[Cite as State v. Stansell, 2021-Ohio-203.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109023 

v. 

 

MICHAEL STANSELL, : 

 

 Defendant-Appellant. : 

 

 JOURNAL ENTRY AND OPINION 

 JUDGMENT: VACATED AND REMANDED 

RELEASED AND JOURNALIZED: January 28, 2021 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-97-356129-ZA 

 

Appearances: 

 Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Daniel T. Van, Assistant Prosecuting 

Attorney, for appellee. 

 

Cullen Sweeney, Cuyahoga County Public Defender, and 

John T. Martin, Assistant Public Defender, for appellant. 
ON RECONSIDERATION1

LARRY A. JONES, SR., J.: 

Pursuant to App.R. 26(A)(1)(a), plaintiff-appellee, the state of Ohio, 

has filed an application for reconsideration of this court’s opinion in State v. 

Stansell, 8th Dist. Cuyahoga No. 109023, 2020-Ohio-3674 (“Stansell III”). The 

test regarding whether to grant a motion for reconsideration under App.R. 

26(A)(1(a) “‘is whether the motion * * * calls to the attention of the court an 

obvious error in its decision or raises an issue for our consideration that was either 

not considered at all or was not fully considered by [the court] when it should have 

been.’” State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, ¶ 182, 

quoting Matthews v. Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278 (10th 

Dist.1982). The state contends that our decision in Stansell III improperly failed 

to consider State v. Stansell, 8th Dist. Cuyahoga No. 100604, 2014-Ohio-1633 

(“Stansell II”). We agree and therefore issue this reconsidered opinion. 

The within case is defendant-appellant, Michael Stansell’s second 

appeal to this court over the issue of whether the trial court erred by not vacating 

his sexually violent predator specifications. For the reasons that follow, we vacate 

the specifications and remand for resentencing. 

 

1The original decision in this appeal, State v. Stansell, 8th Dist. Cuyahoga No. 

109023, 2020-Ohio-3674, released on July 9, 2020, is hereby vacated. This 

opinion, issued upon reconsideration, is the court’s journalized opinion in this 

appeal. See App.R. 22(C); see also S.Ct.P.R. 7.01. 
I. 

In 1997, a 38-count indictment was filed against Stansell, charging 

him with sexually oriented crimes against two minor boys. In 1998, pursuant to a 

plea agreement, Stansell pleaded guilty to two counts of rape of a child under age 

13, one count of rape with a sexually violent predator specification, two counts of 

corruption of a minor, one count of gross sexual imposition with a sexually violent 

predator specification, and one count of pandering obscenity. 

As part of the plea negotiation, Stansell and the state recommended 

an agreed sentence of 20 years to life to the trial court; the trial court imposed the 

recommended sentence and classified Stansell as a sexual predator. The “life tail” 

was purportedly mandatory due to the sexually violent predator specifications. 

Prior to this case, Stansell had never been convicted of a sexually oriented offense 

and, therefore, the sexually violent predator specifications were based on the 

charges contained in the indictment in this case. However, the version of R.C. 

2971.01(H) defining sexually violent predator that was in effect at the time 

required that for an offender to be so labeled, he or she had to have had a prior 

sexually oriented conviction. 

Stansell filed a motion to withdraw his guilty plea on the ground that 

his counsel was ineffective because counsel failed to tell him about the allied 

offenses statute; the trial court denied the motion. This court upheld the denial of 

the motion in State v. Stansell, 8th Dist. Cuyahoga No. 75889, 2000 Ohio App. 
LEXIS 1726 (Apr. 20, 2000) (“Stansell I”). Stansell did not raise the issue of his 

life tail in Stansell I, his direct appeal. 

In 2004, the Ohio Supreme Court issued a decision in a certified 

conflict case, State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 

283, holding that a “[c]onviction of a sexually violent offense cannot support the 

specification that the offender is a sexually violent predator as defined in R.C. 

