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STATE OF OHIO v. MICHAEL STANSELL
Case Number: 109023
Judge: MARY J. BOYLE
Court: COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Cleveland, Ohio - Criminal defense attorney represented MICHAEL STANSELL with sentencing exceeding statutory limitations.
We find that where a defendant’s sentence exceeds statutory
limitations, the sentence is voidable, but not void, unless the sentencing court lacked
subject-matter jurisdiction over the case or personal jurisdiction over the defendant.
In State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d
248, the Ohio Supreme Court “realign[ed] its void-sentence jurisprudence” with the
“traditional understanding” that a void judgment is one that is rendered without
subject-matter jurisdiction over the case or personal jurisdiction over the parties.
Harper at ¶ 4. The Ohio Supreme Court explained that it had created exceptions to
this traditional rule, but these exceptions “burdened” courts with unnecessary
litigation and “undermin[ed] the finality of criminal judgments.” Id. at ¶ 3. The
1The state claims that the panel’s finding in the Stansell III reconsidered
opinion conflicts with Stansell II and State v. Speed, 8th Dist. Cuyahoga No. 105543,
2018-Ohio-277, regarding whether Stansell’s sentence is void due to his sexually
violent predator specification and whether his challenge to it is barred by res
judicata. The state frames the conflict question as follows: “Whether the Ohio
Supreme Court’s decision in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238,
818 N.E.2d, applies retroactively to closed cases that became final prior to Smith
being decided.” court held that if a trial court has subject-matter jurisdiction over the case and
personal jurisdiction over the accused, an error in the trial court’s imposition of
postrelease control renders the court’s judgment voidable, not void, and not subject
to collateral attack. Id. at ¶ 4-5. The court cautioned “prosecuting attorneys, defense
counsel, and pro se defendants throughout this state that they are now on notice that
any claim that the trial court has failed to properly impose postrelease control in the
sentence must be brought on appeal from the judgment of conviction or the sentence
will be subject to res judicata.” Id. at ¶ 43.
In State v. Brooks, 8th Dist. Cuyahoga No. 108919, 2020-Ohio-3286,
this court extended the holding in Harper to apply to sentencing errors outside of
the context of postrelease control. Brooks at ¶ 9. Brooks had filed a petition for
postconviction relief arguing that his sentence of “life, without the possibility of
parole until serving twenty (20) years” was void because it was contrary to the
language of then R.C. 2929.03(C)(2) that stated, “twenty full years.” (Emphasis sic.)
Id. at ¶ 4. This court found that the sentencing court had subject-matter jurisdiction
over Brooks’s case and personal jurisdiction over him, and that pursuant to Harper,
Brooks’s sentence could be challenged only on direct appeal. Id. at ¶ 9.
This court followed Brooks in State v. Starks, 8th Dist. Cuyahoga
No. 109444, 2020-Ohio-4306, where Starks was sentenced to life imprisonment,
without the parole eligibility after twenty years that former R.C. 2929.03 required.
Starks argued in a postconviction motion that his sentence was void because it was “not authorized by statute.” Id. at ¶ 10. However, applying Harper and Brooks, we
found that the sentencing court had subject-matter jurisdiction over Starks’s case
and personal jurisdiction over him, and that any sentencing error would render his
sentence voidable, not void. Id. at ¶ 15. We therefore found that Starks could
challenge his sentence only on direct appeal, and his postconviction argument was
barred by the doctrine of res judicata. Id. at ¶ 15-16.
After we released Brooks and Starks, the Ohio Supreme Court also
extended Harper to sentencing errors beyond postrelease control in State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776. Former
R.C. 2929.02(B) required the trial court to sentence Henderson to an indefinite
sentence of 15 years to life, but the trial court instead sentenced him to “15 years”
without the life tail. Id. at ¶ 39-40. When the state challenged the sentence via a
postconviction motion, the Ohio Supreme Court found that “there is no dispute that
the sentence is unlawful” but that the error rendered the sentence voidable, not void,
and the state could not correct the error in a postconviction motion. Id. at ¶ 40.
