State v. Haddix , 2013 Ohio 1974 ( 2013 )

[Cite as State v. Haddix, 2013-Ohio-1974.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2012-CA-00218
DOUGLAS E. HADDIX :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No.
1995CR0111
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 13, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DOUGLAS E. HADDIX
BY RONALD MARK CALDWELL Box 901
Stark County Prosecutor Leavittsburg, OH 44430
110 Central Plaza S., Ste. 510
Canton, OH 44702
[Cite as State v. Haddix, 2013-Ohio-1974.]
Gwin, P.J.
{¶1} Appellant Douglas E. Haddix [“Haddix”] appeals from the November 7,
2012 Judgment Entry of the Stark County Court of Common Pleas denying his motion
to resentence.
Facts and Procedural History
{¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal. The appeal will be
determined as provided by App. R. 11. 1. It shall be sufficient compliance
with App. R. 12(A) for the statement of the reason for the court's decision
as to each error to be in brief and conclusionary form. The decision may
be by judgment entry in which case it will not be published in any form.”
{¶3} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusionary decision more quickly than in a case
on the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th
Dist. 1983)
{¶4} This appeal shall be considered in accordance with the aforementioned
rules.
{¶5} On February 2, 1995, the Stark County Grand Jury indicted Haddix, on
three counts of rape in violation of R.C. 2907.02, one count of felonious assault in
violation of R.C. 2907.12, one count of gross sexual imposition in violation of R.C.
Stark County, Case No. 2012-CA-00218 3
2907.05, and one count of endangering children in violation of R.C. 2919.22. Said
charges arose from incidents involving a minor under the age of thirteen.
{¶6} A jury trial commenced on April 25, 1995. At the conclusion of the state's
case-in-chief, the trial court dismissed the endangering count. The jury found appellant
guilty as charged save for one of the rape counts. By judgment entry filed May 30, 1995,
the trial court sentenced appellant to an aggregate indeterminate term of seventeen to
fifty years in prison.
{¶7} Haddix appealed and this court affirmed his convictions and sentences.
State v. Haddix, 5th Dist. No. 95–CA–0175, 1996 WL 363510(June 3, 1996). For a
complete history of appellant’s underlying case and subsequent journey through the
appellate process see, State v. Haddix, 5th Dist. No. 1998–CA–0096, 1998 WL
753263(September 28, 1998); State v. Haddix 5th Dist. No. 1999–CA–00227, 1999 WL
107980(November 15, 1999); State v. Haddix 5th Dist. No. 2011CA00276, 2012-Ohio-
4259.
{¶8} On November 6, 2012, 2011, Haddix filed a motion for resentencing
arguing that one of his criminal sentences was illegal because the original judgment
entry of sentence contained a sentence upon a count upon which he was acquitted by
the jury. By judgment entry filed November 7, 2012, 2011, the trial court denied the
motion.
{¶9} Haddix filed an appeal from the November 7, 2012 judgment entry of the
trial court that denied his motion for resentencing.
Assignment of Error
{¶10} Haddix raises one assignment of error:
Stark County, Case No. 2012-CA-00218 4
{¶11} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DISMISSED THE MOTION TO RESENTENCE.”
Analysis
{¶12} Haddix argued before the trial court that he was sentenced for a count of
statutory rape for which he was found not guilty.
{¶13} The original judgment entry of conviction and sentence, filed on May 2,
1995, did reflect that Haddix was sentenced to an indeterminate sentence of 10 to 25
years for the second count of statutory rape. The jury, however, had acquitted Haddix of
this specific count in the indictment. This entire sentencing entry was corrected by a
nunc pro tune entry, filed on May 30, 1995, to correct this error.
{¶14} Haddix filed his original appeal on May 16, 1995. Haddix’s brief was not
filed until December 4, 1995. Thus, Haddix could have, but did not raise this issue in his
direct appeal. However, in the case at bar, the trial court corrected the error by a nun
pro tunc entry filed May 30, 1995. Accordingly, Haddix’s sentence is neither void nor
voidable.
{¶15} Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the defendant at the trial,
which resulted in that judgment of conviction, or on an appeal from that judgment. State
v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233(1996), syllabus, approving and following
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the
syllabus. It is well-settled that, "pursuant to res judicata, a defendant cannot raise an
Stark County, Case No. 2012-CA-00218 5
issue...if he or she could have raised the issue on direct appeal." State v. Reynolds, 79
Ohio St.3d 158, 161, 679 N.E.2d 1131(1997). Haddix failed to raise the sentencing
issue in his direct appeal. Appellant was represented by counsel on that appeal.
