[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Williams, Slip Opinion No. 2016-Ohio-7658.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-7658

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

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Williams, Slip Opinion No. 2016-Ohio-7658.] 

R.C. 2941.25 prohibits imposition of multiple sentences for allied offenses of 

similar import—When a trial court concludes that two offenses are allied 

offenses of similar import but then imposes a sentence for each offense, the 

sentences are void. 

(No. 2015-1478—Submitted May 3, 2016—Decided November 10, 2016.) 

CERTIFIED by the Court of Appeals for Summit County, 

No. 27482, 2015-Ohio-2632. 

_______________ 

O’DONNELL, J. 

{¶ 1} The Ninth District Court of Appeals certified a conflict between its 

decision in this case and a decision of the Eighth District Court of Appeals in State 

v. Holmes, 8th Dist. Cuyahoga No. 100388, 2014-Ohio-3816, on the following 

question: “Where a trial court sentences a defendant on counts that it had previously 

determined were subject to merger, is the sentence void or do principles of res 
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2

judicata apply to preclude a defendant from challenging the sentence after direct 

appeal?” 

{¶ 2} A court only has authority to impose a sentence that conforms to law, 

and R.C. 2941.25 prohibits the imposition of multiple sentences for allied offenses 

of similar import. Thus, when a sentencing court concludes that an offender has 

been found guilty of two or more offenses that are allied offenses of similar import, 

in conformity with State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 

182, it should permit the state to select the allied offense to proceed on for purposes 

of imposing sentence and it should impose sentence for only that offense. 

Accordingly, imposing separate sentences for allied offenses of similar import is 

contrary to law and such sentences are void. Therefore, res judicata does not 

preclude a court from correcting those sentences after a direct appeal. 

{¶ 3} The judgment of conviction entered against Cameron D. Williams in 

this case reflects that the trial court concluded that the two counts of aggravated 

murder and one count of murder in connection with the killing of Darian Polk are 

allied offenses of similar import. Although the court ordered them merged for the 

purposes of sentencing, and although the state elected to have Williams sentenced 

for the aggravated murder charged in count three, the court imposed concurrent 

sentences on each of the three offenses instead of sentencing on only one offense. 

However, the imposition of concurrent sentences is not the equivalent of merging 

allied offenses, State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 

512, ¶ 17, but because the state designated one allied offense for sentencing, a 

remand for resentencing is not necessary in this case. Rather, pursuant to Article 

IV, Section 2(B)(2)(f) of the Ohio Constitution, we modify the judgment of the 

appellate court to vacate the sentences imposed for murder in count one and 

aggravated murder in count two and affirm the remaining convictions and sentences 

in all respects. 

 
January Term, 2016 

3

Facts and Procedural History 

{¶ 4} On July 28, 2007, Williams broke into an apartment rented by Tamara 

Hughes, his ex-wife, and shot and killed Darien Polk, whom he found sleeping with 

her in her bed. Williams then kidnapped Hughes at gunpoint, took her to an 

abandoned home, and engaged in sexual conduct with her. Akron police arrested 

him the next day. 

{¶ 5} A Summit County Grand Jury indicted Williams on three counts of 

aggravated murder with death penalty specifications, two counts of kidnapping, and 

one count each of aggravated burglary, burglary, rape, violating a protection order, 

intimidating a crime victim, escape, having a weapon while under disability, 

carrying a concealed weapon, menacing by stalking, and domestic violence, along 

with firearm specifications. 

{¶ 6} At trial, the jury found Williams guilty of two counts of aggravated 

murder with death penalty specifications (counts two and three) and one count each 

of murder (as a lesser included offense of the aggravated murder charge alleged in 

count one), kidnapping, aggravated burglary, violating a protection order, 

intimidating a crime victim, escape, having a weapon while under disability, and 

carrying a concealed weapon, along with firearm specifications. The remaining 

counts and specifications were dismissed. In the penalty phase of the trial, the jury 

found that the aggravating circumstances did not outweigh the mitigating factors 

beyond a reasonable doubt and recommended a sentence of life in prison with the 

possibility of parole after 30 years on each count of aggravated murder. 

{¶ 7} At the sentencing hearing, the state elected to have Williams 

sentenced on the conviction for aggravated murder charged in count three, and it 

did not request a sentence on the convictions for murder in count one or aggravated 

murder in count two. The trial court merged counts one and two into count three 

and imposed a sentence of life imprisonment with no possibility of parole until 
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Williams had served 30 full years on that count. However, the sentencing entry 

provides: 

IT IS THEREFORE ORDERED AND ADJUDGED BY 

THIS COURT that the Defendant, CAMERON D. WILLIAMS, be 

committed to the Ohio Department of Rehabilitation and 

Corrections * * * for a definite term of LIFE WITH PAROLE after 

Fifteen (15) years, which is a mandatory term pursuant to O.R.C. 

2929.13(F), for punishment for the crime of MURDER, Ohio 

Revised Code Section 2903.02, a special felony; for a definite term 

of LIFE WITH PAROLE after Thirty (30) years, which is a 

mandatory term pursuant to O.R.C. 2929.13(F), for punishment of 

the crime of AGGRAVATED MURDER, Ohio Revised Code 

Section 2903.01(B), a special felony; for a definite term of LIFE 

WITH PAROLE after Thirty (30) years, which is a mandatory term 

pursuant to O.R.C. 2929.13(F), for punishment of the crime of 

AGGRAVATED MURDER, Ohio Revised Code Section 

2903.01(D), a special felony * * *. 

* * * 

THEREUPON, pursuant to Ohio Revised Code Section 

2941.25(A), the Court hereby Orders that the offense of MURDER, 

as contained in the amended Count 1 of the Indictment and the 

offense of AGGRAVATED MURDER, as contained in Count 2 of 

the Indictment be merged into the offense of AGGRAVATED 

MURDER, as contained in Count 3 of the Indictment for purposes 

of sentencing and that said sentencing be served concurrently and 

not consecutively with each other, for a total of LIFE WITH 

PAROLE AFTER Thirty (30) years for the three counts. 
January Term, 2016 

5

* * * 

Accordingly, the total sentence the Court imposes is LIFE 

WITH PAROLE after Sixty-Nine (69) years * * *. 

(Capitalization and boldface sic.) Thus, the trial court purported to merge the 

sentences for allied offenses by ordering that the sentences be served concurrently 

with each other. 

{¶ 8} On appeal, the Ninth District Court of Appeals reversed the 

conviction for violating a protection order as not supported by sufficient evidence 

but affirmed Williams’s other convictions and sentences. 9th Dist. Summit No. 

24169, 2009-Ohio-3162, ¶ 55, 61. Williams did not argue that the trial court erred 

in sentencing him on allied offenses of similar import. 

{¶ 9} On April 23, 2014, Williams moved to correct his sentences, asserting 

that the concurrent sentences imposed on counts one, two, and three were contrary 

to law. He sought a de novo sentencing at which all of his convictions should be 

merged as allied offenses into a single conviction for aggravated murder. The trial 

court denied the motion. 

{¶ 10} The court of appeals affirmed, construing the motion as an untimely 

and successive petition for postconviction relief that the trial court lacked authority 

to consider. 9th Dist. Summit No. 27482, 2015-Ohio-2632, ¶ 6. The court further 

explained that “because Mr. Williams could have raised his arguments pertaining 

to his sentence and court costs in a direct appeal, he is now barred from asserting 

these arguments under the doctrine of res judicata.” Id. at ¶ 7. And the appellate 

court rejected Williams’s argument that the error in merging allied offenses 

rendered his sentences void, noting that this court had not yet applied its void 

sentence jurisprudence in these circumstances. Id. at ¶ 9. 

