[Cite as State v. Foster , 2017-Ohio-9318.]



### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellee,

vs. DAVID FOSTER, Defendant-Appellant. :

:

:

:

: APPEAL NO. C-16033 7 TRIAL NO. B-0408159A

O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed as Modified, and Cause Remanded Date of Judgment Entry on Appe al: December 29, 2017

Joseph T. Deters , Hamilton County Prosecuting Attorney, and Melynda J. Machol

, Assistant Prosecuting Attorney, for Plaintiff-Appellee, Bryan R. Perkins and Michael K. Allen , for Defendant-Appellant.OHIO FIRST DISTRICT COURT OF APPEALS

2 Per Curiam. 

### {¶1} Defendant-appellant David Foster appeals from the Hamilton County Common Pleas Court’s judgment overruling his “Motion to Vacate, Set-Aside, and Resentence Due to Void Judgment.” We affirm the court’s judgment as modified, but remand for correction of the sentencing entry. 

### {¶2} Foster was convicted in 2005 of conspiracy, drug possession, and drug trafficking. In his direct appeal, we vacated his sentences and remanded for resentencing in light of the Ohio Supreme Court’s decision in State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. State v. Foster , 1st Dist. Hamilton No. C-050378, 2006-Ohio-1567, appeal not accepted , 110 Ohio St.3d 1439, 2006- Ohio-3862, 852 N.E.2d 188. Then, in hi s appeal from his 2006 resentencing, we vacated his sentences and remanded for merger consistent with R.C. 2941.25. State

v. Foster , 1st Dist. Hamilton No. C-060720 (June 27, 2007), aff’d , 118 Ohio St.3d 265, 2008-Ohio-2542, 888 N.E.2d 411. The trial court resentenced Foster on September 4, 2008, merging the possession and conspiracy charges into the trafficking charge and imposing consecutive prison terms of ten years for trafficking and seven years for the major-drug-offender specification accompanying that charge. We affirmed that conviction on appeal. State v. Foster , 1st Dist. Hamilton No. C080929 (Aug. 8, 2009), appeal not accepted , 123 Ohio St.3d 1511, 2009-Ohio-6210,

917 N.E.2d 812. 

### {¶3} Foster unsuccessfully challenged his trafficking conviction in postconviction motions filed with the common pleas court in 2006, 2007, 2013, and

2015. See State v. Foster , 1st Dist. Hamilton No. C-130369 (Feb. 26, 2014), appeals not accepted

, 139 Ohio St.3d 1419, 2014-Ohio-2487, 10 N.E.3d 738; State v. Foster , 1st Dist. Hamilton No. C-070518 (June 11, 2008), appeal not accepted , 119 Ohio St.3d 1488, 2008-Ohio-5273, 894 N.E.2d 1245; State v. Foster , 1st Dist. Hamilton Nos. C060065 and C-060121 (Jan. 10, 2007). In this appeal from the overruling of his 2015OHIO FIRST DISTRICT COURT OF APPEALS

3 “Motion to Vacate, Set-Aside, and Resentence Due to Void Judgment,” he advances two assignments of error. Early-Release Exclusions 

### {¶4} In his first assignment of error, Foster contends that the common pleas court erred in failing to afford hi m the relief sought in his motion. The assignment of error is well taken in part. 

### {¶5} In his motion, Foster sought correction of that part of the 2008 judgment of conviction that stated that he was “not eligible for intensive prison program, transitional control, judicial release, or any other early release program
and is to serve this se ntence in its entirety.” He ar gued that those portions of his sentence were void, because the trial court was not authorized by law to effectively “require him to serve * * * as if it were a mandatory sentence” the seven-year prison term imposed for the majo r-drug-offender specificat ion, because the court, prematurely and without findings, disapproved transitional contro l, and because the court acted without statutory authority when it effectively excluded him fromeligibility for any present or future early-release program, such as the earned-daysof-credit program under R.C. 2967.193, by expressly declaring him “not eligible” for early release and by ordering him “to serve his prison sentence in its entirety.” 

