State v. Moore , 2011 Ohio 6220 ( 2011 )

[Cite as State v. Moore, 2011-Ohio-6220.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 10-MA-85
)
BRANDON MOORE, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 02CR525
JUDGMENT: Dismissed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Fl.
Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney Douglas A. King
91 West Taggart St., P.O. Box 85
East Palestine, Ohio 44413
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: November 30, 2011
[Cite as State v. Moore, 2011-Ohio-6220.]
DONOFRIO, J.
{¶1} Defendant-appellant, Brandon Moore, appeals from a Mahoning County
Common Pleas Court judgment denying his motion to dismiss all charges against him
for an unreasonable delay in sentencing.
{¶2} Appellant has been before this court numerous times.
{¶3} In 2002, appellant was convicted of aggravated robbery, three counts of
rape, three counts of complicity to rape, one count of kidnapping, one count of
conspiracy to commit aggravated robbery, and one count of aggravated menacing.
All counts were first-degree felonies except for aggravated menacing, which was a
first-degree misdemeanor. The court sentenced appellant to the maximum prison
term for each count, to be served consecutively (except for the misdemeanor
menacing charge, which was to be served concurrently with the other sentences).
The court also sentenced appellant on 11 firearm-specifications, also to be served
consecutively. The total sentence was 141 years in prison.
{¶4} On direct appeal, this court affirmed in part, reversed in part, and
remanded the matter for resentencing. State v. Moore, 161 Ohio App.3d 778, 2005-
Ohio-3311.
{¶5} Next, this court denied appellant’s motion to reopen his direct appeal
based on a claimed speedy trial violation. State v. Moore, 7th Dist. No. 02-CA-216,
2005-Ohio-5630.
{¶6} Upon resentencing, the trial court merged some of the firearm
specifications and dismissed one count. It then sentenced appellant to maximum,
consecutive sentences on the remaining counts for a total prison term of 112 years.
Once again appellant appealed. Based on State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856, this court vacated appellant’s sentence and remanded the matter for
resentencing once again. State v. Moore, 05-MA-178, 2007-Ohio-7215.
{¶7} The trial court held appellant’s third sentencing hearing in 2008. It
again sentenced him to an aggregate 112-year sentence. Appellant again appealed.
This time we upheld his sentence. State v. Moore, 7th No. Dist. 08-MA-20, 2009-
Ohio-1505.
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{¶8} On December 30, 2009, appellant filed a petition for writ of mandamus
and/or procedendo with this court, seeking to compel the trial court to issue a final
appealable judgment entry of sentence in compliance with Crim.R. 32(C) as set forth
in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, asserting that his sentencing
entry did not specify his manner of conviction and, therefore, did not constitute a final,
appealable order. We agreed and ordered the trial court to issue a revised
sentencing entry that complied with Crim.R. 32(C). State ex rel. Moore v. Krichbaum,
7th Dist. No. 09-MA-201, 2010-Ohio-1541.
{¶9} Next, on April 7, 2010, appellant filed a pro se motion to dismiss all
further proceedings due to unreasonable delay in sentencing.
{¶10} On April 20, 2010, the trial court filed a nunc pro tunc sentencing entry
that complied with this court’s order. The trial court again imposed a 112-year
sentence.
{¶11} Appellant filed a timely notice of appeal on May 17, 2010.
{¶12} Two days later, on May 19, 2010, the trial court overruled appellant’s
motion to dismiss all further proceedings due to unreasonable delay in sentencing.
{¶13} Appellant now raises five assignments of error, which state:
{¶14} “DEFENDANT/APPELLANT’S SENTENCES MUST BE VACATED
BECAUSE OF UNREASONABLE DELAY, WHICH CAN BE ATTRIBUTED ONLY TO
THE STATE, BETWEEN THE JURY’S VERDICT AND SENTENCE.”
{¶15} “DEFENDANT/APPELLANT’S SENTENCES TOTALING 112 YEARS
VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES
CONSTITUTION PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.”
