State v. Wilson , 2013 Ohio 2753 ( 2013 )

[Cite as State v. Wilson, 2013-Ohio-2753.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25279
Plaintiff-Appellee :
: Trial Court Case No. 2007-CR-2134/2
v. :
:
ANTHONY L. WILSON : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 28th day of June, 2013.
...........
MATHIAS H. HECK, JR., by ANDREW FRENCH, Atty. Reg. #0069384, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972,
301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTHONY WILSON, #567649, London Correctional Institution, Post Office Box 69, London,
Ohio 43140
Defendant-Appellant, pro se
.............
FAIN, P.J.,
{¶ 1} Defendant-appellant Anthony Wilson appeals from an order of the trial court
overruling his May 31, 2012 request for re-sentencing, and from an order of the trial court
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overruling his “Motion for Written Objection Pursuant to Evid.R. 103(A)(1) to the [order
overruling his May 31, 2012 request for re-sentencing].” Wilson contends that his original
judgment of conviction was void ab initio because it: (1) was not signed by the trial judge, but
was rubber-stamped; and (2) reflected that he was convicted of counts in the indictment that
pertained to a co-defendant, but not to him.
{¶ 2} We conclude that Wilson’s claims do not implicate the jurisdiction of the trial
court and either were raised, or could have been raised, in the direct appeals he took from his
2007 and 2011 judgments of conviction, so that they are barred by the doctrine of res judicata.
We also conclude that his claims are without merit. The 2011 judgment of conviction, in which
an error pertaining to post-release control was corrected, appears, in the copy attached to
Wilson’s brief, to have been signed by the trial judge, not rubber-stamped. The 2007 judgment
entry, although it did not recite the counts in the indictment corresponding to his convictions,
identified those convictions as being for Complicity to Commit Felonious Assault, which are the
offenses with which Wilson was charged in the indictment. The 2011 judgment entry correctly
recited the counts in the indictment corresponding to his convictions, and those counts in the
indictment pertained to him, not to his co-defendant.
{¶ 3} The judgment of the trial court is Affirmed.
I. The Course of Proceedings
{¶ 4} In 2007, Wilson was charged with two counts of Complicity to Commit
Felonious Assault, with firearm specifications. A co-defendant, Timmesha R. Mason, was
charged with two counts of Felonious Assault, with firearm specifications. Counts 1 and 2 of
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the indictment pertained to Mason; Counts 3 and 4 pertained to Wilson.
{¶ 5} Wilson was convicted in a jury trial of both counts and specifications. The two
counts of Complicity to Commit Felonious Assault were merged, as were the two firearm
specifications. Wilson was sentenced to four years for Complicity to Commit Felonious Assault,
and to three years for the firearm specification, to be served prior to, and consecutively to, the
four-year sentence, for a total sentence of seven years.
{¶ 6} Wilson appealed. We affirmed. State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525. (Wilson I).
{¶ 7} In March 2010, Wilson moved for leave to file an untimely motion for a new
trial, based on newly discovered evidence. The trial court overruled the motion, and Wilson
appealed. In December 2010, Wilson moved for a stay of the collection of court costs until after
his release from prison. This motion was overruled, and Wilson appealed. On February 23,
2011, Wilson was brought before the trial court for resentencing to correct an error in the
imposition of post-release control, pursuant to R.C. 2929.191. He objected to the limited scope
of this hearing, and requested a de novo re-sentencing hearing. His objection was overruled, and
the trial court, on the same date, entered an amended judgment of conviction imposing a term of
post-release control, and specifying that the manner of the conviction was as the result of a jury
verdict. Wilson appealed.
{¶ 8} All three of these appeals were consolidated. We concluded that all three
appeals were without merit, and affirmed. State v. Wilson, 2d Dist. Montgomery Nos. 24461,
24496, and 24501, 2012-Ohio-1660. (Wilson II).