### {¶6} Judgment of conviction not correctable under any

statute or criminal rule. Foster did not specify in his postconviction motion a statute or rule under which the relief soug ht might have been afforded, leaving the common pleas court free to “recast” the moti on “into whatever category necessary to identify and establish the criteria by wh ich the motion should be judged.” State v.
Schlee , 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus. But the motion was not reviewable under the standards provided by R.C. 2953.21 et seq., governing the proceedings upon a petition fo r postconviction relief, when the motion alleged statutory, rather than constitutional , violations. See R.C. 2953.21(A)(1). The

motion was not reviewable under Crim.R. 32.1 , as a motion to withdraw a guilty plea,OHIO FIRST DISTRICT COURT OF APPEALS

4 or under Crim.R. 33, as a motion for a new trial, when Foster had been convicted of trafficking following a jury tr ial, and the motion sought resentencing rather than a
new trial. Nor was the motion reviewable un der R.C. Chapter 2731 as a petition for a writ of mandamus, under R.C. Chapter 2721 as a declaratory judgment action, or under R.C. Chapter 2725 as a petition for a writ of habeas corpus, when the motion did not satisfy those statutes’ procedural requirements. See R.C. 2731.04, 2721.12(A), and 2725.04. And Crim.R. 57(B) did not require the common pleas court to review pursuant to the procedures provided under Civ.R. 60(B) the challenges advanced in the motion, because Foster’s judgment of conviction had been reviewable under the procedures provided for a direct appeal. See State v. Smith , 1st
Dist. Hamilton Nos. C-150445 and C-150 446, 2016-Ohio-3521, ¶ 19. Accordingly, the postconviction statutes and rules did not confer upon the common pleas court jurisdiction to entertain the challenges advanced in Foster’s motion. 

### {¶7} Jurisdiction to correct void portions of the judgment of

conviction. But a court always has jurisdiction to correct a void judgment. See
State ex rel. Cruzado v. Zaleski , 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. And we conclude that th e common pleas court had jurisdiction to correct as void that portion of Foster’s judgment of conviction that excluded him from “any * * * early release program” and ordered him “to serve his prison sentence in its entirety.” 

### {¶8} In State v. Livingston , 2014-Ohio-1637, 9 N.E.3d 1117 (1st Dist.), the trial court had included the following langua ge in the judgment of conviction entered upon Livingston’s guilty plea to voluntary manslaughter: “Pursuant to a plea agreement between the parties, the defendant herein is not eligible for risk reduction, intensive prison programs, earned days of credit, transitional control, judicial release, or any other early release program and is to serve this sentence in its entirety.” Id. at ¶ 2. In his direct appeal, Livingston argued that the trial court had lacked the authority to limit his eligibilit y to earn credit against his prison termOHIO FIRST DISTRICT COURT OF APPEALS

5 under R.C. 2967.193 for participating in approved prison programs. Livingston at ¶
3. Because the earned-credit statute identif ied eligible offenders and conferred upon the department of rehabilitation and correct ion, not the trial court, the authority to determine and award the credit, we concluded that that portion of Livingston’s sentence declaring him ineligib le for earned days of credit was not authorized by law and was thus subject to review on direct appeal. Id. at ¶ 4-7, citing R.C. 2953.08(D)(1). And we vacated and remanded for correction that portion of his

sentence. Id. at ¶ 10. 

### {¶9} Our holding in Livingston was based on principles, recently reaffirmed by the Ohio Supreme Court in State v. Williams , 148 Ohio St.3d 403, 2016-Ohio7658, 71 N.E.3d 234, that the Ohio General Assembly is vested with the power to
define criminal offenses and prescribe punishment, and that the only sentence that a trial court may impose is that authorized by statute. Id. at ¶ 20 and 22, citing Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964), and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21-22. See Livingston at ¶ 6. The court in Williams also reaffirmed principles pertinent to our review here of Foster’s collateral attacks on his sentence, that a sentence that is not authorized by statute is void and thus reviewable at any time, but a sentence imposed by a trial court with jurisdiction and the statutory authority to act is not rendered void by an error in imposing the sentence and may only be challenged on direct appeal. Williams at ¶ 20-23, citing State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984), Fischer at ¶ 6-7, 21–23 and 30, and State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28. 

