[Cite as State v. Teagarden , 2023

- Ohio

- 597.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. John W. Wise, P.J.

Plaintiff

- Appellant : Hon. Patricia A. Delaney, J.

: Hon. Craig R. Baldwin, J.

- vs

- :

: Case No. 22CA0105

:

TREVOR TEAGARDEN :

:

:

Defendant

- Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of

Common Pleas, case no. 2007CR00365

JUDGMENT: REVERSED AND REMANDED

DATE OF JUDGMENT ENTRY:

APPEARANCES: February 28, 2023

For Plaintiff

- Appellant: For Defendant

- Appellee:

JENNY WELLS KORT GATTERDAM

LICKING CO. PROSECUTOR ERIK P. HENRY

CLIFFORD J. MURPHY CARPENTER LIPPS & LELAND LLP

20 North Second St. 280 Plaza, Suite 1300

4th Floor 280 North High Street

Newark, OH 43055 Columbus, OH 43215Licking County, Case No. 22CA0105 2

Delaney, J.

{¶1} Plaintiff

- appellant State of Ohio appeals from the November 18, 2022 Order

Granting Defendant’s Motion to Reinstate Sentence and Order to Release of the Licking

County Court of Common Pleas. Defendant

- appellee is Trevor Teagarden.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellee's criminal convictions is not

necessary to our resolution of this appeal. Appellee's criminal convictions arise from sex

offenses committed on June 29, 2007 against victims aged 10 and 12. The following

procedural history is taken in part from our decisions in State v. Teagarden

, 5th Dist.

Licking No. 14

- CA

- 56, 2015

- Ohio

- 2563 [ Teagarden III ], State v. Teagarden

, 5th Dist.

Licking No. 15

- CA

- 66, 2016

- Ohio

- 3446, cause dismissed, 146 Ohio St.3d 1495, 2016

-

Ohio

- 5680, 57 N.E.3d 1174, and appeal not allowed, 147 Ohio St.3d 1445, 2016

- Ohio

7854, 63 N.E.3d 1215 [ Teagarden IV ], and State v. Teagarden, 5th Dist. Licking No. 17

-

CA

- 96, 2018

- Ohio

- 3767, appeal not allowed, 154 Ohio St.3d 1481, 2019

- Ohio

- 173, 114

N.E.3d 1208 [ Teagarden V ].

{¶3} On July 9, 2007, appellee was charged by indictment with one count of rape of

a minor under the age of 13 in violation of R.C. 2907.02(A)(1)(b) [Count I], three counts of

gross sexual imposition with a child victim under the age of 13 in violation of R.C.

2907.05(A)(4) [Counts II, III, and IV], and one count of attempted gross sexual imposition

with a child victim under the age of 13 in violation of R.C. 2923.02(A) and R.C.

2907.05(A)(4) [Count V]. Upon bench trial appellant was found guilty upon Counts I

through IV and not guilty upon Count V.Licking County, Case No. 22CA0105 3

The Original Sentencing: March 10, 2008

{¶4} The court sentenced appellee to seven years on Count I and two years each

on Counts II, III, and IV. The two

- year terms on Counts II through IV were to be served

concurrently but consecutive to the seven

- year term on Count I.

{¶5} Appellee filed a direct appeal from his convictions and sentence in State v.

Teagarden, 5th Dist. Licking No. 08

– CA

– 39, 2008

– Ohio

– 6986 [ Teagarden I ], appeal not

allowed

, 121 Ohio St.3d 1501, 2009

– Ohio

– 2511, 907 N.E.2d 325, and habeas corpus

dismissed

, Teagarden v. Warden, Madison Correctional Inst., S.D.Ohio No. 2:10

– CV

–

495, 2011 WL 2160466, *1 (June 1, 2011), raising 12 assignments of error. We overruled

all but the twelfth assignment of error in which appellee argued the counts of rape and

gross sexual imposition should have merged for sentencing. We agreed in part and found

Counts III and IV should have merged with Count I, but Count II was committed with

separate animus and therefore did not merge. Teagarden I, supra, 2008

– Ohio

– 6986, at

¶ 178. We remanded the case to the trial court for resentencing.