{¶ 11} The Ninth District certified that its judgment conflicts with State v. 

Holmes, 8th Dist. No. 100388, 2014-Ohio-3816. In that case, the trial court had 
SUPREME COURT OF OHIO

6

determined that Holmes’s convictions for rape and kidnapping were for allied 

offenses of similar import but nonetheless imposed separate sentences for each 

conviction. Although Holmes had not raised the issue in either his direct appeal or 

in his petition for postconviction relief, the appellate court concluded that his 

motion to vacate was not barred by res judicata, because the sentences for allied 

offenses were contrary to law and void. Id. at ¶ 2-3, 11, 20-22. It stated, “Once a 

trial court determines that two offenses are allied and are subject to merger, the trial 

court acts without authority when it imposes a sentence on both offenses. Thus, 

acting without authority renders the sentence void.” Id. at ¶ 20. 

{¶ 12} We agreed to resolve the conflict. 143 Ohio St.3d 1541, 2015-Ohio4633, 40 N.E.3d 1178. 

Positions of the Parties 

{¶ 13} Williams maintains that “[s]entences for counts which were 

previously determined to be subject to merger are void, and res judicata does not 

preclude a defendant from challenging such sentences after direct appeal.” He 

notes that State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, 

explains that trial courts have a mandatory duty to merge allied offenses, that 

imposition of concurrent sentences for allied offenses is not authorized by law, and 

that an offender is prejudiced by having more convictions than authorized by 

statute. Williams reasons that because a sentence is void when a court lacks 

authority to act or when it imposes a sentence that is not in accordance with 

statutorily mandated terms, sentences imposed for crimes that the trial court has 

found to be allied offenses of similar import are void and challenges to the 

sentences are not subject to the doctrine of res judicata. 

{¶ 14} The state concedes that the trial court erred in imposing separate 

sentences for allied offenses of similar import, but it maintains that the error did not 

render the sentences void. It argues that a void sentence is one imposed by a court 

that lacks subject-matter jurisdiction or authority to act, but a sentencing error 
January Term, 2016 

7

renders the sentence only voidable and subject to reversal on direct appeal. Relying 

on State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, the state 

asserts that our void sentences jurisprudence is limited to void sanctions and does 

not apply to errors regarding whether convictions are subject to merger as allied 

offenses of similar import. And in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio2459, 38 N.E.3d 860, the state notes, this court held that an offender may waive the 

statutory protection against separate sentences for allied offenses and that an 

appellate court has no duty to correct a forfeited error in failing to merge allied 

offenses. The state further argues that if separate sentences for allied offenses are 

void, then Rogers was wrongly decided, because “the parties cannot confer 

authority on a court to impose a void sentence” and “[a]n appellate court should not 

have discretion to pass over a void sentence.” Thus, the state concludes, res judicata 

bars this collateral attack. 

{¶ 15} Here, then, we are asked whether separate sentences imposed for 

convictions for allied offenses of similar import that the trial court found to be 

subject to merger pursuant to R.C. 2941.25(A) are void and subject to attack at any 

time. 

Allied Offenses of Similar Import 

{¶ 16} The allied offenses statute, R.C. 2941.25, provides: 

 

(A) Where the same conduct by defendant can be construed 

to constitute two or more allied offenses of similar import, the 

indictment or information may contain counts for all such offenses, 

but the defendant may be convicted of only one. 

(B) Where the defendant’s conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in two or 

more offenses of the same or similar kind committed separately or 

with a separate animus as to each, the indictment or information may 
SUPREME COURT OF OHIO

8

contain counts for all such offenses, and the defendant may be 

convicted of all of them. 

{¶ 17} Construing this statute in Whitfield, 124 Ohio St.3d 319, 2010-Ohio2, 922 N.E.2d 182, we explained that “a ‘conviction’ consists of a guilty verdict 

and the imposition of a sentence or penalty,” (emphasis sic) id. at ¶ 12, and 

therefore “R.C. 2941.25(A)’s mandate that a defendant may be ‘convicted’ of only 

one allied offense is a protection against multiple sentences rather than multiple 

convictions,” id. at ¶ 18. We noted that “it is the state that chooses which of the 

allied offenses to pursue at sentencing,” id. at ¶ 20, and “[w]hen the state elects 

which of the two allied offenses to seek sentencing for, the court must accept the 

state’s choice and merge the crimes into a single conviction for sentencing,” id. at 

¶ 24. 

{¶ 18} The determination whether an offender has been found guilty of 

allied offenses of similar import “is dependent upon the facts of a case because R.C. 

2941.25 focuses on the defendant’s conduct,” State v. Ruff, 143 Ohio St.3d 114, 

2015-Ohio-995, 34 N.E.3d 892, ¶ 26, and “an offense may be committed in a 

variety of ways,” id. at ¶ 30. We explained in Ruff that an accused may be convicted 

and sentenced for multiple offenses when “(1) the offenses are dissimilar in import 

or significance—in other words, each offense caused separate, identifiable harm, 

(2) the offenses were committed separately, or (3) the offenses were committed 

with separate animus or motivation.” Id. at ¶ 25. 

{¶ 19} But once the sentencing court decides that the offender has been 

found guilty of allied offenses of similar import that are subject to merger, R.C. 

2941.25 prohibits the imposition of multiple sentences. Damron, 129 Ohio St.3d 

86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17. And “[t]he imposition of concurrent 

sentences is not the equivalent of merging allied offenses.” Id. 

 
January Term, 2016 

9

Void Sentences 

{¶ 20} In Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 

(1964), the court described the trial judge’s role at sentencing: “Crimes are 

statutory, as are the penalties therefor, and the only sentence which a trial court may 

impose is that provided for by 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.” And applying this principle in State v. Beasley, 14 Ohio 

St.3d 74, 75, 471 N.E.2d 774 (1984), we stated that “[a]ny attempt by a court to 

disregard statutory requirements when imposing a sentence renders the attempted 

sentence a nullity or void.” 

{¶ 21} This court has therefore determined that a sentence is void when the 

trial court fails to impose a statutorily mandated term of postrelease control, State 

v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 18, 25, 36; 

when it fails to include a mandatory driver’s license suspension in the offender’s 

sentence, State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, 

paragraph one of the syllabus; and when it fails to include a mandatory fine in the 

sentence, State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, 

syllabus. 

{¶ 22} Our jurisprudence on void sentences “reflects a fundamental 

understanding of constitutional democracy” that the power to define criminal 

offenses and prescribe punishment is vested in the legislative branch of 

government, and courts may impose sentences only as provided by statute. State v. 

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21-22. Because 

“[n]o court has the authority to impose a sentence that is contrary to law,” id. at 

¶ 23, when the trial court disregards statutory mandates, “[p]rinciples 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.” Id. at ¶ 30. 
SUPREME COURT OF OHIO

10 

{¶ 23} But if the sentencing court had jurisdiction and statutory authority to 

act, sentencing errors do not render the sentence void, and the sentence can be set 

aside only if successfully challenged on direct appeal. Fisher at ¶ 6-7; State v. 