{¶16} “THE TRIAL COURT ERRED BY IMPOSING MAXIMUM
CONSECUTIVE SENTENCES INSTEAD OF MINIMUM CONCURRENT
SENTENCES.”
{¶17} “COUNTS FOUR, FIVE AND SIX AND COUNTS SEVEN, EIGHT AND
NINE OF DEFENDANT/APPELLANT’S INDICTMENT FILED MAY 16, 2002 ARE
CONSTITUTIONALLY DEFECTIVE.”
-3-
{¶18} “DEFENDANT/APPELLANT’S INDICTMENT FAILED TO ALLEGE A
CRIME IN COUNTS SEVEN, EIGHT AND NINE AND WAS THEREFORE FATALLY
DEFECTIVE.”
{¶19} Appellant also raises what he terms as an “Anders assignment of error,”
which states:
{¶20} “THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE ALLIED
OFFENSES OF SIMILAR IMPORT FOR PURPOSES OF SENTENCING.”
{¶21} Based on recent case law, however, we must dismiss appellant’s
appeal.
{¶22} On October 13, 2011, the Ohio Supreme Court held: “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 not a new final order from which a new
appeal may be taken.” State v. Lester, ___ Ohio St.3d ___, 2011-Ohio-5204, at
paragraph two of the syllabus.
{¶23} In Lester, the judgment entry of conviction stated the fact of Lester’s
conviction but did not state how the conviction was effected, i.e. jury verdict, guilty
plea, no-contest plea. The Court acknowledged that in State v. Baker, 119 Ohio
St.3d 197, 2008-Ohio-3330, it confirmed that a judgment entry of conviction must
contain (1) the guilty plea, the jury verdict, or the finding of the court upon which the
conviction is based; (2) the sentence; (3) the judge’s signature; and (4) a journal
entry by the clerk of courts. Lester, at ¶8, citing Baker, at the syllabus. The Court
observed that the requirement for the “manner of conviction” had created confusion
over the finality of judgments. Id. at ¶9. It went on to reason:
{¶24} “[W]hen the substantive provisions of Crim.R. 32(C) [the fact of the
conviction, the sentence, the judge’s signature, and the entry on the journal] are
contained in the judgment of conviction, the trial court's omission of how the
defendant's conviction was effected, i.e., the ‘manner of conviction,’ does not prevent
the judgment of conviction from being an order that is final and subject to appeal.
Crim.R. 32(C) does not require a judgment entry of conviction to recite the manner of
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conviction as a matter of substance, but it does require the judgment entry of
conviction to recite the manner of conviction as a matter of form. In this regard, the
identification of the particular method by which a defendant was convicted is merely a
matter of orderly procedure rather than of substance. A guilty plea, a no-contest plea
upon which the court has made a finding of guilt, a finding of guilt based upon a
bench trial, or a guilty verdict resulting from a jury trial explains how the fact of a
conviction was effected. Consequently, the finality of a judgment entry of conviction
is not affected by a trial court's failure to include a provision that indicates the manner
by which the conviction was effected, because that language is required by Crim.R.
32(C) only as a matter of form, provided the entry includes all the substantive
provisions of Crim.R. 32(C).” Id. at ¶12.
{¶25} Thus, the Court modified Baker to the extent that it implied that more
than the fact of the conviction and substantive provisions of Crim.R. 32(C) must be
set out in the judgment entry of conviction before it becomes a final order. Id. at ¶14.
{¶26} Subsequently, on November 3, 2011, this court applied Lester in
dismissing an appeal very similar to the case at bar. In State v. Staffrey, 7th Dist.
Nos. 10-MA-130, 10-MA-131, 2011-Ohio-5760, Staffrey pleaded guilty to several
charges in 1996 and the court sentenced him accordingly. Staffrey appealed his
conviction and sentence and this court affirmed in 1999. In 2009, after Baker was
decided, Staffrey filed a motion to withdraw his guilty plea and a motion for
resentencing based on Baker. He alleged that the trial court’s judgment entry of
conviction was not a final, appealable order because it failed to comply with Crim.R.
32(C). The trial court did not immediately rule on the motion. So on Staffrey’s
motion, we granted a writ of mandamus holding that the trial court’s judgment entry of
sentence was not a final, appealable order because it did not state the means of
conviction. We stated that Staffrey was entitled to a revised sentencing entry that
complied with Crim.R. 32(C) and Baker. The trial court, in 2010, subsequently
reissued the 1996 judgment entry of conviction, this time including the means of
conviction.
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{¶27} Staffrey filed an appeal from the 2010 judgment entry of conviction
raising assignments of error dealing with ineffective assistance of counsel, the
voluntariness of his plea, and two sentencing issues. We determined, however, we
would not address the merits of Staffrey’s arguments because the 2010 nunc pro
tunc entry did not provide him with a second chance to appeal his conviction and
sentence. Id. at ¶14. Relying on Lester, we explained:
{¶28} “Thus, the 1996 judgment of conviction which stated the fact of
conviction was a final appealable order. However, Staffrey, upon his request, was
entitled to a judgment of conviction that stated the manner of conviction. After
direction from this court, the trial court issued a corrected judgment of conviction that
stated the manner of conviction—that is the July 2010 order.
{¶29} “Despite Staffrey's insistence to the contrary, he does not have the right
to appeal from the July 2010 order that solely added the manner of conviction. In
Lester, the Court explained that when the sole purpose of the nunc pro tunc entry is
to add the manner of conviction, the entry was merely correcting a clerical mistake.
Id. at ¶ 20. ‘Thus, the trial court's addition indicating how appellant's conviction was
effected affected only the form of the entry and made no substantive changes.’ Id.
The nunc pro tunc entry is not a new final order from which a new appeal may be
taken. Id.
{¶30} “Consequently, given the facts, the July 9, 2010 order is not a final
order subject to appeal. Staffrey already exhausted the appellate process concerning
his judgment of conviction; the nunc pro tunc entry does not give him the proverbial
‘second bite at the apple’. The appeal is dismissed.” Id. at ¶¶21-23.
{¶31} As was the case in Staffrey, there is no final order subject to appeal in
this case. The trial court resentenced appellant in 2008. Appellant appealed and we
affirmed his sentence. In 2010, upon appellant’s motion and this court’s order, the
trial court filed a nunc pro tunc sentencing entry to include the means of conviction in
compliance with Baker. The trial court’s 2010 nunc pro tunc order is not a final order
subject to appeal. It merely corrected a clerical mistake.
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{¶32} Furthermore, appellant bases a large part of his argument on the United
States Supreme Court case Graham v. Florida (2010), 130 S.Ct. 2011. In that case,
the trial court sentenced Graham, who was a juvenile at the time he committed
armed burglary and attempted armed robbery, under Florida law to life in prison with
no possibility of parole for the armed burglary count. The Court held that due to “the
limited culpability of juvenile nonhomicide offenders; and the severity of life without
parole sentences * * * the sentencing practice under consideration is cruel and
unusual.” Id. at 2030. Thus, the Court found that for a juvenile offender who did not
commit homicide the Eighth Amendment forbids the sentence of life without parole.
Id.
{¶33} Contrary to appellant’s assertion, however, this argument is barred in
this case by the doctrine of res judicata. State v. Green, 7th Dist. No. 10-MA-43,
2010-Ohio-6271, at ¶26, citing State v. Perry (1967), 10 Ohio St.2d 175, 180.
Appellant’s argument regarding Graham is one more properly raised in a petition for
postconviction relief.
{¶34} Thus, based on Lester and Staffrey, this appeal is hereby dismissed.
Vukovich, J., concurs.
DeGenaro, J., concurs.