[Cite as State v. Bennett, 2015-Ohio-3832.]

 IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 SCIOTO COUNTY 

STATE OF OHIO, : 

Plaintiff-Appellee, : Case No. 15CA3682 

vs. : 

ROBERT L. BENNETT, : DECISION AND JUDGMENT ENTRY

 

Defendant-Appellant. : 

_________________________________________________________________ 

 APPEARANCES:

Robert L. Bennett, Chillicothe, Ohio, Pro Se. 

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant 

Prosecuting Attorney, Portsmouth, Ohio, for appellee. 

CRIMINAL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED:9-11-15 

ABELE, J. 

{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that 

overruled a motion for re-sentencing filed by Robert L. Bennett, petitioner below and appellant 

herein. Appellant assigns the following errors for review1

: 

FIRST ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED AS A MATTE [sic] OF LAW, 

AND ABUSED ITS DISCRETION, WHEN IT FAILED TO 

RE-SENTENCE APPELLANT AS STATUTORILY REQUIRED, 

WHEN IT FAILED TO MENTION THE CONSEQUENCES OF 

 1

 Appellant neglects to include in his brief a separate statement 

of the assignments of error. See App.R. 16(A)(3). We take these 

assignments of error from appellant's brief's “table of contents.” 
SCIOTO, 15CA3682 2

VIOLATING POST-RELEASE CONTROL, OF THE LENGTH 

OF CONFINEMENT THAT COULD BE IMPOSED FOR A 

POST-RELEASE CONTROL VIOLATION, AND FAILED TO 

IMPOSE THE CORRECT MANDATORY THREE YEARS 

POST-RELEASE CONTROL, NOT THE LANGUAGE OF ‘UP 

TO A MAXIMUM OF 3 YEARS’ POST-RELEASE CONTROL, 

AS REQUIRED BY LAW PURSUANT TO R.C. 2929(B)(3)(c) 

THROUGH (e), R.C. 2967.28, AND R.C. 2929.14(F) AND 

INCORPORATE [sic]INTO THE JUDGMENT OF 

CONVICTION ENTERED ON MARCH 10TH, 2005.” 

SECOND ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED AS A MATTER OF LAW, AND 

ABUSED ITS DISCRETION, WHEN IT FAILED TO 

RE-SENTENCE APPELLANT AS STATUTORILY REQUIRED, 

WHEN IT FAILED TO NOTIFY THE 

DEFENDANT-APPELLANT AT THE ‘SENTENCING 

HEARING’ THAT THE FAILURE TO PAY COURT COSTS 

COULD RESULT IN THE TRIAL COURT ORDERING THE 

DEFENDANT-APPELLANT TO PERFORM COMMUNITY 

SERVICE PURSUANT TO R.C. 2947.23(A)(1)(a).” 

{¶ 2} A jury found appellant guilty of the murder of two year old Kaylee Chandler. On 

March 10, 2005, the trial court sentenced him to serve an indefinite term of fifteen years to life in 

prison. We affirmed that conviction. See State v. Bennett, 4th Dist. Scioto No. 05CA2997, 

2006-Ohio-2757. No further appeal was allowed by the Ohio Supreme Court. See State v. 

Bennett, 111 Ohio St.3d 1417, 2006-Ohio-5083, 854 N.E.2d 1094. 

{¶ 3} Appellant commenced the case sub judice on January 16, 2015 with a “Motion 

For Re-Sentencing Based on Void Judgment.” The gist of his argument is that at the 2005 

sentencing hearing, the trial court failed to (1) notify him of the penalty that could be imposed for 

violating post-release control, (2) impose the correct mandatory three year term of post-release 
SCIOTO, 15CA3682 3

control, and (3) notify him that he could be ordered to perform community service if he failed to 

pay court costs. 

{¶ 4} The State filed a memorandum contra and argued, inter alia, that the motion was 

untimely and that appellant’s arguments were barred by the doctrine of res judicata. On 

February 5, 2015, the trial court overruled the motion. This appeal followed. 

 I 

{¶ 5} Before we address the merits of the assignments of error, we pause to address 

some procedural issues. Although titled as a “Motion For Re-Sentencing,” appellant couched 

his motion as a petition for postconviction relief. This is also how the State approached the 

motion in its memorandum contra. 