The First Re

– Sentencing: February 9, 2009

{¶6} On February 9, 2009, the trial court resentenced appellee to an aggregate

term of 7 years on Count I and 3 years each on Counts II and III. Counts II and III were

concurrent with each other but consecutive to Count I. (The trial court found Count IV

merged with Count III.)

{¶7} No appeal was filed from the Judgment Entry of February 9, 2009.

{¶8} On September 25, 2013, appellant state of Ohio filed an amended motion

to correct the judgment entry in accord with our opinion, arguing the trial court should

have sentenced appellant to “seven years on [Count I] and three years on [Count II] withLicking County, Case No. 22CA0105 4

those terms to be consecutive to one another. There should have been no sentence

imposed on counts three and four as those offenses merge with [ Count I ].” (Emphasis in

original.) The state also filed a motion pursuant to State v. Fischer, 128 Ohio St.3d 92,

2010

– Ohio

– 6238, 942 N.E.2d 332 asking the trial court to resentence to properly impose

post

- release control. Appellee responded with motions in opposition and also filed a

motion to vacate allied offenses of similar import, arguing Counts II, III, and IV should

merge with Count I.

{¶9} On November 25, 2013, appellee filed a motion for new trial premised upon

alleged defects with the trial transcript.

The Second Re

– Sentencing Hearing: November 26, 2013

{¶10} On November 26, 2013, the trial court held another resentencing hearing.

The trial court found Counts III and IV merged with Count I. The state elected to sentence

on Count I and the trial court sentenced appellee to an aggregate term of 10 years: 7

years on Count I consecutive to 3 years on Count II.

{¶11} Appellee appealed from the November 26, 2013 Judgment Entry and raised

two assignments of error: 1) the trial court erred in failing to conduct a de novo sentencing

hearing upon the allied

- offenses remand; and 2) the trial court erred in imposing

consecutive prison terms. This appeal was filed as State v. Teagarden, 5th Dist. Licking

No. 13CA0125 [ Teagarden II ].

{¶12} On April 29, 2014, in this Court, the parties filed a “Joint Motion to Stay and

Remand this Case for Resentencing of Defendant

– Appellate ( sic )” stating in pertinent

part: “* * * *. [A]ll issues raised in this case concern the proper sentence for [appellee].Licking County, Case No. 22CA0105 5

The undersigned are in agreement that the [appellee] should be resentenced once again

to ensure the lawfulness of his sentence. * * * *.”

{¶13} Also on April 29, 2014, in the trial court, the parties filed a “ Joint Motion to

Amend Indictment and Documentation of Related Agreements to End Further Litigation”

(emphasis in original), moving the trial court to amend Count I to a count of “attempted

rape” as part of a “global resolution” of the underlying criminal case and a second criminal

case, Licking County Court of Common Pleas case number 07

– CR

– 739. The motion

avers the state of Ohio discovered the sentence on Count I was invalid because appellee

should have received an indefinite term of 10 years to life. Therefore, the state consented

to amend Count I to “attempted rape” to avoid the mandatory sentence and permit the 7

–

year sentence instead. Attached to the motion is a detailed “Agreement” of the parties

stating the specific terms of the sentence, including, e.g., a resulting sentence of seven

years on Count I consecutive with three years on Count II. Counts III and IV merge into

Count I. The Agreement further states that in return for the agreed

- upon sentence,

appellee would not initiate any further litigation related to either criminal case.

{¶14} We issued a Judgment Entry on May 12, 2014 stating in pertinent part: “* *

* * [T]his case is hereby stayed and remanded to the trial court for the purpose of resolving

pending issues on or before May 30, 2014.”