Based on Harper and Henderson, the current void-sentence
jurisprudence of the Ohio Supreme Court is clear: if the sentencing court has
subject-matter jurisdiction over the case and personal jurisdiction over the
defendant, any sentencing error renders the sentence voidable, not void. We must
apply this bright-line rule to the question for en banc review: sentences that exceed
statutory limitations, so long as the trial court had subject-matter jurisdiction over the case and personal jurisdiction over the defendant, are likewise voidable, not
The Ohio Supreme Court created no exception to its realigned voidsentence jurisprudence for sentences that exceed statutory limitations. Under
Henderson, as long as “the court has jurisdiction over the case and the person, any
error in the court’s exercise of that jurisdiction is voidable.” (Emphasis added.) Id.
at ¶ 34. The court did not limit its holding to specific types of errors or to situations
where an error causes the defendant to spend less time incarcerated than statutorily
mandated. Indeed, the court explained in Henderson that one of the reasons it was
realigning its void-sentence jurisprudence was because the previous case law
“created uncertainty, inconsistency, frustration, and confusion” regarding how to
apply the voidness doctrine to particular judgments. Id. at ¶ 32. By realigning the
void-sentence doctrine to “the traditional understanding of what constitutes a void
judgment,” the court meant to “remove that confusion” and “restore predictability
and finality to trial-court judgments and criminal sentences.” Id. at ¶ 33. It intended
to narrow void judgments to those rendered by a court without subject-matter
jurisdiction over the case or personal jurisdiction over the accused. Id. at ¶ 38.
The Stansell III reconsidered opinion’s holding that sentences
exceeding statutory limitations are void is therefore against the Ohio Supreme
Court’s precedent in Harper and Henderson. The holding also conflicts with this
court’s opinion in Starks that a sentence “not authorized by statute” was voidable, not void, despite the harsh reality that Starks is now spending life in prison without
the parole eligibility to which he was entitled under former R.C. 2929.03.
We recognize that the application of the Ohio Supreme Court’s
current void-sentence jurisprudence can be unjust, especially in cases like this one
and Starks where the sentencing error is not challenged on direct appeal and causes
the defendant to spend “unwarranted time incarcerated.” Henderson, 161 Ohio
St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, at ¶ 48 (O’Connor, C.J., concurring in
judgment only). We echo the concerns expressed in Chief Justice O’Connor’s
concurring in judgment only opinion in Henderson that the majority opinion
“elevate[s] predictability and finality over fairness and substantial justice.” Id. at
¶ 47. However, we are constrained to follow the Ohio Supreme Court’s holdings in
the majority opinions in Harper and Henderson.
We therefore hold that so long as the sentencing court has subjectmatter jurisdiction over the case and personal jurisdiction over the defendant, any
sentencing error, including the imposition of a sentence that exceeds statutory
limitations, is not void, but voidable. To secure and maintain uniformity of
decisions within the district, we vacate the panel decision issued in State v. Stansell,
8th Dist. Cuyahoga No. 109023, 2021-Ohio-203, and issue this decision as the final
decision in this appeal.
MARY J. BOYLE, ADMINISTRATIVE JUDGE FRANK D. CELEBREZZE, JR., KATHLEEN ANN KEOUGH, EILEEN A.
GALLAGHER, EILEEN T. GALLAGHER, MICHELLE J. SHEEHAN, LISA B.
FORBES, and EMANUELLA D. GROVES, JJ., CONCUR;
SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE OPINION;
LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION with MARY
EILEEN KILBANE and ANITA LASTER MAYS, JJ.
SEAN C. GALLAGHER, J., CONCURRING:
Although I fully concur with the majority’s conclusion that State v.
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776 (collectively
“Harper/Henderson”), apply to preclude collateral attacks of any sentencing error
and not just those that inure to the benefit of a defendant, there are two additional
points that should be discussed.
First and foremost, the Ohio Supreme Court resolved the question we
are answering in this en banc review even before Stansell III was released. State ex
rel. Romine v. McIntosh, Slip Opinion No. 2020-Ohio-6826 (imposing sentences
upon allied offenses in violation of R.C. 2941.25 renders the conviction voidable
even though the offender was subject to a greater punishment than the legislature
authorized). Thus, our review is based on correcting an erroneous decision that
contradicted binding authority — no new ground is being trod. More important,
there is a trend, not limited to this case, of appellate panels suggesting that the law
on finality of criminal judgments may be set aside based on policy determinations.
