[Cite as State v. Cover, 2021-Ohio-1303.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109959 

 v. : 

 

JEFFERY COVER, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: April 15, 2021 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case Nos. CR-19-642333-A and CR-19-643403-A 

 ______________________ 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Frank Romeo Zeleznikar, Assistant 

Prosecuting Attorney, for appellee. 

Fred D. Middleton, for appellant. 

SEAN C. GALLAGHER, P.J.: 

Jeffery Cover appeals the trial court’s decision deeming his two-year 

aggregate sentence in CR-19-642333-A to be mandatory. The final aggregate term 

of imprisonment is comprised of an 18-month sentence imposed upon a violation of 
R.C. 2921.331(B), for the failure to comply with an order or signal of a police officer, 

and a six-month term of imprisonment imposed upon a violation of R.C. 2925.11(A), 

for felony drug possession. Both sentences were imposed to be served consecutive 

to each other and to a 12-month term of imprisonment Cover was already serving in 

CR-19-637096-A, but concurrent with the 12-month term of imprisonment imposed 

in CR-19-643403-A, which was also based on his failing to comply with an order or 

signal from a police officer. In this appeal, Cover claims the trial court erroneously 

imposed the two-year term of imprisonment as a mandatory sentence. We need not 

delve too deeply in this matter; the state concedes the error and the disposition. 

Cleveland v. Andujar, 8th Dist. Cuyahoga No. 106867, 2018-Ohio-3571, ¶ 1. 

The conduct underlying the charges against Cover in CR-19-

642333-A involved his attempting to elude a police officer after the officer initiated 

a traffic stop. Cover reached speeds in excess of 100 miles per hour during the 

pursuit that occurred throughout the Rocky River, Ohio area. In light of the threat 

caused by Cover’s conduct, the police officer ended the pursuit and Cover was 

apprehended at a later time. The events underlying the charges in CR-19-643403-A 

were similar, involved speeds nearing 90 m.p.h., and occurred in Independence, 

Ohio. The officers also ended the pursuit in light of the danger to the public. Cover 

fled from the officers in the attempt to evade an arrest warrant that had been issued. 

It is undisputed that Cover pled guilty to a violation R.C. 2921.331(B), 

which criminalizes eluding or fleeing “a police officer after receiving a visible or 

audible signal from a police officer to bring the person’s motor vehicle to a stop.” 
Under subdivision (C)(5)(a), that violation is a felony of the third degree if the trier 

of fact determines, or the offender pleads guilty to the fact, that the offender’s 

operation of the vehicle was either the “proximate cause of serious physical harm to 

persons or property” or “caused a substantial risk of serious physical harm to 

persons or property.” R.C. 2921.331(D), the sentencing provision under which 

Cover was sentenced, provides that “if the offender is sentenced to a prison term for 

[a violation of R.C. 2921.331(C)], the offender shall serve the prison term 

consecutively to any other prison term or mandatory prison term imposed upon the 

offender.” Thus, it is undisputed that the prison term imposed in CR-19-642333-A 

had to be imposed consecutive to “any other prison term” imposed upon the 

offender. 

Despite the statutory language, the trial court imposed the 12-month 

prison term in CR-19-643403-A to be served concurrent with the 24-month prison 

term imposed in CR-19-642333-A. Without objection, and after explaining the 

ramifications of the trial court’s belief that the two-year term was considered a 

mandatory sentence and providing a notice of the right to appeal, Cover failed to 

take any action until his motion for judicial release was denied based on the trial 

court designating the 24-month sentence to be mandatory. Cover then filed this 

delayed appeal claiming that the term of imprisonment imposed in CR-19-642333-A 

was contrary to law. Leave for the delayed appeal was granted. 

“Once granted, a delayed appeal proceeds as any timely appeal would 

proceed, and the assertion of error is virtually the same as it would have been but 
for the delayed filing.” State v. Silsby, 119 Ohio St.3d 370, 2008-Ohio-3834, 894 

N.E.2d 667, ¶ 14. Accordingly, the Ohio Supreme Court’s recent decision in State v. 

Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, in which it was 

concluded that “sentences based on an error, including sentences in which a trial 

court fails to impose a statutorily mandated term, are voidable if the court imposing 

the sentence has jurisdiction over the case and the defendant[,]” does not preclude 

Cover’s challenge. Henderson at ¶ 1; State v. Harper, 160 Ohio St.3d 480, 2020-

Ohio-2913, 159 N.E.3d 248, ¶ 42. 

