[Cite as State v. Payne, 2020-Ohio-1009.]

PIN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : No. 19AP-248 

 (C.P.C. No. 01CR-3300)

 Plaintiff-Appellee, : and 

 No. 19AP-250 

v. : (C.P.C. No. 01CR-3339) 

Scott E. Payne, : (ACCELERATED CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on March 17, 2020 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. 

Gilbert, for appellee. 

On brief: Scott E. Payne, pro se. 

 

APPEALS from the Franklin County Court of Common Pleas 

BRUNNER, J., authoring lead opinion. 

{¶ 1} Defendant-appellant, Scott E. Payne, appeals a decision and judgment of the 

Franklin County Court of Common Pleas entered on March 28, 2019, denying Payne's 

motion to correct his sentence on the grounds that it was void as originally issued. Because 

the trial court erred in construing Payne's motion to correct a void sentence as a 

postconviction petition and because a number of errors exist in the judgment entry with 

respect to Franklin C.P. No. 01CR-3300, the trial court's judgment is reversed and 

remanded with instructions to issue a corrected judgment entry. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} In 2001, under two separate case numbers, Payne was indicted for 6 counts 

of aggravated robbery, 12 counts of robbery, 4 counts of kidnapping, and 1 count of assault. 

(June 5, 2001 Indictment 01CR-3300; June 8, 2001 Indictment 01CR-3339.) All counts 

except the assault were accompanied by firearm specifications. (June 5, 2001 Indictment 

01CR-3300; June 8, 2001 Indictment 01CR-3339.) After a lengthy trial, the jury found 
Nos. 19AP-248 and 19AP-250 2 

Payne guilty of all counts and specifications except the assault charge. (Apr. 12, 2002 

Verdict Forms.) We have previously recounted the factual underpinning of the charges in 

detail in Payne's direct appeal. State v. Payne, 10th Dist. No. 02AP-723, 2003-Ohio-4891, 

¶ 3-11. In short, the charges stemmed from the armed robberies of 2 flower shops and a 

credit union and there was sufficient and persuasive evidence of Payne's guilt. Id. at ¶ 1, 3-

11, 74-76. 

{¶ 3} On May 28, 2002, the trial court convened a sentencing hearing. (May 28, 

2002 Sentencing Tr., filed Sept. 23, 2002.)1 At the hearing, the prosecution conceded and 

the trial court agreed that the alternatively charged aggravated robberies should merge with 

the robbery counts, leaving six aggravated robbery charges (one for each person victimized 

in the course of the three robberies). Id. at 5, 10-12. The trial court then reasoned, over the 

objection of the State, that the kidnappings essentially only occurred as part of the 

aggravated robberies and therefore merged those charges also into the aggravated 

robberies. Id. at 5-11. 

{¶ 4} The court sentenced Payne on Franklin C.P. No. 01CR-3339 first. Id. at 12-

13. This case involved the robbery of a credit union and also of a bystander. Id. In that 

case, the court sentenced Payne to serve consecutive terms of 10 years for each of the 2 

aggravated robberies (Counts 1 and 4) plus 3 prior and consecutive years for each of the 2 

associated firearm specifications. Id. Thus, on that case, the trial court imposed a total of 

26 years and also determined that the sentence would run consecutively to the sentence it 

was about to impose in case No. 01CR-3300. Id. at 13. Approximately one week later, it 

journalized an entry memorializing the sentence it orally indicated it would impose. 

(June 3, 2002 Jgmt. Entry 01CR-3339.) 

{¶ 5} In case No. 01CR-3300, which was the case concerning the 2 flower shop 

robberies (and the persons in the shops), the trial court sentenced Payne to serve 10 years 

on each of the 4 aggravated robberies (Counts 1, 4, 8, and 12). (Sentencing Tr. at 14-15.) It 

ordered Payne to serve 3 of the 10-year sentences concurrently with each other (Counts 1, 

4, and 8), but consecutively to the remaining 10-year aggravated robbery sentence (Count 

12). Id. at 15. It remarked that, as a consequence of its decision to run 3 of the aggravated 

 

1 Where identical documents are filed in both underlying criminal cases, we omit the case number from the 

citation. 
Nos. 19AP-248 and 19AP-250 3 

robbery sentences concurrently, the 3 associated firearm specifications merged into one, 

leaving just 2 of the original 4 firearm specifications. Id. Ultimately, the court imposed 2 

consecutive 10-year sentences and 2 consecutive 3-year firearm specifications for a total of 

26 years. Id. at 14-15. It issued an entry approximately one week later in which it generally 

attempted to impose the same sentence it orally imposed. 

{¶ 6} However, that judgment entry differed from its oral pronouncement. 

Although the trial court noted that the specifications to the 3 concurrently sentenced 

aggravated robbery counts "merge[d]," it stated that it was imposing 3-year sentences for 

each of the 3 specifications concurrently. (June 3, 2002 Jgmt. Entry 01CR-3300 at 2.) It 

is also noteworthy for the purposes of this appeal that, although the entry referenced the 

firearm specification to Count 12 and indicated that the concurrent sentences imposed on 

Counts 1, 4, and 8 would run consecutively to Count 12, it never actually imposed a sentence 

for Count 12. Id. But, in a corrected judgment entry issued one week later, the trial court 

rectified the clerical error with respect to Count 12. (June 11, 2002 Corr. Jgmt. Entry 01CR3300 at 2.) Finally, although the court properly noted that Count 11 merged into Count 8 

in both the original and corrected entries, in the recitation of the Counts of which jury found 

Payne to be guilty, both entries did not reference Count 11. (June 3, 2002 Jgmt. Entry 

01CR-3300 at 1; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 at 1.) 