This sets a dangerous precedent that we should strive to curtail. I. The Ohio Supreme Court has already concluded that a sentence
punishing an offender in excess of that which is legislatively
authorized, renders the sentence voidable and subject to
correction only in the direct appeal.
Under Harper/Henderson, any errors in the imposition of the final
sentence are voidable, and can be corrected only through a direct appeal rather than
through a collateral attack in a postconviction proceeding. In the panel decision,
State v. Stansell, 8th Dist. Cuyahoga No. 109023, 2021-Ohio-203 (“Stansell III”
reconsidered opinion), the defendant filed a motion to vacate what he asserted to be
a void sentence in 2019. Id. at ¶ 11-13. The sentence was originally imposed in 1998,
so the trial court denied the motion. Id. In the appeal of the collateral proceeding,
the panel concluded that the doctrine of res judicata did not preclude the trial court
from modifying what was deemed to be an erroneous sentence because “res judicata
is generally inapplicable ‘where life or liberty is at stake.’” Id. at ¶ 30, quoting
Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The
dissent maintains this position in this en banc review. According to the original
panel, “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.” Id. at ¶ 31. Stansell III
concluded that the sentence imposed was void and subject to collateral attack
despite Harper/Henderson. Stansell III at ¶ 23 and 29.
No matter how well intentioned, intermediate appellate panels lack
authority to disregard binding precedent. The sole question presented for the
panel’s review was whether the trial court correctly determined that it lacked continuing jurisdiction to modify the final sentence, i.e., erred in determining
whether the imposed sentence was void (in which case the trial court maintained
continuing jurisdiction to modify the sentence) or merely voidable (in which case
the trial court lacked jurisdiction to modify the final sentence). State v. Zaleski, 111
Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19. The panel did not resolve
that question, but instead bypassed the jurisdiction issue and concluded that res
judicata did not apply based on issues of equity and fairness, and as a result, the trial
court erred by not modifying the final sentence. Stansell III at ¶ 29.
Lost in this debate is the fact that appellate panels cannot
independently modify or collaterally attack a final judgment that the trial court had
no jurisdiction to alter. In other words, the appellate panel is not an independent
arbiter of the validity of a final sentence and cannot substitute its view for that of the
trial court where the issue was one of continuing jurisdiction. The trial court either
had jurisdiction to modify the underlying sentence or did not have jurisdiction. An
appellate panel cannot create its own jurisdiction merely to modify or change a
result the panel finds unfair or unpalatable; the sole question in this type of case is
whether the trial court correctly resolved the question of its jurisdiction to modify a
This inquiry is not about the constitutionality of a proceeding or the
apparent error in imposing a sentence beyond the maximum permitted by law; it is
about whether a trial court has continuing jurisdiction after entering the final entry of conviction in a criminal case. See, e.g. State v. Apanovitch, 155 Ohio St.3d 358,
2018-Ohio-4744, 121 N.E.3d 351, ¶ 38-39 (trial court lacked jurisdiction to consider
the defendant’s claim as being either a petition for postconviction relief or a motion
for new trial under Crim.R. 33, and without another basis to secure the trial court’s
jurisdiction, the motion must be denied). Once a court of competent jurisdiction
renders a final sentence in a criminal action, that court’s continuing jurisdiction to
act in postconviction proceedings is limited. State v. Simpkins, 117 Ohio St.3d 420,
2008-Ohio-1197, 884 N.E.2d 568, ¶ 23, citing Zaleski. There must be a
jurisdictional basis for the trial court to act. Apanovitch at ¶ 38-39.
A defendant can invoke the trial court’s continuing jurisdiction
following the issuance of a final sentencing entry in several ways, for example,
through (1) filing a motion to correct a void judgment under Zaleski; (2) filing a
timely or successive petition for postconviction relief under R.C. 2953.21; (3) filing
a motion for a new trial under Crim.R. 33; or (4) filing a postsentence motion to
withdraw a plea under Crim.R. 32.1. Because the trial court’s jurisdiction to consider
postconviction motions or petitions is limited, the initial inquiry is whether the trial
court may invoke its continuing jurisdiction to consider the particular
postconviction motion filed. If the motion does not demonstrate that the sentence
is void, that it is a timely petition for postconviction relief or motion for a new trial,
or is not properly considered as a postsentence motion to withdraw a plea, the trial court simply lacks jurisdiction to consider the merits of the motion filed following
the final entry of conviction. See, e.g., Apanovitch.
