[Cite as State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.] 

THE STATE OF OHIO, APPELLEE, v. FISCHER, APPELLANT.

[Cite as State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.] 

Criminal law — Sentencing — Postrelease control — Sentences that do not 

include statutorily mandated term of postrelease control are void — Such 

sentences are not precluded from appellate review by principles of res 

judicata, including doctrine of the law of the case — They may be 

reviewed at any time, on direct appeal or by collateral attack. 

(No. 2009-0897 — Submitted March 30, 2010 — Decided December 23, 2010.) 

APPEAL from the Court of Appeals for Summit County, No. 24406, 

181 Ohio App.3d 758, 2009-Ohio-1491. 

__________________ 

SYLLABUS OF THE COURT

1. A sentence that does not include the statutorily mandated term of postrelease 

control is void, is not precluded from appellate review by principles of res 

judicata, and may be reviewed at any time, on direct appeal or by 

collateral attack. 

2. The new sentencing hearing to which an offender is entitled under State v. 

Bezak is limited to proper imposition of postrelease control. (State v. 

Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, 

modified.) 

3. Although the doctrine of res judicata does not preclude review of a void 

sentence, res judicata still applies to other aspects of the merits of a 

conviction, including the determination of guilt and the lawful elements of 

the ensuing sentence. 
SUPREME COURT OF OHIO

2 

4. The scope of an appeal from a resentencing hearing in which a mandatory term 

of postrelease control is imposed is limited to issues arising at the 

resentencing hearing. 

__________________ 

 O’CONNOR, J. 

{¶ 1} In this appeal, we again address questions arising from a 

sentencing court’s failure to impose postrelease control as mandated by the 

General Assembly. A sentence that does not include the statutorily mandated 

term of postrelease control is void, is not precluded from appellate review by 

principles of res judicata, and may be reviewed at any time, on direct appeal or by 

collateral attack. Although the doctrine of res judicata does not preclude review 

of a void sentence, res judicata still applies to other aspects of the merits of a 

conviction, including the determination of guilt and the lawful elements of the 

ensuing sentence.

Relevant Background 

{¶ 2} In 2002, a judge sentenced appellant, Londen K. Fischer, to an 

aggregate term of 14 years’ imprisonment for aggravated robbery, felonious 

assault, having a weapon while under disability, and two counts of aggravated 

burglary, all with firearms specifications. A timely direct appeal followed, and 

his convictions were affirmed by the court of appeals. State v. Fischer, Summit 

App. No. 20988, 2003-Ohio-95, 2003 WL 118470 (rejecting sufficiency-of-theevidence claims and Batson challenges). 

{¶ 3} Several years later, Fischer successfully moved pro se for 

resentencing after this court issued its decision in State v. Bezak, 114 Ohio St.3d 

94, 2007-Ohio-3250, 868 N.E.2d 961 (holding that a sentence that omits a 

statutorily mandated postrelease term is void) because he had not been properly 

advised of his postrelease-control obligations. Thereafter, the trial court properly 
January Term, 2010 

3

notified Fischer of those obligations and reimposed the remainder of the sentence. 

Fischer appealed. 

{¶ 4} On appeal, he asserted that because his original sentence was void, 

his first direct appeal was “not valid” and that this appeal is in fact “his first direct 

appeal” in which he may raise any and all issues relating to his conviction. State 

v. Fischer, 181 Ohio App.3d 758, 2009-Ohio-1491, 910 N.E.2d 1083, ¶ 4 and 5. 

The court of appeals rejected his claim, holding that the appeal was precluded by 

the law-of-the-case doctrine. Id. at ¶ 7-8. 

{¶ 5} We granted discretionary review of a single proposition arising 

from the appeal: whether a direct appeal from a resentencing ordered pursuant to 

State v. Bezak is a first appeal as of right. State v. Fischer, 123 Ohio St.3d 1410, 

2009 -Ohio-5031, 914 N.E.2d 206. We hold that it is not. 

Analysis 

I 

{¶ 6} We begin with simple premises. “In general, a void judgment is 

one that has been imposed by a court that lacks subject-matter jurisdiction over 

the case or the authority to act. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio4642, 873 N.E.2d 306, ¶ 27. Unlike a void judgment, a voidable judgment is one 

rendered by a court that has both jurisdiction and authority to act, but the court’s 

judgment is invalid, irregular, or erroneous.” State v. Simpkins, 117 Ohio St.3d 

420, 2008-Ohio-1197, 884 N.E.2d 568, at ¶ 12. But those statements of law have 

sparked a recurrent and increasingly divisive debate in our case law on sentences 

that fail to properly impose postrelease control in accordance with the terms 

mandated by the General Assembly. 

{¶ 7} The crux of our debate arises from the fact that in the normal 

course, sentencing errors are not jurisdictional and do not render a judgment void. 