{¶ 7} After making findings on the issue of jail-time credit, the trial court discussed 

the reasons it had imposed consecutive terms of imprisonment. (Sentencing Tr. at 18-19.) 

Then it discussed post-release control: 

[Court]: This time that I have given you, you're going to do this 

time day for day. If you live long enough and they finally run 

out of time here and they release you from the prison, the Adult 

Parole Authority will supervise your behavior out on the street 

for five years after your release. During that period of time, if 

you violate any condition of your release, they could return you 

to the prison for up to nine months for each violation. 

If there are multiple violations, these nine-month periods could 

total up to 50 percent of whatever this sentence is, and to be 

honest with you I haven't even totalled it up. But whatever 

these numbers are, if they're 50, if you mess up repeatedly 

when you get out, they could send you back for another 25 years 

nine months at a time. Do you understand all of that? 

[Payne]: Yes. 
Nos. 19AP-248 and 19AP-250 4 

Id. at 19-20. All of the sentencing entries stated that the court had notified the defendant 

regarding "the possibility of the applicable periods of post-release control." (June 3, 2002 

Jgmt. Entry 01CR-3300 at 3; June 3, 2002 Jgmt. Entry 01CR-3339 at 2; June 11, 2002 

Corr. Jgmt. Entry 01CR-3300 at 3.) 

{¶ 8} Payne appealed and this Court affirmed. Payne, 2003-Ohio-4891. 

{¶ 9} Over the years that followed, Payne filed (among other petitions and 

motions) a number of motions to correct his sentence, arguing that more of the counts 

should have merged and that the trial court misapplied the sentencing statutes. (Aug. 10, 

2006 Mot. to Corr. Sentence; Oct. 20, 2011 Mot. for Resentencing 01CR-3339; June 19, 

2012 Mot. to Corr. Sentence; Dec. 6, 2012 Mot. to Corr. Sentence.) When the first of these 

was denied, an appeal occurred. State v. Payne, 10th Dist. No. 07AP-104, 2007-Ohio-4594. 

We affirmed the trial court's denial in 2007 based on the notion that a postconviction 

petition was the "exclusive remedy by which a person may bring a collateral challenge to 

the validity of a conviction or sentence in a criminal case" and that Payne's motion, if 

construed as a petition, was untimely. Id. at ¶ 5, 7-9. 

{¶ 10} After that appeal, the trial court denied one more of Payne's motions, noting 

that his repetitive requests were barred by res judicata. (Dec. 3, 2012 Decision & Entry 

01CR-3339.) Payne's motions appear generally to have gone unaddressed by the trial court 

after that point until the denial of the motion which forms the basis of this appeal. 

{¶ 11} Payne filed the latest motion to correct his sentence on July 9, 2018. (July 9, 

2018 Mot. to Corr. Sentence.) When several months passed without action by the trial 

court, Payne filed a notice on November 28, 2018 informing the trial court that, after our 

previous decision in 2007, the law had changed as a result of the Supreme Court of Ohio's 

decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. According to Fischer, 

motions to correct void sentences were now considered a proper filing, were not to be 

considered postconviction petitions, and were not to be denied on grounds of res judicata. 

(Nov. 28, 2018 Notice, citing Fischer at ¶ 25.) Yet, on March 28, 2019, the trial court denied 

Payne's motion, characterizing it as an untimely successive postconviction petition and 

finding that it was unsuccessful in invoking the jurisdiction of the court. (Mar. 28, 2019 

Decision & Entry at 2-3.) 

{¶ 12} Payne now appeals. 
Nos. 19AP-248 and 19AP-250 5 

II. ASSIGNMENTS OF ERROR 

{¶ 13} Payne presents six assignments of error for review: 

[1.] The trial court abused its discretion when it denied 

Defendant-appellant's Motion to Correct a facially illegal 

sentence as a post-conviction motion. 

[2.] A Judgment entry is not a final appealable order when its 

judgment entry is in violation State v. Lester, 130 Ohio St.3d 

303, 2011-Ohio-5204, 958 N.E.2d 142, where the sentencing 

entry fails to set forth the fact of conviction, and fails to set forth 

the sentence to count twelve. 

[3.] The trial court's sentence on Defendant-Appellant's 

firearm specification is contrary to law and thus, void where it 

failed to sentence the Defendant-Appellant on the one-year 

firearm specifications in case No. CR 06 3300. 

[4.] The trial court's sentence on Defendant-Appellant's 

firearm specification is contrary to law and thus, void when it 

failed to impose the firearm specification consecutively to and 

prior to any prison term imposed in case No. CR 06 3300 and 

CR 06 3339. 

[5.] The trial court's sentence in CR 06 3300 is contrary to law 

when it imposed sentence on the firearm specification as an 

actual incarceration, and imposes individual sentences on 

firearms specifications, then merges the sentences, and then 

runs the sentence as concurrent sentences. 

[6.] The trial court's judgment entry in CR 06 3330 and CR 06 

3339 is contrary to law when it failed to properly impose post 

release control. 

(Sic passim.) 

III. DISCUSSION 

A. First Assignment of Error – Whether Payne's Motion to Correct a Void 

Sentence Should have been Construed as a Post-Conviction Petition and 

Denied as Untimely 

{¶ 14} In general, the postconviction relief process is a collateral civil attack on a 

criminal judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994). "It is a means to reach 

constitutional issues which would otherwise be impossible to reach because the evidence 

supporting those issues is not contained" in the trial court record. State v. Murphy, 10th 

Dist. No. 00AP-233, 2000 WL 1877526, 2000 Ohio App. LEXIS 6129, *5 (Dec. 26, 2000); 
Nos. 19AP-248 and 19AP-250 6 

see also, e.g., State v. Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15. If Payne had 

genuinely filed a postconviction petition rather than a motion to correct his sentence, he 

would have been required to show "that there was such a denial or infringement of [his] 

rights as to render the judgment void or voidable under the Ohio Constitution or the 

Constitution of the United States." R.C. 2953.21(A)(1)(a). Since he had previously filed a 

bona fide postconviction petition, he would also have had to demonstrate that he "was 

unavoidably prevented from discovery of the facts upon which [he] must rely to present the 

claim for relief" and that "but for constitutional error at trial, no reasonable factfinder 

would have found [him] guilty of the offense of which [he] was convicted." R.C. 