{¶ 9} In May 2012, Wilson filed a motion for re-sentencing, contending that: (1) the
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original judgment entry of conviction was void, because it was not signed by the trial judge, but
was rubber-stamped; (2) because the 2007 judgment entry reflected that Wilson had been
convicted on Counts 1 and 2 of the indictment, which did not pertain to him, the charges in
Counts 3 and 4, which did pertain to him, remained unadjudicated; and (3) the 2011 judgment
entry, not being a proper nunc pro tunc entry, was void. The trial court overruled Wilson’s
motion by an entry filed June 18, 2012.
{¶ 10} Thereafter, Wilson filed a “Motion for Written Objection Pursuant Evid.R.
103(A)(1) to the Decision Rendered on June 18, 2012 Pertaining to the Re-sentencing Motion to
Correct a Void Sentence.” The trial court overruled this motion.
{¶ 11} This appeal was taken by Wilson from both the trial court’s order overruling his
motion for re-sentencing and the subsequent order overruling his Motion for Written Objection.
Wilson does not appear to be raising any issues pertaining to the latter order.
II. Wilson’s Claim Based on the Trial Judge’s Alleged Failure to Have Signed
the 2007 Judgment Entry Is Moot in View of the Subsequent Amended Entry, Which Is
Signed by the Trial Judge; It Is Also Barred by Res Judicata, Since
it Could Have Been Raised in the Direct Appeal from the 2007 Judgment
{¶ 12} Wilson’s First “Argument,” which we take to represent an assignment of error, is
as follows:
THE CLERK OF COURTS REPRODUCTION OF THE ORIGINAL
DECEMBER 13, 2007 TERMINATION ENTRY WAS CONFIRMED
THROUGH CERTIFICATION BY THE CLERK, DEPUTY SHERIFF, AND
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PROSECUTOR OFFICIALS AUTHENTICATION THAT THE REPLICA
TERMINATION ENTRY WAS INDEED A TRUE AN [sic] REPLICA OF THE
ORIGINAL ENTRY FORM.
{¶ 13} Although it is not in our record, Wilson has attached to his brief a purported copy
of the trial court’s 2007 judgment entry of conviction at the end of which the trial judge’s
signature does appear to have been either typed, or printed, or rubber-stamped. Wilson contends
that it is therefore void. The State contends that the actual 2007 judgment entry does, in fact,
bear the original signature of the trial judge.1
{¶ 14} Even if the 2007 judgment entry was not signed by the trial judge, the 2011
judgment entry, which corrected the provision for post-release control, and also re-stated the
judgment of conviction, does appear to bear the original signature of the trial judge. We have
previously held that the Crim.R. 32(C) requirement that the judgment entry bear the signature of
the judge may be corrected by a nunc pro tunc entry. State v. Harris, 2d Dist. Montgomery No.
24739, 2012-Ohio-1853, ¶ 10.
{¶ 15} Also, a Crim.R. 32(C) original-signature error renders a judgment voidable, not
void, so that the error must be raised in a direct appeal or be barred by res judicata. Id., ¶ 11.
Wilson did not raise this issue in any of his prior appeals, including his direct appeal from the
2007 judgment of conviction. Therefore, this issue is barred by res judicata.
1
The State has proffered what it contends to be a correct copy of the 2007 judgment entry filed in the clerk’s office, bearing the trial
judge’s original signature, and has moved to supplement the record. Because we conclude that Wilson is not entitled to the reversal of his
conviction even if the copy he has attached to his brief is a correct copy of the 2007 judgment entry, we find it unnecessary to supplement the
record or otherwise resolve the factual dispute between the parties as to which version of the 2007 judgment entry is correct.
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III. Neither the 2007 Judgment of Conviction Nor the 2011 Judgment
of Conviction Left the Charges Against Wilson Unadjudicated
{¶ 16} Wilson’s Second and Third Arguments are as follows:
TRIAL COURT ERRED AS A MATTER OF LAW TO APPLY THE
RES JUDICATA STANDARD FOR THE MOTION FOR SENTENCING WHEN
IT DOES NOT APPLY TO CASES WHERE A SENTENCE WAS EITHER
NEVER IMPOSED, CONTRARY TO LAW, AND/OR VOID ON ITS FACE.
BECAUSE THE TRIAL COURT FAILED TO IMPOSE A SENTENCE
FOR THE CHARGES OF “COMPLICITY” WHICH APPELLANT WAS
CHARGE [sic], INDICTED, TRIED, AND CONVICTED BY THE JURY, THE
TRIAL COURT LOST JURISDICTION TO IMPOSE A SENTENCE UPON
APPELLANT DUE TO THE SIGNIFICANT AMOUNT OF TIME PASSED
FROM THE DATE OF CONVICTION AND ACTUAL TIME A SENTECING
[sic] WAS TO OCCUR, IT VIOLATED THE CONSTITUTIONS OF THE
UNITED STATES AND OHIO; THE DELAY DENIED APPELLANT DUE
PROCESS, WHICH GUARANTEES THE ADMINISTRATION OF JUSTICE
WITHOUT DENIAL OR DELAY.
{¶ 17} In Counts 1 and 2 of the indictment, Wilson’s co-defendant, Manson, was
charged with two counts of Felonious Assault. In Counts 3 and 4 of the indictment, Wilson was
charged with two counts of Complicity to Commit Felonious Assault, as an aider and abetter.
{¶ 18} The necessary predicate for these arguments is that the charges against Wilson
remain unadjudicated. He argues that in the 2007 judgment entry of conviction, the Felonious
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Assault convictions do not refer to specific counts within the indictment. He further argues that
the 2011 judgment entry, while referring to Counts 3 and 4 – the counts in the indictment that
pertain to him, cannot fix the failure of the 2007 judgment entry to refer to the counts in the
indictment of which he was convicted, because that is not the proper subject of a nunc pro tunc
entry. Therefore, Wilson argues, the charges against him remain unadjudicated.
{¶ 19} We find Wilson’s argument difficult to follow. Wilson has attached copies of
both judgment entries to his brief. The 2007 judgment entry, while not specifying the numbers
of the counts in the indictment, expressly states that he was convicted of “Complicity to Commit
Felonious Assault (deadly weapon) -F2,” and “Complicity to Commit Felonious Assault (serious
harm) - F2.” He was charged with Complicity to commit these offenses; his co-defendant was
charged as the principal offender.
{¶ 20} Immediately following the recitation of Wilson’s convictions for two counts of
Complicity to Commit Felonious Assault, the 2007 judgment entry provides that: “For purposes
of sentencing, the Court hereby merges Count one into Count two.” In context, we conclude that
the trial court was referring to the first and second of the counts of which Wilson was convicted.
Merging the first (Count 3 of the indictment) into the second (Count 4 of the indictment) resulted
in only the second (Count 4 of the indictment) remaining as a conviction upon which Wilson was
sentenced. Similarly, the trial court then merged the firearm specifications, referring to them as
the specifications in Counts 1 and 2. Again, in context, we conclude that the trial court was
thereby referring to the first and second of the counts of which Wilson was convicted.
Therefore, we find no merit to Wilson’s claim that the charges in the indictment pertaining to him
were not adjudicated by the 2007 judgment entry.
[Cite as State v. Wilson, 2013-Ohio-2753.]
{¶ 21} The 2011 judgment entry is even clearer. While again expressly stating that
Wilson was convicted of the two counts of “Complicity to Commit Felonious Assault,” it goes
further and identifies these counts, correctly, as being Counts 3 and 4 of the indictment. Wilson
does argue that the 2011 judgment entry, while again imposing a single four-year sentence to be
served consecutively to the three-year sentence for the merged firearm specifications, did not
refer to the fact that the two Complicity to Commit Felonious Assault convictions were merged
for purposes of sentencing. Given the entire context of the two sentencing entries, we conclude
that the trial court again merged the two Complicity to Commit Felonious Assault convictions for
sentencing purposes. After all, it had only brought Wilson back for re-sentencing to correct the
post-release control defect, and specifically overruled Wilson’s objection to the limited scope of
the re-sentencing hearing. In any event, Wilson did not argue the failure of the 2011 judgment
entry to refer to the merger of the two Complicity to Commit Felonious Assault convictions in
the trial court in connection with his motion for re-sentencing. Therefore, he has not preserved
this issue for appellate review.
{¶ 22} We find no merit to Wilson’s argument that the charges against him remain
unadjudicated in the trial court.
{¶ 23} Wilson’s Second “Argument” appears to be interposed solely to rebut an
argument that these issues are barred by res judicata, since they could have been raised in
Wilson’s direct appeal from his 2007 judgment of conviction. Since we find no merit to these
issues, it is not necessary for us to decide whether they are barred by res judicata.
IV. Conclusion
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{¶ 24} All of Wilson’s arguments being without merit, the orders of the trial court from
which this appeal is taken are Affirmed.
.............
DONOVAN, J., concurs.
HALL, J., concurring:
{¶ 25} I agree with the analysis and conclusions reached by my colleagues. I write
separately to address Mr. Wilson’s argument that his judgment entry of conviction contains a
rubber-stamp signature of the judge and therefore is ineffective. This is the fourth time this week
I have encountered the same argument, one of which copied six identical pages of Wilson’s
argument.
{¶ 26} In State v Owens, 2d Dist. Montgomery No. 24817, 2012-Ohio-3288, the
defendant had filed a petition for post-conviction relief and attached his copy of the judgment
entry of conviction that had been certified by the clerk of courts as a correct copy. A rubber stamp
of the printed judge’s name appeared on the signature line of the entry. The trial court reviewed
the long-standing practice of the Montgomery County Clerk of Courts regarding copies of a
signed court order as follows:
The Court finds that the Termination Entry at issue was signed by [the judge]. A
review of the docket reveals that the Termination Entry filed with the Clerk of
Courts on July 28, 2010 contains the signature of [the judge], not a stamped
signature as alleged by Defendant. [The judge] signed the original Termination
Entry, but did not sign any additional copies attached to the original Termination
Entry. The original, with the Judge's signature, was then filed by the Clerk of
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Courts and retained for the Court's records. Any copies presented to the clerk at
the same time for filing were time-stamped by the clerk, and then stamped with
the Judge's name on the signature line. Defendant has attached to his motion one
of these copies that were time-stamped at the same date and time as the original
Termination Entry. That being said, the original Termination Entry filed on July
28, 2010 was reviewed and signed by [the judge] and filed with the Clerk of
Courts. The Court has attached a copy of the original Termination Entry filed with
the Clerk of Courts on July 28, 2010 as exhibit A to this Decision. Defendant's
petition is OVERRULED as to this argument.
Id. at ¶6. Upon review, we determined “[a] review of the record and the judgment entry
(Dkt.20) demonstrates that the court's finding in that respect was correct.” Id. at ¶17. We
therefore affirmed.
{¶ 27} Wilson’s argument and presentation of his copy of the judgment entry is the same
as in Owens. I would have granted the State’s motion to supplement the record, filed April 24,
2013, which contained a copy of the original, signed judgment entry filed with the clerk of courts
on December 17, 2007. Regardless of the clerk’s method for distributing secondary copies of the
judgment entry, the original December 17, 2007 judgment entry contains the judge’s signature.2
It is the original, signed judgment entry that counts, not subsequently stamped reproductions
thereof.
2
The signed judgment entry is publically available as an electronic image at the clerk’s website,
http://www.clerk.co.montgomery.oh.us/pro/ under case # 2007 CR 2134/2 by searching for the docket entry for December 17, 2007.
[Cite as State v. Wilson, 2013-Ohio-2753.]
Copies mailed to:
Mathias H. Heck
Andrew French
Anthony Wilson
Hon. Mary K. Huffman