State v. Pettyjohn , 2011 Ohio 4461 ( 2011 )

[Cite as State v. Pettyjohn, 2011-Ohio-4461.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO
Appellee
v.
DAVID LLOYD PETTYJOHN
Appellant
C.A. Nos. 10CA009777
10CA009894
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 98-CR-052622
DECISION AND JOURNAL ENTRY
Dated: September 6, 2011
Per Curiam.
{¶1} Defendant-Appellant David Pettyjohn appeals the judgments of the Lorain
County Court of Common Pleas. For the reasons set forth below, we affirm in part, vacate in
part, and remand the matter for proceedings consistent with this opinion.
I.
{¶2} In October 2000, a jury convicted Mr. Pettyjohn of five counts of gross sexual
imposition and two counts of intimidation of a witness. That same month, the trial court
sentenced him to 19 years in prison. This Court upheld his convictions on appeal. State v.
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Pettyjohn (July 1, 2001), 9th Dist. Nos. 00CA007714, 00CA007719. In August 2009, Mr.
Pettyjohn filed a motion for resentencing, arguing that the court’s sentencing entry did not
properly impose post-release control under Section 2967.28 of the Ohio Revised Code or comply
with Crim.R. 32(C). In January 2010, the trial court “vacated” its sentencing entry because it did
not correctly impose post-release control or include Mr. Pettyjohn’s manner of conviction under
Crim.R. 32(C). The court held another sentencing hearing and entered a new sentencing entry,
this time sentencing Mr. Pettyjohn to only 15 years in prison. Mr. Pettyjohn has appealed,
assigning three errors regarding the merits of his convictions. The case number for that appeal is
10CA009777.
{¶3} In March 2010, Mr. Pettyjohn moved the trial court for a nunc pro tunc order,
noting that its most recent sentencing entry did not dispose of any specifications. In April 2010,
the trial court issued a “corrected” sentencing entry, which explained that all of the specifications
had been dismissed. In August 2010, Mr. Pettyjohn moved for another nunc pro tunc entry,
arguing that the jury’s verdict forms were deficient. The trial court denied that motion. Mr.
Pettyjohn has appealed the denial of his second motion for a nunc pro tunc entry, assigning
additional errors. The case number for that appeal is 10CA009894. We are consolidating the
appeals.
II.
Case Number 10CA009777
ASSIGNMENT OF ERROR I
“APPELLANT’S CONVICTION FOR OBSTRUCTING OFFICIAL BUSINESS
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN
VIOLATION OF ARTICLE IV, SECTION 3, OF THE OHIO
CONSTITUTION.”
ASSIGNMENT OF ERROR II
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“APPELLANT’S CONVICTION SHOULD BE REVERSED AS THE TRIAL
COURT ALLOWED UNQUALIFIED EXPERTS TO TESTIFY WITHOUT AN
EXPERT REPORT IN VIOLATION OF LOCAL RULE 11(1)(A).”
ASSIGNMENT OF ERROR III
“APPELLANT’S CONVICTION SHOULD BE REVERSED AS THE STATE’S
WITNESSES WERE ALLOWED TO TESTIFY OUTSIDE THEIR
PROFESSED AREA OF EXPERTISE AND TO TESTIFY TO MATTERS
THAT SHOULD HAVE BEEN LEFT FOR THE JURY TO DECIDE.”
{¶4} Mr. Pettyjohn’s assignments of error related to case number 10CA009777 all
challenge the merits of his conviction. The State has argued that we should not consider his
arguments because this appeal is limited to issues regarding his resentencing. However, as the
trial court exceeded its jurisdiction in resentencing Mr. Pettyjohn and we are required to remand
the matter to the trial court for the issuance of a nunc pro tunc entry, we do not reach the merits
of Mr. Pettyjohn’s assignments of error.
{¶5} The trial court resentenced Mr. Pettyjohn because the judgment entry contained
improper post-release control notification and was not final and appealable as it failed to include
the manner of conviction as required by State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, at
syllabus; see, also, State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235 at ¶13.
