# State v. Payne

> Ohio Supreme Court · September 26, 2007 · 114 Ohio St. 3d 502

URL: https://www.frixlaw.com/law-library/cases/6790627

## Case

- **Full name:** The State of Ohio v. Payne
- **Court:** Ohio Supreme Court
- **Decided:** September 26, 2007
- **Citations:** 114 Ohio St. 3d 502; 873 N.E.2d 306
- **Precedential status:** Published
- **Opinion:** Concurrence by Lanzinger
- **Judges:** Connor, Cupp, Donnell, Lanzinger, Moyer, Pfeifer, Stratton
- **Cited by:** 766 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6790627

## How later opinions describe it (automated extraction)

- holding that to establish plain error, the appellant must show a deviation from the legal rule that is both an obvious and affected the trial's outcome
- noting that “[i]t is axiomatic that imposing a sentence outside the statutory range, contrary to the statute, is outside a court’s jurisdiction, thereby rendering the sentence void”
- noting that “Foster represents a Pyrrhic victory” for defendants because “trial courts no longer must navigate a series of criteria that dictate the sentence”

## Opinion text

Lanzinger, J.,
concurring.
{¶ 32} I fully concur with the majority opinion but write to emphasize the importance of our clarification of the terms “void” and “voidable” in the sentencing context.
{¶ 38} These distinct terms have distinct consequences, as a void judgment is “a judgment that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected at any time and any place, whether directly or collaterally,” Black’s Law Dictionary (8th Ed.2004) 861, and a voidable judgment is “[v]alid until annulled,” id. at 1605.
{¶ 34} In State v. Foster, 109 Ohio St.3d 1 , 2006-Ohio-856 , 845 N.E.2d 470, ¶ 103 , we cited State v. Jordan, 104 Ohio St.3d 21 , 2004-Ohio-6085 , 817 N.E.2d *509 864 , ¶ 23, and stated, “When a sentence is deemed void, the ordinary course is to vacate that sentence and remand to the trial court for a new sentencing hearing.” (Emphasis added.) Instead, in referring to a sentence that could be annulled for improper exercise of the trial court’s authority, we should have more clearly stated that a voidable sentence is, on appeal, subject to being vacated and remanded for resentencing. Sentences that are “void ab initio,” meaning imposed without subject-matter jurisdiction, may be attacked on direct appeal or collaterally by means of habeas corpus. State v. Wilson (1995), 73 Ohio St.3d 40, 44 , 652 N.E.2d 196 ; Gaskins v. Shiplevy (1995), 74 Ohio St.3d 149, 151 , 656 N.E.2d 1282 . In a successful challenge to a void sentence, “a court lacks the authority to do anything but announce its lack of jurisdiction and dismiss.” Pratts v. Hurley, 102 Ohio St.3d 81 , 2004-Ohio-1980 , 806 N.E.2d 992 , ¶ 21.
{¶ 35} Cases appealed on grounds of Foster involve voidable, rather than void, sentences, and I agree that Payne forfeited the Blakely issue in not registering his objection to a nonstructural error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6790627. Public record. Not legal advice.