State ex rel. Massie v. Rogers (1997), 77 Ohio St.3d 449, 449-450, 674 N.E.2d 

1383; Majoros v. Collins (1992), 64 Ohio St.3d 442, 443, 596 N.E.2d 1038. 
SUPREME COURT OF OHIO

4 

Rather, void sentences are typically those in which a court lacked subject-matter 

jurisdiction over the defendant. Payne.

{¶ 8} But in the modern era, Ohio law has consistently recognized a 

narrow, and imperative, exception to that general rule: a sentence that is not in 

accordance with statutorily mandated terms is void. See, e.g., Simpkins, at ¶ 14; 

State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961; State v. 

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864; State v. Beasley 

(1984), 14 Ohio St.3d 74, 75, 14 OBR 511, 471 N.E.2d 774; Colegrove v. Burns

(1964), 175 Ohio St. 437, 25 O.O.2d 447, 195 N.E.2d 811. See also Woods v. 

Telb (2000), 89 Ohio St.3d 504, 733 N.E.2d 1103. 

{¶ 9} Although our case law on void judgments was rooted in cases in 

which courts lacked subject-matter jurisdiction, it evolved beyond those roots 

over the years. By the time we decided Beasley, it had developed into the 

principle that “[a]ny attempt by a court to disregard statutory requirements * * * 

renders the attempted sentence a nullity or void.” Id., 14 Ohio St.3d at 75, 14 

OBR 511, 471 N.E.2d 774. And although Beasley may be recognized more for 

the principle that jeopardy does not attach to a void sentence, and thus the 

correction of a void sentence would not constitute double jeopardy, id., its 

underlying principles governing void sentences formed the basis for our holding 

in Jordan, a postrelease-control case. 

{¶ 10} In Jordan, we recognized that “[t]he court’s duty to include a 

notice to the offender about postrelease control at the sentencing hearing is the 

same as any other statutorily mandated term of a sentence. And based on the 

reasoning in Beasley, a trial court’s failure to notify an offender at the sentencing 

hearing about postrelease control is error.” Jordan, 104 Ohio St.3d 21, 2004-

Ohio-6085, 817 N.E.2d 864, at ¶ 26. We held that “[b]ecause a trial court has a 

statutory duty to provide notice of postrelease control at the sentencing hearing, 

any sentence imposed without such notification is contrary to law. As a general 
January Term, 2010 

5

rule, if an appellate court determines that a sentence is clearly and convincingly 

contrary to law, it may remand for resentencing. See R.C. 2953.08(G)(2). 

Furthermore, where a sentence is void because it does not contain a statutorily 

mandated term, the proper remedy is, likewise, to resentence the defendant. State 

v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774.” (Footnote 

omitted.) Jordan at ¶ 23. We then vacated the entire sentence and remanded for 

resentencing. Id. at ¶ 28. 

{¶ 11} Three years after Jordan, we issued our decision in Bezak, 114 

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Bezak is significant in that it 

was the most divisive decision by the court in the contexts of void and voidable 

judgments and nonconforming postrelease-control sentences. 

{¶ 12} There, a majority held that when a court of appeals remands a case 

for resentencing because of the trial court’s failure to inform the offender at the 

sentencing hearing that he may be subject to postrelease control, the court must 

conduct a new sentencing hearing in its entirety rather than a hearing limited to 

reimposing the original sentence with proper notice of postrelease control. Id. at ¶ 

6. In so holding, the majority in Bezak indicated that it found Jordan dispositive. 

Id. at ¶ 12. But the majority also relied heavily on Romito v. Maxwell (1967), 10 

Ohio St.2d 266, 267-268, 39 O.O.2d 414, 227 N.E.2d 223, for the proposition that 

the effect of a void judgment is that the judgment is a nullity, and the parties are 

in the same position as if there had been no judgment. Bezak at ¶ 12-13. 

{¶ 13} Romito, a habeas case from 1967, was in many ways inapposite to

Bezak. Romito was a habeas petitioner and recidivist offender who had been 

convicted of armed robbery and repeated instances of burglary between 1941 and 

1957. All of those offenses led to imprisonment, as well as an indictment as a 

habitual criminal, to which he pleaded guilty and was sentenced to 15 years, “that 

being the statutory maximum for his last prior conviction for burglary.” Romito at 

266. The habitual-criminal enhancement was declared void, however, and he then 
SUPREME COURT OF OHIO

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sought habeas relief and release from confinement on the underlying burglary 

sentence, which he asserted had also been voided. Id. Although Romito 

remained in custody lawfully under a prior valid sentence for other offenses, the 

court agreed that “[t]he vacation of the prior burglary sentence in the instant case 

was an integral part of the habitual criminal proceedings, and when such habitual 

criminal proceedings were declared void the vacation of the burglary sentence 

was also voided.” Id., 10 Ohio St.2d at 267-268, 39 O.O.2d 414, 227 N.E.2d 223. 

{¶ 14} The court in Romito supported that conclusion by relying on Tari 

v. State (1927), 117 Ohio St. 481, 159 N.E. 594, and Hill v. Hill (1945), 299 Ky. 