2953.23(A)(1)(a) and (b). 

{¶ 15} Payne's arguments in his motion to correct his sentence are essentially that 

the trial court imposed a sentence that was not in accordance with its statutory authority. 

(July 9, 2018 Mot. to Corr. Sentence in passim.) Payne's motion does not attempt to argue 

that his constitutional rights were violated, or that he was unavoidably prevented from 

discovering facts essential to his claim, or that, but for the constitutional rights violation, 

he would not have been convicted. See R.C. 2953.21(A)(1)(a); R.C. 2953.23(A)(1)(a) and 

(b). In short, Payne's motion is not argued or substantively designed as a traditional 

postconviction petition. Rather it is a claim that the judgment against him is void in part 

because the trial court did not sentence in accordance with its statutory authority. (July 9, 

2018 Mot. to Corr. Sentence at 1.) 

{¶ 16} The Supreme Court has found that postconviction proceedings under 

Chapter 2953 of the Ohio Revised Code are not the exclusive means by which a criminal 

defendant may challenge his conviction after the judgment has become final: 

The state urges us to conclude, however, that because the 

General Assembly has provided a statutory remedy for 

addressing claimed constitutional error, the postconviction 

scheme is the exclusive avenue of redress. Thus, the state 

asserts, courts must construe postsentence Crim.R. 32.1 

motions that are based on constitutional violations to be 

postconviction petitions. We disagree. 

(Emphasis sic.) State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 12. The high court 

has also recognized that one motion an offender may file, even after a conviction becomes 
Nos. 19AP-248 and 19AP-250 7 

final, is a motion arguing that his sentence is illegal because it was imposed beyond the 

bounds of the sentencing court's statutory authority: 

"A motion to correct an illegal sentence 'presupposes a valid 

conviction and may not, therefore, be used to challenge alleged 

errors in proceedings that occur prior to the imposition of 

sentence.' " Edwards v. State (1996), 112 Nev. 704, 708, 918 

P.2d 321, quoting Allen v. United States (D.C.1985), 495 A.2d 

1145, 1149. It is, however, an appropriate vehicle for raising 

the claim that a sentence is facially illegal at any time. Id. The 

scope of relief based on a rule, like Fed.R.Crim.P. 35, is likewise 

constrained to the narrow function of correcting only the illegal 

sentence. It does not permit reexamination of all perceived 

errors at trial or in other proceedings prior to sentencing. See, 

e.g., Hill v. United States (1962), 368 U.S. 424, 430, 82 S.Ct. 

468, 7 L.Ed.2d 417. 

(Emphasis added.) Fischer at ¶ 25; see also State v. Moore, 135 Ohio St.3d 151, 2012-Ohio5479, ¶ 15. 

{¶ 17} This Court and others have expressed concerns about the view that a 

defendant should be permitted to challenge a sentence at any time as void (rather than 

voidable) simply because a court erred in imposing the sentence and ignored or exceeded 

some statutory requirement: 

The Supreme Court previously recognized that "a void 

judgment is one that has been imposed by a court that lacks 

subject-matter jurisdiction over the case or the authority to act" 

while a "voidable judgment is one rendered by a court that has 

both jurisdiction and authority to act, but the court's judgment 

is invalid, irregular, or erroneous." State v. Simpkins, 117 Ohio 

St.3d 420, 2008-Ohio-1197, ¶ 12, 884 N.E.2d 568. The high 

court has also recognized that "we commonly hold that 

sentencing errors are not jurisdictional and do not necessarily 

render a judgment void." Id. at ¶ 13. Yet, in cases such as 

Williams, the Supreme Court has embraced exceptions that 

threaten to swallow the rule and lead to a situation where 

virtually any allegedly serious error in sentencing can be 

revived time and time again without being foreclosed by res 

judicata. This Court and others have expressed concerns about 

the legal basis and limits of the "voidness" doctrine that the 

Supreme Court has created in this context. State v. Banks, 10th 

Dist. No. 15AP-653, 2015-Ohio-5372, ¶ 16, fn. 1; see also State 

v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 34-39, 85 

N.E.3d 700 (DeWine, J., concurring in judgment only); State 
Nos. 19AP-248 and 19AP-250 8 

v. Fischer, 128 Ohio St 3d 92, 2010-Ohio-6238, ¶ 41-57, 942 

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

State v. Steele, 10th Dist. No. 18AP-187, 2018-Ohio-3950, ¶ 11, fn. 1. This Court has 

sometimes characterized motions seeking resentencing or to vacate a conviction as 

postconviction petitions and considered them under the standards of review applied to 

such petitions. State v. Draughon, 10th Dist. No. 18AP-709, 2019-Ohio-1461, ¶ 10; State 

v. Jennings, 10th Dist. No. 17AP-248, 2018-Ohio-3871, ¶ 5; State v. Bankston, 10th Dist. 

No. 13AP-250, 2013-Ohio-4346, ¶ 7. 

{¶ 18} However, unless and until the Supreme Court revisits Fischer, when a 

defendant such as Payne seeks only to claim that his sentence is void or partially void due 

to the trial court sentencing outside its statutory authority, there seems little choice but to 

evaluate it under Fischer and progeny. In light of that, this Court and the Supreme Court 

have considered many motions to correct void sentences without construing them as 

postconviction petitions. See, e.g., Moore at ¶ 15 & in passim; State v. Peoples, 10th Dist. 