The Third Re

– Sentencing Hearing: May 20, 2014

{¶15} The trial court held a resentencing hearing on May 20, 2014, resulting in a

Judgment Entry of May 23, 2014, stating by agreement of the parties, Count I is amended

to “Attempted Rape” with no cited section number; “Counts III and IV merge with Count I

for sentencing purposes, and [appellee] elected to proceed with sentencing on Count I.”Licking County, Case No. 22CA0105 6

Appellee was sentenced to a prison term of 7 years on Count I consecutive to a term of

3 years on Count II. The parties' “Agreement” is appended to the Judgment Entry.

{¶16} Teagarden II was then dismissed by Judgment Entry on May 27, 2014.

{¶17} Appellee appealed the May 23, 2014 resentencing, arguing the court erred

in its three attempts to resentence him pursuant to the mandates of Teagarden I. We

agreed, finding the trial court lacked jurisdiction to exceed the scope of the remand, and

therefore could not amend the conviction on Count I in the third attempt at resentencing.

State v. Teagarden, 5th Dist. Licking No. 14

– CA

– 56, 2015

– Ohio

– 2563 (Teagarden III)

.

Because we had affirmed the original conviction for rape, we concluded that all post

Teagarden I litigation related to resentencing was void, including the attempt to amend

Count I to attempted rape. Id. at ¶ 26. We further rejected appellee's argument that double

jeopardy barred resentencing, even if appellee received a greater sentence on remand,

recognizing that the sentence for rape was void because it did not comply with R.C.

2907.02(A)(1)(b) et seq. Id. at ¶ 28, 31.

{¶18} Our remand ordered the trial court to conduct a new sentencing hearing at

which the trial court must accept the state's choice among allied offenses, merge the

crimes into a single conviction for sentencing, and impose a sentence that is appropriate

for the merged offenses. Id. at ¶ 33.

The Fourth Re

- Sentencing Hearing: July 23, 2015

{¶19} The trial court conducted the resentencing hearing on July 23, 2015. The

state elected to proceed with sentencing on the rape charge on Count I, rather than on

either of the gross sexual imposition charges in Counts III and IV. By entry dated August

11, 2015, the court sentenced appellee to the statutorily

- mandated term of ten years toLicking County, Case No. 22CA0105 7

life pursuant to the former R.C. 2971.03(B)(1)(a). The court noted that the conviction and

sentence on Count II was unaffected or altered based on our remand order, and the

sentence therefore remained three years, to be served consecutively to Count I, as

previously imposed and affirmed.

{¶20} Appellee appealed from the resentencing of July 23, 2015, arguing double

jeopardy prevented an increased sentence, the trial court failed to make the required

findings for consecutive sentences, and the trial court should have merged Counts I and

II. We disagreed in Teagarden IV and affirmed the convictions and sentence on June 13,

2016.

{¶21} The Ohio Supreme Court disallowed an appeal from that decision as cited

supra. 146 Ohio St.3d 1495, 2016

- Ohio

- 5680, 57 N.E.3d 1174, and appeal not allowed,

147 Ohio St.3d 1445, 2016

- Ohio

- 7854, 63 N.E.3d 1215.

{¶22} On August 28, 2017, appellee filed a “Motion to Vacate Sentence Imposed

pursuant to R.C. 2971.03” in the trial court. Appellee argued the trial court's imposition of

the sentence of 10 years to life upon Count I was void pursuant to R.C. 5145.01. The trial

court overruled the motion on November 21, 2017.

{¶23} Appellee appealed from the trial court's Judgment Entry of November 21,

2017, arguing his sentence was void pursuant to R.C. 5145.01. By “sentence,” appellee

referred to the sentence imposed on July 23, 2015. He directly appealed from that re

sentencing hearing, and we overruled his arguments and affirmed the convictions and

sentence. See, Teagarden IV

, supra. That decision became final when the Ohio Supreme

Court declined jurisdiction.Licking County, Case No. 22CA0105 8

{¶24} We concluded appellee's sentence was not void; the new arguments were

precluded by res judicata and failed on the merits. Teagarden V

, supra, 2018

- Ohio

- 3767,

¶ 44. As noted supra, appellee’s appeal from that decision was not accepted. 154 Ohio

St.3d 1481, 2019

- Ohio

- 173, 114 N.E.3d 1208.