351, 185 S.W.2d 245. Though different from each other, both Tari and Hill

presented quintessential jurisdictional questions. Thus, Romito represents the 

historic, narrow view of void judgments, which is limited to the class of cases in 

which jurisdiction, rather than statutory sentencing mandates, is implicated. See 

State v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077, ¶ 4-

7 (noting early Ohio Supreme Court cases treating sentences that did not conform 

to mandatory prison terms as voidable rather than void). 

{¶ 15} Based on the language from Romito, the majority in Bezak rejected 

the appellate court’s ruling that the sentence in Bezak should be remanded to the 

trial court so that the defendant “ ‘may be advised that he is subject to post-release 

control.’ ” Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at ¶ 13, 

quoting State v. Bezak, Cuyahoga App. No. 84008, 2004-Ohio-6623, ¶ 41. In 

doing so, it quoted and applied the language from Romito and held that the effect 

of vacating the sentence was to position the parties in the same place as if there 

had been no sentence. Id. at ¶ 12. 

{¶ 16} That conclusion required the majority to distinguish the decision in 

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, which 

holds that a sentencing hearing on remand is limited to the issue found to be in 

error on the appeal. Id. at paragraph three of the syllabus. To do so, the majority 
January Term, 2010 

7

narrowly read Saxon to apply only to multiple-offense cases and not to defendants 

such as Bezak, who had been convicted of only one offense. Yet the majority still 

applied Romito, a far more complicated case than Saxon, and one that arose from 

multiple convictions for multiple offenses. Id. at ¶ 13. Notwithstanding that 

analytical inconsistency, the majority in Bezak then summarily concluded, 

“Therefore, Bezak’s entire sentence was vacated upon the court of appeals’ 

decision to sustain his one assignment of error.” Id. It dispensed with any 

applicability of Saxon to the issue presented in Bezak. Nor did it consider cases or 

doctrines that reflected the rationales at issue in Saxon. 

{¶ 17} As the first dissenting opinion in Bezak observed, “[j]ust as Saxon 

held that a complete resentencing is not required when a defendant on appeal 

prevails on a challenge only as to one offense in a multiple-offense case, a 

complete de novo resentencing is not required when a defendant prevails only as 

to the postrelease-control aspect of a particular sentence. In this situation, the 

postrelease-control component of the sentence is fully capable of being separated 

from the rest of the sentence as an independent component, and the limited 

resentencing must cover only the postrelease control. It is only the postreleasecontrol aspect of the sentence that is void and that must be rectified. The 

remainder of the sentence, which the defendant did not successfully challenge, 

remains valid under the principles of res judicata. See Saxon [109 Ohio St.3d 

176, 2006-Ohio-1245, 846 N.E.2d 824], at ¶ 17-19.” Bezak, 114 Ohio St.3d 94, 

2007-Ohio-3250, 868 N.E.2d 961, at ¶ 21-22 (O’Connor, J., dissenting, joined by 

Lundberg Stratton, J.). See also id. at ¶ 31 (Lanzinger, J., dissenting) (“I believe 

this holding [in Bezak] undermines the principles of res judicata that we discussed 

in [Saxon]”). 

{¶ 18} Although neither the majority nor the dissents in Bezak discussed it 

at the time, the scope of the remand in Bezak was a critical aspect of void 
SUPREME COURT OF OHIO

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judgments. And so it is at this juncture that we revisit that law before proceeding 

further. 

II 

{¶ 19} As described at the outset of our analysis, our debate over whether 

the failure of a sentencing judge to comply with a statutory mandate renders the 

ensuing judgment void arises from our disagreement over the narrow, historic 

view that limits void judgments to cases in which the court acts without 

jurisdiction. See generally Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 

N.E.2d 568, at ¶ 42-43 (Lanzinger, J., dissenting). 

{¶ 20} But in the modern era, in which we have a more sophisticated 

understanding of individual rights, we have not so severely limited the notion of 

void judgments to only those judgments that arise from jurisdictional cases. See, 

e.g., State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 103-

104. The historic, narrow view does not adequately address the constitutional 

infirmities of a sentence imposed without statutory authority. 

{¶ 21} The majority’s decision to include sentences that disregard 

legislatively imposed mandates within a narrow class of void judgments reflects a 

fundamental understanding of constitutional democracy: judges are not imperial. 

We recognize that our authority to sentence in criminal cases is limited by the 

people through the Ohio Constitution and by our legislators through the Revised 

Code. 

{¶ 22} Judges have no inherent power to create sentences. Griffin & 

Katz, Ohio Felony Sentencing Law (2008) 4, Section 1:3, fn. 1. See also Woods 

v. Telb, 89 Ohio St.3d at 507-509, 733 N.E.2d 1103 (describing the legislative 

intent behind a new, comprehensive sentencing structure, including postrelease 

control). Rather, judges are duty-bound to apply sentencing laws as they are 

written. See State v. Thomas (1996), 111 Ohio App.3d 510, 512, 676 N.E.2d 903. 

“[T]he only sentence which a trial court may impose is that provided for by 
January Term, 2010 

9

statute. A court has no power to substitute a different sentence for that provided 

for by statute or one that is either greater or lesser than that provided for by law.” 