{¶16} Haddix had the opportunity to raise this issue on direct appeal, but, he
failed to do so. The doctrine of res judicata bars appellant from raising this issue anew
via a motion to vacate a sentence. State v. Foy, 5th Dist. No.2009–CA–00239, 2010–
Ohio–2445, ¶ 8. See also State v. Miller, 5th Dist. No.2011–CA–00074, 2011–Ohio–
3039.
{¶17} In an analogous situation, the Ohio Supreme Court concluded that an
offender is entitled to a de novo sentencing hearing for the trial court to correct a
sentence that omitted notice of post release control. * * * Importantly, because Bezak
had already completed his term of imprisonment, the trial court could not, consistent
with our decision in Hernandez * * * conduct a resentencing. State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961.
{¶18} Recently, the Ohio Supreme Court in State v. Fischer, 128 Ohio St.3d 92,
2010- Ohio-6238, the limited its holding in Bezak and concluded that the defendant is
only entitled to a hearing for the proper imposition of post release control. In Fischer, the
Court stated:
We similarly hold that when a judge fails to impose statutorily
mandated post release control as part of a defendant's sentence, that part
of the sentence is void and must be set aside. (Footnote omitted.) Neither
the Constitution nor common sense commands anything more.
Stark County, Case No. 2012-CA-00218 6
This principle is an important part of the analysis of void sentences
that we have not focused upon in prior cases involving post release
control, including Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d
961. Thus, we reaffirm the portion of the syllabus in Bezak that states
‘[w]hen a defendant is convicted of or pleads guilty to one or more
offenses and post-release control is not properly included in a sentence
for a particular offense, the sentence for that offense is void,’ but with the
added proviso that only the offending portion of the sentence is subject to
review and correction.
However, we now modify the second sentence in the Bezak
syllabus as ill considered. That sentence states that the offender is entitled
to a new sentencing hearing for the offense for which post release control
was not imposed properly. 114 Ohio St.3d 94, 2007-Ohio-3250, 868
N.E.2d 961. It does not recognize a principle that we overlooked in Bezak:
when an appellate court concludes that a sentence imposed by a trial
court is in part void, only the portion that is void may be vacated or
otherwise amended.
Id. at ¶¶26-27. The court in Fisher, supra, further held that “[a]lthough the doctrine of res
judicata does not preclude review of a void sentence, res judicata still applies to other
aspects of the merits of a conviction, including the determination of guilt and the lawful
elements of the ensuing sentence. Accordingly, appellant could not raise new issues, or
issues he had previously raised on his direct appeal. State v. Fischer, supra; See also,
State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9, 2010-Ohio-3831. “Consequently,
Stark County, Case No. 2012-CA-00218 7
the sentencing hearing was…not a de novo hearing but a ministerial act to create a new
journal entry with the addition of the corrected language noting that post-release control
was mandatory.“ State v. Davis, Washington App. No. 10CA9, 2010-Ohio-5294, ¶32.
{¶19} Under Fisher, all other parts of Haddix’s sentence were valid and
remained in full force and effect. In the case at bar, the sole purpose of the nunc pro
tunc entry was to correctly state that Haddix’s original conviction was based on a jury
verdict and the jury found him not guilty of one of the counts, a fact that was obvious to
the court and all the parties. It is apparent, then, that the nunc pro tunc entry merely
corrected a clerical omission in the resentencing order and made the entry reflect what
had already happened, which was Haddix's conviction by jury verdict and sentence
upon the counts that he jury had found him guilty. The trial court's addition indicating the
removal of a sentence upon the count that the jury found Haddix not guilty affected only
the form of the entry and made no substantive changes.
{¶20} In State v. Lester, the Ohio Supreme Court observed,
R.C. 2505.02 sets forth the conditions under which an order is final
and may be reviewed, affirmed, or modified, with or without retrial. Crim.R.
32(C) specifies the substantive requirements that are to be included within
a judgment of conviction that make it final for purposes of appeal. We find
that appellant's original judgment entry of conviction meets the Crim.R.
32(C) requirements because it contained the fact of the conviction, the
sentence, the judge's signature, and the time stamp indicating the entry
upon the journal by the clerk. Therefore, the original judgment entry of
conviction was a final order subject to appeal under R.C. 2505.02.
Stark County, Case No. 2012-CA-00218 8
Moreover, the absence of the language required by Crim.R. 32(C) as a
matter of form indicating how appellant's conviction was effected has not
deprived appellant of any opportunity to appeal his conviction or sentence,
as he has appealed numerous times, and in none of those previous direct
appeals or collateral procedures did appellant raise any arguments
regarding the lack of finality of the judgment of conviction. Lester, 2007-
Ohio-4239, 2007 WL 2350759; 2008-Ohio-1148, 2008 WL 696901; 2007-
Ohio-5627, 2007 WL 3054319; and (May 11, 2009), 3d Dist. No. 2–08–24.