Litigation underlying the instant appeal

{¶25} On May 12, 2022, appellee filed “Defendant’s Motion to Reinstate

Sentence,” arguing that the trial court must reinstate the sentence of February 9, 2009,

on the basis of State v. Henderson, 161 Ohio St.3d 285, 2020

- Ohio

- 4784, 162 N.E.3d

776. The state responded with a memorandum in opposition on September 6, 2022.

Appellee replied on September 13, 2022. The trial court scheduled the matter for an oral

motion hearing on November 18, 2022.

{¶26} On November 18, 2022, the trial court filed an “Order Granting Defendant’s

Motion to Reinstate Sentence and Order to Release,” stating in pertinent part:

* * * *.

The Court finds that Henderson is controlling and requires the

Court to reinstate the original sentence imposed on the Defendant in

2009. Therefore, the Court imposed the following sentence.

On February 22, 2008, a Trial to the Court was held and the

Court rendered a verdict of guilty beyond a reasonable doubt of the

following charges:

Count/Specification Offense/Specification ORC Section Degree

1 Rape 2907.02(A)(1)(b) F

- 1

2 Gross Sexual Imposition 2907.04(A)(4) F

- 3Licking County, Case No. 22CA0105 9

3 Gross Sexual Imposition 2907.04(A)(4) F

- 3

4 Gross Sexual Imposition 2907.04(A)(4) F

- 3

After sentence was initially imposed on March 10, 2008, the

Fifth District remanded the case on direct appeal after it concluded

that Counts 3 and 4 should have merged with Count 1. On February

9, 2009, the Court resentenced the Defendant to an aggregate

sentence of seven (7) years on Count 1, and three (3) years on

Counts 2 and 3. Counts 2 and 3 were concurrent with each other but

consecutive to Count 1 for an aggregate prison sentence of ten (10)

years. Neither the State nor the Defendant appealed this sentence.

It is this sentence which the State is required to reimpose under

Henderson

.

I. Prison (R.C. 2929.14)

The Defendant is ordered to serve a prison term as set forth

below:

Counts 3 and 4 merge for sentencing purposes, and the State

elected to proceed with sentencing on Count 3.

Count 1 seven (7) years;

Count 2 three (3) years;

Count 3 three (3) years;

Count 4 N/A.Licking County, Case No. 22CA0105 10

The prison terms on Counts 2 and 3 shall be served

concurrently to each other and consecutively to Count 1, for a total

stated prison term of ten (10) years. Because the entirety of this

sentence has been served, the Defendant is ordered to be released

on this case.

* * * *. (Emphasis in original.)

{¶27} Appellant state of Ohio now appeals from the trial court’s judgment entry of

November 18, 2022. We note that on November 21, 2022, we granted appellant’s motion

for a stay of the trial court’s judgment entry. On December 12, 2022, we denied appellee’s

motion for bail pending appeal.

{¶28} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶29} “THE TRIAL COURT ERRED IN ALLOWING A COLLATERAL ATTACK

ON A VALID 2015 SENTENCE.”

ANALYSIS

{¶30} In its sole assignment of error, appellant argues the trial court erred in

reinstating appellee’s sentence of February 9, 2009. We agree.

{¶31} This case involves application of the Ohio Supreme Court’s rulings in State

v. Harper

, 160 Ohio St.3d 480, 2020

- Ohio

- 2913, 159 N.E.3d 248, and State v.

Henderson

, 161 Ohio St.3d 285, 2020

- Ohio

- 4784, 162 N.E.3d 776, but not as argued by

appellee. The flaw in appellee’s reasoning is that the triggering event of the analysis is

his own “Motion to Reinstate Sentence” of May 2022, not appellant’s 2013 motion toLicking County, Case No. 22CA0105 11

correct the judgment entry. Appellant’s motion to reinstate sentence is barred by res

judicata, a conclusion supported by the cases he cites.

