[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 Attorn ey, 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 C ounty Common Pleas Court judgment that overruled a motion for re-sentencing filed by Robert L. Bennett, petitioner below and appellant herein. Appellant assigns th e following errors for review 1 : 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 10 TH , 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 , 4 th Dist. Scioto No. 05CA2997, 2006-Ohio-2757. No further appeal was allo wed 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 j udice on January 16, 2015 with a “Motion For Re-Sentencing Based on Void Judgment.” Th e gist of his argument is that at the 2005 sentencing hearing, the trial court failed to (1) no tify him of the penalty that could be imposed for violating post-release control, (2 ) impose the correct mandatory three year term of post-releaseSCIOTO, 15CA3682 3 control, and (3) notify him that he could be ordered to perform co mmunity 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 e rror, we pause to address some procedural issues. Although titled as a “Motion For Re-Sentencin g,” 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 vaca tion 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-s entencing as a petition fo r postconviction relief, whether or not there is an allege d constitutional violation. See e.g. State v. Turner-Frantz , 7 th 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 , 8 th Dist. Cuyahoga App. No. 101496, 2015-Ohio-1539, at ¶3 (referring to an earlie r 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 “constitutiona l 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 ad judicated 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 Constitu tion or the Constitution of the United States . . .” (Emphasis addeed.) {¶ 8} The Ohio General Assemb ly 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 anyw here in appellant’s motion. Instead, he alleges a violation of various criminal sentencing la ws. It seems counterintuitive, therefore, to treat his motion as a petition for pos tconviction relief. Neve rtheless, 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 judg ment 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 appe llant 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 wh ich appellant attempted to show in his motion. Thus, unless appellant can point to an exception fro m 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 petiti oner may not raise, for purposes of postconviction relief, any e rror that could have been ra ised on direct appeal. See State v.

Franklin , 4 th Dist. Meigs No. 05CA9, 2006–Ohio–1198, at ¶10; State v. Peeples , 4 th Dist. Pickaway No. 05CA25, 2006–Ohio–218, at ¶11. Here, a ll of the alleged erro rs appellant raised

could have been raised in his direct appeal. Thus, unless appe llant can point to an exception from the doctrine of res judicat a, his claims were barred.SCIOTO, 15CA3682 6 {¶ 11} One exception that applies to both th e 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 a pply 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 , 9 th Dist. Summit No. 27199, 2014-Ohio-1817. at ¶7. {¶ 12} In short, the only questions before us ar e whether the alleged errors are ones that had the effect of rendering the 2005 sentencing judg ment void or voidable. If the alleged errors

could have been raised on direct a ppeal, 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 raise d. 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 rais es two separate arguments as to why the

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

that could flow from viol ating 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 , 4 th Dist. Washington No. 12CA42, 2013-Ohio-2138, at ¶5; State v. Evans , 4 th 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-releas e 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 , 6 th Dist. Lucas No. L–14–1158, 2015-Ohio-1678, at ¶2; State v. Jackson , 12 th Dist. No. CA2013–12–227, 2015-Ohio-478, at ¶6; State v. Blanda , 12 th 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 , 8 th Dist Cuyahoga No. 100938, 2014-Ohio-5037, at ¶5; State v. Pope , 9 th Dist. Summit Nos. 26928 & 27096, 2014- Ohio-3212, at ¶¶21-22; State v. Moore , 4 th Dist. Adams No. 13CA965, 2014-Ohio- 3024, at ¶5. Thus, if unclassifi ed felons are not s ubject 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 sufficien t 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 tria l court erroneously stated in its 2005 sentencing entry that appellant would be subject to up to thr ee years community control. We also agree, arguendo, that appellant was not informed of the consequen ces 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-re lease control to begin with. Appella nt 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 thes e reasons, we hereby ove rrule 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 tr ial court erred, the Ohio Supreme Court has held that errors “in imposing court costs wit hout so informing a defenda nt 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 th an void. As we held in State v. Spencer , 4 th 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 se ntencing errors invol ving post[-]release control, which may result in a void portion of a sentence, and sentencing errors involving the imposition of court costs. ‘T here 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 pos t[-]release control, but exercises discretion in the waiver of court costs. Additionally, court costs are not puni shment 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 defe ndant of post[-]release control does. Nor does the failure to inform a de fendant orally of court costs affect another branch of government.’ A defendant mu st 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 a ppeal and will be reviewed under an abuse of discretion standard. Otherw ise, 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 , 12 th Dist. Warren No. CA2014–03–049, 2015-Ohio-651, at ¶¶11-12; State v. Graham , 3 rd Dist. Hancock No. 5–13–31, 2014-Ohio-1785, at ¶18; State v. Priest , 8 th 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 eigh ty day time limit and they are also barred by the doctrine of res judicata. Thus, the trial c ourt, did not abuse its di scretion when it overruled appellant’s motion for re-sente ncing (petition for post-convicti on 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 ava ilable. 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 a nd judgment be entered in favor of appellee. Appellee shall recover of a ppellant costs herein taxed.

The Court finds there were reas onable 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 Appella te Procedure. Hoover, P.J.: Concurs in Judgment & Opinion Harsha, J.: Concurs in Judgment Only with Opinion

For the Court

BY: Peter B. Abele, JudgeSCIOTO, 15CA3682 12

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.