A trial court possesses continuing jurisdiction only for the purposes
of vacating a void judgment. Id. If the judgment is not void, the court lacks a basis
to assert its continuing jurisdiction to act, and denying the motion merely reflects
the ministerial task of disposing of the active motion on the court’s docket. Although
this concept is derived from the principles of res judicata, it should not be confused
with the affirmative defense of res judicata. Jurisdiction and res judicata are two
distinct concepts. Res judicata may be considered only if the trial court possesses
continuing jurisdiction over the criminal conviction. State v. Holdcroft, 137 Ohio
St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 14. The scope of an appeal in this
situation is limited to determining whether the trial court correctly denied the
motion to vacate the void judgment, in other words, whether the trial court correctly
determined that it lacked jurisdiction to modify the final sentence.
Although the doctrine of res judicata can impact the postconviction,
collateral proceedings, that is an affirmative defense and the tribunal must first
possess jurisdiction in order to consider the applicability of the res judicata doctrine.
Simply put, application of res judicata does not exist in a vacuum. State ex rel.
McGirr v. Winkler, 152 Ohio St.3d 100, 2017-Ohio-8046, 93 N.E.3d 928, ¶ 17, citing
State ex rel. Lipinski v. Cuyahoga Cty. Common Pleas Court, Probate Div., 74 Ohio
St.3d 19, 20-21, 655 N.E.2d 1303 (1995), and State ex rel. Flower v. Rocker, 52 Ohio St.2d 160, 162, 370 N.E.2d 479 (1977); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d
104 (1967) (res judicata applies and “may operate” to prevent consideration of a
collateral attack based on a claim that could have been raised on direct appeal from
the voidable sentence).
In order to apply or consider the doctrine of res judicata to a final
sentence, the trial court must first possess continuing jurisdiction to modify the final
sentence — in other words, res judicata could potentially be considered in situations
in which the trial court is reviewing a void sentence but has no bearing on the trial
court’s lack of continuing jurisdiction to modify a sentence that is merely voidable.
Flower at 162 (writ of prohibition was not warranted because the court had
jurisdiction to rule on the affirmative defense of res judicata). The dissent’s
observation regarding an exception to the doctrine of res judicata did not obviate
the impact of Harper/Henderson with respect to the trial court’s lack of continuing
jurisdiction to modify a sentence that is voidable. The affirmative defense of res
judicata is never implicated in that situation because a trial court must possess
continuing jurisdiction to consider the merits of the res judicata defense. Since a
sentence that is merely voidable cannot be collaterally attacked, the doctrine of res
judicata is irrelevant. It is not res judicata that binds the trial court’s action, but
instead is the trial court’s lack of jurisdiction. Holdcraft at ¶ 14.
Further, even if we set aside the issue of the trial court’s lack of
jurisdiction to modify the sentence, the Ohio Supreme Court has already resolved the question posed for our review en banc: Where a defendant’s sentence exceeds
statutory limitations, is the sentence void? In McIntosh, Slip Opinion No. 2020-
Ohio-6826, the Ohio Supreme Court reaffirmed its commitment to the
Harper/Henderson rationale and concluded that that even if a trial court “has
imposed greater punishment than the legislature authorized[,]” such a sentence is
not void Id. at ¶ 15-16. In that case, the defendant was sentenced to what were
deemed allied offenses by the trial court before imposing sentence in direct violation
of R.C. 2941.25. Despite this sentencing error imposing a greater punishment than
authorized, McIntosh concluded that the defendant must timely appeal those
sentences. Id. Importantly, McIntosh did not distinguish Harper/Henderson
based on the fact that the offender was sentenced in excess of that which was legally
permitted. Id. at ¶ 15.