We begin with a discussion of the appropriate way in which the trial court should have remedied
the defects at issue.
{¶6} With respect to the improper post-release control notification, pursuant to State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at ¶29, the new sentencing hearing that Mr.
Pettyjohn was entitled to was “limited to [the] proper imposition of postrelease control.” With
respect to the correction of the Crim.R. 32(C) defect as issue in the instant matter, the Supreme
Court has likewise provided a specific mechanism to remedy the problem. See Burge at ¶¶16-
23. The Supreme Court has concluded that the jurisdiction of the trial court in correcting a
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sentencing entry that fails to include the manner of conviction is limited to the issuance of a nunc
pro tunc entry. Id.{¶7} In the instant matter, the trial court did not employ the remedies prescribed by the
Ohio Supreme Court. Rather, the trial court resentenced Mr. Pettyjohn and altered his original
sentence, actions that exceeded its jurisdiction. See Fischer at ¶29; Burge at ¶21. However,
even when a trial court has exceeded its jurisdiction in post-release control cases by issuing a de
novo sentence, this Court has simply vacated the remainder of the court’s sentencing entry and
left the corrected post-release control portion intact. See, e.g., State v. Cool, 9th Dist. Nos.
25135 & 25214, 2011-Ohio-1560, at ¶4-6. Accordingly, we vacate the resentencing entry to
the extent it does anything except properly impose post-release control. Thus, Mr. Pettyjohn’s
original sentence remains intact. Further, as the trial court failed to issue a nunc pro tunc entry to
correct the original sentencing entry’s omission of the manner of conviction we remand the
matter to the trial court to issue a nunc pro tunc entry as contemplated in Baker and Burge.
Baker at ¶19; Burge at ¶¶16-23.
Case Number 10CA009894
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR, CRIM. R. 52(B), IN VIOLATION OF THE OHIO AND
UNITED STATES CONSTITUTIONS STATE V. PELFREY, 112 OHIO ST.3D
422 R.C. [] 2945.75(A)(2) BY SENTENCING THE APPELLANT FOR 5
COUNTS OF GROSS SEXUAL IMPOSITION, R.C. [] 29705.05 (A)(4) AT F3
WHEN THE VERDICT FORMS DID NOT STATE THE LEVEL OF THE
OFFENSE, NOR A STATEMENT THAT AN AGGRAVATING ELEMENT
HAS BEEN FOUND TO JUSTIFY CONVICTING A DEFENDANT OF A
GREATER DEGREE OF A CRIMINAL OFFENSE AND AS A RESULT, THE
GROSS SEXUAL IMPOSITION CHARGES AUTOMATICALLY REDUCE
TO THE LESSER OFFENSE OF ‘SEXUAL IMPOSITION’ R.C. [] 2907.06 AT
M3.”
ASSIGNMENT OF ERROR II
5
“THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR, CRIM. R. 52 (B) IN VIOLATION OF THE OHIO AND
UNITED STATES CONSTIUTIONS BY SENTENCING THE APPLELLANT
FOR 2 COUNTS OF INTIMIDATION OF A WITNESS R.C. [] 2921.04 (B) AT
F3, AS NEITHER ONE OF THE VERDICT FORMS STATED THE LEVEL OF
THE OFFENSE, NOR A STATEMENT THAT AN AGGRAVATING
ELEMENT HAS BEEN FOUND TO JUSTIFY CONVICTING A DEFENDANT
OF A GREATER DEGREE OF A CRIMINAL OFFENSE, IN VIOLATION OF
THE OHIO AND UNITED STATES CONSTITUTIONS R.C. [] 2945.75 (A)(2),
PURSUANT TO STATE V. PELFREY, 112 OHIO ST.3D 422, STATE V.
SESSLER, 119 OHIO ST.3D 9, THEREFORE, INTIMIDATION OF A
WITNESS CHARGES AUTOMATICALLY REDUCE TO THE LESSER
DEGREE OF THE OFFENSE R.C. [] 2921.04 (D) AT M1.”
