[Cite as State v. Elkins , 2021-Ohio-4231.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-21-010 Appellee Trial Court No. 08 CR 203

v. Daniel A. Elkins DECISION AND JUDGMENT Appellant Decided: December 3, 2021

* * * * * Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Otero, Assistant Prosecuting Attorney, for appellee. Daniel A Elkins, pro se.

* * * * * ZMUDA, P.J. {¶ 1} This matter is before the court upon the pro se appeal of appel lant, Daniel Elkins, challenging the denial by the Sandusky County Court of Common Pleas of his motion to correct “an erroneous entry.” Appellant sought a dec ision finding the sentence,2. entered in 2008, is a void sentence requiring correction pursua nt to State v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774 (1984). {¶ 2} On May 14, 2008, appellant entered a guilty plea to three count s of complicity to aggravated robbery, violations of R.C. 2911.01(A) (1) and 2923.03, each a felony of the first degree. Pursuant to his plea, the state di smissed the remaining counts and firearm specifications in the 17-count indictment, and the trial court proceeded to sentencing. The trial court imposed a prison term of 8 years a s to each count, and ordered the terms to run consecutively, for an aggregate prison sentence of 24 years. The original entry failed to note dismissal of the firearm specific ations. {¶ 3} Appellant filed a timely appeal, and among his assigned errors he challenged the imposition of consecutive sentences as excessive and contra ry to law. In State v. Elkins, 6th Dist. Sandusky No. S-08-014, 2009-Ohio-2602, ¶ 30, we affir med the trial court’s judgment, including the consecutive sentences. {¶ 4} On December 10, 2009, appellant filed a motion to withdraw his guilty plea, which the trial court denied. We affirmed that judgment on app eal in State v. Elkins, 6th Dist. Sandusky No. S-10-018, 2010-Ohio-5170, ¶ 1, 27. {¶ 5} On May 3, 2010, while his 2010 appeal was pending, appellant fi led a motion to vacate void judgment. On December 15, 2010, appellan t filed an amended motion to vacate void judgment, seeking a judgment entry that f ully complied with Crim.R. 32(C). In support, appellant argued his sentencing ent ry containing consecutive terms was void, and the trial court failed to dispose of the fi rearm specifications attached3. to Counts 1, 2, and 3. On December 20, 2010, the trial court g ranted the motion, in part, and issued a nunc pro tunc entry correctly noting dismissal of the firearm specifications to reflect the dismissal stated on the record at hearing, and d enied the motion as it pertained to “void” sentences. Appellant did not appeal this j udgment. {¶ 6} On November 28, 2011, appellant filed a subsequent motion to co rrect void sentence, which the trial court summarily denied by entry on De cember 28, 2011. We affirmed the trial court’s judgment in State v. Elkins, 6th Dist. Sandusky No. S-12-001, 2013-Ohio-127. In that decision, we noted our prior considerat ion of the consecutive sentencing issue in his direct appeal, and found his sole assig nment of error “barred by the doctrine of res judicata.” Id. at ¶ 3, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph one of the syllabus and State v. Ishmail, 67 Ohio St.2d 16, 423 N.E.2d 1068 (1981). {¶ 7} Appellant filed his latest motion on June 14, 2021, renewing hi s claims of a void sentence for failure to comply with R.C. 2929.14 and Beasley. Appellant raises the same argument, previously rejected as barred by res judicata. See Elkins, 2013-Ohio-127, at ¶ 3. Additionally, we note that the judgment at issue is no t a void judgment, as recently clarified by the Ohio Supreme Court in State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, which defined a void judgment a s judgment rendered by a court proceeding without jurisdiction. (Citation omitted) Henderson at ¶ 16. “If the court pronouncing the sentence had jurisdiction to do so, a sen tence imposed in excess of that permitted by law was ‘erroneous and voidable, but not abso lutely void.’” (Citation4. omitted). Id. Simply put, a sentencing error is not a jurisdictional error. Id., citing In re Winslow, 91 Ohio St.328, 330, 110 N.E.539 (1915). {¶ 8} We already determined there was no sentencing error in appellan t’s direct appeal. Furthermore, had an error existed but appellant failed to raise the issue in his direct appeal, the error would result in merely a voidable judg ment, not subject to collateral attack that could jeopardize the “finality of judgme nts.” (Citation omitted.)

Henderson at ¶ 17. The “void sentence” analysis of Beasley, moreover, addressed a “procedurally unique case,” and in State v. Harper , 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, the Ohio Supreme Court expressly overruled Beasley, realigning precedent “with the traditional understanding of what constitut es a void judgment.” Id. at ¶ 26, citing Harper at ¶ 4. {¶ 9} Appellant raised this same issue as error in his direct appeal, and the present appeal represents only the latest attempt to collaterally attac k his sentence as void. We found no error in the imposition of consecutive sentences in th e direct appeal, we previously rejected a collateral attack as barred by res judica ta, and we now clarify that appellant’s sentence is not void, based on recent precedent. A ccordingly, we find appellant’s sole assignment of error not well-taken. {¶ 10} Finding substantial justice has been done, we affirm the judgme nt of the Sandusky County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed.5. S-21-010 State v. Elkins

A certified copy of this entry shall constitute the mandate pu rsuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. __________________________

__ JUDGE Gene A. Zmuda, P.J.

____________________________ Myron C. Duhart, J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.