[Cite as State v. Earl , 2020-Ohio-1202.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. ABDUL EARL Appellant C.A. Nos. 18CA011303 18CA011281

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 15CR091866 16CR094318

DECISION AND JOURNAL ENTRY Dated: March 31, 2020

TEODOSIO, Presiding Judge. {¶1} Appellant, Abdul L. Earl, appeal s from the judgment entries den ying his two motions to vacate void judgment in the Lorain County Court of C ommon Pleas. This Court

affirms.

I. {¶2} Mr. Earl was sentenced in two s eparate cases a nd in two differe nt trial courts. The courts initially placed him on community control, but later sen tenced him to prison after he violated the terms and conditions of his community control. He never ap pealed any of the judgment entries sentencing him to community control or prison. Mr. Earl eventu ally filed two motions to vacate void judgment in each case almost a year after he was sentenced to prison, both of which were

denied.2

{¶3} Mr. Earl now appeals from the judg ment entries denying his two motions to vacate void judgment and raises one assignment of error for this Court ’s review. Although he filed separate appeals in each case, thi s Court has consolidated both appeals, as they involve substantially similar judgment en tries and merit briefs, as wel l as the same assignment of error.

II.

ASSIGNMENT OF ERROR APPELLANT WAS SENTENCED TO A []LUMP SENTENCE OF 3 YEARS COMMUNITY CONTROL. “LUMPING A SENTENCE IS A VIOLATION OF OHIO SENTENCING GUIDELINE[S].” * * *. {¶4} In his sole assignment of error, Mr. Earl argues that both tria l courts erred in denying his motions to vacate void sentence because the courts originally imposed “lump” sentences of three years communi ty control in each case. We di sagree. {¶5} Although Mr. Earl has appealed from the denials of his motions to vacate void judgment, he is essentially challenging his original sentences in each case. See State v. Williams , 5th Dist. Stark No. 2018CA00060, 2018-Ohio-3458, ¶ 17. “Most s entencing challenges must be brought by a timely direct appeal.” State v. Ibn-Ford , 9th Dist. Summit No. 27380, 2015-Ohio753, ¶ 7, citing State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 8. See also State v. Slaughter , 9th Dist. Lorain No. 18CA011293, 2019-Ohio-2154, ¶ 5. “The d octrine of res judicata ‘bars the assertion of claims ag ainst a valid, final judgment o f conviction that have been raised or could have been raised on appeal.’” State v. O’Neal , 9th Dist. Medina No. 15CA0052-M, 2015- Ohio-5181, ¶ 5, quoting State v. Ketterer , 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59. It “promotes the principles of finality and j udicial economy by preventing e ndless relitigation of an issue on which a defendant has already received a full and fair opportun ity to be heard.” State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18. Res judicata applies to other aspects of the merits of3

a conviction as well, including the determination of guilt and the lawful elements of the ensuing sentence, but does not preclude review of a void sentence. State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph three of the syllabus. In other word s, unless Mr. Earl’s sentences are void, his claim is barred by res judicata. See State v. Isa , 2d Dist. Champaign No. 2015-CA-44, 2016-Ohio-4980, ¶ 9; Ibn-Ford at ¶ 7. {¶6} “A void sentence is one that a court imposes despite lacking su bject-matter jurisdiction or the authority to act.” State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 27. “‘Crimes are statutory, as are the penalties th erefor, and the only sentence which a trial court may impose is that provided for by statute.’” State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 20, quoting Colegrove v. Burns , 175 Ohio St. 437, 438 (1964). “‘A court has no power to substitute a different sentence for that provided for by statut e or one that is either greater or lesser than that provided for by law.’” Id. Thus, “[a]ny attempt by a court to disregard statutory requirements when imposing a sent ence renders the attempted sen tence a nullity or void.” State v. Beasley , 14 Ohio St.3d 74, 75 (1984). {¶7} “Conversely, a voidable sentence is one that a court has jurisd iction to impose, but was imposed irregularly or erroneously.” Payne at ¶ 27. Therefore, when a trial court has jurisdiction but erroneously exer cises its jurisdiction, the se ntence is not void, and the sentence can be set aside only if successfully challenged on direct appe al. Id. at ¶ 28. Sentencing errors are generally not jurisdictional and do not render a judgment void. State v. Simpkins , 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 13. The Supreme Court of Ohio has, in f act, declined to find sentences void based on the trial court’s failure to comply with certain sentencing statutes. See State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 8 (recognizing challeng es to a trial court’s (1) compliance with the purposes and principles of sentencing, (2) determination of allied offenses,4

and (3) consecutive sentencing must be brought on direct appeal ); but see State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 28 (se parates sentences impos ed for allied offenses of similar import, even if imposed c oncurrently, are void). {¶8} Mr. Earl claims that his sentences are void because each trial court imposed a “lump” sentence of community control for multiple counts in eac h case. He relies on the Supreme

Court of Ohio’s decision in Saxon , which addressed and rejected u se of the federal sentencingpackage doctrine by Ohio courts: Instead of considering multiple offenses as a whole and imposin g one, overarching sentence to encompass the entirety of the offenses as in the fe deral sentencing regime, a judge sentencing a defe ndant pursuant to Ohio law mus t consider each offense individually and impose a separate sentence for each of fense. See R.C. 2929.11 through 2929.19. * * * Under the Ohio sentencing statut es, the judge lacks the authority to consider the offenses as a group and to impose only an omnibus sentence for the group of offenses.

Saxon at ¶ 9. {¶9} This Court has consistently held that the Supreme Court of Ohio “‘has applied its void-sentence analysis in limited circumstances’” and we “‘will not extend its reach without clear direction from the Supreme Court.’” See, e.g., Slaughter , 2019-Ohio-2154, at ¶ 9, quoting State v. Culgan , 9th Dist. Medina No. 09CA0060-M, 2010-Ohio-2992, ¶ 20. Notab ly, the high court has identified several specific areas where it held that a sent ence was void: “when the trial court fails to impose a statutorily ma ndated term of post[-]release c ontrol,” “when it fails to include a mandatory driver’s license suspe nsion in the offender’s sentenc e[,]” and “when it fails to include a mandatory fine in the sentence[.]” Williams , 2016-Ohio-7658, at ¶ 21. The Williams Court further determined that separates sentences imposed for allied offenses of similar import, even if imposed concurrently, are void. Id. at ¶ 28. Mr. Earl has not alleged that any of these specific errors occurred in his cases. Although the Saxon Court determined sentencing courts lack the5

authority to consider multiple offenses as a group and err in i mposing a single sentence for those offenses, it did not explicitly state that such sentences are r endered “void.” See Saxon at ¶ 9. Thus, “[c]onsistent with our precedent, we will not reach that result in this case.” State v. Occhipinti , 9th Dist. Lorain No. 15CA010787, 2016-Ohio-1286, ¶ 5. {¶10} Mr. Earl is attempting to use his motions to vacate void judgme nt as a means to obtain appellate review of allege d sentencing errors that he pr eviously failed to appeal. See State

v. Fields , 9th Dist. Summit No. 28667, 2018-Ohio-1605, ¶ 12, citing State v. Church , 8th Dist. Cuyahoga No. 68590, 1995 WL 643794, *1 (Nov. 2, 1995). “‘[T]he utilization of a subsequent order to indirectly and untimely appeal a prior order (which wa s never directly appealed)’ or ‘bootstrapping’ is ‘procedurally anomalous and inconsistent wit h the appellate rules which contemplate a direct relationshi p between the order from which the appeal is taken and the error assigned as a result of that order.’” Id., quoting Church at *1. In other words, Mr. Earl cannot

now use a motion to vacate void judgment and its subsequent den ial to present a belated attack on

his sentences. Because his sentences are not void and he could have raised his sentencing-package argument on direct appeal, he is barred from doing so now by th e doctrine of res judicata. See

State v. Hammock , 5th Dist. Richland No. 18CA27, 2018-Ohio-3914, ¶ 25-27; Isa , 2016-Ohio4980, at ¶ 9; Slaughter at ¶ 9. {¶11} Accordingly, we conclude that the trial courts did not err in d enying Mr. Earl’s two motions to vacate void judgment. {¶12} Mr. Earl’s sole assignment of error is overruled.

III. {¶13} Mr. Earl’s sole assignment of error is overruled. The judgment s of the Lorain County Court of Comm on Pleas are affirmed.6

Judgments affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT

CARR, J. HENSAL, J. CONCUR.

APPEARANCES: ABDUL EARL, pro se, Appellant. DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assi stant Prosecuting Attorney, for Appellee.