2971.01(H)(1) if the conduct leading to the conviction and the sexually violent 

predator specification are charged in the same indictment.” Id. at syllabus. 

Four months after Smith was decided, the Ohio Legislature 

amended R.C. Chapter 2971, which governs “sentencing of sexually violent 

predators.” The introduction to the bill, which amended the statute, states, in 

relevant part, that the amendment was made “to clarify that the Sexually Violent 

Predator Sentencing Law does not require that an offender have a prior conviction 

of a sexually violent offense in order to be sentenced under that Law.” See 126 

Am.Sub. H.B. 473. 

In 2013, Stansell filed his first motion to vacate the sexually violent 

predator specifications. The trial court denied the motion, and Stansell appealed. 

This court, relying on the Ninth and Tenth Appellate Districts’ decisions, 

respectively, in State v. Ditzler, 9th Dist. Lorain No. 13CA010342, 2013-Ohio4969, and State v. Draughon, 10th Dist. Franklin Nos. 11AP-703 and 11AP-995, 

2012-Ohio-1917, found that Smith did not have retroactive application. Stansell II

at ¶ 14-16. 
Specifically, this court cited the Ninth District’s reasoning as follows: 

The Supreme Court of Ohio has held 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, 819 N.E.2d 

687, citing State v. Evans, 32 Ohio St.2d 185, 186, 291 N.E.2d 466 

(1972). Thus, “[t]he 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. 

Stansell II at ¶ 15, quoting Ditzler at ¶ 11. 

Because Stansell’s case was not pending at the time Smith was 

decided, this court held that it had no retroactive application. Stansell II at ¶ 16. 

Stansell attempted to file a delayed appeal to the Ohio Supreme Court; the court 

denied the motion for delayed appeal. State v. Stansell, 140 Ohio St.3d 1413, 2014-

Ohio-3785, 15 N.E.3d 882. 

In 2019, this court decided State v. Frierson, 8th Dist. Cuyahoga No. 

106841, 2019-Ohio-317. The defendant in Frierson was charged in 2016 with 

sexually oriented offenses that contained sexually violent predator specifications; 

the crimes were alleged to have occurred in 1997. The defendant did not have any 

prior convictions for sexually oriented offenses. The defendant was found guilty on 

several of the charges, as well as the sexually violent predator specifications. On 

appeal to this court, he challenged his convictions on the specifications, contending 

that they violated the Ex Post Facto Clause of the United States Constitution. 

This court agreed, reasoning as follows: 

Under the plain language in R.C. 2971.01(H)(1) as it existed at the 

time of Frierson’s offenses, he was not eligible for the enhanced, 

indefinite sentencing under R.C. 2971.03 because he did not qualify as 
a sexually violent predator. As the Ohio Supreme Court stated in 

Smith [104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283], the 

words of R.C. 2971.01(H)(1) as it existed during the relevant periods 

clearly indicated that at the time of indictment, the person must have 

already been convicted of a sexually violent offense in order to be 

eligible for the specification. The legislature’s subsequent amendment 

of the statute following Smith was not mere “clarification” as the state 

argues, but a significant and substantive change to the definition of 

“sexually violent predator,” allowing, for the first time, the underlying 

conduct in an indictment to satisfy the specification without a prior 

conviction. As applied to Frierson, this amendment greatly enhanced 

his potential punishment by subjecting him to the indefinite 

sentencing found in R.C. 2971.03 whereas he was not subject to an 

enhanced sentence prior to the amendment. Therefore, we find that 

amended R.C. 2971.01(H)(1), as applied to Frierson, violates the Ex 

Post Facto Clause of the United States Constitution. 

Frierson at ¶ 12. 

After Frierson was decided, Stansell filed his second motion to 

vacate the sexually violent predator specifications. The trial court denied the 

motion, and this appeal ensues. 