{¶ 6} The Ohio Supreme Court has held that if “a criminal defendant, subsequent to his 

or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the 

basis that his or her constitutional rights have been violated, such a motion is a petition for 

postconviction relief as defined in R.C. 2953.21.” (Emphasis added.) State v. Reynolds, 79 Ohio 

St.3d 158, 679 N.E.2d 1131, at the syllabus (1997). However, since Reynolds many appellate 

courts have treated motions asking for re-sentencing as a petition for postconviction relief, 

whether or not there is an alleged constitutional violation. See e.g. State v. Turner-Frantz, 7th

Dist. Jefferson No. 14 JE 33, 2015-Ohio-2111, at ¶17 (motion for re-sentencing treated as though 

alleged violations were of statute and criminal rule); State v. Gumm, 8th Dist. Cuyahoga App. No. 

101496, 2015-Ohio-1539, at ¶3 (referring to an earlier case where a motion for re-sentencing was 

treated as such a petition when the claim was for violation of a criminal rule). 
SCIOTO, 15CA3682 4

{¶ 7} Arguably, this violates the Reynolds syllabus that holds the basis of the petition 

should be a claim that “constitutional rights have been violated.” Moreover, it seems to violate 

the statute itself. R.C. 2953.21(A)(1)(a) states in pertinent part: 

“Any person who has been convicted of a criminal offense . . .who claims that 

there was such a denial or infringement of the person's rights as to render the 

judgment void or voidable under the Ohio Constitution or the Constitution of the 

United State[s] . . . may file a petition in the court that imposed sentence, stating 

the grounds for relief relied upon, and asking the court to vacate or set aside the 

judgment or sentence or adjudicated a delinquent child and who claims that there 

was such a denial or infringement of the person's rights as to render the judgment 

void or voidable under the Ohio Constitution or the Constitution of the United 

States . . .” (Emphasis addeed.) 

{¶ 8} The Ohio General Assembly intended a petition for postconviction relief to 

challenge violations of state and federal constitutional provisions. Here, the case sub judice is 

an example of how Reynolds and R.C. 2953.21(A)(1)(a) have been taken out of context. We 

found no reference to, or claim of, a constitutional violation anywhere in appellant’s motion. 

Instead, he alleges a violation of various criminal sentencing laws. It seems counterintuitive, 

therefore, to treat his motion as a petition for postconviction relief. Nevertheless, this was how 

it was treated in the trial court and we do so here to remain consistent.2

{¶ 9} That said, we note that a trial court’s decision to grant or deny a R.C. 2953.21 

petition for postconviction should be upheld absent an abuse of discretion. State v. Gondor, 112 

Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶58. An “abuse of discretion” is more than 

 2

 It seems particularly alarming to treat this case as one for 

postconviction relief because none of the normal rules for such relief 

apply. The only questions before us, as we discuss shortly, are 

whether the alleged errors during the original 2005 sentencing 

proceedings render parts of the judgment voidable (and thus barred 

from being raised by the doctrine of res judicata) or void. This 

case does not involve a constitutional question. 
SCIOTO, 15CA3682 5

an error of law or judgment; it implies that the trial court's attitude was unreasonable, arbitrary or 

unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940 (2002); State v. 

Adams, 60 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). In reviewing for an abuse of 

discretion, appellate courts must not substitute their judgment for that of the trial court. State ex 

rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re 

Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). Further, as the State points 

out, Ohio law required that appellant file his petition within one hundred eighty days after his 

transcripts were filed with the court of appeals. See R.C. 2953.21(A)(2). A trial court could 

consider an untimely petition only if a petitioner can demonstrate certain specific reasons 

outlined in R.C. 2953.23, none of which appellant attempted to show in his motion. Thus, 

unless appellant can point to an exception from this time limitation, his petition could not have 

been considered in the first place. 

{¶ 10} Finally, the Ohio Supreme Court has held that the doctrine of res judicata applies 

when determining whether postconviction relief is warranted under R.C. 2953.21. See State v. 

Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233, at the syllabus (1996); State v. Nichols, 11 Ohio 

St.3d 40, 42, 463 N.E.2d 375 (1984); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, at 

paragraph eight of the syllabus (1967). In other words, a petitioner may not raise, for purposes 

of postconviction relief, any error that could have been raised on direct appeal. See State v. 