No. 18AP-850, 2019-Ohio-2141, ¶ 9-15; State v. Bridges, 10th Dist. No. 18AP-262, 2018-

Ohio-4844, in passim; State v. Melhado, 10th Dist. No. 15AP-960, 2016-Ohio-3346, ¶ 8; 

State v. Maser, 10th Dist. No. 15AP-129, 2016-Ohio-211, in passim. Even the State's brief 

in this appeal concedes that "a motion to correct a void sentence is distinct from a 

postconviction petition." (State's Brief at 2, citing Fischer). 

{¶ 19} In this case, Payne's motion was not filed as a postconviction petition. It was 

a motion requesting that the trial court "correct its facially illegal sentence." (July 9, 2018 

Mot. to Corr. Sentence at 1.) Yet, the trial court, citing a decision that pre-dates Fischer, 

reasoned "regardless of how Defendant captions his motion, it is considered a petition for 

post-conviction relief because Defendant filed it after his direct appeal and he seeks to have 

this Court render the judgment against him void." (Mar. 28, 2019 Decision & Entry at 2.) 

It then found that Payne had not met the statutory requirements of R.C. 2953.23(A) for 

filing a postconviction petition. Id. at 2-3. Because Payne had not complied with the 

requirements of R.C. 2953.23, the trial court concluded that Payne had not successfully 

invoked its jurisdiction to consider the "untimely petition for post conviction relief." Id. at 

2-3. This was error. 

{¶ 20} Because Fischer and other cases of the Supreme Court make clear that 

motions to correct void sentences are cognizable, the trial court erred in treating Payne's 
Nos. 19AP-248 and 19AP-250 9 

motion as a postconviction petition and dismissing it on timeliness grounds. Payne's first 

assignment of error is sustained. 

B. Second Assignment of Error – Whether the Judgment Entry was a Final 

Appealable Order 

{¶ 21} Payne argues that the original judgment entry in his case was not a final 

appealable order because it omitted to state that the jury found him guilty of Count 11 and 

because it failed to impose a sentence on Count 12. (Payne's Brief at 6-9, citing State v. 

Lester, 130 Ohio St.3d 303, 2011-Ohio-5204.) Under Lester and Ohio Rule of Criminal 

Procedure 32(C), a "judgment of conviction is a final order subject to appeal under R.C. 

2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's 

signature, and (4) the time stamp indicating the entry upon the journal by the clerk." Lester

at paragraph one of the syllabus. However, this Court has also recognized that courts do 

retain jurisdiction to correct clerical errors and clerical errors generally do not prevent 

judgments from becoming final. Id. at paragraph two of the syllabus; State v. Raber, 134 

Ohio St.3d 350, 2012-Ohio-5636, ¶ 20. 

{¶ 22} Although the trial court's original judgment entry referenced the firearm 

specification to Count 12 and indicated that the concurrent sentences imposed on Counts 

1, 4, and 8 would run consecutively to Count 12, it never actually imposed a sentence for 

Count 12. (June 3, 2002 Jgmt. Entry 01CR-3300 at 2.) But the trial court corrected this 

clerical omission approximately one week later. (June 11, 2002 Corr. Jgmt. Entry 01CR3300 at 2.) It is also true that, in listing the offenses of which jury found Payne to be guilty, 

the trial court omitted mentioning Count 11 in both the original and corrected entries. 

(June 3, 2002 Jgmt. Entry 01CR-3300 at 1; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 at 

1.) However, in both entries, the court explained that Count 11 merged with Count 8 and, 

thus, although Payne was found guilty of Count 11, he was not convicted and sentenced on 

Count 11. (June 3, 2002 Jgmt. Entry 01CR-3300 at 1; June 11, 2002 Corr. Jgmt. Entry 

01CR-3300 at 1.) 

{¶ 23} Payne's second assignment of error is overruled. 

C. Third Assignment of Error – Whether the Trial Court Ought to Have 

Sentenced Payne on the One-Year Firearm Specifications 

{¶ 24} Payne notes that, in case No. 01CR-3300, he was charged with one-year 

firearm specifications in addition to the three-year firearm specifications and that, though 
Nos. 19AP-248 and 19AP-250 10 

the trial court sentenced him on the three-year specifications, it did not dispose of the oneyear firearm specifications. (Payne's Brief at 9-10.) However, in each of the verdict forms, 

the jury indicated a finding that Payne had "displayed and/or brandished and or use[d] the 

firearm to facilitate the offense." See, e.g., Apr. 12, 2002 Verdict Form 01CR-3300 Count 

1. Under R.C. 2929.14(D)(1)(a)(i) through (iii), R.C. 2941.141(B) and 2941.145(B) as 

constituted at the time of the offenses and sentencing, if a court imposed the three-year 

term consistent with the finding that an offender "display[ed] the firearm, brandish[ed] the 

firearm, indicat[ed] that the offender possessed the firearm, or us[ed] it to facilitate the 

offense," it could not also impose a one-year term. See 2002 Am.Sub.H.B. No. 4852; 2001 

Am.Sub.S.B. No. 179.3 Thus, the trial court could not have imposed the one-year 

specifications and there was, therefore, nothing for the trial court to have disposed of. 

{¶ 25} Payne's third assignment of error is overruled. 

D. Fourth Assignment of Error – Whether the Trial Court Erred in 

Imposing the Firearm Specifications 

{¶ 26} Payne points out that R.C. 2929.14(E)(1)(a) provided at the time of the 

offense and sentencing4 that mandatory prison terms imposed under division (D)(1)(a) of 

the statute were to be served "consecutively to and prior to any prison term imposed for the 

underlying felony." (Emphasis omitted.) (Payne's Brief at 11.) Because the trial court did 

not mention in its entries that the specifications were to be served "prior to" Payne's 

substantive prison terms, he alleges the entries are defective and void. Id. at 11-12. 