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28. Thus, as we 

held in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 18, 

a sentence failing to properly impose mandatory court costs is not void, because 

unlike the imposition of postrelease control, “the trial court has the power to waive 

the payment of court costs” in appropriate circumstances. 

{¶ 24} Our cases have similarly recognized that the trial court’s failure to 

find that the offender has been convicted of allied offenses of similar import, even 

if erroneous, does not render the sentence void. In Mosely v. Echols, 62 Ohio St.3d 

75, 76, 578 N.E.2d 454 (1991), we held that res judicata barred a postconviction 

collateral attack on the court of appeals’ holding that the offender had not been 

sentenced on allied offenses of similar import. In State v. Holdcroft, 137 Ohio St.3d 

526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8, we stated that our void sentence 

jurisprudence does not apply to “challenges to a sentencing court’s determination 

whether offenses are allied.” (Emphasis added.) 

{¶ 25} And, most recently, in State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, ¶ 3, we ruled that an accused’s failure to raise the issue 

of allied offenses of similar import in the trial court forfeits all but plain error and 

that a forfeited error is not reversible error unless it affected the outcome of the 

proceeding and reversal is necessary to correct a manifest miscarriage of justice. 

We held that absent the accused’s showing that there was a reasonable probability 

that the convictions are in fact for allied offenses of similar import committed with 

the same conduct and without a separate animus, “the accused cannot demonstrate 

that the trial court’s failure to inquire whether the convictions merge for purposes 

of sentencing was plain error.” Id. 
January Term, 2016 

11 

{¶ 26} Our decisions in Mosely, Holdcroft, and Rogers establish that when 

a trial court finds that convictions are not allied offenses of similar import, or when 

it fails to make any finding regarding whether the offenses are allied, imposing a 

separate sentence for each offense is not contrary to law, and any error must be 

asserted in a timely appeal or it will be barred by principles of res judicata. See

Holdcroft at ¶ 8-9. 

{¶ 27} However, as we explained in Underwood, 124 Ohio St.3d 365, 2010-

Ohio-1, 922 N.E.2d 923, “a trial court is prohibited from imposing individual 

sentences for counts that constitute allied offenses of similar import.” Id. at ¶ 26. 

We characterized the sentencing court’s duty to merge allied offenses as 

“mandatory, not discretionary.” Id. 

{¶ 28} It therefore follows that when a trial court concludes that an accused 

has in fact been found guilty of allied offenses of similar import, it cannot impose 

a separate sentence for each offense. Rather, the court has a mandatory duty to 

merge the allied offenses by imposing a single sentence, and the imposition of 

separate sentences for those offenses—even if imposed concurrently—is contrary 

to law because of the mandate of R.C. 2941.25(A). In the absence of a statutory 

remedy, those sentences are void. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 

920 N.E.2d 958, at ¶ 25. 

{¶ 29} The state’s concern that this conclusion is inconsistent with Rogers, 

143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, is misplaced. In Rogers, 

neither the parties nor the trial court had raised the issue whether the convictions 

were for allied offenses of similar import, the court had not found that the 

convictions should merge for purposes of sentencing, and the imposition of separate 

sentences therefore was not contrary to law. In contrast, when the trial court 

concludes that the accused has in fact been found guilty of allied offenses of similar 

import, imposing separate sentences for those offenses is contrary to law and the 
SUPREME COURT OF OHIO

12 

sentences are void on the face of the judgment of conviction. Accordingly, Rogers

is distinguishable on this basis. 

Remedy 

{¶ 30} We have recognized that a resentencing hearing limited to correcting 

the void sentence is a proper remedy for a trial court’s failure to comply with 

mandatory sentencing laws. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 

N.E.2d 332, at ¶ 29. And when a case involving an allied offenses sentencing error 

is remanded for resentencing, the state has the right to elect which offense to pursue 

at resentencing. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at 

¶ 21. 

{¶ 31} But a resentencing is not required in all cases. Article IV, Section 

2(B)(2)(f) of the Ohio Constitution grants this court appellate jurisdiction to 

“review and affirm, modify, or reverse the judgment in any case certified by any 

court of appeals.” Article IV, Section 3(B)(2) grants similar authority to the courts 

of appeals “to review and affirm, modify, or reverse judgments or final orders of 

the courts of record inferior to the court of appeals within the district.” And in 

Fischer, we explained that “[c]orrecting 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.” Id. at ¶ 29. This 

remedy, we noted, can provide an equitable, economical, and efficient remedy for 

a void sentence. Id. at ¶ 30. 

{¶ 32} The judgment of conviction in this case states the trial court’s finding 

that Williams’s convictions for the two counts of aggravated murder and one count 

of murder are allied offenses of similar import, and the concurrent sentences it 

imposed for those offenses are therefore contrary to law. But there is no need to 

remand for resentencing, because at the sentencing hearing, the state elected to have 

Williams sentenced on aggravated murder as charged in count three, and the trial 

court had no discretion to impose separate sentences on counts one and two. 
January Term, 2016 

13 

{¶ 33} Accordingly, we modify the judgment of the court of appeals to 

vacate the sentences imposed for murder in count one and aggravated murder in 

count two, which the trial court found subject to merger. The remaining convictions 

and sentences, including the sentence of life with the possibility of parole after 30 

years imposed for aggravated murder in count three, are not affected by our ruling 

today. 

{¶ 34} We recognize that our decision will not change the aggregate 

sentence Williams received. We also acknowledge that at the time the trial court 

sentenced Williams, we had not yet clarified that the imposition of concurrent 

sentences is not the equivalent of merging allied offenses of similar import. We 

expect that our decision today will clarify the path going forward for lawyers, 

litigants, and judges of our state. 

Judgment affirmed as modified. 

O’CONNOR, C.J., and PFEIFER, and O’NEILL, JJ., concur. 

LANZINGER, J., dissents, with an opinion joined by FRENCH, J. 

KENNEDY, J., dissents. 

_________________ 

LANZINGER, J., dissenting. 

{¶ 35} I respectfully dissent. I would reaffirm this court’s commitment to 

principles of res judicata and hold that Williams’s sentence is not void. The 

majority cannot expect its opinion to “clarify the path going forward for lawyers, 

litigants, and judges of our state,” majority opinion at ¶ 34, when it further 

complicates the unusual void-sentence line of cases that continues to play havoc 

with our jurisprudence. 

{¶ 36} This case provides an opportunity for the court to truly limit its 

unusual conception of void sentences to postrelease-control cases, as it appeared to 

do in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 (“Our 

decision today is limited to a discrete vein of cases: those in which a court does not 
SUPREME COURT OF OHIO

14 

properly impose a statutorily mandated period of postrelease control.” Id. at ¶ 31). 

For clarification, the court has the opportunity to, at least with regard to non–

postrelease cases, return to our previous precedent that recognized the traditional 

definitions of void and voidable error. See State v. Payne, 114 Ohio St.3d 502, 

2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. We could reaffirm the principle of res 

judicata, a doctrine that “promotes the principles of finality and judicial economy 

by preventing endless relitigation of an issue on which a defendant has already 

received a full and fair opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 

176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. 

Problems with the majority’s approach 

{¶ 37} I cannot see how imposing concurrent prison terms for allied 

offenses renders a sentence void when we have stated that a sentencing court’s error 

in determining that offenses are not allied does not render the resulting sentence 

void. State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8. 