ASSIGNMENT OF ERROR III
“THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR, CRIM. R. 52 (B) IN VIOLATION OF THE OHIO AND
UNITED STATES CONSTITUTIONS BY FAILING TO DISMISS THE ONE
COUNT OF INTIMIDATION OF A WITNESS R.C. [] 2921.04 (B) BASED ON
THE VERDICT FORMS FINDING THE APPELLANT GUILTY FOR THE
CHARGES THE DAY BEFORE THE JURY ACTUALLY DELIBERATED
FOR IT RENDERING THE CONVICTIONS VOID.”
{¶8} Mr. Pettyjohn asserts with respect to case number 10CA009894 that the trial court
erred in denying his motion for nunc pro tunc and/or dismissal. Based upon his arguments on
appeal, we disagree.
{¶9} In his motion, Mr. Pettyjohn stated that he “hereby brings this serious clerical
error to the courts attention for immediate correction after an evidentiary hearing with Mr.
Pettyjohn present in open court for the nunc pro tunc correction to the judgment entry.” The
clerical error he refers to is an incorrect date on the jury verdict form which erroneously stated
that the jury found Mr. Pettyjohn guilty on September 28, 2000 rather than September 29, 2000,
the date the jury actually deliberated and found him guilty. In addition to identifying the
existence of a clerical error, Mr. Pettyjohn also sought dismissal of certain convictions,
suggesting that the trial court should effectuate the dismissals via nunc pro tunc entries.
{¶10} This Court has stated that:
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“[a] nunc pro tunc order may be issued by a trial court, as an exercise of its
inherent power, to make its record speak the truth. It is used to record that which
the trial court did, but which has not been recorded. It is an order issued now,
which has the same legal force and effect as if it had been issued at an earlier
time, when it ought to have been issued. Thus, the office of a nunc pro tunc order
is limited to memorializing what the trial court actually did at an earlier point in
time. It can be used to supply information which existed but was not recorded, to
correct mathematical calculations, and to correct typographical or clerical errors.”
(Internal citation omitted.) State v. Greulich (1988), 61 Ohio App.3d 22, 24.
Further, Crim.R. 36 provides that “[c]lerical mistakes in judgments, orders, or other parts of the
record, and errors in the record arising from oversight or omission, may be corrected by the court
at any time.” (Emphasis added.)
{¶11} With respect to Mr. Pettyjohn’s first two assignments of error, the alleged error he
seeks to remedy is not correctable via a nunc pro tunc entry. Mr. Pettyjohn seeks to have the
trial court change the charges he was convicted of; Mr. Pettyjohn does not seek to correct the
record to reflect what actually happened. See Greulich, 61 Ohio App.3d at 24. Further, from his
brief on appeal, it is not clear that he is actually seeking a nunc pro tunc correction, instead it
appears he is seeking other substantive relief than that he requested in the trial court.
Accordingly, Mr. Pettyjohn’s first two assignments of error are properly overruled.
{¶12} With respect to Mr. Pettyjohn’s third assignment of error, he asserts that two of
the jury verdict forms inaccurately reflected the date the jury reached its verdict. While if this
were true, such an error would be in the nature of a clerical error correctable via nunc pro tunc,
see id., on appeal Mr. Pettyjohn does not appear to seek a nunc pro tunc correction. Mr.
Pettyjohn instead seeks dismissal of the convictions, which would not be warranted to correct a
clerical error. Thus, Mr. Pettyjohn’s third assignment of error is overruled.
III.
{¶13} In light of the foregoing, with respect to case number 10CA009777, we affirm the
judgment of the trial court to the extent it properly imposed post-release control and vacate the
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remainder of the resentencing entry. Further, we remand the matter to the Lorain County Court
of Common Pleas for the issuance of an appropriate nunc pro tunc entry. With respect to case
number 10CA009894, we affirm the judgment of the Lorain County Court of Common Pleas.
Judgments affirmed in part,
vacated in part,
and cause remanded.
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 Lorain, 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 equally to both parties.
EVE V. BELFANCE
FOR THE COURT
BELFANCE, P. J.
WHITMORE, J.
CONCUR
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DICKINSON, J.