{¶32} None of the issues raised in the instant appeal are novel to this case. In

2013, appellant filed a “motion to correct sentence.” That motion and ensuing litigation

are long since final, as is appellee’s 2015 sentence. We have addressed the convictions

and sentence(s) in myriad ways. Even if the 2015 sentence contained some flaw, it is

final. Unless it is vacated on appeal, a voidable judgment has the force of a valid legal

judgment, regardless of whether it is right or wrong. State v. Henderson

, supra, 161 Ohio

St.3d 285, 2020

- Ohio

- 4784, 162 N.E.3d 776, ¶ 17, citing Tari v. State

, 117 Ohio St. 481,

498, 159 N.E. 594 (1927). Appellee and the trial court seized upon appellant’s 2013

motion to correct sentence as a flaw inherent in the proceedings, but the Motion to

Reinstate Sentence is the impermissible collateral attack.

{¶33} In Harper

, the Ohio Supreme Court “realigned” its void versus voidable

jurisprudence and held that “when a case is within the court's subject matter jurisdiction

and the accused is properly before the court, any error in the exercise of that jurisdiction

in imposing post

- release control renders the court's judgment voidable, permitting the

sentence to be set aside if the error has been successfully challenged on direct appeal.”

160 Ohio St.3d 480, 2020

- Ohio

- 2913, 159 N.E.3d 248. The Supreme Court reaffirmed its

position in Henderson

, specifically stating that Harper applied to cases in which a trial

court deviates from a statutory mandate, not just cases involving the imposition of post

release control. Id. The Court stated it was time to return to a “clear, traditional”

understanding of what constitutes a void sentence in order to “remove confusion” and

“restore predictability and finality to trial court judgments and criminal sentences.” StateLicking County, Case No. 22CA0105 12

v. Henderson

, 161 Ohio St.3d 285, 2020

- Ohio

- 4784, 162 N.E.3d 776. Thus, “a judgment

or sentence is void only if it is rendered by a court that lacks subject matter jurisdiction

over the case or personal jurisdiction over the defendant. If the court has jurisdiction over

the case and the person, any sentence based on an error in the court's exercise of

jurisdiction is voidable.” Id.

{¶34} In the instant case, appellee is serving the sentence imposed on July 23,

2015. Appellee challenged that sentence upon direct appeal; we affirmed the convictions

and sentence on June 13, 2016. State v. Teagarden

, 5th Dist. Licking No. 15

- CA

- 66,

2016

- Ohio

- 3446, cause dismissed, 146 Ohio St.3d 1495, 2016

- Ohio

- 5680, 57 N.E.3d

1174, and appeal not allowed, 147 Ohio St.3d 1445, 2016

- Ohio

- 7854, 63 N.E.3d 1215

[ Teagarden IV

]. Appellant’s appeal of the 2015 sentence is final.

{¶35} The instant litigation was initiated by appellant’s “Motion to Reinstate

Sentence” of May 12, 2022. That motion was a collateral attack on a voidable judgment.

Pursuant to Henderson and Harper

, supra, the sentence was voidable, not void; appellant

appealed the conviction and sentence; that appeal is now final; the matters raised in the

motion to reinstate the 2009 sentence are barred by res judicata. See, State v. Christy

,

5th Dist. Fairfield No. 20

- CA

- 29, 2021

- Ohio

- 1470, appeal not allowed, 164 Ohio St.3d

1405, 2021

- Ohio

- 2742, 172 N.E.3d 162 [unauthorized sentence voidable, not void;

argument in appellant’s motion to vacate sentence barred by res judicata]

{¶36} As the Supreme Court stated in Henderson

, “a voidable judgment has the

force of a valid legal judgment, regardless of whether it was right or wrong. The failure to

timely

– at the earliest opportunity

– assert an error in a voidable judgment, even if that

error is constitutional in nature, amounts to the forfeiture of any objection.” 161 Ohio St.3dLicking County, Case No. 22CA0105 13

285, 2020

- Ohio

- 4784, 162 N.E.3d 776. “Sentences based on an error, including

sentences in which a trial court fails to impose a statutorily mandated term, are voidable

if the court imposing the sentence has jurisdiction over the case and the defendant.” Id.

at ¶ 1. Further, in State v. Hudson

, 161 Ohio St.3d 166, 2020

- Ohio

- 3849, 161 N.E.3d 608,

the Ohio Supreme Court again applied Harper in holding that res judicata barred an

argument regarding a sentencing error in a conviction that became final more than a

decade before Harper was issued. Id. at ¶ 5, 8, 9, 19.