Instead, it was concluded that “[t]he imposition of compound
sentences for allied offenses is an error in the exercise of jurisdiction, to be
challenged at sentencing and remedied on direct appeal.” Id. at ¶ 13. In so
concluding, McIntosh expressly overruled State v. Williams, 148 Ohio St.3d 403,
2016-Ohio-7658, 71 N.E.3d 234, ¶ 28, in which it was concluded that “the imposition
of separate sentences for those offenses — even if imposed concurrently — is
contrary to law” and the sentences are considered void. Sentences exceeding that
which is statutorily permitted necessarily fall under the ambit of
Harper/Henderson. Id. Under McIntosh, the imposition of separate sentences for allied offenses, even if imposed concurrently, renders the sentence voidable, but not
subject to collateral attack despite the fact that the offender is being punished in
excess of what the law permits. As it applies to our discussion, Stansell’s conclusion,
limiting Harper/Henderson to situations in which the challenged sentence is less
than required by law, was superseded by McIntosh and controls our en banc review.
The motion to vacate the void sentence at issue in this case was
properly denied by the trial court under Harper/Henderson because the trial court
lacked continuing jurisdiction to modify the final sentence that was merely voidable.
Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, at ¶ 19.
II. Finality of convictions are essential to the administration of the
criminal justice system.
In the panel opinion (Stansell III), Harper/Henderson was
distinguished on the basis that a defendant should not serve a greater punishment
than legislatively authorized because res judicata should not be applied ‘“in
particular situations as fairness and justice require, and * * * is not to be applied so
rigidly as to defeat the ends of justice or so as to work an injustice.’” Stansell III at
2The natural question that arises from this change is, what relief could a defendant
who failed to appeal a ruling have if the state moved to impose a penalty that was more than
the maximum? In State ex rel. Fraley v. Ohio Dept. of Rehab. & Corr. 161 Ohio St.3d 209,
2020-Ohio-4410, 161 N.E.3d 646, a writ of mandamus was granted to prevent the Ohio
Department of Rehabilitation and Correction (“ODRC”) from adding additional time to the
original sentence issued in error, concluding that any errors in the final entry of conviction
must be timely challenged and cannot be unilaterally corrected by the trial court or the
ODRC. Id. at ¶ 17. It logically follows, that offenders seeking to challenge an allegedly
erroneous sentence must do so in a timely direct appeal. If the error is not timely
challenged, it could only be raised in a motion to reopen the appeal under App.R. 26(B) or,
if no appeal had been filed, as a delayed appeal under App.R. 5(A). ¶ 30, quoting 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 Goodson v. McDonough Power
Equip., Inc., 2 Ohio St.3d 193, 202, 443 N.E.2d 978 (1983). Omitted from the
quoted language is Justice Douglas’s admonition that “the public policy underlying
the principle of res judicata must be considered together with the policy that a party
shall not be deprived of a fair adversary proceeding in which to present his case.”
Grava at 386. Under Ohio law, all defendants have the opportunity to challenge the
legality of their conviction, at times through multiple means, but the notion
espoused in the panel decision, that justice requires circumvention of finality
through successive appeals twenty years after the imposition of the sentence, seems
to only inure to the benefit of the defendant.
This attempt to obviate principles of finality from criminal
convictions presents a cautionary tale, further exemplified by the dissent’s reliance
on Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), for
the proposition that “[c]onventional notions of finality of litigation have no place
where life or liberty is at stake and infringement of constitutional rights is alleged.”
In Sanders, the Court was discussing the “familiar principle” that res judicata was
inapplicable in habeas proceedings. However, while res judicata may not bar review
in a habeas proceeding, “federal habeas corpus relief does not lie for errors of state
law[,]” including errors in sentencing procedures. Gibboney v. Ransom, E.D.Pa. No. 19-cv-3534, 2019 U.S. Dist. LEXIS 203153, 12-13 (Nov. 19, 2019), quoting
Richmond v. Lewis, 506 U.S. 40, 51, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), and
Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). Sanders
The principle of finality is “essential to the operation” of the criminal
justice system. Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989). “Without finality, the criminal law is deprived of much of its deterrent effect.
The fact that life and liberty are at stake in criminal prosecutions ‘shows only that
“conventional notions of finality” should not have as much place in criminal as in
civil litigation, not that they should have none.’” (Emphasis sic.) Id., quoting
Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38
U.Chi.L.Rev. 142, 150 (1970); see also State v. Chaney, 8th Dist.
Cuyahoga No. 88529, 2007-Ohio-2231, ¶ 4 (citing Teague with approval). Harper/
Henderson resurrected the lost notion of finality in criminal convictions. Although
the practical applications of Harper/Henderson preclude either the state or the
defendant from perpetually reopening convictions, that does not result in an unjust
application of law. All parties have the opportunity to their day in court to fully
challenge any conviction.