CONCURS IN PART, AND DISSENTS IN PART, SAYING:
INTRODUCTION
{¶14} A jury convicted David Pettyjohn of five counts of gross sexual imposition and
two counts of intimidation of a witness, and the trial court sentenced him to 19 years in prison.
This Court upheld his convictions on appeal. State v. Pettyjohn, 9th Dist. Nos. 00CA007714,
00CA007719, 2001 WL 773232 (July 1, 2001). Several years later, the trial court resentenced
Mr. Pettyjohn because it had not correctly imposed post-release control and had not specified
Mr. Pettyjohn’s manner of conviction in its sentencing entry. Mr. Pettyjohn has appealed the
court’s resentencing entry. He later moved the trial court for a nunc pro tunc order, arguing that
the jury’s verdict forms were deficient. The trial court denied his motion, and Mr. Pettyjohn has
appealed that decision as well. We should affirm the judgments in part because Mr. Pettyjohn’s
arguments are barred by the doctrine of res judicata and should reverse in part because the trial
court did not have authority to reduce Mr. Pettyjohn’s prison term when it resentenced him.
PROCEDURAL BACKGROUND
{¶15} In October 2000, a jury convicted Mr. Pettyjohn of five counts of gross sexual
imposition and two counts of intimidation of a witness. That same month, the trial court
sentenced him to 19 years in prison. In August 2009, Mr. Pettyjohn filed a motion for
resentencing, arguing that the court’s sentencing entry did not properly impose post-release
control under Section 2967.28 of the Ohio Revised Code or comply with Rule 32(C) of the Ohio
Rules of Criminal Procedure. In January 2010, the trial court “vacated” its sentencing entry
because it did not correctly impose post-release control or include Mr. Pettyjohn’s manner of
conviction under Rule 32(C). The court held another sentencing hearing and entered a new
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sentencing entry, this time sentencing Mr. Pettyjohn to only 15 years in prison. Mr. Pettyjohn
has appealed, assigning three errors regarding the merits of his convictions. The case number for
that appeal is 10CA009777.
{¶16} In March 2010, Mr. Pettyjohn moved the trial court for a nunc pro tunc order,
noting that its most recent sentencing entry did not dispose of any specifications. In April 2010,
the trial court issued a “corrected” sentencing entry, which explained that all of the specifications
had been dismissed. In August 2010, Mr. Pettyjohn moved for another nunc pro tunc entry,
arguing that the jury’s verdict forms were deficient. The trial court denied that motion. Mr.
Pettyjohn has appealed the denial of his second motion for a nunc pro tunc entry, assigning
additional errors regarding the merits of his convictions. The case number for that appeal is
10CA009894.
RES JUDICATA
{¶17} Mr. Pettyjohn’s assignments of error are that his convictions are against the
manifest weight of the evidence, that the trial court incorrectly allowed an unqualified witness to
testify as an expert, that the trial court incorrectly allowed the State’s expert witnesses to testify
outside the areas of their expertise, and that the jury’s verdict forms were deficient. The State
has argued that we should not consider his arguments because this appeal is limited to issues
regarding his resentencing. According to the State, the trial court’s post-release control and
Criminal Rule 32(C) errors only made its original sentencing entry partially void. See State v.
Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, at ¶59-60 (concluding res judicata barred the
assertion of claims that could have been raised in defendant’s first appeal).
POST-RELEASE CONTROL
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{¶18} Regarding the trial court’s failure to properly impose post-release control, in State
v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, the Ohio Supreme Court held that, “[w]hen a
defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not
properly included in a sentence for a particular offense, the sentence for that offense is void. The
offender is entitled to a new sentencing hearing for that particular offense.” Id. at syllabus. In
State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, however, the Court modified Bezak,
clarifying that, “[if] a judge fails to impose statutorily mandated postrelease control as part of a
defendant’s sentence, [only] that part of the sentence is void and must be set aside.” Id. at ¶26.