However, though consecutive specification sentences are, as a matter of statute, to be 

served prior to the prison term for the underlying offense, there is no requirement that the 

trial court specifically state that statutory rule in its entries. Such failure to do so does not 

render the entries erroneous or void. 

{¶ 27} Payne's fourth assignment of error is overruled. 

E. Fifth Assignment of Error – Whether the Trial Court Erred by Merging 

the Firearm Specifications, Imposing Multiple Sentences, or Referring 

to the Sentences as "Actual Incarceration" 

{¶ 28} Payne argues that the trial court erred in referring to the terms imposed for 

Payne's firearm specifications as "actual incarceration" because that was a term of art used 

 

2 Archived online at 2001 Ohio HB 485. 

3 Archived online at 1999 Ohio SB 179. 

4 This requirement is now found in division (C)(1)(a) of R.C. 2929.14. 
Nos. 19AP-248 and 19AP-250 11 

in statutes predating Payne's sentencing. (Payne's Brief at 13-15.) Payne is correct both 

that the trial court referred to the imprisonment imposed in connection with the 

specifications as "actual" rather than "mandatory" and that the term "actual" had been 

replaced by the term "mandatory" by the time of his sentencing. See 1995 Am.Sub.S.B. No. 

25; June 3, 2002 Jgmt. Entry 01CR-3300 at 2; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 

at 2; June 3, 2002 Jgmt. Entry 01CR-3339 at 2. It is not clear that this error in terminology 

has had any practical effect on Payne. Nevertheless, an incorrect term was used to describe 

the mandatory three-year sentences imposed for the firearm specifications. 

{¶ 29} Payne also argues that the trial court imposed multiple sentences for firearm 

specifications relating to a single act or transaction and despite having merged the 

specifications. (Payne's Brief at 15-17.) He is again correct. 

{¶ 30} At the time Payne was sentenced, a court was not permitted to "impose more 

than one prison term on an offender [for a firearm specification in relation to] felonies 

committed as part of the same act or transaction." See R.C. 2929.14(D)(1)(b) (2007). 

Senate Bill No. 184 added an exception to that rule in 2008 which is now found in division 

(B)(1)(g) of the definite sentencing statute: 

If an offender is convicted of or pleads guilty to two or more 

felonies, if one or more of those felonies are aggravated 

murder, murder, attempted aggravated murder, attempted 

murder, aggravated robbery, felonious assault, or rape, and if 

the offender is convicted of or pleads guilty to a specification of 

the type described under division (B)(1)(a) of this section in 

connection with two or more of the felonies, the sentencing 

court shall impose on the offender the prison term specified 

under division (B)(1)(a) of this section for each of the two most 

serious specifications of which the offender is convicted or to 

which the offender pleads guilty and, in its discretion, also may 

impose on the offender the prison term specified under that 

division for any or all of the remaining specifications. 

R.C. 2929.14(B)(1)(g); see also 2008 Am.Sub.S.B. No. 184.6 This exception did not exist at 

the time of Payne's sentencing. But still the trial court sentenced Payne to serve terms of 

imprisonment (albeit concurrent ones) as to the specifications on Counts 1, 4, and 8 (all of 

which concerned the robbery of a single flower shop and persons therein). (June 5, 2001 

 

5 Archived online at 1995 Ohio SB 2. 

6 Archived online at 2007 Ohio SB 184. 
Nos. 19AP-248 and 19AP-250 12 

Indictment 01CR-3300 at 1-8; June 3, 2002 Jgmt. Entry 01CR-3300 at 2; June 11, 2002 

Corr. Jgmt. Entry 01CR-3300 at 2.) 

{¶ 31} In addition, the trial court merged these specifications both by oral recitation 

and in writing in the judgment entry. (Sentencing Tr. at 15; June 3, 2002 Jgmt. Entry 

01CR-3300 at 2; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 at 2.) Yet, despite having 

merged the specifications, it imposed concurrent sentences for each of the specifications 

accompanying Counts 1, 4, and 8. (June 3, 2002 Jgmt. Entry 01CR-3300 at 2; June 11, 

2002 Corr. Jgmt. Entry 01CR-3300 at 2.) This was error and rendered the judgment entry 

void in relevant part such that modification or correction is now appropriate. State v. 

Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 2, 31-34. 

{¶ 32} Payne's fifth assignment of error is sustained. 

F. Sixth Assignment of Error – Whether the Trial Court Properly Imposed 

Post-Release Control in its Entry 

{¶ 33} "[A] trial court has a statutory duty to provide notice of postrelease control at 

the sentencing hearing" and "any sentence imposed without such notification is contrary to 

law." State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 23.7 "[S]tatutorily compliant 

notification" includes "notifying the defendant of the details of the postrelease control and 

the consequences of violating postrelease control." State v. Qualls, 131 Ohio St.3d 499, 

2012-Ohio-1111, ¶ 18. The "preeminent purpose" of such notice is that "offenders subject 

to postrelease control know at sentencing that their liberty could continue to be restrained 

after serving their initial sentences." Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio5082, ¶ 52. However, because a court is generally said to speak only through its journal, 

the trial court, in addition to oral notification at the sentencing hearing, is "required to 

incorporate that notice into its journal entry imposing sentence." Jordan at ¶ 6, 17, 

paragraph one of the syllabus. 