Colegrove, 175 Ohio St. at 438, 25 O.O.2d 447, 195 N.E.2d 811. The failure to 

impose a statutorily mandated period of postrelease control is more than 

administrative or clerical error. It is an act that lacks both statutory and 

constitutional authority. 

{¶ 23} No court has the authority to impose a sentence that is contrary to 

law. Colegrove, 175 Ohio St. at 438, 25 O.O.2d 447, 195 N.E.2d 811. We 

reaffirm that vital principle today and reiterate that a judge must conform to the 

General Assembly’s mandate in imposing postrelease-control sanctions as part of 

a criminal sentence. Although the interests in finality of a sentence are important, 

they cannot trump the interests of justice, which require a judge to follow the 

letter of the law in sentencing a defendant. 

{¶ 24} Other states’ courts hold similarly, using the voidness doctrine as 

well as a related theory, the illegal-sentence doctrine.1

 See, e.g., Summers v. State 

(Tenn.2007), 212 S.W.3d 251, 256 (describing a sentence imposed in direct 

contravention of a statute as illegal and subject to correction at any time); State v. 

Gayden (2006), 281 Kan. 290, 292-293, 130 P.3d 108 (“A sentence for which no 

statutory authority exists does not conform to statutory provisions and is, 

therefore, within the definition of an illegal sentence”); Sullivan v. State (2006), 

366 Ark. 183, 234 S.W.3d 285 (“Where the law does not authorize the particular 

sentence pronounced by a trial court, the sentence is unauthorized and illegal”); 

Mizell v. State (Tex.Crim.App.2003), 119 S.W.3d 804, 806 (“A sentence that is 

outside the maximum or minimum range of punishment is unauthorized by law 

and therefore illegal”); United States v. Greatwalker (C.A.8, 2002), 285 F.3d 727, 

 

1. The term “illegal” generally means “forbidden by law.” Black’s Law Dictionary (9th 

Ed.2009) 815. It accurately summarizes a judge’s action in failing to do what the General 

Assembly has commanded with respect to postrelease control.
SUPREME COURT OF OHIO

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729 (“A sentence is illegal when it is not authorized by the judgment of 

conviction or when it is greater or less than the permissible statutory penalty for 

the crime”). 

{¶ 25} “A motion to correct an illegal sentence ‘presupposes a valid 

conviction and may not, therefore, be used to challenge alleged errors in 

proceedings that occur prior to the imposition of sentence.’ ” Edwards v. State

(1996), 112 Nev. 704, 708, 918 P.2d 321, quoting Allen v. United States 

(D.C.1985), 495 A.2d 1145, 1149. It is, however, an appropriate vehicle for 

raising the claim that a sentence is facially illegal at any time. Id. The scope of 

relief based on a rule, like Fed.R.Crim.P. 35, is likewise constrained to the narrow 

function of correcting only the illegal sentence. It does not permit reexamination 

of all perceived errors at trial or in other proceedings prior to sentencing. See, 

e.g., Hill v. United States (1962), 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417. 

{¶ 26} We similarly hold that when a judge fails to impose statutorily 

mandated postrelease control as part of a defendant’s sentence, that part of the 

sentence is void and must be set aside.2

 Neither the Constitution nor common 

sense commands anything more. 

{¶ 27} This principle is an important part of the analysis of void sentences 

that we have not focused upon in prior cases involving postrelease control, 

including Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Thus, we 

reaffirm the portion of the syllabus in Bezak that states “[w]hen a defendant is 

convicted of or pleads guilty to one or more offenses and postrelease control is 

not properly included in a sentence for a particular offense, the sentence for that 

 

2. The current version of Fed.R.Crim.P. 35(a) permits correction of a sentence only for “clear 

error” within 14 days of sentencing. But the original version of the rule permitted correction 

of an illegal sentence “at any time,” and the prior version of the rule continued the law as it 

existed when the rule was adopted in 1944. See Advisory Committee Notes to Fed.R.Crim.P. 

35(a). 
January Term, 2010 

11

offense is void,” but with the added proviso that only the offending portion of the 

sentence is subject to review and correction. 

{¶ 28} However, we now modify the second sentence in the Bezak 

syllabus as ill-considered. That sentence states that the offender is entitled to a 

new sentencing hearing for the offense for which postrelease control was not 

imposed properly. 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. It does 

not recognize a principle that we overlooked in Bezak: when an appellate court 

concludes that a sentence imposed by a trial court is in part void, only the portion 

that is void may be vacated or otherwise amended. 

{¶ 29} Therefore, we hold that the new sentencing hearing to which an 

offender is entitled under Bezak is limited to proper imposition of postrelease 

control. In so holding, we come more into line with legislative provisions 

concerning appellate review of criminal sentences. R.C. 2953.08(G)(2)(b) 

permits an appellate court, upon finding that a sentence is clearly and 

convincingly contrary to law, to remand for resentencing. But a remand is just 

one arrow in the quiver. R.C. 2953.08(G)(2) also provides that an appellate court 

may “increase, reduce or otherwise modify a sentence * * * or may vacate the 

sentence and remand the matter to the sentencing court for resentencing.” 