Further, a defendant-centric application of justice generally ignores a
victim’s rights. If, as the Stansell III panel concludes, it would be “unjust” to
preclude a defendant from perpetually challenging his sentence until finding a sympathetic ear, should the victim not be offered that same opportunity to see that
the perpetrator of their crime has been punished within the bounds of the law? In
Henderson, the legislature authorized a life sentence with the possibility of parole
after 15 years. The victim was in a sense entitled to have the perpetrator of the crime
imprisoned for life. Instead, the trial court mistakenly imposed a definite 15-year
term of imprisonment. That sentence, despite not being authorized by law, was
deemed voidable and not subject to collateral attack. Id. To suspend the rule of
finality for defendants, to the exclusion of victims of the crimes, seems to provide a
class of persons an advantage not available to all. This is not a path taken lightly
considering Ohio’s constitutional amendment to secure victim’s rights in criminal
proceedings. Article I, Section 10a of the Ohio Constitution (“Marsy’s Law”).
From the victim’s perspective, how does justice permit that windfall
to the defendant when the defendant would be entitled to perpetually challenge his
sentence as exceeding that which is authorized? All too often, it seems that the sense
of what is just and fair focuses on the defendant to the exclusion of the victim. The
combination of Harper/Henderson and McIntosh can be deemed many things, but
at the least, it provides an equal playing field for all parties in the criminal justice
III. There is no merit to Stansell’s appeal.
There is no need to dwell on the merits of Stansell’s claims. As the
panel recognized, this is Stansell’s second appeal to this court over the issue of whether the trial court erred by not vacating his sexually violent predator
specifications. Stansell III at ¶ 2. Stansell’s claims rely on application of State v.
Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, syllabus, in which the
Ohio Supreme Court held 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.” Stansell’s convictions
In State v. Stansell, 2014-Ohio-1633, 10 N.E.3d 795, ¶ 14 (8th Dist.)
(“Stansell II”), the panel concluded that “Smith does not have retroactive
application to closed cases.” Id., citing State v. Draughon, 10th Dist. Franklin Nos.
11AP-703 and 11AP-995, 2012-Ohio-1917, and State v. Ditzler, 9th Dist. Lorain
No. 13CA010342, 2013-Ohio-4969. Stansell’s claims were overruled, and this ends
any need for further inquiry into this matter. Stansell challenged his conviction and
lost. Id., delayed appeal denied, State v. Stansell, 140 Ohio St.3d 1413, 2014-Ohio3785, 15 N.E.3d 882. Further, Stansell II’s conclusion was in keeping with
constitutional norms. Styers v. Ryan, 811 F.3d 292, 297 (9th Cir.2015), citing
Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (“When
a constitutional rule is announced, its requirements apply to defendants whose
convictions or sentences are pending on direct review or not otherwise final.”).
There is no need for the further expenditure of judicial resources in this matter. Accordingly, I concur with the majority’s conclusion, only insofar as
the Ohio Supreme Court has already resolved the question we are tasked with
answering. Because finality in convictions should be equally applied as against
defendants and the state, which represents Ohio citizens and the victims, the
rationale advanced in the panel decision must be rejected. On this basis, Stansell’s
motion to vacate a void judgment was properly denied. Since there is no need for
the panel to consider anything further, I would affirm on the merits.
LARRY A. JONES, SR., J., DISSENTING:
Respectfully, I dissent. As I said in the Stansell III reconsidered
opinion, I believe this case is distinguishable from Harper and Henderson.
Specifically, unlike the defendants in Harper and Henderson, in this case, Stansell
will end up serving more time that what was statutorily allowed at the time he was
indicted and sentenced. This case is the perfect example of what the United States
Supreme Court spoke about regarding the doctrine of res judicata ─ that is, that
“[c]onventional notions of finality of litigation have no place where life or liberty is
at stake and infringement of constitutional rights is alleged.” Sanders v. United
States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
Accordingly, I dissent.