It seems illogical that a defendant who is sentenced for allied offenses that should 

have been merged but who fails to raise the issue on direct appeal is out of luck, yet 

one whose sentences for allied offenses are run concurrently after merger is serving 

a void sentence and thus is not precluded from challenging the sentence after direct 

appeal. 

{¶ 38} I have consistently maintained my position that this court has 

erroneously held that errors in sentencing render a sentence void, subject to 

collateral attack at any time, when at most, the error was voidable, subject to 

correction on direct appeal. See, e.g., State v. Simpkins, 117 Ohio St.3d 420, 2008-

Ohio-1197, 884 N.E.2d 568, ¶ 44-49 (Lanzinger, J., dissenting); State v. Boswell, 

121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶ 17-18 (Lanzinger, J., 

dissenting); Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 45 

(Lanzinger, J., dissenting); In re J.S., 136 Ohio St.3d 8, 2013-Ohio-1721, 989 

N.E.2d 978, ¶ 12-13 (Lanzinger, J., dissenting). 
January Term, 2016 

15 

{¶ 39} The issue is more than mere semantics. Before the postreleasecontrol cases, our case law was clear on which errors were void and which were 

voidable. 

Our precedent on void/voidable 

{¶ 40} Under traditional jurisprudence, sentencing errors were not 

jurisdictional. See Ex Parte Shaw, 7 Ohio St. 81 (1857). In Shaw, the trial court 

erred in imposing a one-year sentence for horse stealing when, by statute, the 

sentence was required to be for a period of not less than three years. This court 

explained: “The court had jurisdiction over the offense and its punishment. It had 

authority to pronounce sentence; and while in the legitimate exercise of its power, 

committed a manifest error and mistake in the award of the number of years of the 

punishment. The sentence was not void, but erroneous.” (Emphasis added.) Id. at 

82. 

{¶ 41} In another case, this court refused to grant a writ of habeas corpus to 

a prisoner who claimed that he had been improperly sentenced to an indeterminate 

term of imprisonment for a burglary offense. Ex parte Winslow, 91 Ohio St. 328, 

110 N.E. 539 (1915). This court stated: 

If the court in sentencing him did not act under [the burglary] statute, 

but sentenced him under another statute, which for the purposes of 

this case may be conceded to have been invalid, the sentence was 

erroneous and voidable but not void. The error was not a 

jurisdictional one * * *. 

Id. at 330. The holding that sentencing errors were voidable but not void was 

reiterated a number of times. See Ex parte Van Hagan, 25 Ohio St. 426, 432 (1874) 

(“The punishment inflicted by the sentence, in excess of that prescribed by the law 

in force, was erroneous and voidable, but not absolutely void”); Stahl v. Currey, 
SUPREME COURT OF OHIO

16 

135 Ohio St. 253, 20 N.E.2d 529 (1939) (jail sentence imposed by a justice of the 

peace who exceeded her statutory authority was not void but only voidable because 

she did not wholly lack jurisdiction to impose a sentence); Carmelo v. Maxwell, 

173 Ohio St. 569, 570, 184 N.E.2d 405 (1962) (a sentence imposed contrary to the 

terms of a statute is not void). Thus, limiting the term “void” to cases in which a 

court acts without jurisdiction is a deeply rooted concept in this court’s decisions. 

{¶ 42} And when we held that a court did act without jurisdiction, we 

unanimously held that the sentence imposed was void and that the prisoner was 

entitled to release in a habeas corpus proceeding. In re Lockhart, 157 Ohio St. 192, 

193, 105 N.E.2d 35 (1952). William Lockhart, charged by a Pike County deputy 

sheriff with a misdemeanor for manufacturing intoxicating liquor for sale, was 

brought before a justice of the peace who fined him $500 and sentenced him to six 

months in the Cincinnati Workhouse. We held that Lockhart was entitled to a writ 

of habeas corpus, stating that “the only jurisdiction that court had was to ‘require 

the accused to enter into a recognizance to appear before the proper court.’ ” Id. at 

194-195, quoting G.C. 13433-9. Because the justice of the peace did not have 

jurisdiction to find the defendant guilty and to impose sentence, “what was done in 

those respects was a nullity.” Id. at 195. Once again, we recognized that “[a] real 

and clear cut distinction exists between a void judgment and one which is merely 

irregular or erroneous.” (Emphasis added.) Id. 

{¶ 43} In habeas cases, we have held repeatedly 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, 83 Ohio St.3d 427, 428, 700 N.E.2d 588 (1998); 

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

Jago, 39 Ohio St.3d 139, 529 N.E.2d 929 (1988). 

{¶ 44} Thus, until recently, our precedent held that sentencing errors are to 

be corrected on appeal and are not jurisdictional errors. A finding that a sentence 
January Term, 2016 

17 

was “contrary to law” or “unauthorized by law” meant that the sentence could be 

corrected as a voidable sentence, rather than that it was a void sentence (i.e., a 

nullity because of lack of jurisdiction) that could be collaterally attacked at any 

time. 

{¶ 45} We held to this traditional approach as late as 2007, when we 

explained: 

In reality, void and voidable sentences are distinguishable. A void 

sentence is one that a court imposes despite lacking subject-matter 

jurisdiction or the authority to act. State v. Wilson (1995), 73 Ohio 

St.3d 40, 44, 652 N.E.2d 196. Conversely, a voidable sentence is 

one that a court has jurisdiction to impose, but was imposed 

irregularly or erroneously. State v. Filiaggi (1999), 86 Ohio St.3d 

230, 240, 714 N.E.2d 867. 

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 27. 

Postrelease-control cases 

{¶ 46} This court’s departure from these clear principles started with the 

attempts to remedy a trial court’s error in imposing postrelease control as part of a 

sentence or in failing to impose mandatory postrelease control. See Simpkins, 117 

Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568. Postrelease control had been 

added as part of the comprehensive changes to criminal sentencing in Am.Sub.S.B. 

No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996. This court held that 

postrelease control was part of the sentence and that a trial court was required to 

notify a defendant that the additional monitoring period was part of the sentence. 

Woods v. Telb, 89 Ohio St.3d 504, 513, 733 N.E.2d 1103 (2000). 

{¶ 47} A recurring problem was that trial courts were improperly imposing 

mandatory postrelease control by failing to give notice that it was part of a 
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defendant’s sentence either at the sentencing hearing or in the sentencing entry. 

This court’s solution was to declare such sentences void. See State v. Bezak, 114 

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 16. This court acknowledged 

that the effect of determining that the sentence was void was that the parties were 

placed in the same position as if no sentencing had occurred. Id. at ¶ 12, citing 

Romito v. Maxwell, 10 Ohio St.2d 266, 267-268, 227 N.E. 2d 223 (1967). And 

because these sentences were void, they could be challenged on direct appeal and 

in a collateral attack. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 

568. 

{¶ 48} At first, the remedy for the error in imposing postrelease control 

required a complete resentencing. Bezak at ¶ 16 (“When 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 offense is void. 

The offender is entitled to a new sentencing hearing for that particular offense”); 

Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 6 (in cases in 

which postrelease control is required but not properly included in the sentence, the 

sentence is void, and the state is entitled to a new sentencing hearing to have 

postrelease control imposed, unless the defendant has completed his sentence). 

{¶ 49} In response to these postrelease-control cases, the General Assembly 

enacted R.C. 2929.191, Am.Sub.H.B. No. 137, 151 Ohio Laws, Part IV, 7622, 

effective July 11, 2006, which authorizes a judge to correct a sentence when an 

offender was not properly notified of mandatory postrelease control or did not have 

mandatory postrelease control included in the sentencing entry. According to R.C. 

2929.191(A)(1), the court, “at any time before the offender is released from 

imprisonment under [the prison] term,” may prepare and issue a “correction” to the 

judgment entry of conviction that includes a period of postrelease control after the 

offender leaves prison. The court must hold a hearing to notify the defendant 

beforehand. R.C. 2929.191(C). 
January Term, 2016 

19 

{¶ 50} This court attempted to put an end to postrelease-control problems 

in Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. First, the court 

limited the subject matter of its holding: 

[I]n cases in which a trial judge does not impose postrelease control 

in accordance with statutorily mandated terms * * *, 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. 

Id. at ¶ 30. 

{¶ 51} Fischer then tried to end the confusion in the void-voidable area by 

stating, “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.” Id. at ¶ 31. The court concluded optimistically that “it is likely that our 

work in this regard is drawing to a close, at least for purposes of void sentences.” 

Id. The Fischer majority was very much mistaken on that point. 

Beyond the postrelease-control cases 

{¶ 52} Despite the reassuring language, the court proceeded to expand 

Fischer’s holding over the course of the next two years in State v. Harris, 132 Ohio 

St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 15 (holding that a sentence was void 

in part for failure to include a mandatory driver’s license suspension); State v. 

Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 13 (holding that 

res judicata did not bar a defendant from arguing that his guilty plea to a charge of 

escape was void due to a postrelease-control sentencing error); and State v. Moore, 

135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 14 (holding that the failure 

to impose a mandatory fine when no affidavit of indigency had been filed renders 

that part of the sentence void). 
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{¶ 53} And now the majority in this case offers some alarming language: 

[T]he power to define criminal offenses and prescribe punishment 

is vested in the legislative branch of government, and courts may 

impose sentences only as provided by statute. State v. Fischer, 128 

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21-22. Because 

“[n]o court has the authority to impose a sentence that is contrary to 

law,” id. at ¶ 23, when the trial court disregards statutory mandates,

“[p]rinciples 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.” Id. 

at ¶ 30. 

(Emphasis added.) Majority opinion at ¶ 22. 

{¶ 54} The problem here is that the quotations have been taken out of 

context and their meanings have been expanded beyond the original intent. Both 

quotations from Fischer in the above-quoted passage from the majority come from 

paragraphs that specifically mention postrelease-control sanctions, the express 

subject of the Fischer opinion. As quoted by the majority, however, Fischer

appears to say that any sentencing error or any failure to comply with a statutory 

provision makes a sentence void and subject to correction at any time. If a court 

has no “authority” to commit mistakes when following a statute, such as when it 

imposes concurrent sentences for allied offenses, the sentences are “nullities or 

void.” What additional mistakes by a trial court will be considered “super errors” 

and subject to correction at any time? 

{¶ 55} Erroneous judgments, procedural mistakes, and sentencing errors 

can all arise because a mandatory statutory requirement was not followed. But 

these errors are not necessarily the result of attempts to act without authority or to 
January Term, 2016 

21 

disregard statutory requirements. The majority’s position regarding void sentences 

relies on a prior case in which this court stated that “[a]ny attempt by a court to 

disregard statutory requirements when imposing a sentence renders the attempted 

sentence a nullity or void.” (Emphasis added.) State v. Beasley, 14 Ohio St.3d 74, 

75, 471 N.E.2d 774 (1984). To me, this statement in Beasley bespeaks a certain 

intent, suggesting that the sentencing court had knowledge of a statutory 

requirement and yet attempted to circumvent it. Attempting to disregard a statute 

is not the same as making an inadvertent error. 

{¶ 56} This understanding comports with the reasoning of the United States 

Supreme Court, which concluded unanimously: 

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. * * * 

“A judgment is not void,” for example, “simply because it is 

or may have been erroneous.” Hoult v. Hoult, 57 F.3d 1, 6 (C.A.1 

1995); 12 J. Moore et al., Moore’s Federal Practice § 60.44[1][a], 

pp. 60-150 to 60-151 (3d ed. 2007) * * *. 

(Emphasis added.) United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270, 

130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). 
SUPREME COURT OF OHIO

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{¶ 57} The majority’s position that a sentence that does not comply with 

statutory mandates may be corrected at any time is inconsistent with federal 

jurisprudence. As I previously noted, 

 [m]ore 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, 1980 Ohio App. LEXIS 14046, 2010 WL 1727852. 

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 at ¶ 50 (Lanzinger, 

J., dissenting). 

{¶ 58} Ohio’s rules and statutes do not allow for correction of sentences “at 

any time.” Both the state and the defendant have the right to appeal sentences on 

grounds that the “sentence is contrary to law.” R.C. 2953.08(B)(2); R.C. 

2953.08(A)(4). However, both parties are expected to follow the time limits 

expressed in R.C. 2953.08(E). That means, within 30 days from the entry of the 

judgment of conviction, a party who wishes to challenge a sentence must file an 

appeal. App.R. 4(A). Sentences are considered res judicata if no appeal is taken 

within that time. See Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824 

at ¶ 19 (a sentence from which no direct appeal is taken is considered res judicata). 
January Term, 2016 

23 

{¶ 59} 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. I 

respectfully object to the majority’s using our constitutional power under Article 

IV, Section 2(B)(2)(f) for sentencing-error correction. 

Resolving the confusion 

{¶ 60} A quick summary of some of this court’s cases on the postreleasecontrol front shows that the court has not been consistent on these issues. See 

Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301 

(defendant incarcerated for violating the terms of postrelease control granted a writ 

of habeas corpus because notification and inclusion of postrelease control in 

sentencing entry was absent and sentence had expired); Watkins v. Collins, 111 

Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78 (prisoners incarcerated for 

violating terms of postrelease control were not entitled to habeas corpus relief even 

though the sentencing entries contained errors in the imposition of postrelease 

control); State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422 

(cause remanded to the trial court to consider defendant’s motion to withdraw his 

guilty plea under the standard applicable to presentence motions because he was 

improperly advised of postrelease control and the sentencing entry failed to include 

it); Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 (portion of 

sentence that failed to impose statutorily mandated postrelease control is void and 

res judicata applies to defendant’s remaining claims); State v. Qualls, 131 Ohio 

St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718 (omission of postrelease control from 

sentencing entry correctible with nunc pro tunc entry). 

{¶ 61} Nor have the non–postrelease-control cases been consistent. Harris, 

132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509 (failure to include 
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mandatory driver’s license suspension makes that part of the sentence void); State 

v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278 (sentence imposing 

costs is not void when court fails to inform the defendant at the sentencing hearing 

that costs will be imposed); State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 

985 N.E.2d 432 (failure to include mandatory fine when affidavit of indigency not 

filed renders that part of the sentence void). 

{¶ 62} The majority opinion, in my view, rather than “clarify[ing] the path 

going forward,” lurches in yet a new direction. Declaring that failure to properly 

merge allied offenses causes a sentence to be void, or partly void, the court uses 

language that may be stretched to say that any mistake in sentencing results in a 

void or at least partly void sentence. On this point, res judicata is nearly dead. 

{¶ 63} It is no news that the appellate courts have noted inconsistencies in 

this court’s application of the void and voidable concepts and in response have 

called for continuity. See, e.g., State v. Holcomb, 184 Ohio App.3d 577, 2009-

Ohio-3187, 921 N.E.2d 1077 (9th Dist.); State v. Walker, 5th Dist. Richland No. 

