State v. Thompson ( 2011 )

[Cite as State v. Thompson, 2011-Ohio-6616.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case Nos. 09CA3129
: 09CA3131
vs. : Released: December 5, 2011
:
IVAN W. THOMPSON, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Benjamin J. Partee, Miller, Dorman, & Partee, LLC, Chillicothe, Ohio, for
Defendant-Appellant.
Michael M. Ater, Ross County Prosecutor, and Jeffrey C. Marks, Ross
County Assistant Prosecutor, Chillicothe, Ohio, for Plaintiff-Appellee.
_____________________________________________________________
McFarland, J:
{¶1} Appellant Ivan Thompson appeals the decision of the Ross
County Court of Common Pleas finding him guilty on one count of burglary.
Thompson argues the trial court erred in convicting and sentencing him for
second-degree burglary under State v. Pelfrey. Having reviewed the record
of this case, we find res judicata bars Thompson from litigating this issue
after failing to raise it in a previous direct appeal. Accordingly, we decline
to address the merits of Thompson’s sole assignment of error and affirm the
trial court’s judgment.
Ross App. Nos. 09CA3129, 09CA3131 2
I. Procedural History
{¶2} Thompson was indicted for burglary under R.C 2911.12. In
April 2008, a jury found him guilty. The trial court imposed a four-year
prison term and journalized its sentencing entry on May 20, 2008.
Following sentencing, Thompson filed a series of motions challenging his
conviction. Thompson also filed a direct appeal (on separate grounds from
the current appeal), and we affirmed the trial court’s judgment.1
{¶3} Subsequently, on September 1, 2009, Thompson filed a pro se
“Motion for Appropriate Relief-Reconsideration.” In its response, the State
conceded that under State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330,
893 N.E.2d 163, the trial court’s original judgment of conviction was
defective: it did not contain both the sentence and the manner of conviction
in the same document, as required by Baker. As a result, on October 20,
2009, the court filed a nunc pro tunc entry that held its May 20, 2008
judgment of conviction was void, again imposed a four-year prison sentence
upon Thompson for burglary, and included the manner of his conviction.
Consequently, the trial court overruled Thompson's motion for appropriate
relief and reconsideration. Thompson now appeals the trial court's October
20, 2009 nunc pro tunc entry.
1
State v. Thompson, 4th Dist. No. 08CA3032, 2009-Ohio-1115 (“Thompson I”).
Ross App. Nos. 09CA3129, 09CA3131 3
II. Assignment of Error
APPELLANT'S CONVICTION FOR BURGLARY, AS A SECOND
DEGREE FELONY, IS INVALID UNDER STATE V. PELFREY.
III. Legal Analysis
{¶4} In his sole assignment of error, Thompson claims his burglary
conviction and four-year sentence is invalid under State v. Pelfrey, 112 Ohio
St.3d 422, 2007-Ohio-256, 860 N.E.2d 735. We decline to address the
merits of this assignment of error, however, because res judicata bars
Thompson from arguing it; we overrule Thompson’s sole assignment of
error.
{¶5} “‘Theories of res judicata are used to prevent relitigation of
issues already decided by a court or matters that should have been brought as
part of a previous action.’” State v. Paulsen, 4th Dist. Nos. 09CA15,
09CA16, 2010-Ohio-806, at ¶ 14, quoting Lasko v. G.M.C., 11th Dist. No.
2002-T-0143, 2003-Ohio-4103, at ¶ 16. “‘This doctrine has been held to
apply to appellate proceedings in both criminal and civil cases.’” Id.,quoting In re Kangas, 11th Dist. No.2006-A-0084, 2007-Ohio-1921, at ¶ 71,
citing State v. Beckwith (Mar. 2, 2001), 8th Dist. No. 75927. Additionally,
“a nunc pro tunc judgment entry issued for the sole purpose of complying
with Crim.R. 32(C) to correct a clerical omission in a final judgment entry is
Ross App. Nos. 09CA3129, 09CA3131 4
not a new final order from which a new appeal may be taken.” State v.
Lester, Slip Opinion No. 2011-Ohio-5204, at ¶ 20.
{¶6} Here, Thompson has already filed one direct appeal in Thompson
I. Thompson could have raised the instant assignment of error in Thompson
I, thus res judicata bars him from raising the issue now. Moreover, the trial
court’s nunc pro tunc entry was not a new final appealable order from which
a new right of appeal arose. Accordingly, we decline to address the merits
of Thompson’s sole assignment of error and affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Harsha, P.J., concurring:
{¶7} In this proceeding the only authority the trial court had, and in
turn we possess, is limited to an application and review of Crim.R. 32(C)
requirements. In other words, we cannot review any purported Pelfrey
deficiency in the jury’s verdict but must limit our scrutiny to the trial court’s
compliance with the criminal rule dealing with the contents of a proper
criminal judgment of conviction. See State v. Triplett, Lucas App. No. L-
10-1158, 2011-Ohio-1713.
{¶8} As the principal opinion notes, a nunc pro tunc judgment entry
issued for the sole purpose of complying with Crim.R. 32(C) is not a new
Ross App. Nos. 09CA3129, 09CA3131 5
final order from which a new appeal may be taken. State v. Lester, 2011-
Ohio-5204, at paragraph two of the syllabus (Slip Opinion). Likewise, a
judgment that states the fact of conviction but omits the manner of
conviction is a final order subject to appeal under R.C. 2505.02. Id. at
paragraph one of the syllabus.
{¶9} Here, the trial court’s original sentencing entry of May 20, 2008,
included the fact of conviction but omitted its manner. The Nunc Pro Tunc
Entry of October 20, 2009, simply cured that defect. Thus, res judicata and
law of the case preclude our review of the Pelfrey issue.
Ross App. Nos. 09CA3129, 09CA3131 6
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellant recover of 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 Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J. : Concurs with Concurring Opinion.
Kline, J.: Concurs in Judgment and Opinion.
For the Court,
BY: ____________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.