DECISION OF THE MERIT PANEL
LARRY A. JONES, SR., P.J.: This matter has been returned to the original merit panel3 for
disposition after the en banc court majority opinion determined that where a
defendant’s sentence exceeds statutory limitations, the sentence is voidable; it is
only void if the sentencing court lacked subject-matter jurisdiction over the case or
personal jurisdiction over the defendant. In light of the en banc court’s majority
opinion, we are again called on to apply the law as resolved by the en banc court and
address the other argument raised in Stansell’s original appellate brief. Stansell’s
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 ReSentence Defendant.”
In this appeal, Stansell challenges his sentence on two grounds: first,
contending that it is void and, second, contending that it is a violation of ex post
facto law. As the writer of this majority merit panel opinion, I am constrained to
follow the law as determined by the en banc majority court; consequently, this
majority opinion of the merit panel affirms the trial court’s decision.
Factual and Procedural History
In 1997, Stansell was sentenced for certain rape offenses that included
two “life-tail” sexually violent predator specifications. The law at the time did not
allow the specifications for offenders who had not previously been convicted of a
3At the time the last opinion in this case was issued, State v. Stansell, 8th Dist.
Cuyahoga No. 109023, 2021-Ohio-203, Judge Patricia Blackmon was on the merit panel
for this case. Judge Blackmon has since retired, and Judge Emanuella Groves has
assumed Judge Blackmon’s docket. sexually oriented offense. Stansell did not have any prior convictions for a sexually
oriented offense. Stansell filed a direct appeal from his convictions, but did not
challenge the sexually violent predator specifications. State v. Stansell, 8th Dist.
Cuyahoga No. 75889, 2000 Ohio App. LEXIS 1726 (Apr. 20, 2000) (“Stansell I”).
In 2004, in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283,
the Ohio Supreme Court found that the specifications could not be applied to
defendants who, like Stansell, lacked prior convictions for sexually oriented
In 2014, Stansell brought his first challenge to his specifications in
State v. Stansell, 8th Dist. Cuyahoga No. 100604, 2014-Ohio-1633 (“Stansell II”).
This court declined to adopt Stansell’s argument that his sentence was void and
refused to apply the Ohio Supreme Court’s decision in Smith retroactively.
This appeal started in 2019, when Stansell again challenged the
specifications. State v. Stansell, 2020-Ohio-3674, 154 N.E.3d 1179 (8th Dist.)
(“Stansell III”). In the original panel opinion, the majority found Stansell’s sentence
to be void under an ex post facto rationale and vacated his sexually violent predator
specifications. In doing so, the majority relied on the void sentencing doctrine as it
existed prior to the Ohio Supreme Court’s decisions in State v. Harper, 160 Ohio
St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and State v. Henderson, 161 Ohio
St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776. Upon reconsideration, the panel issued a reconsidered opinion
distinguishing the holdings in Harper and Henderson from this case based on the
fact that the trial court exceeded its statutory authority in sentencing Stansell in
1997. State v. Stansell, 8th Dist. Cuyahoga No. 109023, 2021-Ohio-203 (“the
reconsidered opinion”). The reconsidered opinion acknowledged that it was not
following the decision in Stansell II in regards to voidness.
As discussed in the en banc portion of this opinion, the reconsidered
opinion’s interpretation of Harper and Henderson conflicted with State v. Brooks,
8th Dist. Cuyahoga No. 108919, 2020-Ohio-3286, and State v. Starks, 8th Dist.
Cuyahoga No. 109444, 2020-Ohio-4306. It has now been decided by a majority of
this court en banc that where a defendant’s sentence exceeds statutory limitations,
the sentence is voidable; it is only void if the sentencing court lacked subject- matter
jurisdiction over the case or personal jurisdiction over the defendant. We now apply
that law to Stansell’s contention raised in his original brief that his sentence is void,
and address the remaining issue of whether his sentence was in violation of ex post
In regard to the void and voidable distinction, the common pleas
court had subject-matter jurisdiction over Stansell’s case. The court also had
personal jurisdiction over Stansell. Thus, the sentence cannot be void; if anything,
it could only be subject to vacation on the ground that it was voidable. Under Harper, “[w]hen the sentencing court has jurisdiction to act, sentencing errors * * *
render the sentence voidable, not void, and the sentence may be set aside if
successfully challenged on direct appeal.” Id. at ¶ 42. Because Stansell did not
challenge his sentence on direct appeal, it must stand.