Stansell’s sole assignment of error reads: “The trial court erred as a 

matter of law in denying appellant’s motion to vacate sexually violent predator 

specification and re-sentence defendant.”2 

 

2After Frierson, 8th Dist. Cuyahoga No. 106841, 2019-Ohio-317, this court reversed 

“life-tail” sentences on sexually violent predator specifications in two other cases: State 

v. Townsend, 8th Dist. Cuyahoga No. 107186, 2019-Ohio-1134, and State v. Clipps, 8th 

Dist. Cuyahoga No. 107747, 2019-Ohio-3569. Frierson, Townsend, and Clipps were all 

accepted by the Ohio Supreme Court upon the state’s appeal. See State v. Frierson, 

2019-Ohio-3797, 131 N.E.3d 961; State v. Townsend, 2019-Ohio-3797, 131 N.E.3d 956; 

and State v. Clipps, 2020-Ohio-122, 137 N.E.3d 1200. Frierson and Clipps are being 

held pending the decision in Townsend, which was recently released in State v. 

Townsend, Slip Opinion 2020-Ohio-5586 (Dec. 10, 2020). In Townsend, the Ohio 

Supreme Court affirmed this court’s judgment that the ex post facto clause was violated 

by the application of the amended version of R.C. 2971.01(H)(1) to a defendant who 
II. 

Initially, we note that the sentence imposed on Stansell was an 

agreed sentence. Under R.C. 2953.08(D)(1), “[a] sentence imposed upon a 

defendant is not subject to review under this section if the sentence is authorized 

by law, has been recommended jointly by the defendant and the prosecution in the 

case, and is imposed by a sentencing judge.” 

In other words, a sentence that is “contrary to law” is appealable by 

a defendant; however, an agreed-upon sentence may not be appealed if (1) both the 

defendant and the state agree to the sentence, (2) the trial court imposes the 

agreed sentence, and (3) the sentence is authorized by law. R.C. 2953.08(D)(1). If 

all three conditions are met, the defendant may not appeal the sentence. 

In light of the above, we must determine whether Stansell’s sentence 

is authorized by law. In State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 

922 N.E.2d 923, the Ohio Supreme Court held that “[a] sentence is ‘authorized by 

law’ only if it comports with all mandatory sentencing provisions.” Id. at 

paragraph two of the syllabus. 

At the relevant time, Stansell did not, under R.C. 2971.01(H)(1), 

qualify for the enhanced, indefinite sentencing terms because he did not qualify as 

a sexually violent predator, that is, he did not have a prior conviction for a sexually 

oriented offense. Because his sentence was not authorized by law as it existed at 

 

committed his or her offense prior to the amendment of the statute but was charged and 

convicted after the amendment. 
the time of his sentencing, we are able to review it even though it was an agreedupon sentence. 

We start by considering the impact Stansell II has on our review. As 

mentioned, in Stansell II, a panel of this court found that Smith, 104 Ohio St.3d 

106, 2004-Ohio-6238, 818 N.E.2d 283, could not be applied retroactively.3 This 

court decided the issue of Stansell’s sexually violent predator status solely on 

Smith, stating that “[r]egardless of whether the principles of res judicata apply 

here, * * * the trial court did not err in denying appellant’s motion to vacate.” 

Stansell II at ¶ 6. 

Under the doctrine of stare decisis, courts adhere to precedent to 

create an orderly and predictable system of law. Hall v. Rosen, 50 Ohio St.2d 135, 

138, 363 N.E.2d 725 (1977), overruled on other grounds, Johnson v. Adams, 18 

Ohio St.3d 48, 47 N.E.2d 866 (1985). However, the doctrine does not absolve a 

court of its duty to analyze each case as it is presented. Shearer v. Shearer, 18 

Ohio St.3d 94, 95, 480 N.E.2d 388 (1985). Moreover, “[n]othing less than a 

decision by the Supreme Court of Ohio renders * * *” a decision stare decisis. John 

Hancock Mutual Life Ins. Co. v. Jennings, 17 Ohio Law Abs. 583, 8, 1934 Ohio 

Misc. LEXIS 1235. 