130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶17. The same is true in the
case at bar, Haddix has not been deprived of any opportunity to appeal his conviction or
sentence, as he has appealed numerous times, and in none of those previous direct
appeals or collateral procedures did appellant raise any arguments regarding the
original judgment entry of sentence. With respect to nunc pro tunc judgment entries, the
Lester court observed,
It is well settled that courts possess the authority to correct errors in
judgment entries so that the record speaks the truth. State ex rel. Fogle v.
Steiner (1995), 74 Ohio St.3d 158, 163–164, 656 N.E.2d 1288; Crim.R.
36. Errors subject to correction by the court include a clerical error,
mistake, or omission that is mechanical in nature and apparent on the
record and does not involve a legal decision or judgment. State v. Miller,
127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15; Crim.R. 36.
Nunc pro tunc entries are used to make the record reflect what the court
actually decided and not what the court might or should have decided or
Stark County, Case No. 2012-CA-00218 9
what the court intended to decide. Miller at ¶ 15; Fogle at 164, 656 N.E.2d
1288.
“Nunc pro tunc” means “now for then” and is commonly defined as
“[h]aving retroactive legal effect through a court's inherent power.” Black's
Law Dictionary (9th Ed.2009) 1174. Therefore, a nunc pro tunc entry by its
very nature applies retrospectively to the judgment it corrects. See, e.g.,
Miller at ¶ 14, 15; Fogle at 163–164, 656 N.E.2d 1288. Appellate courts
throughout the state have consistently applied these principles. See, e.g.,
State v. Harrison, Butler App. Nos. CA2009–10–272 and CA2010–01–
019, 2010-Ohio-2709, 2010 WL 2373151, ¶ 24, citing State v. Battle,
Summit App. No. 23404, 2007-Ohio-2475, 2007 WL 1490053, ¶ 6
(“generally, [a] nunc pro tunc entry relates back to the date of the journal
entry it corrects”); State v. Yeaples (3d Dist.), 180 Ohio App.3d 720, 2009-
Ohio-184, 907 N.E.2d 333, ¶ 15 (“A nunc pro tunc entry is the procedure
used to correct clerical errors in a judgment entry, but the entry does not
extend the time within which to file an appeal, as it relates back to the
original judgment entry”); State v. Breedlove (1st Dist.1988), 46 Ohio
App.3d 78, 81, 546 N.E.2d 420, quoting Natl. Life Ins. Co. v. Kohn (1937),
133 Ohio St. 111, 113, 10 O.O. 122, 11 N.E.2d 1020 (“ ‘The power to
make nunc pro tunc entries is restricted ordinarily to the subsequent
recording of judicial action previously and actually taken. It is a simple
device by which a court may make its journal speak the truth.’ It ‘speaks
the truth’ by correcting a judicial record that fails to show an order or a
Stark County, Case No. 2012-CA-00218 10
judgment of the court because the order or judgment was not recorded at
all in the first instance”).
130 Ohio St.3d 303, ¶¶17-18.
{¶21} In the case now before us, the original sentencing order complied with the
substantive requirements of Crim.R. 32(C), was a final order for purposes of R.C.
2505.02, and was appealed by Haddix. The sole purpose of the nunc pro tunc entry was
to correctly state that Haddix's original conviction did not include a conviction on the
second count of statutory rape and therefore Haddix was not sentenced on that count. It
is apparent, then, that the nunc pro tunc entry merely corrected a clerical omission in
the sentencing order and made the entry reflect what had already happened, which was
Haddix was found guilty, but not of the second count of statutory rape and to remove
the sentence for that count, as set forth in the jury’s verdict.
{¶22} Thus, Haddix has already received the benefit that he sought in his motion
to resentence. We must be mindful of the “ * * * elementary proposition of law that an
appellant, in order to secure reversal of a judgment against him, must not only show
some error but must also show that that error was prejudicial to him.” See Smith v.
Flesher, 12 Ohio St. 2d 107, 233 N.E. 2d 137(1967); State v. Stanton, 15 Ohio St.2d
215, 217, 239 N.E.2d 92, 94(1968); Wachovia Mtg. Corp. v Aleshire, 5th Dist. No. 09
CA 4, 2009-Ohio-5097, ¶16. See, also, App.R. 12(D).
{¶23} The arguments presented by Haddix in the present case could have been
presented in a direct appeal from the trial court's sentencing entry, but they were not. As
a result, res judicata bars appellant from raising them in this appeal.
{¶24} Appellant’s sole assignment of error is denied.
Stark County, Case No. 2012-CA-00218 11
{¶25} For the forgoing reasons, the judgment of the Stark County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0429
[Cite as State v. Haddix, 2013-Ohio-1974.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DOUGLAS E. HADDIX :
:
:
Defendant-Appellant : CASE NO. 2012-CA-00218
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER