[Cite as State v. Martin, 2013-Ohio-1966.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

BEAUFORD E. MARTIN, 

 Defendant-Appellant. 

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APPEAL NOS. C-120481 

 C-120525 

TRIAL NO. B-0704444 

O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgments Appealed From Are: Affirmed in C-120525; 

 Affirmed as Modified in C-120481 

Date of Judgment Entry on Appeal: May 15, 2013 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Beauford E. Martin, pro se. 

Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS 

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HILDEBRANDT, Judge. 

{¶1} Defendant-appellant Beauford E. Martin appeals from the Hamilton 

County Common Pleas Court’s judgments overruling his “Motion to Correct 

Sentence” and his Crim.R. 32.1 motion to withdraw his guilty pleas. We affirm the 

court’s judgments. 

{¶2} Martin was convicted in 2008 upon guilty pleas to two counts of 

nonsupport of dependents and was sentenced to community control. He took no 

direct appeal from his convictions.

{¶3} In 2011, he was found guilty of violating his community control and was 

sentenced to an agreed term of confinement totaling 36 months. He did not appeal his 

community-control-violation convictions.

{¶4} Instead, in 2011, he challenged his nonsupport convictions in his 

“Motion to Correct Sentence,” and in 2012, he moved under Crim.R. 32.1 to 

withdraw his guilty pleas. In his motions, he contended that because his offenses are 

allied offenses of similar import committed with the same conduct, the trial court 

could not, consistent with R.C. 2941.25, have imposed a sentence for each offense to 

which he had pled. In this appeal from the overruling of his motions, Martin 

advances three assignments of error. 

{¶5} No jurisdiction to grant allied-offenses claim. In his first 

and second assignments of error, Martin challenges the denial of the relief sought in 

his “Motion to Correct Sentence.” We find no merit to this challenge. 

{¶6} Martin did not specify in his motion the statute or rule under which he 

sought postconviction relief. R.C. 2953.21 et seq., governing the proceedings upon a 

postconviction petition, provide “the exclusive remedy by which a person may bring a 
OHIO FIRST DISTRICT COURT OF APPEALS 

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collateral challenge to the validity of a conviction or sentence in a criminal case.” 

R.C. 2953.21(J). Therefore, Martin’s motion was reviewable under the standards 

provided by the postconviction statutes. See State v. Schlee, 117 Ohio St.3d 153, 

2008-Ohio-545, 882 N.E.2d 431, ¶ 12. 

{¶7} But Martin filed his postconviction motion more than three years 

after his nonsupport convictions and thus well after the expiration of the time 

prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the jurisdiction 

of a common pleas court to entertain a late postconviction claim: the petitioner must 

show either that he was unavoidably prevented from discovering the facts upon 

which his claim depends, or that his claim is predicated upon a new or 

retrospectively applicable federal or state right recognized by the United States 

Supreme Court since the expiration of the time prescribed by R.C. 2953.21(A)(2) or 

since the filing of his last postconviction claim; and he must show “by clear and 

convincing evidence that, but for constitutional error at trial, no reasonable 

factfinder would have found [him] guilty of the offense of which [he] was convicted.” 

{¶8} The record before us does not, as it could not, demonstrate that but for 

the claimed sentencing error, no reasonable factfinder would have found Martin 

guilty of the offenses of which he was convicted. Thus, because Martin satisfied 

neither the time restrictions of R.C. 2953.21(A)(2) nor the jurisdictional 

requirements of R.C. 2953.23, the postconviction statutes did not confer upon the 

common pleas court jurisdiction to entertain Martin’s postconviction motion. See

R.C. 2953.23(A). 

{¶9} A court nevertheless has jurisdiction to correct a void judgment. See 

State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 
OHIO FIRST DISTRICT COURT OF APPEALS 

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263, ¶ 18-19. But the Ohio Supreme Court has not held that the imposition of a 

sentence in violation of R.C. 2941.25 renders a judgment of conviction void. See 

State v. Lee, 1st Dist. No. C-120307, 2013-Ohio-1811, ¶ 8. 

{¶10} We, therefore, hold that the common pleas court properly denied the 

relief sought in Martin’s postconviction motion. Accordingly, we overrule the first 

and second assignments of error. 

{¶11} No abuse of discretion in overruling Crim.R. 32.1 motion. 

In his third assignment of error, Martin challenges the overruling of his Crim.R. 32.1 

motion to withdraw his guilty pleas. This challenge is untenable. 

{¶12} Martin sought by his motion to withdraw his pleas to the nonsupport 

charges on the ground that the pleas were the unknowing and unintelligent product 

of his trial counsel’s ineffectiveness in failing to advise him that the court could not, 

consistent with R.C. 2941.25, sentence him for both offenses. On his motion, Martin 

bore the burden of demonstrating that the withdrawal of his pleas was necessary to 

correct a “manifest injustice.” See Crim.R. 32.1; State v. Smith, 49 Ohio St.2d 261, 

361 N.E.2d 1324 (1977), paragraph one of the syllabus. 

{¶13} But we do not have before us a transcript of the proceedings at the plea 

hearing, because Martin did not appeal his nonsupport convictions, and because he 

did not request that a transcript be prepared for the common pleas court’s decision on 

his Crim.R. 32.1 motion. Implicit in the court’s decision overruling the motion was 

the court’s determination that withdrawing the pleas was not necessary to correct a 

manifest injustice. That determination, in the absence of a transcript of the plea 

hearing, cannot be said to have been arbitrary, unconscionable, or the product of an 

unsound reasoning process. Thus, we cannot say that the court abused its discretion 
OHIO FIRST DISTRICT COURT OF APPEALS 

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in overruling the motion. See Smith, paragraph two of the syllabus (holding that a 

ruling on a postsentence motion to withdraw a plea may be reversed on appeal only 

upon an abuse of discretion); see also State v. Hill, 12 Ohio St.2d 88, 232 N.E.2d 394 

(1967), paragraph two of the syllabus (holding that an abuse of discretion is more 

than an error of law or judgment, but rather implies that the court’s attitude was 

unreasonable, arbitrary, or unconscionable); State v. Morris, 132 Ohio St.3d 337, 

2012-Ohio-2407, 972 N.E.2d 528, ¶ 14 (defining an “unreasonable” decision as one 

that lacks a sound reasoning process). We, therefore, overrule the third assignment 

of error. 

{¶14} We affirm. Because the common pleas court did not abuse its 

discretion in overruling Martin’s Crim.R. 32.1 motion, we affirm the judgment 

appealed in the case numbered C-120525. 

{¶15} Because the common pleas court had no jurisdiction to entertain 

Martin’s “Motion to Correct Sentence” on its merits, the motion was subject to 

dismissal. Accordingly, upon the authority of App.R. 12(A)(1)(a), we modify the 

judgment appealed in the case numbered C-120481 to reflect the dismissal of the 

motion. And we affirm the judgment as modified. 

Judgment accordingly. 

HENDON, P.J., concurs. 

CUNNINGHAM, J., concurs in part and dissents in part. 

CUNNINGHAM, J., concurring in part and dissenting in part. 

{¶16} I concur in the majority’s judgment affirming the overruling of 

Martin’s Crim.R. 32.1 motion to withdraw his guilty pleas. I also concur in its 

holding that the postconviction statutes did not confer upon the common pleas court 

jurisdiction to entertain Martin’s “Motion to Correct Sentence.” 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶17} But I respectfully dissent from its determination that the court lacked 

jurisdiction to entertain his allied-offenses claim because a sentence imposed in 

violation of R.C. 2941.25 is not void. For the reasons set forth in my concurring and 

dissenting opinion in State v. Lee, 1st Dist. No. C-120307, 2013-Ohio-1811, ¶ 21-30, I 

would instead hold that the common pleas court had jurisdiction to entertain the 

claim because a sentence imposed in contravention of R.C. 2941.25 is void and thus 

subject to review at any time. But I would ultimately affirm the denial of the relief 

sought, because R.C. 2941.25 authorized the trial court to sentence Martin for each 

offense, when the indictment shows that each offense involved a different victim. 

{¶18} And based on the conflict noted in Lee, I would, upon the authority 

conferred by the Ohio Constitution, Article IV, Section 3(B)(4), certify to the Ohio 

Supreme Court the following question: “Are sentences imposed in violation of R.C. 

2941.25 void and thus subject to review at any time?” See Lee at ¶ 31. 

Please note: 

 The court has recorded its entry on the date of the release of this opinion.