(Emphasis added.) Correcting a defect in a sentence without a remand is an 

option that has been used in Ohio and elsewhere for years in cases in which the 

original sentencing court, as here, had no sentencing discretion. See, e.g., State v. 

Winters (July 22, 1982), Cuyahoga App. No. 42799, 1982 WL 2499, *3; State v. 

Coughlin, Ashtabula App. No. 2006-A-0026, 2007-Ohio-897; State v. Gimbrone, 

Montgomery App. No. 23062, 2009-Ohio-6264; People v. Kelly (1965), 66 

Ill.App.2d 204, 211, 214 N.E.2d 290; State v. Sheppard (A.D.1973), 125 

N.J.Super. 332, 336, 310 A.2d 731; Harness v. State (2003), 352 Ark. 335, 339, 

101 S.W.3d 235. 
SUPREME COURT OF OHIO

12 

{¶ 30} Correcting the defect without remanding for resentencing can 

provide an equitable, economical, and efficient remedy for a void sentence. Here, 

we adopt that remedy in one narrow area: in cases in which a trial judge does not 

impose postrelease control in accordance with statutorily mandated terms. In 

such a case, the sentence is void. Principles of res judicata, including the doctrine 

of the law of the case, do not preclude appellate review. The sentence may be 

reviewed at any time, on direct appeal or by collateral attack. 

{¶ 31} Our decision today is limited to a discrete vein of cases: those in 

which a court does not properly impose a statutorily mandated period of 

postrelease control. In cases involving postrelease control, we will continue to 

adhere to our narrow, discrete line of cases addressing the unique problems that 

have arisen in the application of that law and the underlying statute. In light of 

the General Assembly’s enactment of R.C. 2929.191, it is likely that our work in 

this regard is drawing to a close, at least for purposes of void sentences. Even if 

that is not the case, however, we would be ill-served by the approach advocated 

by the dissent, which is premised on an unpalatable and unpersuasive foundation. 

III 

{¶ 32} With the law and scope of the question before us today now 

clarified, we turn to the specific question posed in this appeal, as reframed in our 

new language: is a direct appeal from a resentencing on a remand from an appeal 

finding that a sentence was void the “first” direct appeal as of right because the 

first appeal was a “nullity”? Like the court of appeals, we answer that question in 

the negative. 

{¶ 33} The court of appeals correctly ruled that Fischer, having already 

had the benefit of one direct appeal, could not raise any and all claims of error in a 

second, successive appeal. 181 Ohio App.3d 758, 2009-Ohio-1491, 910 N.E.2d 

1083. The court of appeals based its decision on the law-of-the-case doctrine, 

which provides that “the decision of a reviewing court in a case remains the law 
January Term, 2010 

13

of that case on the legal questions involved for all subsequent proceedings in the 

case at both the trial and reviewing levels.” Nolan v. Nolan (1984), 11 Ohio St.3d 

1, 3, 11 OBR 1, 462 N.E.2d 410. 

{¶ 34} Other state supreme courts have used the law-of-the-case doctrine 

in cases of illegal sentences. See, e.g., Brittingham v. State (Del.1998), 705 A.2d 

577, 579. The doctrine retains its vitality in Ohio. In discussing the doctrine, we 

have held that it “precludes a litigant from attempting to rely on arguments at a 

retrial which were fully pursued, or available to be pursued, in a first appeal” and 

noted that “[n]ew arguments are subject to issue preclusion, and are barred.” 

Hubbard ex rel. Creed v. Sauline (1996), 74 Ohio St.3d 402, 404-405, 659 N.E.2d 

781. 

{¶ 35} The law-of-the-case doctrine is rooted in principles of res judicata 

and issue preclusion, and we have expressly disfavored applying res judicata to 

sentences that do not conform to statutory postrelease-control mandates. 

Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 30. We also 

reject the application of issue preclusion to sentences that do not comply with 

statutory mandates, as those sentences are illegal and subject to collateral attack 

or direct appeal by any party. 

{¶ 36} But other than Bezak, the case law has thus far focused only on 

whether a defendant is barred from raising claims about a void sentence rather 

than on the remedy therefor. We do not disturb that precedent. Instead, our 

decision today revisits only one component of the holding in Bezak, and we 

overrule only that portion of the syllabus that requires a complete resentencing 

hearing rather than a hearing restricted to the void portion of the sentence. In 

light of our holding, the court of appeals in this case correctly held that Fischer’s 

remaining claims, which did not involve a void sentence or judgment, were barred 

by res judicata. 
SUPREME COURT OF OHIO

14 

{¶ 37} In so holding, we reject Fischer’s claim that there was no final, 

appealable order in this case. 

