[Cite as State v. Duncan, 2023-Ohio-1684.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

CLARK COUNTY

STATE OF OHIO 

 Appellee

v. 

JOHNNY T. DUNCAN

 Appellant

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C.A. No. 2022-CA-82

Trial Court Case Nos. 91CR0367; 

91CR436; 92CR0218

(Criminal Appeal from Common Pleas 

Court)

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O P I N I O N

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
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{¶ 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 CR367. 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, 
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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 
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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 
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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, 2016-Ohio-3320, ¶ 18. 

“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, 2014-Ohio-5008, ¶ 22. 

{¶ 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, 10 Ohio St.2d 175, 226 N.E.2d 104 (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-
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4193, 997 N.E.2d 579, ¶ 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, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 

776, 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, 117 Ohio St. 481, 159 N.E. 594 (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. Id. at 492. 

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. Id. at 494. 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. Id. The failure to timely—at the 
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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. Id. at 495. 

Henderson at ¶ 17.

{¶ 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., 136 

Ohio St.3d 8, 2013-Ohio-1721, 989 N.E.2d 978, ¶ 16 (Lanzinger, J., dissenting). Citing 

its recent decision in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 

248, 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.’ ” 

Henderson at ¶ 26, 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 
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any objection to his sentence. Id. at ¶ 17, citing Tari at 495. 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.

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