We likewise find that Stansell’s appeal does not withstand a challenge
based on ex post facto law. Article I, Section 10, U.S. Constitution forbids state
legislatures from passing any ex post facto law. “The Clause is aimed at laws that
‘retroactively alter the definition of crimes or increase the punishment for criminal
acts.’” California Dept. of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131
L.Ed.2d 588 (1995), quoting Collins v. Youngblood, 497 U.S. 37, 41-43, 110 S.Ct.
2715, 111 L.Ed.2d 30 (1990); see also Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct.
68, 70 L.Ed. 216 (1925). “Of central concern in an Ex Post Facto Clause analysis is
whether the defendant had ‘fair warning’ and therefore notice of the change in the
law.” State v. Townsend, Slip Opinion No. 2020-Ohio-5586, ¶ 10, quoting Weaver
v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).
Here, the version of R.C. 2971.01(H)(1) in effect when Stansell
committed the crimes defined a sexually violent predator as a person who had
previously been convicted of a sexually oriented offense. Although it is true that
Stansell did not fit the definition of sexually violent predator because he did not have
a prior conviction, the law was not applied retroactively to him; therefore, there was
no ex post facto implication. Stansell cites the following cases in support of his ex post facto
challenge: State v. Clipps, 8th Dist. Cuyahoga No. 107747, 2019-Ohio-3569, State v.
Frierson, 8th Dist. Cuyahoga No. 10682, 2019-317, and State v. Townsend, 8th Dist.
Cuyahoga No. 107186, 2019-Ohio-1134.4 Those cases are all distinguishable from
this case, however, because the successful ex post facto challenge in those cases
related to crimes that were committed before the April 2005 amendment to the
definition of a sexually violent predator, but upon which the state sought to have the
amended statute apply. The court elaborated, for example, in Townsend as follows:
In this case, the statutory change created more than “a sufficient risk of
a higher sentence” by actually imposing a sexually-violent-predator
specification on Townsend that had not applied when he committed his
crimes. Townsend received a harsher sentence based on the difference
between the sentencing scheme in place when he committed his crimes
and the sentencing scheme in place when he was indicted. The
amendments to R.C. 2971.01(H)(1) resulted in a new definition of
“sexually violent predator” that allowed, for the first time, the
underlying conduct in an indictment to satisfy the specification without
a prior conviction. As a result, the amendment enhanced Townsend’s
punishment by subjecting him to indefinite sentencing under R.C.
2971.03. Without the sexually-violent-predator specification,
Townsend would have faced a definite term of three to 10 years for the
first-degree felony offenses (rape and kidnapping) that he committed
before April 29, 2005. Here, the trial court imposed a prison sentence
of five years to life for each of the 2003 offenses in Counts 1, 2, 3, 7, and
11 and ten years to life for the 2005 offense in Count 9. Given the harsh
consequences that the new sentencing scheme imposed on Townsend,
we have no difficulty concluding that enforcing the new sentencing
4Clipps, Townsend, and Frierson were accepted by the Ohio Supreme Court for
review. The court has affirmed this court’s decisions in all three cases vacating certain
sexually violent predator specifications as violating ex post facto law. See State v. Clipps,
162 Ohio St.3d 313, 2020-Ohio-6748, 165 N.E.3d 31; State v. Townsend, Slip Opinion No.
2020-Ohio-5586; and State v. Frierson, 162 Ohio St.3d 193, 2020-Ohio-6749, 164 N.E.3d
453. scheme against him did not comport with “principles of ‘fundamental
(Citations omitted) Townsend at ¶ 12, quoting Peugh v. United States, 569 U.S. 530,
544, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), and Peugh at 546, quoting Carmell v.
Texas, 529 U.S.513, 531, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). Here, Stansell was
not sentenced to a higher sentence because of a statutory change; thus ex post facto
law is not implicated here.
Outcome: For the reasons discussed above, the sentence was not void because
the trial court had subject-matter jurisdiction over the case and personal jurisdiction over Stansell. Any argument that it was voidable is res judicata since Stansell failed to raise it in his direct appeal. Further, because Stansell was not sentenced to a higher sentence due to a statutory change, there was no ex post facto violation. Thus, Stansell’s sole assignment of error is overruled.