{¶ 34} Notification and incorporation in the judgment entry of the post-release 

control sanction are necessary to "empower[] the executive branch of government to 

exercise its discretion." Jordan at ¶ 22. Thus, "to validly impose postrelease control, a 

minimally compliant entry must provide the APA [Adult Parole Authority] the information 

 

7 See also State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, ¶ 35-36 (Pfeifer, J., concurring/dissenting), 

which notes that, rather than provide a de novo sentencing hearing, courts may apply corrective procedures 

as set forth in R.C. 2929.191. 
Nos. 19AP-248 and 19AP-250 13 

it needs to execute the postrelease-control portion of the sentence." State v. Grimes, 151 

Ohio St.3d 19, 2017-Ohio-2927, ¶ 13. The Supreme Court has clarified that a "sentencing 

entry must contain the following information: (1) whether postrelease control is 

discretionary or mandatory, (2) the duration of the postrelease-control period, and (3) a 

statement to the effect that the Adult Parole Authority ("APA") will administer the 

postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the 

conditions of postrelease control will subject the offender to the consequences set forth in 

that statute." Id. at ¶ 1. 

{¶ 35} In this case, despite the fact that the trial court provided Payne with a detailed 

oral notification, the judgment entry only provided that it had notified the defendant 

regarding "the possibility of the applicable periods of post-release control." (June 3, 2002 

Jgmt. Entry 01CR-3300 at 3; June 3, 2002 Jgmt. Entry 01CR-3339 at 2; Sentencing Tr. at 

19-20.) This Court has held, in cases where oral notification is sufficient but written 

notification is not, that the judgment entry may be corrected nunc pro tunc. State v. 

Harper, 10th Dist. No. 17AP-762, 2018-Ohio-2529, ¶ 16-19. 

{¶ 36} The State argues that the Grimes requirements should not be applied 

retroactively. (State's Brief at 11-12.) Under typical circumstances, the Supreme Court has 

recognized that "[a] new judicial ruling may be applied only to cases that are pending on 

the announcement date." Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, ¶ 6, citing 

State v. Evans, 32 Ohio St.2d 185, 186 (1972). In other words, a "new judicial ruling may 

not be applied retroactively to a conviction that has become final, i.e., where the accused 

has exhausted all of his appellate remedies." Ali at ¶ 6, citing Transamerica Ins. Co. v. 

Nolan, 72 Ohio St.3d 320, 323 (1995); Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio 

St.3d 128 (1986), paragraph one of the syllabus; Evans at 186; State v. Lynn, 5 Ohio St.2d 

106, 108 (1966); State v. Gonzalez, 138 Ohio App.3d 853, 859 (1st Dist.2000). 

{¶ 37} However, the Supreme Court has also embraced the view that not properly 

imposing post-release control renders a sentence void in relevant part and therefore open 

to challenge at any time, irrespective of finality or other principles of res judicata. Fischer, 

2010-Ohio-6238, at paragraphs one and two of the syllabus; Harper at ¶ 15. When postrelease control is not appropriately imposed in a trial court's judgment entry, the sentence 

is partially void and never becomes final in that limited respect. Harper at ¶ 15. Thus, it is 
Nos. 19AP-248 and 19AP-250 14 

appropriate to correct it now under Grimes. Id.; see also Grimes at ¶ 1. The dissent in 

Harper correctly observed that this argument may appear circular in the sense that the trial 

court's judgment is only void when it issued if its deficiencies under Grimes could be 

considered to have been deficiencies before the Grimes decision was published. Harper at 

¶ 23 (Sadler, J., dissenting). But the view of Grimes this court adopted in Harper was that 

Grimes was not judicially legislating a new set of requirements but, rather, clarifying 

requirements that always existed. Thus, entries that failed to meet such requirements (even 

prior to Grimes) and were void in consequence of that failure should be subject to later 

correction. 

{¶ 38} As this Court recognized when it decided Harper, this ruling is problematic 

in that it encourages filings to obtain retroactive compliance with the clarification 

enunciated by Grimes. Yet, the problem is not with Grimes or Harper. Rather, there are 

problems with the line of cases that have promoted sentencing errors from mere errors that 

render a judgment voidable, to breaches of statutory authority which render the judgment 

void ab initio. 

{¶ 39} Payne's sixth assignment of error is sustained. 

IV. CONCLUSION 

{¶ 40} The trial court erred in construing Payne's motion to correct a void sentence 

as a postconviction petition and dismissing it as untimely. As Payne argued in his motion, 

the original and corrected judgment entries with respect to case No. 01CR-3300 contain a 

number of errors. The original entry (corrected, however) omitted imposition of a sentence 

on Count 12, both entries impose concurrent sentences on the three merged firearm 

specifications, and neither entry explained (1) whether post-release control was 

discretionary or mandatory, (2) the duration of the post-release-control period, or included 

(3) a statement to the effect that the Adult Parole Authority would administer post-release 

control pursuant to R.C. 2967.28 and that any violation by Payne of the conditions of postrelease control would subject the offender to the consequences set forth in that statute. 

{¶ 41} Therefore, Payne's first, fifth, and sixth assignments of error are sustained 

and this case is remanded to the trial court with instructions to issue a corrected judgment 

entry that provides only a single three-year sentence for the three merged firearm 

specifications and notes that Payne will be subject to a five-year mandatory period of postrelease control to be administered by the Adult Parole Authority pursuant to R.C. 2967.28 
Nos. 19AP-248 and 19AP-250 15 

with the understanding that any violation by Payne of the conditions of post-release control 

will subject him to the consequences set forth in that statute. Payne's second, third, and 

fourth assignments of error are overruled. 

Judgment reversed and 

cause remanded with instructions. 

NELSON, J., concurs in judgment only. 

DORRIAN, J., concurs in judgment only in part and dissents in part. 

DORRIAN, J., concurring in judgment only in part and dissenting in part. 

{¶ 42} I respectfully dissent in part and concur in judgment only in part. 