“[R]es judicata still applies to other aspects of the merits of [the] conviction, including the
determination of guilt and the lawful elements of the ensuing sentence.” Id. at paragraph three of
the syllabus. The only issues a defendant can raise on appeal after the resentencing hearing to
correctly impose post-release control are “issues arising at the resentencing hearing.” Id. at
paragraph four of the syllabus. Accordingly, the State is correct that the trial court’s failure to
properly impose post-release control does not allow Mr. Pettyjohn to contest the merits of his
underlying convictions in these appeals.
CRIMINAL RULE 32(C)
{¶19} Regarding the trial court’s failure to properly follow Rule 32(C) of the Ohio Rules
of Criminal Procedure, that rule provides that “[a] judgment of conviction shall set forth the plea,
the verdict, or findings, upon which each conviction is based, and the sentence.” In State v.
Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, the Ohio Supreme Court considered whether the
rule’s language requires the judgment of conviction of a defendant who has been found guilty by
a jury to contain the plea that the defendant entered at arraignment for it to be appealable. Id. at
¶1. The Supreme Court concluded that it does not, holding, instead, that “[a] judgment of
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conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea,
the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence;
(3) the signature of the judge; and (4) entry on the journal by the clerk of court.” Id. at syllabus
(explaining Crim. R. 32(C)).
{¶20} In Baker, the Supreme Court noted that the court of appeals had required
judgments of conviction to contain five things: “(1) the plea; (2) the verdict or findings; (3) the
sentence; (4) the signature of the judge; and (5) the time stamp of the clerk to indicate
journalization.” State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, at ¶13. The Court
disagreed with that interpretation of the rule, explaining that a “more logical interpretation” of
the “phrase ‘the plea, the verdict or findings, and the sentence’ is that a trial court is required to
sign and journalize a document memorializing the sentence and the manner of the conviction: 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.” Id. at ¶14. It, therefore,
held that the court of appeals had incorrectly concluded that Mr. Baker’s judgment of conviction
was not appealable. Id. at ¶19 (explaining that a judgment of conviction “need not necessarily
include the plea entered at arraignment, but . . . must include the sentence and the means of
conviction, whether by plea, verdict, or finding by the court, to be a final appealable order under
R.C. 2505.02.”).
{¶21} In his motion for resentencing, Mr. Pettyjohn argued that his sentence was invalid
because it did not contain the means or manner of conviction, as those terms are used throughout
Baker. He noted that, instead of explaining whether the court made a finding of guilt after a no
contest plea or bench trial or whether he was found guilty by a jury, his sentencing entry merely
stated that he had “appeared . . . for sentencing after having been found guilty to the following
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charge(s)[.]” According to Mr. Pettyjohn, because the sentencing entry did not explain the
means or manner of his conviction, it was deficient under Baker. The trial court agreed, and
vacated his sentence.
{¶22} Although the trial court’s original sentencing entry did not include Mr.
Pettyjohn’s manner of conviction, the court exceeded its authority when it “vacated” Mr.
Pettyjohn’s entire sentence. In State ex rel. DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-
235, Nancy Smith moved for resentencing fourteen years after her convictions, arguing that the
trial court’s sentencing entry did not comply with Criminal Rule 32(C). The trial court granted
her motion, vacated her convictions and sentence, and entered a judgment of acquittal under
Criminal Rule 29(C). The State sought a writ of prohibition, arguing that the trial court did not
have jurisdiction to enter a judgment of acquittal. Id. at ¶4.
{¶23} The Supreme Court agreed that Ms. Smith’s sentencing entry was defective under
Criminal Rule 32(C) because it did not contain “the manner of the conviction.” State ex rel.
DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-235, at ¶13 (quoting State v. Baker, 119 Ohio
St. 3d 197, 2008-Ohio-3330, at ¶14). It reached that conclusion, in part, because the State had
conceded error in the court of appeals and had, itself, asked the trial court to correct Ms. Smith’s
sentence under Baker. Id. at ¶12. Accordingly, the Supreme Court concluded that the State had
invited any error. Id. Quoting Baker, it also reaffirmed that “a trial court is required to sign and
journalize a document memorializing the sentence and the manner of the conviction: 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.” Id. at ¶13 (quoting Baker,
2008-Ohio-3330, at ¶14). Because the trial court’s sentencing entry “did not disclose that [Ms.]