At the time of Stansell II, the law regarding void sentences and res 

judicata was that void sentences were “not precluded from appellate review by 

 

3Again, Smith held that, under the sexually violent predator statute as it existed at that 

time, a defendant could not be convicted of a sexually violent predator specification 

based solely on the presently indicted conduct. 
principles of res judicata and may be reviewed at any time, on direct appeal or by 

collateral attack.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 

N.E.2d 332, ¶ 40. And at that time, under Ohio law, improperly imposed 

sentences were deemed void despite the trial court having jurisdiction over the 

case and the defendant. See, e.g., State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio6085, 817 N.E.2d 864; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 

N.E.2d 961 (trial court’s failure to fully comply with the statutory requirements 

related to postrelease control rendered sentence void). 

With the above in mind, we believe that we are not bound under the 

doctrine of stare decisis to follow Stansell II. At the time of Stansell II, whether res 

judicata prevented Stansell from successfully appealing his sentence necessarily 

depended on the propriety of the sentence. “If a judge imposes a sentence that is 

unauthorized by law, the sentence is unlawful. ‘If an act is unlawful it [is] not 

erroneous or voidable, but it is wholly unauthorized and void.’” (Emphasis sic.) 

State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 21, 

quoting State ex rel. Kudrick v. Meredith, 24 Ohio N.P. (n.s.) 120, 124, 1922 Ohio 

Misc. LEXIS 262 (1922). 

Because Stansell could not qualify as a sexually violent predator at 

the time he was sentenced, his life-tail sentence was unlawful and res judicata did 

not apply. “If a judgment is void, the doctrine of res judicata has no application, 

and the propriety of the decision can be challenged on direct appeal or by collateral 

attack.” State v. Holmes, 8th Dist. Cuyahoga No. 100388, 2014-Ohio-3816, ¶ 13. 
Thus, at the time of Stansell II, Stansell’s failure to raise this issue in his direct 

appeal was irrelevant. 

Further, at that time, the law was that “when the trial court 

disregards statutory mandates, ‘[p]rinciples of res judicata, including the doctrine 

of the law of the case, do not preclude appellate review. The sentence may be 

reviewed at any time, on direct appeal or by collateral attack.’” State v. Williams, 

148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22, quoting Fischer, 128 

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 30. 

The law at the time Stansell was indicted and sentenced did not 

allow for a sexually violent predator specification based on the conduct of the 

current indictment. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, 

merely clarified that, but that was the law before Smith. This court clarified that in 

Frierson, 8th Dist. Cuyahoga No. 106841, 2019-Ohio-317, noting that the 

amendment to the statute in the wake of Smith was “a significant and substantive 

change to the definition of ‘sexually violent predator,’ allowing, for the first time, 

the underlying conduct in an indictment to satisfy the specification without a prior 

conviction.” Id. at ¶ 12. Frierson made clear that “[u]nder the plain language in 

R.C. 2971.01(H)(1) as it existed at the time of [the] offenses, [the defendant] was 

not eligible for the enhanced, indefinite sentence * * * because he did not qualify as 

a sexually violent predator.” Id. 

We recognize that at the time of our decision in Stansell III, the 

Ohio Supreme had issued the first of two decisions, State v. Harper, 160 Ohio 
St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, seemingly reversing course on the 

voidness doctrine in criminal sentencing. In Harper, the court considered what to 

do when a trial court errs in how it imposes postrelease control. Specifically, 

postrelease control was properly imposed but the consequences of violating it were 

not fully journalized. The court held that the defendant was barred under the 

principles of res judicata from challenging the imposition of postrelease control 

because he failed to make the challenge in his direct appeal. The Harper court 

went back to the “traditional understanding of void and voidable sentences.” Id. at 

¶ 34. 

