State v. McIntyre ( 2011 )


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  • [Cite as State v. McIntyre, 2011-Ohio-6593.]
    STATE OF OHIO                     )                   IN THE COURT OF APPEALS
    )ss:                NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                  )
    STATE OF OHIO                                         C.A. No.      25898
    Appellee
    v.                                            APPEAL FROM JUDGMENT
    ENTERED IN THE
    LEROY L. MCINTYRE                                     COURT OF COMMON PLEAS
    COUNTY OF SUMMIT, OHIO
    Appellant                                     CASE No.   CR 91 01 0135
    DECISION AND JOURNAL ENTRY
    Dated: December 21, 2011
    CARR, Presiding Judge.
    {¶1}     Leroy L. McIntyre appeals the judgment of the Summit County Court of Common
    Pleas. This Court affirms.
    I.
    {¶2}     Following a jury trial in August 1991, McIntyre was found guilty of felonious
    assault and aggravated burglary. Both counts carried firearm specifications. The trial court
    issued its sentencing entry in September 1991. McIntyre filed a direct appeal and this Court
    affirmed his convictions. State v. McIntyre (May 27, 1992), 9th Dist. No. 15348. McIntyre
    subsequently filed a petition for post-conviction relief on October 5, 1994. The trial court denied
    the petition and this Court affirmed the trial court’s judgment. State v. McIntyre (Oct. 25, 1995),
    9th Dist. No. 17095.
    {¶3}     In the years following our 1995 decision, McIntyre unsuccessfully challenged his
    convictions on numerous occasions by filing motions in the trial court. McIntyre’s challenges
    2
    have persisted in recent years. On February 22, 2010, McIntyre filed a “Motion to Vacate the
    Void Ab Initio Sentencing Judgment Journal Entries, and to Revise/Correct Sentencing Entries
    to Comply with [Crim.R.] 32.” The trial court denied the motion on February 26, 2010. On
    September 30, 2010, this Court issued its decision affirming the trial court’s judgment. State v.
    McIntyre, 9th Dist. No. 25292, 2010-Ohio-4658. On September 28, 2010, McIntyre filed a
    “Motion for Leave to File Motion for New Trial Pursuant to Crim.[R.] 33(B).” The trial court
    denied the motion on October 12, 2010. McIntyre appealed and this Court affirmed the trial
    Court’s judgment on July 27, 2011. State v. McIntyre, 9th Dist. No. 25666, 2011-Ohio-3668.
    On December 22, 2010, McIntyre filed a “Motion for De Novo Re-trial Upon Charges that the
    Trial Court Discharged the Jury Without Prejudice in Reference to the Prosecution of those
    Charges.” On January 7, 2011, the trial court denied the motion. On February 2, 2011, McIntyre
    filed a notice of appeal and the appeal is currently pending in this Court under Case No. 25800.
    {¶4}    While two of McIntyre’s appeals were pending in this Court, McIntyre filed a
    motion to vacate and void the judgment in the trial court on February 24, 2011. On March 30,
    2011, the trial court issued a journal entry denying the motion on the basis that it did not have
    jurisdiction to consider such a motion in light of McIntyre’s pending appeals. McIntyre now
    appeals from the trial court’s March 30, 2011 judgment and raises two assignments of error. We
    consolidate those assignments of error to facilitate review.
    II.
    ASSIGNMENT OF ERROR I
    “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
    MCINTYRE AND VIOLATED BOTH OF HIS DUE PROCESS RIGHTS
    GUARANTEED TO HIM BY THE 14TH AMENDMENT TO THE UNITED
    STATES CONSTITUTION AND ARTICLE I. SECTION 16 OF THE OHIO
    CONSTITUTION. WHEN THE TRIAL COURT CLAIMED THAT IT LACKS
    JURISDICTION TO HAVE CONSIDERED APPELLANT’S MOTION TO
    3
    VACATE AND VOID JUDGMENT OF SENTENCE WITH REQUEST FOR
    DE NOVO RESENTENCING HEARING DUE TO APPELLANT’S TWO
    PREVIOUS APPEALS PENDING IN THE NINTH DISTRCT COURT OF
    APPEALS.” [Sic]
    ASSIGNMENT OF ERROR II
    “THE TRIAL COURT VIOLATED APPELLANT MCINTYRE’S FIFTH
    AMENDMENT DUE PROCESS RIGHTS AND DOUBLE JEOPARDY
    CLAUSE OF THE UNITED STATES CONSTITUTION BY IMPOSING AN
    ENHANCED SENTENCE[] UPON HIM DUE TO AN R.C. 2941.142 PRIOR
    AGGRAVTED FELONY SENTENCING ENHANCEMENT SPECIFICATION
    THAT THE JURY HAD PREVIOUSLY FOUND APPELLANT NOT GUILTY
    OF.” [Sic]
    {¶5}   In his first assignment of error, McIntyre argues that the trial court erred in
    concluding that it did not have jurisdiction to consider his motion to vacate and void the
    judgment filed on February 24, 2011. In his second assignment of error, McIntyre argues that he
    would have prevailed on his motion had the trial court considered it on the merits. This Court
    disagrees.
    {¶6}   The Supreme Court of Ohio has stated:
    “An appeal is perfected upon the filing of a written notice of appeal. R.C.
    2505.04. Once a case has been appealed, the trial court loses jurisdiction except
    to take action in aid of the appeal. The trial court retains jurisdiction over issues
    not inconsistent with the appellate court’s jurisdiction to reverse, modify, or
    affirm the judgment appealed from.” (Internal citations omitted.) In re S.J.
    (2005), 
    106 Ohio St. 3d 11
    , 2005-Ohio-3215, at ¶9.
    {¶7}   McIntyre filed his motion to vacate his sentence on February 24, 2011. In support
    of his motion, McIntyre argued that he should be resentenced de novo because he was unlawfully
    found guilty of a prior aggravated felony sentencing enhancement specification. At the time
    McIntyre filed his motion on February 24, 2011, his appeal from the trial court’s October 12,
    2010 judgment entry denying his “Motion for Leave to File Motion for New Trial Pursuant to
    Crim.[R.] 33(B)” was still pending in this Court. McIntyre had also appealed from the trial
    court’s January 7, 2011 judgment entry denying his “Motion for De Novo Re-trial Upon Charges
    4
    that the Trial Court Discharged the Jury Without Prejudice in Reference to the Prosecution of
    those Charges.” As McIntyre had two appeals pending in this Court at the time he filed his
    motion to vacate his sentence, the trial court correctly concluded that it did not have authority to
    rule on McIntyre’s motion. In re S.J. at ¶9. It follows that his first and second assignments of
    error are overruled.
    III.
    {¶8}    McIntyre’s assignments of error are overruled. The judgment of the Summit
    County Court of Common Pleas is affirmed.
    Judgment affirmed
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed to Appellant.
    DONNA J. CARR
    FOR THE COURT
    5
    MOORE, J.
    DICKINSON, J.
    CONCUR
    APPEARANCES:
    LEROY L. MCINTYRE, pro se, Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
    Prosecuting Attorney, for Appellee.
    

Document Info

Docket Number: 25898

Judges: Carr

Filed Date: 12/21/2011

Precedential Status: Precedential

Modified Date: 10/30/2014