{¶ 38} Fischer’s theory is that because the trial court did not properly 

apply postrelease-control sanctions, his sentence was void under Bezak. Because 

his sentence was void, he contends, there was no sentence, and without a 

sentence, no conviction and no final order. See State v. Whitfield, 124 Ohio St.3d 

319, 2010-Ohio-2, 922 N.E.2d 182 (“a ‘conviction’ consists of a guilty verdict 

and the imposition of a sentence or penalty” [emphasis sic]); State v. Baker, 119 

Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus (to be a final, 

appealable order, a judgment of conviction must include the sentence). In 

Fischer’s view, the absence of a conviction means the absence of a final, 

appealable order, and the absence of such an order deprived the court of appeals 

of its jurisdiction over the initial appeal, thereby rendering that appeal invalid. 

The argument, though creative, fails. 

{¶ 39} Nothing in Baker discusses void or voidable sentences. Rather, the 

syllabus speaks only to the requirement that the judgment of conviction set forth 

“the sentence” in addition to the other necessary aspects of the judgment. The 

judgment in this case did set forth the sentence. The fact that the sentence was 

illegal does not deprive the appellate court of jurisdiction to consider and correct 

the error. In fact, R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court to 

modify or vacate any sentence that is “contrary to law.” Clearly, no such 

authority could exist if an unlawful sentence rendered a judgment nonfinal and 

unappealable. Thus, Baker does not avail Fischer. 

IV 

{¶ 40} Our intention today is to provide a clear, simple, and more 

workable solution to a vexing issue without compromising the interests of 

fairness. In balancing those interests here, we have carefully considered the law 

in a combined effort to craft the most equitable solution. We therefore hold that 
January Term, 2010 

15

void sentences are not precluded from appellate review by principles of res 

judicata and may be reviewed at any time, on direct appeal or by collateral attack. 

We further hold that although the doctrine of res judicata does not preclude 

review of a void sentence, res judicata still applies to other aspects of the merits of 

a conviction, including the determination of guilt and the lawful elements of the 

ensuing sentence. The scope of an appeal from a resentencing hearing in which a 

mandatory term of postrelease control is imposed is limited to issues arising at the 

resentencing hearing. 

Judgment affirmed. 

 PFEIFER, LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur. 

 LANZINGER, J., dissents. 

 BROWN, C.J., not participating. 

__________________ 

LANZINGER, J., dissenting. 

{¶ 41} I respectfully dissent from today’s decision and its limitation of a 

defendant’s right to appeal after obtaining resentencing of a “void” sentence. 

Unless we were to frankly overrule the aberrant cases on void sentences, I would 

accept the appellant’s proposition of law and reverse the judgment of the court of 

appeals. 

{¶ 42} The majority holds that void sentences are “not precluded from 

appellate review by principles of res judicata and may be reviewed at any time, on 

direct appeal or by collateral attack.” But it holds further that “[a]lthough the 

doctrine of res judicata does not preclude review of a void sentence, res judicata 

still applies to other aspects of the merits of a conviction, including the 

determination of guilt and the lawful elements of the ensuing sentence.” In other 

words, a sentence that is “void” because of an error in imposing postrelease 

control is now only “partially void.” 
SUPREME COURT OF OHIO

16 

{¶ 43} Consequently, an appeal may be taken of any postrelease-control 

error at any time, but apparently the court of appeals is to correct only the 

erroneous portion of the sentence, rather than conduct a de novo sentencing 

hearing. This holding effectively overrules the second sentence of the syllabus in 

State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961.3

{¶ 44} I respectfully dissent because I believe that it would be more 

sensible for us to completely abandon Bezak and its progeny and instead hold that 

these errors are correctable on direct appeal within the usual time for appellate 

review. This approach honors Ohio legal precedent, promotes judicial economy, 

and treats both the state and defendants equally and fairly. 

I. The Majority Has Redefined the Term “Void”

{¶ 45} Before the line of cases starting a mere three years ago with Bezak, 

this court repeatedly held that sentencing errors are nonjurisdictional and that 

these errors are properly corrected on appeal. See State ex rel. Shackleford v. 

Moore, 116 Ohio St.3d 310, 2007-Ohio-6462, 878 N.E.2d 1035, ¶ 5; Childers v. 

Wingard (1998), 83 Ohio St.3d 427, 428, 700 N.E.2d 588; Majoros v. Collins 

(1992), 64 Ohio St.3d 442, 443, 596 N.E.2d 1038; Blackburn v. Jago (1988), 39 

Ohio St.3d 139, 529 N.E.2d 929. A sentence is not “void ab initio” if a mistake 

was made during its imposition; it is voidable. “Void” and “voidable” are 

fundamental legal terms. In 2007, we set forth clear definitions of those terms in 

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E. 2d 306, ¶ 27.4 

 

3. Notably, this also overrules paragraph one of the syllabus in last year’s decision in State v. 

Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958 (“For criminal sentences 

imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, 

trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the 

Supreme Court of Ohio”). 