15CA104, 2016-Ohio-1462; State v. Mitchell, 187 Ohio App.3d 315, 2010-Ohio1766, 931 N.E.2d 1157 (6th Dist.). 

{¶ 64} The Ninth District in Holcomb noted that in 1998, this court departed 

from traditional application of the void and voidable principles by holding that 

because a three-judge panel in a capital case had not followed specific statutory 

requirements, “ ‘there has been no valid conviction and [the defendant’s] sentence 

is therefore void.’ ” Id. at ¶ 11, quoting State v. Green, 81 Ohio St.3d 100, 105, 

689 N.E.2d 556 (1998). But when it recognized the mistake six years later, this 

court was willing to correct itself: “[D]espite our language in Green that the 

specified errors rendered the sentence ‘void,’ the judgment was voidable and 

properly challenged on direct appeal.” (Emphasis added.) Kelley v. Wilson, 103 

Ohio St.3d 201, 2004-Ohio-4883, 814 N.E.2d 1222, ¶ 14. 
January Term, 2016 

25 

{¶ 65} It is time for this court to end the confusion for judges who are 

wrestling with the review of these sentencing issues. We should make clear that 

unless a court acts outside the bounds of its authority, the failure to properly 

sentence a defendant is at most an error in the exercise of jurisdiction. A prisoner 

serving a truly void sentence is entitled to be released through a writ of habeas 

corpus or granted postconviction relief under R.C. 2953.21. Voidable sentences, 

on the other hand, may be modified or corrected within the time limits provided for 

appeal pursuant to App.R. 4(A), clerical error pursuant to Crim.R. 36, or 

postconviction relief pursuant to R.C. 2953.21. 

{¶ 66} Not long ago, in a dissenting opinion, I suggested an alternative to 

the majority’s approach: 

 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. 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. 
SUPREME COURT OF OHIO

26 

(Footnote omitted and emphasis sic.) Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 

942 N.E.2d 332, ¶ 53 (Lanzinger, J., dissenting). 

{¶ 67} The label “void” should not be pasted on anytime the court wishes 

to modify an error outside the 30-day appeal window. Williams’s sentence was 

imposed over eight years ago and has been repeatedly reviewed. Although the trial 

court erred in imposing separate, concurrent sentences for allied offenses, the trial 

court did not wholly lack jurisdiction or authority to impose sentence. Thus, this 

was a voidable sentence, not a void sentence. The doctrine of res judicata does not 

allow a sentence to be attacked indefinitely. 

{¶ 68} Because I would restore the traditional concepts of void and 

voidable, I respectfully dissent. 

FRENCH, J., concurs in the foregoing opinion. 

_________________ 

KENNEDY, J., dissenting. 

{¶ 69} Because the majority’s decision expands the void-sentence doctrine 

and is incongruent with our precedent, I respectfully dissent. When a trial court 

states the mandatory terms of incarceration in a sentencing entry and then 

mistakenly uses the term “concurrently” to describe how the sentences will run for 

the offenses that the trial court merged for purposes of sentencing pursuant to R.C. 

2941.25(A) but the sentence will not result in an additional term of incarceration, 

which would be prohibited by the sentencing mandates of the General Assembly, 

the sentence is not void but voidable. 

{¶ 70} Stare decisis commands that I respect our precedent on void 

sentences. And we have held that absent a lack of subject-matter jurisdiction, the 

concept of void sentences should not be expanded beyond the “discrete vein of 

[postrelease-control] cases,” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 

942 N.E.2d 332, ¶ 31, and those cases in which the trial court has abridged the 
January Term, 2016 

27 

sentencing commands of the General Assembly, see State v. Harris, 132 Ohio St.3d 

318, 2012-Ohio-1908, 972 N.E.2d 509, and State v. Moore, 135 Ohio St.3d 151, 

2012-Ohio-5479, 985 N.E.2d 432. Therefore, in response to the certified-conflict 

question, I would hold that the principles of res judicata precluded appellant, 

Cameron D. Williams, from challenging his sentence after his direct appeal, and I 

would affirm the judgment of the Ninth District Court of Appeals without 

modification. 

Procedural History 

{¶ 71} The Ninth District Court of Appeals summarized the significant 

procedural history in this case, which includes 18 prior postconviction-relief filings. 

2015-Ohio-2632, citing State v. Williams, 9th Dist. Summit No. 27101, 2014-Ohio1608, ¶ 2-7. Three of Williams’s postconviction-relief motions focused on the 

sentencing error at issue here. 

{¶ 72} On January 27, 2011, in a motion for resentencing, Williams argued 

that the three murder offenses he was convicted of “are allied offenses of similar 

import, and that he should have been sentenced only on one.” The trial court denied 

his motion. Williams appealed the trial court’s denial of his motion. The court of 

appeals affirmed the trial court’s holding that his motion was untimely and was a 

successive motion for postconviction relief that did not satisfy R.C. 2953.23(A). 

State v. Williams, 9th Dist. Summit No. 25879, 2011-Ohio-6141, ¶ 16. Williams 

did not appeal that ruling to this court. On July 5, 2013, in a “motion to correct 

illegal sentence,” Williams also argued that the sentence imposed on the charge of 

aggravated murder was void. The trial court denied his motion. 

{¶ 73} This case arises from Williams’s 19th postconviction-relief filing. 

While I agree with the majority’s recitation of the history of this case, I would 

emphasize the statements made by the trial court during the sentencing hearing and 

the language of the judgment entry. 

{¶ 74} At the sentencing hearing, the trial court stated: 
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Accordingly, I impose sentence as follows: I’m going to start with 

Count 3, a special felony of aggravated murder, wherein it was 

alleged that this defendant caused death while he was under 

detention, and I impose the sentence of life with parole after 30 

years, and I merge into that Counts 1 and 2; Count 2 being another 

charge of aggravated murder, and I merge the sentence of life with 

parole after 30 years into Count 3; and as to Count 1, wherein the 

jury found the lesser-included offense of murder, I merge the 15-

year to life sentence that is appropriate and required on that charge 

into Count 3. 

{¶ 75} The court went on to impose sentences for other offenses, not at issue 

herein, and then summarized all the sentences imposed as follows: “I have thus 

imposed an additional sentence of 36 years, and that is in addition to the 33 years 

on the main Count 3.” 

{¶ 76} In the judgment entry, the trial court listed the offenses that the jury 

found Williams guilty of committing. Thereafter, among other sentences, the trial 

court ordered Williams committed to the Ohio Department of Rehabilitation and 

Corrections pursuant to the mandatory sentencing guidelines established by the 

General Assembly in the Revised Code for one count of murder and two counts of 

aggravated murder. Thereafter, the entry states: 

THEREUPON, pursuant to Ohio Revised Code Section 

2941.25(A), the Court hereby Orders that the offense of MURDER, 

as contained in the amended Count 1 of the Indictment and the 

offense of AGGRAVATED MURDER, as contained in Count 2 of 

the Indictment be merged into the offense of AGGRAVATED 
January Term, 2016 

29 

MURDER, as contained in Count 3 of the Indictment for purposes 

of sentencing and that said sentencing be served concurrently and 

not consecutively with each other, for a total of LIFE WITH 

PAROLE AFTER Thirty (30) years for the three counts. 