{¶ 43} I concur with the majority's conclusion that the original and corrected 

original judgment entries were final and appealable orders and would overrule the second 

assignment of error. This court has stated that "[i]f a direct appeal from the underlying 

sentencing entry has previously been taken in and decided by the court of appeals, the 

sentencing entry is implicitly a final order through application of the law of the case 

doctrine." State v. Bates, 10th Dist. No. 17AP-869, 2019-Ohio-1172, ¶ 19.8 In Bates, we 

 

8 Bates further explains at paragraphs 19-20: 

[T]his court has found a consistent manner of dealing with sentencing 

entries that are allegedly deficient under Crim.R. 32(C), after the trial court 

has denied (rather than refused to rule upon) a motion to correct such an 

entry. If a direct appeal from the underlying sentencing entry has previously 

been taken in and decided by the court of appeals, the sentencing entry is 

implicitly a final order through application of the law of the case doctrine. A 

subsequent order from the trial court denying the defendant's motion to 

correct the sentencing entry is itself a final appealable order, rather than 

interlocutory, and may be addressed by this court on appeal. If, to the 

contrary, no direct appeal was taken from the noncompliant sentencing 

entry, that entry remains a non-final order and no direct appeal may be 

taken from the subsequent order from the court denying a motion to correct 

the sentencing entry. At that point, as in [State v.] Bonner, [10th Dist. No. 

14AP-461, 2015-Ohio-1010], the defendant's remedy (once the trial court 

has denied his motion to correct the sentencing entry) lies in a writ of 

procedendo ordering the trial court to grant him the correct sentencing 

entry to which he is entitled. 

In contrast, if the defendant has pursued a legal remedy through a motion 

before the trial court, and the court has simply declined to rule on the 

motion, the defendant's remedy is through a writ of procedendo, and the 

appealability of the underlying sentencing entry is not determinative. If the 

defendant has yet to bring a motion before the trial court to correct the 

underlying sentencing entry, neither an appeal nor a writ is ripe. Dunn [v. 

Smith, 119 Ohio St.3d 364, 2008-Ohio-4565]. 
Nos. 19AP-248 and 19AP-250 16 

followed our precedent set forth in State v. I'Juju, 10th Dist. No. 15AP-692, 2016-Ohio3078, and State v. Monroe, 10th Dist. No. 13AP-598, 2015-Ohio-844. In I'Juju, we stated: 

Initially, as we found in Monroe, the purpose of Crim.R. 32(C) 

is to ensure that a defendant is on notice concerning when a 

final judgment has been entered and the time for filing an 

appeal has begun to run. Like the defendant in Monroe, in the 

present case, appellant filed a direct appeal of the judgment; 

thus, appellant cannot credibly argue that he was not on notice 

regarding when a final judgment was entered. Furthermore, 

consistent with our reasoning in Monroe, by reviewing and 

affirming the trial court's judgment in I'Juju, this court 

implicitly found the trial court's judgment was a final 

appealable order, and the doctrine of law of the case would 

preclude both the trial court and this court from concluding it 

was not a final appealable order. 

Although we indicated in Monroe that an appellate court may 

choose to re-examine the law of the case it has itself previously 

created if that is the only means to avoid injustice, appellant 

has failed to demonstrate that any injustice would be prevented 

by granting his motion. Appellant filed his motion to correct 

judgment entry 30 years after the trial court filed the original 

judgment, and appellant has failed to convince us that the trial 

court's issuing a new entry at this very late juncture would 

alleviate any prejudice or prevent an injustice. 

Id. at ¶ 10-11. 

{¶ 44} As in Bates, I'Juju, and Monroe, appellant in the consolidated cases before 

us filed a direct appeal and this court took the appeal and decided the case 17 years ago. 

State v. Payne, 10th Dist. No. 02AP-723, 2003-Ohio-4891. Therefore, pursuant to law of 

the case doctrine, the original and corrected original sentencing entries were final and 

appealable. Furthermore, appellant in this case has failed to demonstrate that any injustice 

would be prevented if we were to accept his argument that the original and corrected 

original judgment entries were not final and appealable. Therefore, I would decline to reexamine the law of the case that the original and corrected original sentencing entries were 

final and appealable. 

{¶ 45} I concur in judgment only as to the first assignment of error. For this limited 

reason, I would reverse and remand to the trial court to determine which, if any, of the 

alleged errors set forth in the motion to correct a void sentence, if established, would render 
Nos. 19AP-248 and 19AP-250 17 

the sentence void in part or in its entirety and therefore would not be subject to res judicata 

or the time constraints and criteria outlined at R.C. 2953.21 through 2953.23. In the event 

an alleged error, if established, would not render the sentence void in part or in its entirety, 

the court should apply the principles of res judicata and the time constraints and criteria 

outlined in R.C. 2953.21 through 2953.23 to that particular error. 

{¶ 46} I write separately regarding the first assignment of error to express caution 

regarding the broad conclusion set forth in the lead opinion at paragraphs 17-18 and 

suggested in footnote one of State v. Steele, 10th Dist. No. 18AP-187, 2018-Ohio-3950, 

quoted in paragraph 17 of the lead opinion. While I recognize the concern of appellate 

courts regarding the "swelling" of the Supreme Court of Ohio's "void-versus-voidablesentence jurisprudence," State v. Straley, __ Ohio St.3d __, 2019-Ohio-5206, ¶ 26, I think 

it is important to note that the labeling of a motion as one "to correct or vacate a void 

sentence" does not necessarily require a trial court to assume the petitioner has in fact 

raised an issue that would render part or all of a sentence void and accordingly require the 

trial court to evaluate the motion under State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio6238, and its progeny.9 Such a motion does, however, require a trial court to carefully 

examine the motion, and each separate alleged error raised therein, to determine whether 

the alleged error, if established, would render part or all of the sentence void. Sometimes 

this analysis involves a fine line. But, to be clear, not every sentencing error results in a 

void sentence, even if a petitioner labels it as such. Furthermore, if such an error exists, it 

may render the sentence void only in part, leaving the remainder of the sentence unaffected. 

 

9 It is well-recognized that the caption or title of a motion is not controlling and that a court should consider 

the content of the motion in determining how to treat it. Cooke v. United Dairy Farmers, Inc., 10th Dist. No. 

05AP-1307, 2006-Ohio-4365, ¶ 29 ("Courts of this state have recognized that the name given to a pleading or 

motion is not controlling. Rather, it is the substance of the pleading or motion that determines the operative 

effect thereof."). (Internal citation omitted.) See also Carter-Jones Lumber Co. v. JCA Rentals, LLC, 7th Dist. 

No. 12 MA 56, 2013-Ohio-863, ¶ 19 ("A court is entitled to rely on the caption of a motion when ruling on it, 

but also has the discretion to construe the motion based on the contents in the body of the motion, itself."); 

State ex rel. Browning v. Browning, 5th Dist. No. CT2011-CA-55, 2012-Ohio-2158, ¶ 43 ("Courts of this state 

have recognized that the name given to a pleading or motion is not controlling. Rather, the substance of the 

pleading or motion determines the operative effect thereof.") (Internal citation omitted.); State v. Workman, 

12th Dist. No. CA2002-12-302, 2003-Ohio-4242, ¶ 6 ("It is not a motion's designation or title that is 

controlling. Rather, a motion should be considered for what it is and its content rather than how it is 

designated.") (Internal citation omitted.); Lungard v. Bertram, 86 Ohio App. 392, 395 (1st Dist.1949) ("We 

are fully conscious that the name given to a pleading or motion is not controlling. It is the substance and not 

the caption that determines the operative effect of a pleading or motion under the Code."). 
Nos. 19AP-248 and 19AP-250 18 

{¶ 47} Even post-Fischer and State v. Williams, 148 Ohio St.3d 403, 2016-Ohio7658, some motions which purport to correct or vacate a void sentence are, simply, 

petitions for postconviction relief—subject to the time constraints and criteria outlined at 

R.C. 2953.21 through 2953.23 and subject to res judicata. Moreover, within the same 

motion, some of the issues raised could be subject to res judicata and the criteria outlined 

at R.C. 2953.21 through 2953.23, whereas others might not. See Fischer at ¶ 36-40 ("[T]he 

court of appeals in this case correctly found that Fischer's remaining claims, which did not 

involve a[] void sentence or judgment, were barred by res judicata. * * * [R]es judicata still 

applies to other aspects of the merits of a conviction, including the determination of guilt 

and the lawful elements of the ensuing sentence."). (Emphasis added.) Therefore, res 

judicata10 may still apply to part or all of a motion captioned as a motion to vacate or correct 

a void sentence. Thus, the trial court must engage in careful examination of such a motion 

issue by issue. The trial court here did not engage in an issue-by-issue examination. 

{¶ 48} I respectfully dissent from the lead opinion's analysis of the third, fourth, 

fifth, and sixth assignments of error, and I would find them to be rendered moot pursuant 

to reversal and remand on the first assignment of error. If, upon remand, the trial court 

determines that some or all of the issues raised in appellant's motion would, if established, 

render part or all of the sentence void, and thus are not subject to res judicata or the criteria 

outlined at R.C. 2953.21 through 2953.23, the trial court should address these issues in the 

first instance. I would not opine on issues not yet decided by the trial court. 

{¶ 49} For these reasons, I respectfully dissent in part and concur in judgment only 

in part. I concur in judgment only and would sustain the first assignment of error. I would 

 

10 It is also important to remember that this court has applied the doctrines of res judicata and law of the case 

to previous determinations, within the same case, that an alleged error did not render a sentence void. 

Accordingly, I would disagree with the statement in footnote 1 of Steele that an alleged sentencing error, even 

one which claims to render a sentence void, could be "revived time and time again without being foreclosed 

by res judicata." That is not the case. See State v. Haynes, 10th Dist. No. 14AP-276, 2015-Ohio-183, ¶ 14 ("We 

believe that once an appellate court has ruled that a judgment is not void, that ruling binds the case for 

purposes of future consideration."); State v. Anderson, 10th Dist. No. 15AP-897, 2016-Ohio-1089, ¶ 12-13 

("Moreover, we have previously decided these issues in Anderson's previous appeal. We again find Anderson's 

assignments of error to be without merit and we specifically hold that his sentence is not void. Therefore, his 

claim is barred by res judicata."); see also State v. Sowell, 8th Dist. No. 107153, 2019-Ohio-701, ¶ 13 ("Sowell's 

arguments are barred by res judicata. This court has repeatedly found that the sentence on the [repeat violent 

offender] specification is not void; thus, any argument regarding sentencing should have been raised on direct 

appeal."); State v. Burns, 2d Dist. No. 27374, 2018-Ohio-1419, ¶ 19 ("In [the appellant's] second appeal, we 

found that the trial court properly imposed an aggregate sentence of 44 years to life. * * * Hence, we have 

already determined that the sentence is not void, implicating the doctrine of res judicata."). 
Nos. 19AP-248 and 19AP-250 19 

reverse and remand and instruct the trial court to determine, alleged error by alleged error, 

set forth in the motion to correct a void sentence, which, if any, of the alleged errors, if 

established, would render the sentence void in part or in its entirety and therefore are not 

subject to res judicata or the time constraints and criteria outlined at R.C. 2953.21 through 

2953.23. I concur with the majority overruling the second assignment of error. I dissent 

from the majority addressing the third, fourth, fifth, and sixth assignments of error and 

would find the same to be rendered moot.