res judicata. Id. at ¶ 10. The court further held that the defendant did not satisfy the requirements of R.C. 2953.23 and that the trial court, therefore, "had no authority to consider his motion" as a successive petition for postconviction relief. Id. at ¶ 11-14. Accordingly, the trial court "properly denied it." Id. at ¶ 14.
{¶ 30} In State v. Starks, 8th Dist. Cuyahoga No. 109444, 2020-Ohio-4306, the defendant argued that his sentences on two aggravated murder counts were "contrary to law and void" because the trial court had imposed sentences of "life" imprisonment on those counts instead of sentences of "life imprisonment with parole eligibility after serving twenty years of imprisonment." Id. at ¶ 6, 8. The trial court had subject matter jurisdiction over the case and had personal jurisdiction over the defendant. Id. at ¶ 15. Based on Harper and Brooks, this court held that even if the trial court had improperly omitted language regarding parole eligibility from the defendant's sentences, the sentencing error would render the sentences voidable, not void and the sentences, therefore, could be challenged only on direct appeal. Id. Because the defendant had failed to do so, the court held that res judicata precluded his claim and that the trial court had properly denied the defendant's motion to correct his sentences. Id. at ¶ 16.
{¶ 31} A similar conclusion is warranted in this case. Here, the trial court had subject matter jurisdiction over Walker's cases and had personal jurisdiction over him. R.C. 2931.03; Harper, Slip Opinion No. 2020-Ohio-2913, at ¶ 42; Brooks at ¶ 9; Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131 N.E.3d 1, ¶ 8 ("[A] common pleas court has subject-matter jurisdiction over felony cases."). Even if the trial court had improperly omitted the word "indefinite" from Walker's sentence in 269956, the sentencing error would render Walker's sentence voidable, not void. Harper at ¶ 5-6, 42. Thus, Walker's sentence only could be challenged by objecting at sentencing or on direct appeal, not through a postconviction motion. Henderson, Slip Opinion No. 2020-Ohio-4784, at ¶ 27, 40, 43; Harper at ¶ 41-43; Brooks at ¶ 9; Starks at ¶ 15.
{¶ 32} Further, it is well settled that the doctrine of res judicata bars claims that were raised or could have been raised on direct appeal. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 6. "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 trial, which resulted in that judgment of conviction, or on an appeal from that judgment." (Emphasis deleted.) State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
{¶ 33} Here, Walker did not object to his sentences at sentencing. Walker did not file a direct appeal in 269956 and did not raise any issue with respect to sentencing in his direct appeal or in his application to reopen his direct appeal in 268354. Although Walker argued in his November 2012 "request to invoke or enforce specific performance of plea agreement entered into in Case Number CR-92-269956" that the trial court had breached the plea agreement in 269956 by imposing consecutive sentences in 268354, Walker did not appeal the trial court's denial of that motion. '"[R]es judicata precludes [a defendant] from re-litigating the same issues with the hope of obtaining a different result.'" State v. Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, ¶ 20, quoting State v. Hildebrand, 2d Dist. Clark No. 2012-CA-48, 2013-Ohio-2122, ¶ 5.
{¶ 34} Because Walker could have, but did not, raise any issue regarding his sentences in a direct appeal, res judicata bars his claims. Harper, Slip Opinion No. 2020-Ohio-2913, at ¶ 41; Brooks, 2020-Ohio-3286, at ¶ 10; Starks, 2020-Ohio-4306, at ¶ 15-16.
Walker does not contend that he has met the requirements for postconviction relief under R.C. 2953.21 and 2953.23 or to withdraw his guilty plea in 269956 under Crim.R. 32.1. Accordingly, we do not address those provisions here. --------
{¶ 35} Furthermore, there is nothing in the record, aside from the affidavit Walker submitted with his proposed App.R. 9(C) statement of proceedings — which the trial court rejected due to lack of evidence — to support Walker's contention that the imposition of concurrent sentences in 269956 and 268354 was a condition of his plea agreement in 269956. The March 18, 1992 sentencing journal entry in 269956 simply reflects that the sentence in 269956 was "to run concurrent to CR-268354," not that concurrent sentences were imposed pursuant to a plea agreement. Walker's plea and sentencing in 269956 occurred before this court vacated Walker's original convictions in 268354. At that time, Walker had been sentenced to death in 268354.
{¶ 36} Moreover, it is clear from the record, including the transcript of the proceedings on February 13, 1996, that the sentence the trial court imposed after the second trial in 268354, including that the sentence in 268354 be served consecutively to the sentence in 269956, was imposed pursuant to a sentencing agreement. The record shows that in order to avoid the possibility of receiving a death sentence, Walker agreed to a jointly recommended sentence that included that the sentences imposed in 268354 would be served consecutively to the sentence imposed in 269956 and that Walker would waive his right to appeal the sentences imposed pursuant to the sentencing agreement. Walker does not dispute the existence of the sentencing agreement in 268354, that these were terms of the sentencing agreement or that he knowingly, intelligently and voluntarily entered into the sentencing agreement. Thus, even if the trial court had erred in imposing consecutive sentences, Walker was not in a position to challenge the trial court's action. See, e.g., State v. Brownlee, 2018-Ohio-739, 107 N.E.3d 822,¶ 25 (8th Dist.) ("a party cannot take advantage of an error that the party induced the trial court make"), citing State v. Smith, 148 Ohio App.3d 274, 2002-Ohio-3114, 772 N.E.2d 1225, ¶ 30 (8th Dist.).
{¶ 37} Accordingly, the trial court did not err in denying Walker's motion to set aside void sentence and enforce the terms of his guilty plea. Walker's assignments of error are overruled.
{¶ 38} Judgment affirmed.
It is ordered that appellee recover from appellant the 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 Cuyahoga County Court of Common Pleas 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. /s/_________
EILEEN A. GALLAGHER, JUDGE EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR