State v. McCabe , 2018 Ohio 3176 ( 2018 )

[Cite as State v. McCabe, 2018-Ohio-3176.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 17-CA-00010
:
DONALD E. MCCABE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of
Common Pleas, Case No. 93-CR-6366
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 8, 2018
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOSEPH A. FLAUTT DONALD E. MCCABE, PRO SE
PERRY COUNTY PROSECUTOR Inmate #277-786
111 North High St., P.O. Box 569 P.O. Box 57
New Lexington, OH 43764-0569 Marion, OH 43301
Perry County, Case No. 17-CA-00010 2
Delaney, J.
{¶1} Defendant-Appellant Donald E. McCabe appeals the December 4, 2017
judgment entry of the Perry County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 17, 1993, the Perry County Grand Jury indicted Defendant-
Appellant Donald E. McCabe on three charges: Count 1, aggravated burglary with a
firearm specification, a first-degree felony in violation of R.C. 2911.11(A)(1)(2)(3); Count
2, aggravated robbery with a firearm specification, a first-degree felony in violation of R.C.
2911.01(A)(1)(2); and Count 3, aggravated murder with a firearm specification, in violation
of R.C. 2903.01(B). The underlying facts giving rise to McCabe’s indictment are
unnecessary for the disposition of McCabe’s appeal.
{¶3} McCabe originally entered pleas of not guilty and not guilty by reason of
insanity. On May 26, 1993, McCabe entered a plea of guilty to each count contained
within the indictment. The State dismissed the firearm specifications. The trial court
issued a judgment entry on May 27, 1993, memorializing McCabe’s guilty pleas.
{¶4} On July 23, 1993, the trial court held a sentencing hearing and issued its
sentencing entry. The termination judgment entry referred to the May 27, 1993 judgment
entry but did not explicitly state the manner of conviction. The trial court sentenced
McCabe to life in prison with eligibility of parole after 20 years on Count 3. On Count 1,
the trial court sentenced McCabe to a prison term of 10 to 25 years. The trial court also
sentenced McCabe to a prison term of 10 to 25 years on Count 2. McCabe was ordered
to serve his sentences concurrently.
{¶5} McCabe did not appeal his sentence.
Perry County, Case No. 17-CA-00010 3
{¶6} On August 28, 2017, McCabe filed a pro se motion to correct void judgment.
He first argued that because he was charged with and pleaded guilty to aggravated
murder in violation of R.C. 2903.01(B), R.C. 2946.06 required that he be sentenced by a
three judge panel. He next argued his sentence was void because the trial court failed to
include mandatory sentencing provisions. The State responded to the motion.
{¶7} On December 4, 2017, the trial court denied McCabe’s motion to correct
void judgment.
{¶8} The trial court also issued a nunc pro tunc termination judgment entry on
December 4, 2017. The nunc pro tunc judgment entry combined the language of the May
27, 1993 and July 23, 1993 judgment entries into one entry and made no substantive
changes.
{¶9} McCabe filed a notice of appeal on December 18, 2017.
ASSIGNMENTS OF ERROR
{¶10} McCabe raises five Assignments of Error:
{¶11} “I. THE DEFENDANT-APPELLANT’S SENTENCE DOES NOT CONFORM
TO THE PROVISIONS OF OHIO CRIMINAL RULE 11(C)3.
{¶12} “II. THE SENTENCE IN CR-6366 IS DECLARED A ‘VOID JUDGMENT’.
{¶13} “III. DEFENDANT-APPELLANT’S SENTENCE DOESN’T COMPOST
WITH THE ‘MANDATORY PROVISIONS’ OF CRIM.R. 32(C) JUDGMENT (FORMERLY
KNOWN AS 32(B).)
{¶14} “IV. THE DEFENDANT-APPELLANT’S JOURNAL ENTRY WAS
ILLEGALLY CHALLENGED BY THE TRIAL COURT ON 7/28/17.
Perry County, Case No. 17-CA-00010 4
{¶15} “V. THE DEFENDANT-APPELLANT’S SENTENCE VIOLATES THE U.S.
14TH AMENDMENT-DUE PROCESS CLAUSE.”
ANALYSIS
I., II., and III.
{¶16} McCabe argues in his first, second, and third Assignments of Error that his
sentence should be declared a void judgment because his indictment for aggravated
murder contained a “death specification.” He claims the death specification was never
dismissed when he entered his guilty plea and therefore, the trial court was required to
meet certain sentencing guidelines pertaining to a death specification pursuant to Crim.R.
11(C)(3), Crim.R. 32(C), and R.C. 2929.03(F). He contends the trial court’s failure to meet
the guidelines rendered his sentence void.
{¶17} Crim.R. 11(C)(3) states:
(3) With respect to aggravated murder committed on and after January 1,
1974, the defendant shall plead separately to the charge and to each
specification, if any. A plea of guilty or no contest to the charge waives the
defendant's right to a jury trial, and before accepting a plea of guilty or no
contest the court shall so advise the defendant and determine that the
defendant understands the consequences of the plea.
If the indictment contains no specification, and a plea of guilty or no contest
to the charge is accepted, the court shall impose the sentence provided by
law.
Perry County, Case No. 17-CA-00010 5
If the indictment contains one or more specifications, and a plea of guilty or
no contest to the charge is accepted, the court may dismiss the
specifications and impose sentence accordingly, in the interests of justice.
If the indictment contains one or more specifications that are not dismissed
upon acceptance of a plea of guilty or no contest to the charge, or if pleas
of guilty or no contest to both the charge and one or more specifications are
accepted, a court composed of three judges shall: (a) determine whether
the offense was aggravated murder or a lesser offense; and (b) if the
offense is determined to have been a lesser offense, impose sentence
accordingly; or (c) if the offense is determined to have been aggravated
murder, proceed as provided by law to determine the presence or absence
of the specified aggravating circumstances and of mitigating circumstances,
and impose sentence accordingly.
{¶18} McCabe contends because the indictment contained a death specification
that was not dismissed upon the acceptance of McCabe’s guilty plea to the charge of
aggravated murder, a panel of three judges should have considered the charge and
sentencing. The failure to have his case heard by a panel of three judges also rendered
his sentence void pursuant to Crim.R. 32(C) because the termination judgment entry did
not contain a separate finding of fact pursuant to R.C. 2929.03(F).
{¶19} McCabe was indicted on one count of aggravated robbery, one count of
aggravated burglary, and one count of aggravated murder. The indictment states that
McCabe was charged with aggravated murder in violation of R.C. 2903.01(B), which
reads in pertinent part: “No person shall purposely cause the death of another * * * while
Perry County, Case No. 17-CA-00010 6
committing or attempting to commit, or while fleeing immediately after committing or
attempting to commit, * * * aggravated robbery, * * * aggravated burglary, * * *.”
{¶20} McCabe contends the charge of aggravated murder contained a death
penalty specification. R.C. 2929.04(A)(7) states:
Imposition of the death penalty for aggravated murder is precluded unless
one or more of the following is specified in the indictment or count in the
indictment pursuant to section 2941.14 of the Revised Code and proved
beyond a reasonable doubt:
***
(7) The offense was committed while the offender was committing,
attempting to commit, or fleeing immediately after committing or attempting
to commit kidnapping, rape, aggravated arson, aggravated robbery, or
aggravated burglary, and either the offender was the principal offender in
the commission of the aggravated murder or, if not the principal offender,
committed the aggravated murder with prior calculation and design.
{¶21} Under R.C. 2941.14(B), the imposition of the death penalty for aggravated
murder is precluded unless the “count in the indictment charging the offense specifies
one or more of the aggravating circumstances listed in division (A) of section 2929.04 of
the Revised Code. If more than one aggravating circumstance is specified to an
indictment or count, each shall be in a separately numbered specification, and if an
aggravating circumstance is specified to a count in an indictment containing more than
one count, such specification shall be identified as to the count to which it applies.”
Perry County, Case No. 17-CA-00010 7
{¶22} A review of the 1993 indictment shows it does not state a separate
specification of an aggravating circumstance to the count charging McCabe with
aggravated murder. McCabe was not charged with aggravated murder with a death
penalty specification. McCabe was charged with aggravated murder with a firearm
specification and the firearm specification was dismissed by the State upon McCabe’s
guilty plea.
{¶23} Accordingly, McCabe’s arguments that the trial court’s sentencing did not
comply with Crim.R. 11(C)(3) and Crim.R. 32(C) because of a death specification are not
supported by the record.
{¶24} McCabe’s first, second, and third Assignments of Error are overruled.
IV.
{¶25} McCabe contends in his fourth Assignment of Error that the trial court
illegally changed the July 23, 1993 termination judgment entry when it issued the nunc
pro tunc termination judgment entry on December 4, 2017.
{¶26} On May 27, 1993, the trial court issued its judgment entry memorializing
McCabe’s guilty pleas. The July 23, 1993 termination judgment entry rendered McCabe’s
sentence. The nunc pro tunc termination judgment entry combined the May 27, 1993
judgment entry and July 23, 1993 termination judgment entry into one termination
judgment entry.
{¶27} A final, appealable order in a criminal case under Crim.R. 32(C) must
contain four elements: (1) the fact of the conviction, (2) the sentence, (3) the judge’s
signature, and (4) a time stamp from the clerk of courts. State v. Lester, 130 Ohio St.3d
303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus.
Perry County, Case No. 17-CA-00010 8
{¶28} As a general matter, “[o]nly one document can constitute a final appealable
order,” meaning that a single entry must satisfy the requirements of Crim.R. 32(C). State
v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 17.
{¶29} Although former Crim.R. 32(C) indicated that the judgment entry should
include the manner of conviction, Lester held that its absence from the judgment entry
did not affect the finality of the order. Lester at ¶ 12. The omission of the “manner of the
conviction” in the sentencing entry does not prevent the judgment from being a final,
appealable order. State ex rel. Davis v. Ewers, 130 Ohio St.3d 354, 2011-Ohio-5790, 958
N.E.2d 566, ¶ 1, citing State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d
142, paragraph one of the syllabus; Accord, State ex rel. McGuire v. Abruzzo, 133 Ohio
St.3d 121, 2012-Ohio-4217, 976 N.E.2d 861, ¶ 1. The July 23, 1993 termination judgment
entry referred to the May 27, 1993 judgment entry memorializing McCabe’s guilty pleas,
but the termination judgment entry did not explicitly state the manner of conviction.
Pursuant to Lester, the July 23, 1993 termination judgment entry was a final appealable
order although it did not contain the manner of conviction. McCabe did not appeal the
July 23, 1993 termination judgment entry.
{¶30} “Courts possess inherent authority to correct clerical errors in judgment
entries so that the record speaks the truth[.]” State v. Lee, 9th Dist. Summit No. 28713,
2018-Ohio-2497¶ 8 quoting State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-
Ohio-235, ¶ 17, quoting State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-
5795, ¶ 19. “A nunc pro tunc entry is often used to correct a sentencing entry that,
because of a mere oversight or omission, does not comply with Crim.R. 32(C).” Burge at
¶ 17. Furthermore, a nunc pro tunc order relates back to the date of the original
Perry County, Case No. 17-CA-00010 9
entry. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, ¶ 15. Where
the manner of conviction was missing, the trial court could correct the omission by means
of a nunc pro tunc entry. Lester at paragraph two of the syllabus; State ex rel. Snead v.
Ferenc, 138 Ohio St.3d 136, 2014-Ohio-43, 4 N.E.3d 1013, ¶ 9.
{¶31} The December 4, 2017 nunc pro tunc termination judgment entry combined
the previous judgment entries into a single judgment entry to comply with Baker, Lester,
and Crim.R. 32(C). The trial court acted within its authority to issue a nunc pro tunc
termination judgment entry to comply with Crim.R. 32(C).
{¶32} McCabe’s fourth Assignment of Error is overruled.
V.
{¶33} McCabe argues in his fifth Assignment of Error that his due process rights
under the 14th Amendment were violated.
{¶34} Based on our findings above, we conclude McCabe has failed to
demonstrate a violation of his due process rights.
{¶35} McCabe’s fifth Assignment of Error is overruled.
Perry County, Case No. 17-CA-00010 10
CONCLUSION
{¶36} The judgment of the Perry County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.