4. Although the majority cites State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, 

¶ 103, as an example of this court using the term “void” in reference to judgments containing 

nonjurisdictional errors, both the majority and concurring opinions in Payne corrected this 

mistake. See Payne, at ¶ 27-30, and at ¶ 32-35 (Lanzinger, J., concurring). 
January Term, 2010 

17

{¶ 46} Within the past year, a unanimous United States Supreme Court 

also had no trouble in defining the term “void”: “A void judgment is a legal 

nullity. See Black’s Law Dictionary 1822 (3d ed.1933); see also id., at 1709 (9th 

ed.2009). Although the term ‘void’ describes a result, rather than the conditions 

that render a judgment unenforceable, it suffices to say that a void judgment is 

one so affected by a fundamental infirmity that the infirmity may be raised even 

after the judgment becomes final. See Restatement (Second) of Judgments 22 

(1980); see generally id., §12.” United Student Aid Funds, Inc. v. Espinosa

(2010), __ U.S. __, 130 S.Ct. 1367, 1377, 176 L.Ed.2d 158. The court’s opinion 

continues: “ ‘A judgment is not void,’ for example, ‘simply because it is or may 

have been erroneous.’ ” (Emphasis added.) Id., quoting Hoult v. Hoult (C.A.1, 

1995), 57 F.3d 1, 6. 

{¶ 47} Redefinition of the term “void” to include sentences containing 

errors in postrelease control is an entirely unnecessary reaction to the 

consequences of the “modern era”5

 cases relied on in the majority opinion. 

According to these recent cases, a sentence is void, i.e., a nullity, and everything 

that occurs after the sentence is also a nullity, until a valid sentencing occurs. See 

State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 14-21. 

Logically, then, the void-sentence doctrine should allow defendants to pursue a 

second direct appeal after a resentencing, since the resentencing is the first “valid” 

sentence. 

{¶ 48} A more troublesome part of the majority’s holding is that although 

the sentence remains “void,” a defendant will not receive the benefit of the 

 

5. The earliest of these cases, State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 

774, summarily held a sentence imposing less than a mandatory minimum to be void. State v.

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, the first postrelease-control case, 

was decided in 2004. 
SUPREME COURT OF OHIO

18 

resentencing mandated by R.C. 2929.19, which protects defendants’ due process 

rights.6 

II. Sentencing Errors Are Correctable on Direct Appeal 

{¶ 49} An approach that deems certain sentences “illegal” or “partially 

void” is ill-suited for Ohio law. A close reading of cases from other jurisdictions 

cited in the majority opinion reveals that the cited cases arise from a variety of 

factual circumstances and procedural postures far removed from a judge’s error in 

imposing postrelease control. Many of these jurisdictions rely upon statutes or 

rules that give their courts the power to review erroneous or “illegal” sentences at 

any time. The majority’s approach has been rejected by the federal courts, which 

now correct sentencing errors with the method used by Ohio prior to Bezak. 

{¶ 50} More than two decades ago, language was eliminated from the 

federal rules that allowed courts to correct an “illegal sentence” at any time. P.L. 

No. 98-473, 98 Stat. 2015. Fed.R.Crim.P. 35(a) now provides, “Within 14 days 

after sentencing, the court may correct a sentence that resulted from arithmetical, 

technical, or other clear error.” However, if a federal sentencing error is not 

correctable under this rule or under Fed.R.Crim.P. 36 as a clerical error, it may be 

corrected only on direct appeal or, in limited cases, by a writ of habeas corpus 

under Section 2255, Title 28, U.S.Code. See generally United States v. Collins 

(Apr. 26, 2010), N.D.Ill. No. 04 CR 709, 2010 WL 1727852. Rather than follow 

 

6. R.C. 2929.19(A) states, “The court shall hold a sentencing hearing before imposing a sentence 

under this chapter upon an offender who was convicted of or pleaded guilty to a felony and before 

resentencing an offender * * *. At the hearing, the offender, the prosecuting attorney, the victim 

or the victim's representative * * * and, with the approval of the court, any other person may 

present information relevant to the imposition of sentence in the case. The court shall inform the 

offender of the verdict of the jury or finding of the court and ask the offender whether the offender 

has anything to say as to why sentence should not be imposed upon the offender.” (Emphasis 

added.) 
January Term, 2010 

19

a system rejected by the federal courts, it would be more “palatable” to follow the 

current federal system that has been in place since 1987.7

{¶ 51} Ohio’s rules and statutes currently do not allow for correction of 

sentences “at any time.” Thus, sentencing errors must be corrected on direct 

appeal. Indeed, this method is consistent with the statute governing appellate 

review of sentences. R.C. 2953.08(G) does allow appellate courts a number of 

options to correct sentences that fail to comply with statutory requirements. But 

that statute also properly limits these options so that courts may exercise them 

only on direct appeal. This ensures finality in sentencing while still allowing for 

the correction of any errors as part of an appeal as of right, either by the defendant 

or the state. 

