[Cite as State v. Rinehart, 2018-Ohio-1261.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

STATE OF OHIO, : Case No. 17CA3606 

 Plaintiff-Appellee, : 

v. : DECISION AND 

 JUDGMENT ENTRY 

PAUL E. RINEHART, : 

 

 Defendant-Appellant. : RELEASED: 03/29/2018

APPEARANCES: 

Paul E. Rinehart, London, Ohio, pro se. 

Matthew S. Schmidt, Ross County Prosecuting Attorney, Pamela C. Wells, Ross County 

Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee. 

Harsha, J. 

{¶1} Paul E. Rinehart appeals the trial court’s denial of his motion to correct an 

illegal sentence. Rinehart contends that his 2007 sentence is void because the trial 

court made judicial fact findings in violation of State v. Foster, infra. 

{¶2} We reject Rinehart’s contention because even if his argument had merit, 

his sentence would be “voidable,” not “void.” Therefore he should have made his 

challenge within the time period governing postconviction petitions or he must 

demonstrate the existence of facts necessary for the trial court to exercise jurisdiction 

over the merits of his untimely claim. His petition failed to do either. Consequently, we 

affirm the judgment of the trial court as modified to reflect the dismissal of his petition. 

I. FACTS 

{¶3} After a jury convicted Rinehart in 2007, the trial court sentenced him to a 

term of life with possibility of parole in 25 years for aggravated murder, three years for 
Ross App. No. 17CA3606 2 

the gun specification, and three years for tampering with evidence, all sentences to run 

consecutively for a total of 31 years to life. Rinehart appealed and we affirmed the 

judgment. See State v. Rinehart, 4th Dist. Ross No. 07CA2983, 2008-Ohio-5770. 

{¶4} In 2017 Rinehart filed a Motion to Correct an Illegal Sentence, which 

contended that the sentences were illegal because they “exceeded the statutorily 

defined penalties established in R.C. 2929.14(E)(4).” However, his memorandum in 

support provided no argument or factual basis for this contention. Instead Rinehart 

argued that his sentence was void because the trial court made judicial fact findings in 

violation of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. The trial 

court reviewed the sentences imposed, found them to be within the statutory ranges 

allowed, and overruled Rinehart’s motion. 

II. ASSIGNMENT OF ERROR 

{¶5} Rinehart assigns the following error for our review: 

THE TRIAL COURT ERRORED [SIC] OVERRULING APPELLANT’S MOTION 

TO CORRECT AN ILLEGAL SENTENCE WHEN THE SENTENCE IS VOID. 

III. LAW AND ANALYSIS 

A. Standard of Review 

{¶6} Rinehart challenged his felony sentence on the ground that it was void 

because it violated Foster (addressing Sixth Amendment protections), and he sought a 

new sentence. Courts may recast irregular motions into whatever category they deem 

necessary to identify and establish the criteria by which they should judge the motion. 

State v. Burkes, 4th Dist. Scioto No. 13CA3582, 2014–Ohio–3311, ¶ 11, citing State v. 

Schlee, 117 Ohio St.3d 153, 2008–Ohio–545, 882 N.E.2d 431, ¶ 12. In State v. 

Reynolds, 79 Ohio St.3d 158, 160, 773 N.E.2d 1131 (1997), the Supreme Court of Ohio 
Ross App. No. 17CA3606 3 

held that a motion styled as a “Motion to Correct or Vacate Sentence” met the definition 

of a petition for postconviction relief pursuant to R.C. 2953.21(A)(1) because it was “(1) 

filed subsequent to [the defendant's] direct appeal, (2) claimed a denial of constitutional 

rights, (3) sought to render the judgment void, and (4) asked for vacation of the 

judgment and sentence.” See also Schlee at ¶ 12. For purposes of determining the 

standard of review for his appeal, we deem Rinehart’s motion a postconviction relief 

petition because it fits within the outline in Reynolds. 

{¶7} Generally we review decisions granting or denying a postconviction relief 

petition filed pursuant to R.C. 2953.21 under an abuse of discretion standard. State v. 

Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 58. In Gondor the 

Court recognized that the differences between a direct appeal and an appeal from a 

postconviction relief petition warranted different appellate standards of review. Id. at 

¶53-54. The Court stated, “A postconviction claim is not an ordinary appeal: ‘A 

postconviction proceeding is not an appeal of a criminal conviction, but, rather, a 

collateral civil attack on the judgment.’ ” Id. at ¶ 48, quoting State v. Steffen, 70 Ohio 

St.3d 399, 410, 639 N.E.2d 67 (1994). The holding in Gondor appears to broadly apply 

to all appellate postconviction petition review: “We hold that a trial court's decision 

granting or denying a postconviction petition filed pursuant to R.C. 2953.21 should be 

upheld absent an abuse of discretion; a reviewing court should not overrule the trial 

court's finding on a petition for postconviction relief that is supported by competent and 

credible evidence.” Id. at ¶ 58. 

{¶8} There is nothing in the language of R.C. 2953.08 or State v. Marcum, 146 

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 that extends the standard of review 
Ross App. No. 17CA3606 4 

set forth in R.C. 2953.08 to postconviction relief sentencing challenges brought under 

R.C. 2953.21, et seq. However, since Marcum we have applied the standard of review 

in R.C. 2953.08(G)(2) to reviews of postconviction relief petitions and other irregular 

postconviction motions challenging felony sentences even though they are not 

governed by R.C. 2953.08 and fall outside the context of a direct appeal. See State v. 

Pulliam, 4th Dist. Scioto No. 16CA3759, 2017-Ohio-127, ¶6; State v. Berecz, 4th Dist. 

Washington No. 16CA15, 2017-Ohio-266, ¶ 11; State v. Hamilton, 4th Dist. Hocking No. 

16CA17, 2017-Ohio-1294, ¶ 9; State v. Brigner, 4th Dist. Athens No. 17CA3, 2017-

Ohio-5538, ¶ 7; State v. Craft, 4th Dist. Vinton No. 16CA704, 2017-Ohio-9359. 

{¶9} Other appellate districts have continued to apply an abuse of discretion 

standard to felony sentencing challenges brought under the postconviction relief statute 

or have declined to extend the Marcum standard of review beyond its statutory scope. 

See State v. Berryman, 2nd Dist. Montgomery No. 26852, 2016-Ohio-3353, ¶ 13-15 

(postconviction felony sentence challenge was reviewed under an abuse of discretion 

standard); State v. Jones, 10th Dist. Franklin Nos. 17AP-25 to 17AP-27, 17AP-29, 

2017-Ohio-5533, ¶ 5 (motion to correct felony sentence as contrary to law was treated 

as a petition for postconviction relief and appellate court applied an abuse of discretion 

standard of review); State v. Lawwill, 12th Dist. Warren No. CA2017-03-027, 2017-

Ohio-8432, ¶ 16 (motion to correct an illegal felony sentence treated as a postconviction 

relief petition and reviewed under the abuse of discretion standard); State v. Hale, 8th 

Dist. Cuyahoga No. 103654, 2016-Ohio-5837, ¶ 10 (postconviction relief petition that 

included felony sentencing challenge among other issues was reviewed under abuse of 

discretion standard); State v. Thompson, 3rd Dist. Crawford Nos. 3-16-01,3-16-12, 
Ross App. No. 17CA3606 5 

2016-Ohio-8401, ¶ 11, fn. 5 (declining to extend Marcum standard of review to appellate 

review of trial court’s judicial release decision: “Thompson urges this court to apply the 

standard of review in State v. Marcum to the reimposition of the remainder of a 

defendant's original sentence under R.C. 2929.20(K) after he violates the conditions of 

his judicial release. * * * Because Thompson was granted judicial release, the Marcum

standard of review is not the appropriate standard of review for the issues presented in 

Thompson's second and first assignments of error. Instead, R.C. 2929.20 controls and 

we will address his argument accordingly.”).

{¶10} Therefore, upon reflection the correct standard of review for felony 

sentencing challenges in a postconviction relief petition – not direct appeal – is the 

“abuse of discretion” established in State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–

6679, 860 N.E.2d 77, ¶ 58. “[A] trial court's decision granting or denying a 

postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse 

of discretion; a reviewing court should not overrule the trial court's finding on a petition 

for postconviction relief that is supported by competent and credible evidence.” State v. 

Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 58; State v. Black, 4th 

Dist. Ross No. 15CA3509, 2016-Ohio-3104, ¶ 7. “A trial court abuses its discretion 

when its decision is unreasonable, arbitrary, or unconscionable.” State v. Knauff, 4th 

Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 19, citing Cullen v. State Farm Mut. Auto 

Ins. Co., 137 Ohio St.3d 373, 2013–Ohio–4733, 999 N.E.2d 614, ¶ 19. 

B. Foster Judicial Fact Findings 

{¶11} Rinehart contends that the trial court erred in overruling his motion 

because the trial judge at the sentencing hearing made remarks that Rinehart argues 
Ross App. No. 17CA3606 6 

are “judicial fact findings.” Rinehart argues that these “judicial fact findings” were made 

in support of maximum, consecutive sentences in violation of Foster and therefore his 

sentence is void. Rinehart does not contest the trial court’s determination that his 

sentences fell within the allowed statutory ranges. 

{¶12} Assuming arguendo that the trial court comments constituted improper 

“judicial fact findings,” Rinehart’s sentence would not be “void” but only “voidable.” See 

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27-30, citing 

Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (“sentences 

imposed after judicial fact-finding and falling within the statutory range are voidable” – 

not void – and Foster constitutional errors are not structural; the failure to object at trial 

forfeits all but plain error on direct appeal.). 

{¶13} Reinhart’s felony sentencing claim, even if meritorious, would only render 

his sentence “voidable” rather than “void.” Therefore he should have made this 

challenge within the period governing postconviction relief petitions. R.C. 2953.21(A)(2) 

provides that a petition for postconviction relief must be filed “no later than three 

hundred sixty-five days after the date on which the trial transcript is filed in the court of 

appeals in the direct appeal of the judgment of conviction or adjudication.” Reinhart’s 

petition was untimely because it was filed ten years after the expiration of this 365–day 

period. See, e.g., State v. Heid, 4th Dist. Scioto No. 15CA3710, 2016–Ohio–2756, ¶ 15. 

{¶14} R.C. 2953.23(A)(1) authorizes a trial court to address the merits of an 

untimely filed petition for postconviction relief only if: (1) the petitioner shows either that 

he was unavoidably prevented from discovery of the facts upon which he must rely to 

present the claim for relief or that the United States Supreme Court recognized a new 
Ross App. No. 17CA3606 7 

federal or state right that applies retroactively to him; and (2) the petitioner shows by 

clear and convincing evidence that no reasonable factfinder would have found him guilty 

but for constitutional error at trial. 

{¶15} Reinhart does not contend that the United States Supreme Court 

recognized a new right that applied retroactively to him, nor did he prove that he was 

unavoidably prevent from the discovery of pertinent facts. Therefore Reinhart did not 

establish that the trial court had the authority to address the merits of his untimely 

petition for postconviction relief. In the absence of jurisdiction, the trial court should have 

dismissed the petition, rather than denying it on the merits. Upon authority of App.R. 

12(A)(1)(a), we modify the trial court's judgment to reflect the dismissal of the petition, 

and we affirm the judgment of the trial court as modified. See State v. McManaway, 4th 

Dist. Hocking No. 16CA8, 2016–Ohio–7470, ¶ 19, citing State v. Brewer, 2d Dist. 

Montgomery No. 24910, 2012–Ohio–5406, ¶ 10; State v. Griffin, 1st Dist. Hamilton Nos. 

C–150258 and 150005, 2016–Ohio–782, ¶ 13. 

IV. CONCLUSION 

{¶16} Rinehart was not entitled to the relief requested in his motion to correct his 

sentence. His sentencing challenge, if meritorious, would render his sentence voidable, 

not void. Therefore the trial court lacked jurisdiction and should have dismissed his 

petition as untimely. Having overruled the assignment of error, we affirm the trial 

court’s judgment, as modified. 

JUDGMENT AFFIRMED AS MODIFIED.

 
Ross App. No. 17CA3606 8 

JUDGMENT ENTRY 

It is ordered that the JUDGMENT IS AFFIRMED AS MODIFIED 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 Ross 

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 sixty 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 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five 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 sixty 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. 

Hoover, P.J. & McFarland, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________ 

 William H. Harsha, 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.