Franklin, 4th Dist. Meigs No. 05CA9, 2006–Ohio–1198, at ¶10; State v. Peeples, 4th Dist. 

Pickaway No. 05CA25, 2006–Ohio–218, at ¶11. Here, all of the alleged errors appellant raised 

could have been raised in his direct appeal. Thus, unless appellant can point to an exception 

from the doctrine of res judicata, his claims were barred. 
SCIOTO, 15CA3682 6

{¶ 11} One exception that applies to both the time limitation for filing a postconviction 

relief petition and the application of the doctrine of res judicata is the existence of a judgment 

that is void. Res judicata does not apply to void judgments. See e.g. State v. Mitchell, 187 

Ohio App.3d 315, 2010-Ohio-1766, 931 N.E.2d 1157, at ¶22, fn. 1. A void judgment may be 

challenged at any time. State v. Lowe, 9th Dist. Summit No. 27199, 2014-Ohio-1817. at ¶7. 

{¶ 12} In short, the only questions before us are whether the alleged errors are ones that 

had the effect of rendering the 2005 sentencing judgment void or voidable. If the alleged errors 

could have been raised on direct appeal, as they clearly could have in light of the fact that they 

occurred during the sentencing phase of these proceedings, they should have been raised on 

direct appeal and are now barred from being raised. However, if the alleged errors were such 

that they rendered the judgment of conviction and sentence void, they may be raised at any time – 

even now, more than a decade after appellant’s judgment of conviction and sentence. With 

these principles in mind, we turn our attention to the merits of appellant’s assignments of error. 

 II 

{¶ 13} Appellant’s first assignment of error raises two separate arguments as to why the 

trial court erroneously denied his motion. First, appellant was not informed of the consequences 

that could flow from violating post-release control.3

 Second, that the trial court failed to inform 

 3

 The argument portion of appellant’s brief does not address 

this portion of the assignment of error. See App.R. 16(A)(7). Thus, 

we could disregard it. See App.R. 12(A)(2). Although we afford 

considerable leniency to pro se litigants, see State v. Esparza, 

4th Dist. Washington No. 12CA42, 2013-Ohio-2138, at ¶5; State v. Evans, 

4th Dist. Pickaway No. 11CA24, 2012-Ohio-4143, at ¶7, fn.2, there 

are limits to that leniency. We do not serve as a counsel for pro 

se litigants and will not construct arguments on their behalf. 

Nevertheless, in the interests of justice we will consider his 

assignment of error. 
SCIOTO, 15CA3682 7

him that after release from prison he would be subject to post-release control for up to “a 

maximum of three years.” We, however, find no merit to either argument. 

{¶ 14} As the State correctly points out in its brief, murder under R.C. 2903.02(B) is an 

unclassified felony. See State v. Anderson, 6th Dist. Lucas No. L–14–1158, 2015-Ohio-1678, at 

¶2; State v. Jackson, 12th Dist. No. CA2013–12–227, 2015-Ohio-478, at ¶6; State v. Blanda, 12th

Dist. Butler No. CA2013–06–109, 2014-Ohio- 2234 at ¶2. This is significant because 

unclassified felons are not subject to post-release control in the first place. See e.g. State v. 

Opalach, 8th Dist Cuyahoga No. 100938, 2014-Ohio-5037, at ¶5; State v. Pope, 9th Dist. Summit 

Nos. 26928 & 27096, 2014- Ohio-3212, at ¶¶21-22; State v. Moore, 4th Dist. Adams No. 

13CA965, 2014-Ohio- 3024, at ¶5. Thus, if unclassified felons are not subject to post-release 

control, then any mistake that arises from a failure to notify them of circumstances of such status 

does not rise to the level of error sufficient to render such judgment void. See generally State ex 

rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, at ¶21; State 

v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶¶36-38. 

{¶ 15} Here, we agree that the trial court erroneously stated in its 2005 sentencing entry 

that appellant would be subject to up to three years community control. We also agree, 

arguendo, that appellant was not informed of the consequences of any violation of his 

post-release control. However, appellant was not prejudiced by either of these errors because he 

was not subject to post-release control to begin with. Appellant does not cite any authority that 

this judgment was void ab initio, thus leaving it open to appeal, and we are aware of such 

authority from our research. Therefore, for these reasons, we hereby overrule appellant's first 

assignment of error. 
SCIOTO, 15CA3682 8

 III 

{¶ 16} In his second assignment of error, appellant argues that the trial court erred by 

dismissing his motion for re-sentencing because the 2005 sentencing entry failed to alert him to 

the possible penalty for failing to pay court costs – specifically, that he could be required to 

perform community service if he failed to pay those costs. 