III. A Return to Historical Distinctions Will Promote Justice and Finality 

{¶ 52} It is time to return to the historic, narrow, and accurate view of 

void judgments as being those rendered without jurisdiction. See Ex parte 

Winslow (1915), 91 Ohio St. 328, 330, 110 N.E. 539 (if a court did not act under a 

statute, the sentence was erroneous and voidable, not void); Stahl v. Currey

(1939), 135 Ohio St. 253, 14 O.O. 112, 20 N.E.2d 529 (jail sentence imposed by a 

magistrate who is not statutorily authorized to impose such a sentence is not void, 

but only voidable, because the magistrate did not wholly lack jurisdiction to 

impose a sentence); Carmelo v. Maxwell (1962), 173 Ohio St. 569, 570, 20 

O.O.2d 170, 184 N.E.2d 405 (a sentence imposed contrary to the terms of a 

statute is not void). Limiting the term “void” to cases in which a court acts 

without jurisdiction is a deeply rooted concept in this court’s decisions and was 

 

7. See United States v. Terzado-Madruga (C.A.11, 1990), 897 F.2d 1099, 1123 (“The effective 

date of the Sentencing Reform Act of 1984, Pub.L. 98-473, 98 Stat. 1837, 1987 (1984) was set out 

in Sec. 235(a)(1), which provided for the Act to take effect on November 1, 1987. Pub.L. 98-473, 

Title II, Ch. II, Sec. 235(a)(1), October 12, 1984, 98 Stat. 2031, as amended by Section 4 of Pub.L. 

99-217, December 26, 1985, 99 Stat. 1728”). 
SUPREME COURT OF OHIO

20 

the law of Ohio in regard to sentencing errors as recently as 2007. This approach 

— not a repackaging of the void-sentence doctrine — honors Ohio precedent. 

{¶ 53} The real question here is: “What is the proper remedy when a 

judge makes a sentencing mistake?” Our sentencing statutes recognize the 

possibility that a judge may err in sentencing by allowing parties 30 days to 

appeal sentences on grounds that they are contrary to law.8

 Allowing for 

challenges to sentencing error on direct appeal gives the state and the defense 

ample opportunity to draw attention to any potential postrelease-control error, 

thus satisfying any constitutional concerns arising from an imperfect sentence. 

Licensed attorneys should be competent to perform their duties during a 

sentencing hearing, and it is not unreasonable for prosecutors and defense counsel 

to review the judgment issued in a case to ensure that the sentence complies with 

Ohio law. This approach is the pragmatic approach—equitable, economical, and 

efficient. Most importantly, it is the approach contained in Ohio’s sentencing 

scheme, which provides for direct appeal by either party in a criminal case. See 

R.C. 2953.08. 

{¶ 54} The majority has essentially elevated postrelease-control mistakes 

to the level of “super-error” to allow untimely challenges to parts of the sentence 

that could very easily be brought on direct appeal and corrected as other 

sentencing errors are. While it is critical that sentences comply with statutory 

mandates, any concern over mistakes omitting mandatory postrelease control 

could easily be obviated if all prosecutors and defense attorneys attended the 

sentencing hearings and reviewed the sentencing entries in their cases. 

{¶ 55} The General Assembly has created a prospective remedy for the 

problem of postrelease-control notification by enacting R.C. 2929.191, but 

 

8. R.C. 2953.08(B)(2) provides prosecutors with an appeal as a matter of right in felony cases on 

grounds that the sentence is contrary to law. R.C. 2953.08(A)(4) provides defendants with the 

same right to appeal. 
January Term, 2010 

21

according to our holdings in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio6434, 920 N.E.2d 958, the rules announced today apply to sentences imposed 

before July 11, 2006. 

{¶ 56} It is hoped that this decision today is truly limited to a discrete vein 

of cases: those “in which a court does not properly impose a statutorily mandated 

period of postrelease control,” in other words, only those cases in which the state 

has not obtained a mandatory monitoring period in addition to a defendant’s 

prison sentence. My fear is that the broad language in the majority opinion has 

the potential to apply to other statutory mandates, creating other “void” sentences 

that may be infinitely appealable, and then modified without a full rehearing 

under R.C. 2929.19(A). 

IV. Conclusion 

{¶ 57} We can easily correct the problems arising from the void-sentence 

doctrine by simply clarifying that mistakes in imposing sentences make the 

sentence merely voidable, that is, subject to being reversed on direct appeal. I 

therefore respectfully dissent. 

__________________ 

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven 

DiMartino, Assistant Prosecuting Attorney, for appellee. 

Timothy Young, Ohio Public Defender, and Claire R. Cahoon, Assistant 

Public Defender, for appellant. 

Kelly R. Curtis, urging reversal for amicus curiae Ohio Association of 

Criminal Defense Attorneys. 

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, 

Assistant Public Defender, urging reversal for amicus curiae Cuyahoga County 

Public Defender. 
SUPREME COURT OF OHIO

22 

Mathias J. Heck Jr., Montgomery County Prosecuting Attorney, and Carly 

J. Ingram, Assistant Prosecuting Attorney, urging affirmance for amicus curiae 

Ohio Prosecuting Attorneys Association. 

______________________