(Capitalization sic.) 

{¶ 77} However, the judgment entry does not result in any additional terms 

of incarceration for any of the allied offenses that were merged for purposes of 

sentencing. 

The Jurisprudence of Void Judgments 

{¶ 78} We begin with a simple general rule: a void judgment is one that has 

been imposed by a court that lacks subject-matter jurisdiction over the case or lacks 

the authority to act. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 

N.E.2d 306, ¶ 27. “Jurisdiction” is defined as “ ‘the courts’ statutory or 

constitutional power to adjudicate the case.’ (Emphasis omitted.)” Pratts v. 

Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11, quoting Steel 

Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 

L.Ed.2d 210 (1998). The subject-matter jurisdiction of Ohio courts of common 

pleas is defined by statute pursuant to Article IV, Section 4(B) of the Ohio 

Constitution, which states that “[t]he courts of common pleas and divisions thereof 

shall have such original jurisdiction over all justiciable matters * * * as may be 

provided by law.” 

{¶ 79} With regard to criminal cases, R.C. 2931.03 provides: “The court of 

common pleas has original jurisdiction of all crimes and offenses, except in cases 

of minor offenses the exclusive jurisdiction of which is vested in courts inferior to 

the court of common pleas.” A court of common pleas lacks subject-matter 

jurisdiction, for example, to convict and sentence a juvenile criminal defendant who 

did not first appear in a juvenile court, and therefore, any judgment of conviction 
SUPREME COURT OF OHIO

30 

against the juvenile would be void. State v. Wilson, 73 Ohio St.3d 40, 44, 652 

N.E.2d 196 (1995). On the other hand, the failure to convene a three-judge panel 

in compliance with R.C. 2945.06 when a defendant is charged with a death-penalty 

offense and waives the right to a jury “does not divest a court of subject-matter 

jurisdiction so that a judgment rendered by a single judge is void ab initio.” Pratts

at ¶ 24. Although failing to convene a three-judge panel is an error, the resulting 

judgment would be “voidable, not void, and [could be] properly challenged on 

direct appeal.” Id. at ¶ 21. This court has remanded cases for new proceedings 

when a three-judge panel was not convened pursuant to R.C. 2945.06 when the 

error was raised on direct appeal. See State v. Parker, 95 Ohio St.3d 524, 2002-

Ohio-2833, 769 N.E.2d 846, ¶ 3, 4, 12. However, when the same error was raised 

in a collateral attack, this court held “that the failure of the trial court to convene a 

three-judge panel, as required by R.C. 2945.06, does not constitute a lack of 

subject-matter jurisdiction that renders the court’s judgment void ab initio and 

subject to collateral attack in habeas corpus.” Pratts at ¶ 10. Clearly, this court has 

generally limited declaring judgments void to those circumstances in which the trial 

court lacked subject-matter jurisdiction. 

Expansion of the Void-Judgment Doctrine 

{¶ 80} This court first applied the principal of a void sentence in State v. 

Beasley, 14 Ohio St.3d 74, 74-75, 471 N.E.2d 774 (1984). In Beasley, the 

defendant was convicted of felonious assault. The trial court, contrary to law, did 

not impose a prison term and imposed only a fine. After the trial court corrected 

its sentence to comply with the sentencing statute, the defendant appealed, arguing 

that the resentencing by the trial court violated double jeopardy. In rejecting the 

defendant’s argument, this court held that when a trial judge disregards the 

mandatory minimum prison term for felonious assault and imposes only a fine, the 

resulting sentence is “a nullity or void.” Id. at 75-76. 
January Term, 2016 

31 

{¶ 81} Twenty years later, this court applied the void-sentence precedent 

established in Beasley in State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 

N.E.2d 864. In Jordan, the trial court failed to notify a defendant about postrelease 

control during the sentencing hearing. This court held that when “a sentence is void 

because it does not contain a statutorily mandated term, the proper remedy is * * * 

to resentence the defendant.” Id. at ¶ 23. The defendant in Jordan was still 

incarcerated when we remanded for resentencing, but this court was confronted 

with a slightly different situation in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio3250, 868 N.E.2d 961, overruled by Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 

942 N.E.2d 332. In Bezak, this court held that when postrelease control is not 

properly included in a sentence, a defendant is entitled to a new sentencing hearing, 

but we rejected the notion that a trial court could resentence a defendant to impose 

postrelease control when the defendant had already served his term of incarceration 

and had been released. Bezak at ¶ 16-18. 

{¶ 82} Relying on the court’s decision in Bezak, Londen Fischer, an 

incarcerated individual, successfully mounted a collateral attack on his sentence 

because the trial court had failed to notify him about postrelease control at his 

original sentencing hearing. Fischer at ¶ 3. On appeal from resentencing, Fischer 

argued that “because his original sentence was void, his first direct appeal was ‘not 

valid’ ” and thus, his appeal from the resentencing was “in fact ‘his first direct 

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

¶ 4. In rejecting that argument, this court held that “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.” Id. at ¶ 28. This court in 

Fischer declared that “in the modern era, Ohio law has consistently recognized a 

narrow, and imperative, exception to [the] general rule [that sentencing errors do 

not render a judgment void]: a sentence that is not in accordance with statutorily 

mandated terms is void.” Id. at ¶ 7-8. But we limited the application of the void-
SUPREME COURT OF OHIO

32 

sentence doctrine to “a discrete vein of cases: those in which a court does not 

properly impose a statutorily mandated period of postrelease control.” Id. at ¶ 31. 

{¶ 83} After Fischer, this court applied the void-sentence doctrine in cases 

in which the trial court had failed to impose other terms mandated by statute. See 

Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, and Moore, 135 

Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432. In Harris, the trial court failed 

to impose a mandatory driver’s license suspension. Id. at ¶ 3. In Moore, the trial 

court failed to impose a mandatory fine. Id. at ¶ 1. In both Harris and Moore, this 

court held that when a trial court fails to impose a mandatory term of sentencing, 

that portion of the sentence is void. Harris at ¶ 15; Moore at ¶ 10. In reaching this 

conclusion, the court, relying on Fischer, held that failing to impose a mandatory 

provision is akin to failing to impose a term of postrelease control. Harris at ¶ 12-

14; Moore at ¶ 14-16. 

The Majority Expands the Void-Sentence Doctrine by 

Declaring Williams’s Sentence Void 

{¶ 84} Today’s majority decision breathes new life into claims that a 

technical mistake in a trial court’s judgment entry makes a sentence void, and it is 

incongruent with our precedent. 

{¶ 85} In State v. Underwood, this court held that courts have a mandatory 

duty to merge allied offenses at sentencing. 124 Ohio St.3d 365, 2010-Ohio-1, 922 

N.E.2d 923, ¶ 26. Despite that holding, this court did not find that the sentence that 

had been imposed pursuant to a plea agreement in Underwood was void, even 

though the trial court had failed to merge the allied offenses. Instead, this court 

held that “if a court fails to merge allied offenses of similar import, the defendant 

merely has the right to appeal the sentence.” Id. at ¶ 29. 

{¶ 86} In keeping with Underwood, in State v. Rogers, we held that “[a]n 

accused’s failure to raise the issue of allied offenses of similar import in the trial 

court forfeits all but plain error * * *.” 143 Ohio St.3d 385, 2015-Ohio-2459, 38 
January Term, 2016 

33 

N.E.3d 860, ¶ 3. The limited right of review that we recognized in Underwood and 

Rogers is significant. The plain-error analysis is not applicable to collateral attacks. 