### {¶10} In Livingston , we noted for purposes of contrast that while the General Assembly had provided no role for the judi ciary in determining el igibility for earned credit under R.C. 2967.193, it had expressl y conferred upon trial courts the authority under R.C. 5120.032(B)(1)(a) to determine eligibility for placement in an intensive prison program and under R.C. 2967.26 to disapprove a transfer into a transitionalOHIO FIRST DISTRICT COURT OF APPEALS

6 control program. Livingston at ¶ 7-9. For those same reasons, in the reopened appeal in State v. Brown , 1st Dist. Hamilton No. C-130120, 2016-Ohio-310, we sustained an assignment of error challengin g the trial court’s auth ority to include in Brown’s judgment of conviction an ea rned-credit restriction, but overruled assignments of error challenging restrictions on his eligibility for transitional control and judicial release. Brown at ¶ 13-19. We further note that the version of R.C. 2925.03(C)(6)(g) effective in 2008, when Foster was resentenced, conferred upon

the trial court the discretion to impose “an additional mandatory prison term” for Foster’s major-drug-offender sp ecification. Because the trial court was authorized by statute to impose upon Foster the seven-year prison term for the major-drugoffender specification and to restrict his el igibility for the intens ive prison program, transitional control, and judicial release, those portions of his sentence were not void, and the common pleas court had no jurisdiction to entertain the collateral challenges to them presented in his 2016 motion. 

### {¶11} But the trial court had no statutory authority to declare Foster “not eligible for * * * any other early release program” or to order that he “serve [his] sentence in its entirety.” Those parts of his sentence were, therefore, void, and the common pleas court had jurisdiction to review and correct them. 

### {¶12} Accordingly, we sustain in part the first assignment of error. Merger


### {¶13} In his second assignment of error, Foster asserts that the 2008 judgment of conviction entered on remand from our 2007 decision in Foster , 1st Dist. Hamilton No. C-060720, is void, because the trial court failed to “clearly indicat[e] which counts were merged as allied offenses of similar import, on which count [Foster] is serving a sentence, and that [he] only has a single conviction.” We have no jurisdiction to entertain this challenge in this appeal from the overruling of Foster’s 2015 motion, because he did not presen t this challenge in that motion. See State v.OHIO FIRST DISTRICT COURT OF APPEALS

7 Gipson , 1st Dist. Hamilton Nos. C-960867 and C-960881, 1997 WL 598397 (Sept. 26, 1997).



### {¶14} Nor was that portion of the 2008 judgment demonstrably void. The judgment plainly shows that the trial court, pursuant to our order on remand, merged the possession and conspiracy charges into the trafficking charge and sentenced Foster for trafficking only, along with that offens e’s major-drug-offender specification. We
said as much in our 2009 decision in Fo ster’s direct appeal, affirming the 2008 judgment of conviction. See Foster , 1st Dist. Hamilton No. C-080929.



### {¶15} This court does not have, nor did the common pleas court have, jurisdiction to entertain Foster’s merger challenge to the judgment of conviction. Accordingly, we overrule the second assignment of error.

Affirmed as Modified, but Remanded 

### {¶16} Because Foster’s sentence was not correctable under any criminal rule or statutory procedure, his 2015 “Mot ion to Vacate, Set-Aside, and Resentence Due to Void Judgment” was subject to dismissa l. Accordingly, upon the authority of App.R. 12(A)(1)(a), we modify the judgment appealed from to reflect the dismissal of the motion. And we affirm the judgment as modified. 

### {¶17} But the common pleas court had jurisdiction to correct those unauthorized portions of his sentence declar ing that he was “not eligible for * * * any other early release program” and ordering that he “serve [his] sentence in its entirety.” We, therefore, remand this ca use for correction of the offending portions of the sentencing entry, in accordan ce with the law and this opinion. Judgment accordingly.

C UNNINGHAM , P.J., M YERS and M ILLER , JJ.

Please note: The court has recorded its own entry on the date of the release of this opinion.