{¶37} “Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment.” State v.

Perry

, 10 Ohio St. 2d 175, 176, 226 N.E.2d 104 (1967).

{¶38} A voidable conviction or sentence may only be challenged on direct appeal,

and res judicata bars later attempts to make arguments that could have been raised on

direct appeal. State v. Henderson

, 161 Ohio St.3d 285, 2020

- Ohio

- 4784, 162 N.E.3d 776,

¶ 17, 19. A void conviction or sentence may be challenged at any time, including after the

conviction or sentence has become final. See Harper

, 2020

- Ohio

- 2913, 159 N.E.3d 248

at ¶ 18.

{¶39} We conclude the trial court possessed subject

- matter jurisdiction over

appellant's case and personal jurisdiction over appellant. State v. Robey

, 5th Dist.

Fairfield No. 2021

- CA

- 00010, 2021

- Ohio

- 3884, ¶ 28, citing State v. Harper

, 160 Ohio

St.3d 480, 2020

- Ohio

- 2913, 159 N.E.3d 248, quoting Smith v. Sheldon

, 157 Ohio St.3dLicking County, Case No. 22CA0105 14

1, 2019

- Ohio

- 1677, 131 N.E.3d 1 (stating that “a common pleas court has subject

- matter

jurisdiction over felony cases”); State v. Henderson

, 161 Ohio St.3d 285, 2020

- Ohio

4784, 162 N.E.3d 776, citing Tari v. State

, 117 Ohio St. 481, 159 N.E. 594 (1927) (noting

that “[i]n a criminal matters, the court acquires jurisdiction over a person by lawfully issued

process, followed by the arrest and arraignment of the accused and his plea to the

charge”). Accordingly, any error in the exercise of the trial court's jurisdiction rendered

appellant's sentence voidable, not void. State v. Thompson

, 10th Dist. Franklin No. 19AP

359, 2020

- Ohio

- 6756.

{¶40} Appellant challenged the 2015 sentence on direct appeal which is now final.

As appellant's sentence was voidable, res judicata bars appellant's claims in the present

appeal. Robey

, supra, 2021

- Ohio

- 3884, at ¶ 29; see also, State v. Johnpillai

, 5th Dist.

Licking No. 2022 CA 00077, 2023

- Ohio

- 37, ¶ 12 [when a sentencing court has jurisdiction

to act, sentencing errors render the sentence “voidable, not void, and [the sentence] is

not subject to collateral attack”].

{¶41} In the instant case, appellee had a full and fair opportunity to challenge the

voidable sentence on direct appeal. State v. Battigaglia

, 5th Dist. Stark No. 2020 CA

00144, 2021

- Ohio

- 1651, ¶ 21. Because any alleged error in the 2015 sentence rendered

the sentence voidable, appellee's attempt to correct the error in a post

- conviction motion

is improper. Id. ; see also, State v. Spicer

, 5th Dist. Perry No. 20CA00013, 2021

- Ohio

386; State v. Mason , 5th Dist. Ashland No. 2020CA00023, 2020

- Ohio

- 6895.

{¶42} Appellant’s sole assignment of error is sustained. The trial court’s decision

granting appellee’s motion to reinstate sentence is reversed.Licking County, Case No. 22CA0105 15

CONCLUSION

{¶43} The sole assignment of error is sustained, the judgment of the Licking

County Court of Common Pleas is reversed, and the matter is remanded to the trial court

for further proceedings.

By: Delaney, J.,

Wise, John, P.J. and

Baldwin, J., concur.