{¶ 17} Even if we assume, arguendo, that the trial court erred, the Ohio Supreme Court 

has held that errors “in imposing court costs without so informing a defendant in court . . . does 

not void the . . . entire sentence.” State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio- 954, 926 

N.E.2d 278, at ¶3. In other words, any error regarding imposition of court costs renders the 

judgment voidable, rather than void. As we held in State v. Spencer, 4th Dist. Scioto No. 

15CA3681, 2015-Ohio-1445: 

“Spencer's claim that the error in his sentence as it relates to court costs renders 

that portion of his sentence ‘void’ is not supported by law. The Supreme Court of 

Ohio makes a clear distinction between sentencing errors involving post[-]release 

control, which may result in a void portion of a sentence, and sentencing errors 

involving the imposition of court costs. ‘There is a significant difference between 

post[-]release control and court costs in regard to the duty of the trial court.’ A 

trial court has a statutory duty to provide notice of post[-]release control, but 

exercises discretion in the waiver of court costs. 

Additionally, court costs are not punishment and are civil in nature. ‘The civil 

nature of the imposition of court costs does not create the taint on the criminal 

sentence that the failure to inform a defendant of post[-]release control does. Nor 

does the failure to inform a defendant orally of court costs affect another branch of 

government.’ A defendant must make a motion to waive payment of court costs at 

the time of sentencing or the issue is waived, ‘If the defendant makes such a 

motion, then the issue is preserved for appeal and will be reviewed under an abuse 

of discretion standard. Otherwise, the issue is waived and costs are res judicata.’” 

(Emphasis added) (Citations omitted.) 
SCIOTO, 15CA3682 9

{¶ 18} In short, any failure to alert an appellant that the failure to pay court costs may 

require the performance of community service in lieu thereof, does not render the sentencing 

entry void. Other districts have also said the same. See e.g. State v. Barnes, 12th Dist. Warren 

No. CA2014–03–049, 2015-Ohio-651, at ¶¶11-12; State v. Graham, 3rd Dist. Hancock No. 

5–13–31, 2014-Ohio-1785, at ¶18; State v. Priest, 8th Dist. Cuyahoga App. No. 100614, 

2014-Ohio- 1735, at ¶10. 

{¶ 19} Given that such arguable error did not render the 2005 judgment void, appellant 

could have raised it in his direct appeal of right. He failed to do so. Thus, any such error is 

barred from being raised at this date both by provisions of R.C. 2953.21(A) and the doctrine of 

res judicata. The second assignment of error is thus overruled for these reasons. 

 IV 

{¶ 20} To summarize, within the context of postconviction relief proceedings and for 

purposes of the application of res judicata, none of the alleged errors that appellant cites arise 

from his 2005 sentencing proceedings and renders them void. Consequently, he raises those 

errors outside the R.C. 2953.21(A) one hundred eighty day time limit and they are also barred by 

the doctrine of res judicata. Thus, the trial court, did not abuse its discretion when it overruled 

appellant’s motion for re-sentencing (petition for post-conviction relief). For all of these 

reasons, we hereby affirm the trial court's judgment. 

JUDGMENT AFFIRMED. 

Harsha, J., concurring in judgment only: 

{¶ 21} I concur in affirming the trial court’s judgment but do so for a different reason 

than the majority opinion. Because the appellant has failed to raise a constitutional error, 
SCIOTO, 15CA3682 10

post-conviction relief is not available. See, R.C. 2953.21(A)(1)(a). Thus, the trial court did not 

err in denying the motion. 
SCIOTO, 15CA3682 11

 JUDGMENT ENTRY

It is ordered that the judgment be affirmed and judgment be entered in favor of appellee. 

Appellee shall recover of appellant 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 Scioto County 

Common Pleas Court to carry this judgment into execution. 

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Hoover, P.J.: Concurs in Judgment & Opinion 

Harsha, J.: Concurs in Judgment Only with Opinion 

For the Court 

BY: 

 Peter B. Abele, Judge 
SCIOTO, 15CA3682 12

 

 NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk.