[Cite as State v. Elliott, 2024-Ohio-3362.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

HIGHLAND COUNTY

State of Ohio, : Case No. 24CA2

 

Plaintiff-Appellee, :

DECISION AND

v. : JUDGMENT ENTRY

Earl W. Elliott, :

Defendant-Appellant. : RELEASED 8/28/2024

______________________________________________________________________

APPEARANCES:

Earl W. Elliott, Chillicothe, Ohio, pro se.

1

______________________________________________________________________

Hess, J.

{¶1} Earl W. Elliott appeals from a judgment of the Highland County Court of 

Common Pleas denying his motion in which he sought to vacate and set aside his 

sentence as void. In 2021, Elliott was sentenced to 9 months for assault on a police 

officer, and because Elliott was on post-release control when he committed the assault, 

he was also sentenced to 1,614 days for the post-release control violation. Elliott does 

not contest the nine-months sentence for assault. However, Elliott challenges the 1,614-

day portion of his sentence and contends that the most he could have been sentenced to 

for a post-release control violation was 2 years, which is 730 days, not 1,614 days. 

{¶2} The trial court rejected Elliott’s argument. It found that Elliott contends that 

the trial court imposed “an incorrect sentence under the law” – not one “not authorized by 

1 The State did not appear or otherwise participate in this appeal.
Highland App. No. 24CA2 2

law”; therefore, the sentence is not “void,” and his challenge should have been made in 

a direct appeal. Second, it addressed Elliott’s argument and noted that Elliott “conflates 

the law that allows the Adult Parole Authority to impose a sanction of up to one-half of the 

original sentence in the case in which a Defendant is placed on post release control for a 

violation of the terms of that supervision [which in Elliott’s case would have been two

years] with the authority of a court to impose an additional sentence in a new felony case 

committed while an offender is on post release control supervision” which is governed by

R.C. 2929.141(A)(1) and would be 1,614 days.

{¶3} Elliott raises one assignment of error in which he contends that the trial court 

erred in imposing “a sentence upon appellant that is not authorized by law.” He argues 

that at the time of his plea in 2021, R.C. 2929.19(B)(2)(f) was in effect and allowed only 

for a prison term of up to one-half of the term originally imposed. Because his original 

sentence was four years, he contends that the maximum he could be sentenced for his 

post-release control violation was two years. He contends that R.C. 2929.141(A)(1), 

which the trial court relied upon to sentence him to 1,614 days, was “enacted April 4, 

2023,” which was well after he entered his guilty plea in 2021. 

{¶4} We find that Elliott’s argument has no merit because his petition is untimely 

and is barred by res judicata. We overrule his assignment of error and affirm the trial 

court’s judgment. 

I. FACTS AND PROCEDURAL HISTORY

{¶5} In February 2021, the Highland County grand jury indicted Elliott on one 

count of assault on a peace officer in violation of R.C. 2903.13(A), a fourth-degree felony, 

and one count of aggravated possession of methamphetamine in violation of R.C 
Highland App. No. 24CA2 3

2925.11, a fifth-degree felony. Initially Elliott entered a not guilty plea but later changed 

his plea and entered a guilty plea to assaulting a peace officer. The State dismissed the 

methamphetamine possession count. The State and defense jointly recommended a 

nine-month prison sentence for the assault count. The trial court imposed a nine-month

prison term for the assault count and 1,614-day prison term for violation of post-release 

control, to be served consecutively. Elliott did not appeal. 

{¶6} In December 2023, Elliott filed a “Motion for this Court to Vacate and Set 

Aside a Void Sentence” in the trial court in which he argued that he should have received 

a maximum of 2 years (730 days) in prison for his post-release control violation, not the 

1,614-day prison term imposed by the court. The trial court, in a clear, straightforward, 

and well-reasoned decision, overruled the motion on the grounds that (1) Elliott should 

have raised his contentions in a direct appeal and (2) R.C. 2929.141(A)(1) authorizes a 

trial court to impose an additional sentence upon an offender who commits a felony while 

under post-release supervision.

{¶7} The trial court explained that Elliott should have brought this issue in a direct 

appeal:

The Court first notes that the Defendant alleges that he should have 

received a maximum of two years on his post release control time. 

Therefore, his allegations are that the Court imposed an incorrect sentence 

under the law, not a sentence not authorized by law. Therefore, the Court 

finds that the sentence is not void and therefore the alleged error should 

have been raised on a direct appeal.

The trial court then addressed the merits of Elliott’s claim:

That sentence is the greater of twelve months or whatever time was left on 

the term of post release control supervision. In this case, the time remaining 

at the time of the conviction in this case was 1164 days [sic] which was 

imposed. Page two of the plea of guilty form in this case specifically noted 

that the Defendant was on post-release control. Notice of that from the Adult 
Highland App. No. 24CA2 4

Parole Authority was filed on February 4, 2021. The amount of time was 

discussed on the record prior to the imposition of the additional 1164 days

[sic].

The Defendant was informed at the plea colloquy and was aware that the 

additional time could be imposed to run consecutively to the sentence for 

the Assault on a Police Officer charge. His claim is without merit.

{¶8} The trial court denied Elliott’s petition and he appealed. 

{¶9} We note that the amount of time remaining under Elliott’s post-release 

control at the time of his sentencing was “1614” days, not “1164” days as reflected in the 

trial court’s decision quoted above. The trial court’s sentencing entry correctly reflects that 

the time ordered served for the post-release control violation is “1614” days and is an 

accurate calculation based upon the Adult Parole Authority letter regarding the period

remaining under post-release control. Thus, the trial court’s reference to “1164” days is a 

typographical and transpositional error that has no impact on Elliott’s prison term.