Smith had been found guilty by a jury[,]” it did not comply with Criminal Rule 32(C). Id.13
{¶24} The Supreme Court next discussed the appropriate way to correct a sentencing
entry that does not comply with Criminal Rule 32(C). It characterized the trial court’s error in
that case as a “clerical mistake” and concluded that it was correctable through a nunc pro tunc
order under Criminal Rule 36. State ex rel. DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-
235, at ¶18. Noting that a nunc pro tunc entry is “limited in proper use to reflect[ ] what the
court actually decided, not what the court might or should have decided,” it held that the trial
court’s Criminal Rule 32(C) error “vested the . . . court with specific, limited jurisdiction to issue
a new sentencing entry to reflect what the court had previously ruled and not to issue a new
sentencing order reflecting what . . . the court should have ruled.” Id. at ¶17, 19 (quoting State
ex rel. Mayer v. Henson, 97 Ohio St. 3d 276, 2002-Ohio-6323, at ¶14). It, therefore, concluded
that the trial court had exceeded its jurisdiction when it vacated Ms. Smith’s convictions and
sentence. Id. at ¶21.
{¶25} Consistent with Burge, I agree with the lead opinion that the trial court did not
have authority to vacate Mr. Pettyjohn’s entire sentencing entry, even though the entry did not
comply with Criminal Rule 32(C). Rather, the court was limited to entering a nunc pro tunc
order to correct its clerical mistake. State ex rel. DeWine v. Burge, 128 Ohio St. 3d 236, 2011-
Ohio-235, at ¶18, 21. The trial court, however, did correct its clerical mistake in its “Corrected
Judgment Entry of Conviction and Sentence,” explaining that Mr. Pettyjohn had been “found
guilty of [the offenses] by a jury[.]” We, therefore, should reinstate the trial court’s original
October 2000 sentencing entry, as corrected by the court’s “[c]orrected” entry. Because the trial
court did not have authority to change Mr. Pettyjohn’s sentence, we should vacate the
“[c]orrected” entry to the extent that it attempted to do anything beyond correcting the court’s
Rule 32(C) and post-release control mistakes.
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{¶26} A nunc pro tunc order relates back to the date of the original entry. State ex rel.
Womack v. Marsh, 128 Ohio St. 3d 303, 2011-Ohio-229, at ¶15. Because of the trial court’s
corrective entry, we should consider the court’s original sentencing compliant with Criminal
Rule 32(C) and conclude that the doctrine of res judicata bars Mr. Pettyjohn from rearguing the
merits of his convictions in these appeals. See State v. Ketterer, 126 Ohio St. 3d 448, 2010-
Ohio-3831, at ¶59 (“Res judicata bars the assertion of claims against a valid, final judgment of
conviction that have been raised or could have been raised on appeal.”); State v. Triplett, 6th
Dist. No. L-10-1158, 2011-Ohio-1713, at ¶21 (concluding that defendant could not reargue the
merits of his conviction on appeal from judgment correcting a sentencing entry that did not
comply with Criminal Rule 32(C)). Mr. Pettyjohn’s assignments of error should be overruled.
CONCLUSION
{¶27} Mr. Pettyjohn may not reargue the merits of his convictions on appeal from an
order that corrected the trial court’s improper imposition of post-release control and a clerical
error under Rule 32(C) of the Ohio Rules of Criminal Procedure or on appeal from the denial of
his motion for a nunc pro tunc order. The judgment of the Lorain County Common Pleas Court
in case number 10CA009777 should be affirmed to the extent that it corrected the post-release
control and Criminal Rule 32(C) errors, but should otherwise be vacated, and Mr. Pettyjohn’s
original sentence should be reinstated. I agree that the judgment in case number 10CA009894
should be affirmed.
APPEARANCES:
DAVID PETTYJOHN, pro se, Appellant.
DENNIS P. WILL, Prosecuting Attorney, and, BILLIE JO BELCHER, Assistant Prosecuting
Attorney, for Appellee.