There is one issue not addressed by the parties that requires further 

attention. R.C. 2921.331(D) requires the trial court to impose the sentences in CR19-642333-A to be served consecutive to any other prison term imposed on the 

offender, including the sentence imposed in CR-19-643403-A. McKinney v. 

Haviland, Slip Opinion No. 2020-Ohio-4785, ¶ 4, fn. 1; State v. Smith, 8th Dist. 

Cuyahoga No. 108379, 2020-Ohio-914, ¶ 9, citing State v. Parker, 8th Dist. 

Cuyahoga No. 105361, 2018-Ohio-579, ¶ 29, and State v. Whittsette, 8th Dist. 

Cuyahoga No. 85478, 2005-Ohio-4824, ¶ 10. Application of R.C. 2921.331(D) 

should have resulted in consecutive terms of imprisonment totaling four years, 

instead of the three-year aggregate term imposed for all cases. The trial court 

erroneously imposed the sentence in CR-19-643403-A concurrent to the two-year 

term of imprisonment imposed in CR-19-642333-A. 

The state, however, failed to timely appeal the trial court’s 

misapplication of R.C. 2921.331(D) through the imposition of concurrent sentences 
as between the two cases. Without a timely cross-appeal filed under App.R. 3(C), 

this court is without jurisdiction to review the concurrent nature of the sentence 

imposed in CR-19-643403-A that was included in this consolidated appeal. State v. 

Burge, 9th Dist. Lorain No. 16CA010936, 2017-Ohio-5836, ¶ 53 (failure to timely 

file a cross-appeal deprived the court of jurisdiction to review the claimed error); 

State v. Hill, 1st Dist. Hamilton No. C-180114, 2019-Ohio-365, ¶ 46 (state failed to 

perfect a cross-appeal to challenge the trial court’s decision granting leave to file a 

new trial, and was, therefore, limited to addressing the merits of the motion for new 

trial in the defendant’s appeal of the adverse decision); State v. Bosher, 10th Dist. 

Franklin No. 13AP-1000, 2014-Ohio-2285, ¶ 9 (defendant is precluded from 

challenging the finding of reasonable suspicion for the initial stop, in the state’s 

appeal of the motion to suppress evidence procured through the detention of the 

defendant, based on the failure to file a cross-appeal); see also State v. Finger, 8th 

Dist. Cuyahoga No. 106352, 2018-Ohio-1413, ¶ 4; State v. Brazil, 6th Dist. Wood 

No. WD-13-040, 2014-Ohio-995, ¶ 14. The trial court’s erroneous sentence, which 

is not considered void and subject to collateral attack at any time, cannot be 

challenged at this juncture. Henderson. The erroneous sentence is merely voidable 

subject to a timely appeal, of which the state did not partake. 

As a result, we are limited to reviewing whether the trial court erred 

by imposing the two-year aggregate term of imprisonment as a mandatory sentence. 

On this point, the parties agree that such a sentence was improper 

and the appropriate remedy is to reverse the sentences, and remand for the trial 
court to impose the consecutive service of the sentences imposed in CR-19-

642333-A without the “mandatory” designation. Although the sentences imposed 

for CR-19-642333-A must be served consecutively to all other prison terms, that 

does not transform the sentences into mandatory ones. “R.C. 2929.13(F) addresses 

mandatory prison terms and lists offenses for which a sentencing court is obligated 

to impose a prison term.” State v. Johnson, 116 Ohio St.3d 541, 2008-Ohio-69, 880 

N.E.2d 896, ¶ 9. No provision under R.C. 2929.13(F) provides that the consecutive 

sentences required under R.C. 2921.331(D) are excluded from those sentences that 

may be reduced under other statutory provisions — in other words, R.C. 2929.13(F) 

does not expressly provide that the sentences imposed in this case are mandatory. 

Accordingly, we agree with the parties that the trial court designating the sentences 

imposed under R.C. 2921.331(D) to be “mandatory” was in error. 

Cover advanced four assignments of error all premised on the error 

with respect to the mandatory nature of the sentences imposed. The trial court erred 

in designating the two-year aggregate term of imprisonment in CR-19-642333-A as 

a mandatory sentence. We reverse and remand for the sole purpose of the trial court 

issuing a new final entry of conviction that omits any notation that the sentences are 

mandatory. All other assigned errors, if not specifically addressed herein, are 

overruled as moot. Reversed and remanded. 

This cause is reversed and remanded to the lower court for further 

proceedings consistent with this opinion. 

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. 

 _____ 

SEAN C. GALLAGHER, PRESIDING JUDGE 

EILEEN A. GALLAGHER, J., and 

MICHELLE J. SHEEHAN, J., CONCUR