II. ASSIGNMENT OF ERROR

{¶10} Elliott presents one assignment of error: 

Appellant contends that the trial court denied him substantive due process 

under the 1st, 5th, 6th, and 14th Amendments to the United States 

Constitutions [sic] and Article I, Section 10 of the Ohio Constitution where 

the trial court imposed a sentence upon appellant that is not authorized by 

law.

III. LEGAL ANALYSIS

{¶11} Elliott’s motion to vacate his sentence based on alleged constitutional 

violations is a petition for postconviction relief under R.C. 2953.21. State v. Reynolds, 79 

Ohio St.3d 158, 160 (1997) (“where a criminal defendant, subsequent to his or her direct 

appeal, files a motion seeking vacation or correction of his or her sentence on the basis 

that his or her constitutional rights have been violated, such a motion is a petition for 
Highland App. No. 24CA2 5

postconviction relief as defined in R.C. 2953.21”); State v. Cave, 2021-Ohio-874, ¶ 11 

(4th Dist.). We review a trial court’s decision granting or denying a postconviction petition 

for abuse of discretion. State v. Hamblin, 2022-Ohio-516, ¶ 9. 

{¶12} Where no direct appeal was filed in the underlying criminal case, a petition 

for postconviction relief must be filed no later than 365 days after the expiration of the 

time for filing the appeal. See R.C. 2953.21(A)(2)(a). Here, the judgment of conviction 

was entered on March 8, 2021 and the time for filing the appeal expired on April 7, 2021. 

Thus, the time for Elliott to file a postconviction relief petition expired on April 7, 2022. 

Elliott filed his petition on December 26, 2023, which is over 20 months late. A petition 

may be filed beyond the deadline as provided for in R.C. 2953.23(A). However, in his 

petition, Elliott did not contend that any of the provisions of R.C. 2953.23 applied. Thus, 

his petition was untimely. Under R.C. 2953.23(A) “a court may not entertain a petition”

filed after the expiration of the period prescribed in R.C. 2953.21(A) unless an exception 

under R.C. 2953.23(A) applies. Thus, the trial court lacked jurisdiction over Elliott’s 

untimely petition, and it should have been dismissed.

{¶13} Additionally, we find that the trial court correctly determined that Elliott

should have raised this issue in a direct appeal. Therefore, his petition was barred by res 

judicata. Elliott contends that the trial court applied the incorrect statute to his post-release 

control sentence. He argues that R.C. 2929.19(B)(2)(f) governed his sentence and 

provided for a two-year prison term for post-release control violations. He incorrectly 

argues that R.C. 2929.141 was not enacted in 2021 and could not have applied to his 
Highland App. No. 24CA2 6

sentence.

2 Elliott’s contention that the trial court applied the wrong statutory provision 

when sentencing him for his post-release control violation would mean that the sentence 

is voidable, not void. 

[S]entences based on an error are voidable, if the court imposing the 

sentence has jurisdiction over the case and the defendant, including 

sentences in which a trial court fails to impose a statutorily mandated term. 

A sentence is void only if the sentencing court lacks jurisdiction over the 

subject matter of the case or personal jurisdiction over the accused.

State v. Henderson, 2020-Ohio-4784, ¶ 27. Elliott does not contend that the trial court

lacked jurisdiction over the subject matter of his case or over him personally. Therefore,

his sentence is not void.

{¶14} Because Elliott’s purported sentencing error would only render the sentence 

voidable, his attempt to correct the purported error in a postconviction petition for 

resentencing is improper. Id. at ¶ 40. “[I]f a judgment is voidable, the doctrine of res 

judicata bars a party from raising and litigating in any proceeding, except a direct appeal, 

claims that could have been raised in the trial court.” Id. at ¶ 19; State v. Reynolds, 79 

Ohio St.3d 158, 161 (1997) (“It is established that, pursuant to res judicata, a defendant 

cannot raise an issue in a motion for postconviction relief if he or she could have raised 

the issue on direct appeal.”); State v. Hamblin, 2022-Ohio-516, ¶ 21 (4th Dist.).

{¶15} The trial court did not err in denying Elliott’s petition. It was untimely and 

was barred by res judicata. We overrule Elliott’s assignment of error.

2 Both R.C. 2929.19 and R.C. 2929.141 were enacted over 20 years ago. The Ohio Legislature amends 

provisions of these statutes from time to time and the effective date of the most current version is noted in 

the statute. The relevant provisions here existed in their current version when Elliott made his guilty plea in 

March 2021, and R.C. 2929.141 gave the trial court authority to impose a 1,614-day sentence for his postrelease conviction violation.
Highland App. No. 24CA2 7

IV. CONCLUSION

{¶15} Having overruled the assignment of error, we affirm the trial court’s 

judgment.

JUDGMENT AFFIRMED.
Highland App. No. 24CA2 8

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the 

costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Highland

County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed 60 days upon the bail previously posted. 

The purpose of a continued stay is to allow appellant to file with the Supreme Court of 

Ohio an application for a stay during the pendency of proceedings in that court. If a stay 

is continued by this entry, it will terminate at the earlier of the expiration of the 60-day 

period, or the failure of the appellant to file a notice of appeal with the Supreme Court of 

Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of 

the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of 60 days, the stay will terminate as of the date of such 

dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________

 Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing with 

the clerk.