“[A] judgment of conviction is void if rendered by a court having 

either no jurisdiction over the person of the defendant or no 

jurisdiction of the subject matter, i.e., jurisdiction to try the defendant 

for the crime for which he was convicted. Conversely, where a 

judgment of conviction is rendered by a court having jurisdiction over 

the person of the defendant and jurisdiction of the subject matter, 

such judgment is not void, and the cause of action merged therein 

becomes res judicata as between the state and the defendant.” 

Id. at ¶ 22, quoting State v. Perry, 10 Ohio St.2d 175, 178-179, 226 N.E.2d 104 (1967). 

Although Harper was released at the time of our decision in 

Stansell III, the Ohio Supreme Court had not spoken at that time as to whether its 

shift on void and voidable sentences would apply to all types of sentencing errors. 

Moreover, Harper involved a situation where the trial court improperly imposed 

something it was allowed to ─ postrelease control ─ whereas, here, the court 

imposed a life tail when it was not allowed to. In other words, the trial court 

exceeded the statutory authority given to it for sentencing Stansell. 
The Ohio Supreme Court did consider the universal application of 

Harper on sentencing after our decision in Stansell III, when it released State v. 

Henderson, Slip Opinion 2020-Ohio-4784, and held that a “sentence is void only if 

the sentencing court lacks jurisdiction over the subject matter of the case or personal 

jurisdiction over the accused.” Henderson at ¶ 27. In Henderson, the trial court was 

statutorily required to sentence the defendant to a life tail, but did not do so. The 

state, 18 years later, sought to impose the life tail. The Ohio Supreme Court held that 

the sentence was not void because the trial court had jurisdiction over the case and the 

defendant, and the state had had a full and fair opportunity to object to or challenge 

the trial court’s sentence and did not.

This case is different from Harper, 160 Ohio St.3d 480, 2020-Ohio2913, 159 N.E.3d 248, and Henderson because, here, Stansell, is serving more time 

than what was statutorily permitted at the time he was indicted and sentenced. 

The same was not true for the defendants in Harper and Henderson. The sentence 

in this case, therefore, implicates Stansell’s constitutional rights. 

The United States Supreme Court has recognized that res judicata is 

generally inapplicable “where life or liberty is at stake.” Sanders v. United States, 

373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); see also Natl. Amusements, 

Inc. v. Springdale, 53 Ohio St.3d 60, 558 N.E.2d 1178 (1990). Res judicata “‘is to 

be applied in particular situations as fairness and justice require, and * * * is not to 

be applied so rigidly as to defeats the ends of justice or so as to work an injustice.’” 

Grava v. Parkman Twp., 73 Ohio St.3d 379, 386-387, 653 N.E.2d 226 (1995) 
(Douglas, J., dissenting), quoting 46 American Jurisprudence 2d, Judgments, 

Section 522, at 785-787 (1994), and citing Goodson v . McDonough Power Equip., 

Inc., 2 Ohio St.3d 193, 202, 443 N.E.2d 978 (1983). 

Finally, “[j]udges have no inherent power to create sentences.” 

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 22, citing 

Griffin & Katz, Ohio Felony Sentencing Law, Section 1:3, at 4, fn. 1 (2008), and 

Woods v. Telb, 89 Ohio St.3d 504, 507-509, 733 N.E.2d 1103 (2000). Rather, 

judges are duty-bound to apply sentencing laws as they are written. Fischer at id. 

Both Harper and Henderson, Slip Opinion 2020-Ohio-4784, recognize that res 

judicata does not preclude collateral attack of actions that a trial court does 

without authority. The trial court here imposed a sentence outside of its authority; 

Harper and Henderson should not serve as a bar to this court’s review. 

In light of the above, Stansell’s convictions on the sexually violent 

predator specifications are vacated and the case is remanded for resentencing 

without those specifications. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

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

common pleas court to carry this judgment into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. 

 

LARRY A. JONES, SR., JUDGE 

PATRICIA ANN BLACKMON, P.J., AND 

MARY EILEEN KILBANE, J., CONCUR