Instead, collateral attacks on a sentence are governed by R.C. 2953.21, Ohio’s 

Postconviction Remedy Act. 

{¶ 87} An R.C. 2953.21 petition for postconviction relief is a motion that is 

filed subsequent to a direct appeal and that seeks vacation or correction of a 

sentence on the basis that the defendant’s constitutional rights have been violated. 

State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). However, 

postconviction relief is limited, and res judicata bars a defendant from raising and 

litigating any issue, defense, or claim that could have been raised on direct appeal. 

See State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). 

{¶ 88} The majority’s attempt to distinguish this case from Rogers on the 

basis that the trial court in this case found the offenses allied and merged the 

offenses for purposes of sentencing rings hollow. The trial court listed the offenses 

that the jury found Williams guilty of and then listed the mandatory sentences 

required in the Revised Code for murder and aggravated murder. Thereafter, the 

trial court stated that for purposes of sentencing, the offense of murder and one of 

the aggravated-murder offenses merged with the other aggravated-murder offense, 

but then the court mistakenly wrote that the sentences for the three offenses would 

be “served concurrently.” 

{¶ 89} This court has treated the failure to merge offenses pursuant to R.C. 

2941.25(A), the allied-offense statute, as an error that must be addressed on direct 

appeal and not as an error that renders the sentence void and subject to collateral 

attack at any time. See State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 

N.E.2d 512 (holding that the sentencing court applied erroneous legal reasoning 

when it failed to merge allied offenses but not declaring that the sentence was void). 

Moreover, this court has not hesitated to declare on direct appeal that a sentence is 

void even though this court could have corrected the error without declaring the 
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34 

sentence void. See Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, 

¶ 23 (on direct appeal, the appellate court remanded the case for resentencing to 

impose postrelease control, and this court affirmed, holding that the original 

sentence was void). In accordance with Damron, the trial court’s error in this case 

in running the sentences for merged offenses concurrently does not render the 

sentence void. The allied-offense statute “incorporates the constitutional 

protections against double jeopardy. These protections generally forbid successive 

prosecutions and multiple punishments for the same offense.” State v. Whitfield, 

124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 7. However, we have 

recognized that 

[u]nder the doctrine of res judicata, constitutional issues cannot be 

considered in postconviction proceedings under R.C. 2953.21 et seq. 

where they have already been or could have already been litigated 

by the convicted defendant, while represented by counsel, either 

before conviction or on direct appeal. 

State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, ¶ 19, citing 

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph seven of the 

syllabus. Williams’s claim could have been raised prior to this motion for 

postconviction relief, so therefore, it is barred by res judicata. 

{¶ 90} Under our holding in Rogers, when a trial court properly analyzes 

and merges allied offenses pursuant to R.C. 2941.25(A) at the sentencing hearing 

and then correctly restates in its judgment entry that the offenses are merged but 

then mistakenly writes immediately thereafter that the sentences will be “served 

concurrently,” the proper standard to analyze the trial court’s error is plain error. 

Declaring Williams’s sentence void on collateral attack leads to a peculiar result. 
January Term, 2016 

35 

{¶ 91} Applying the majority’s logic to a hypothetical defendant 

demonstrates the incongruity between the majority’s holding and our prior 

holdings. Under our prior holdings, if a trial court fails to recognize that two 

offenses are allied and sentences a defendant to serve consecutive terms of 

incarceration for the allied offenses, then the error is limited to a plain-error review 

if the defendant failed to raise the issue in the trial court. Majority opinion at ¶ 26, 

citing State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, 

¶ 8-9. So if that defendant fails to raise the issue on appeal or the appellate court 

fails to recognize sua sponte the plain error because the judgment entry does not 

meet the majority’s requirement of being “void on the face of the judgment of 

conviction,” majority opinion at ¶ 29, then the defendant will serve the consecutive 

terms of incarceration. But if a trial court recites the mandatory sentences required 

under Ohio law for all offenses and then states that some of those offenses are 

merged for purposes of sentencing, but then mistakenly states in the judgment entry 

that the sentences for allied offenses will be served concurrently, then according to 

today’s decision, that sentence is void. 

{¶ 92} The determination whether a trial court’s sentencing error renders a 

judgment void should not turn on whether the trial court recognized that the 

offenses were allied. In accord with our precedent, it should turn on whether the 

trial court erred in failing to apply a mandatory sentence. Fischer, 128 Ohio St.3d 

92, 2010-Ohio-6238, 942 N.E.2d 332; Harris, 132 Ohio St.3d 318, 2012-Ohio1908, 972 N.E.2d 509; Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 

432. 

{¶ 93} The majority hopes to “clarify the path going forward for lawyers, 

litigants, and judges of our state.” Majority opinion at ¶ 34. In my view, however, 

this decision will further muddy the waters. 

{¶ 94} In Fischer, we commented that our work in the area of void 

sentences might be finished because the legislature had enacted R.C. 2929.191, 
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36 

which permits a trial court to correct a judgment of conviction without having to 

wait for an appellate court to declare the sentence void for failing to properly 

impose a statutorily mandated period of postrelease control. Fischer at ¶ 31. If 

R.C. 2929.191 put the void-sentence genie back in the bottle, then this decision lets 

it out again. 

{¶ 95} Today, trial courts are applying complex sentencing guidelines 

mandated by the General Assembly. This holding by the majority will open up new 

avenues for defendants whose deadlines for filing direct appeals have long expired 

to argue that their sentences are void because the trial court, when imposing a 

mandatory sentencing provision, mistakenly used the wrong word in the journal 

entry. By expanding the void-sentence doctrine beyond postrelease-control cases 

and cases in which the trial court abridges the sentencing commands of the General 

Assembly, this decision will spawn a new wave of void-sentence litigation and 

severely undermine res judicata, which “promotes the principles of finality and 

judicial economy by preventing endless relitigation of an issue on which a 

defendant has already received a full and fair opportunity to be heard.” State v. 

Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. 

“[C]ases of postconviction relief pose difficult problems for courts, 

petitioners, defense counsel and prosecuting attorneys alike. Cases 

long considered to be fully adjudicated are reopened, although 

memories may be dim and proof difficult. The courts justifiably fear 

frivolous and interminable appeals from prisoners who have their 

freedom to gain and comparatively little to lose.” 

State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999), quoting State v. 

Milanovich, 42 Ohio St.2d 46, 51, 325 N.E.2d 540 (1975). 

 
January Term, 2016 

37 

Conclusion 

{¶ 96} When a trial court states the mandatory terms of incarceration in a 

sentencing entry and then mistakenly uses the term “concurrently” to describe how 

the sentences will run for the offenses that the trial court merged for purposes of 

sentencing pursuant to R.C. 2941.25(A) but the sentence will not result in an 

additional term of incarceration, which would be prohibited by the sentencing 

mandates of the General Assembly, the sentence is not void but voidable. 

Therefore, in response to the certified question, I would hold that the principles of 

res judicata preclude a defendant from challenging the sentence after direct appeal 

and affirm the decision of the Ninth District Court of Appeals. Respectfully, I 

dissent. 

_________________ 

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard 

Kasay, Assistant Prosecuting Attorney, for appellee. 

Timothy Young, Ohio Public Defender, and Allen Vender, Assistant Public 

Defender, for appellant. 

_________________