State v. Tobias

[Cite as State v. Tobias, 2021-Ohio-3032.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110110
v. :
JEFFREY TOBIAS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 2, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-92-280249-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Jeffrey D. Tobias, pro se.
ANITA LASTER MAYS, P.J.:
Plaintiff-appellant Jeffrey Tobias proceeds pro se and appeals the
trial court’s denial of his motion to issue a final, appealable order with a de novo
sentencing hearing. We affirm the trial court’s judgment.
Tobias was indicted in 1992 for (1) two counts of aggravated murder
of victim E.M. that included a mass murder, firearm, and felony murder
specification; (2) attempted aggravated murder of victim J.B. with a firearm
specification, and (3) aggravated burglary with a firearm specification.
On September 21, 1995, Tobias was sentenced pursuant to a plea
agreement:
Defendant in court represented by attorneys Jerome Emoff and Jamie
Serrat, and fully advised of his constitutional rights. On
recommendation of prosecutor Thomas Conway, count one amended
to charge of voluntary manslaughter and delete specifications #1 felony
murder and #3, mass murder spec.
Thereupon, defendant retracts his former plea and enters a plea of
guilty to voluntary manslaughter, with gun specifications,
R.C. 2903.03, amended count one and guilty of attempt aggravated
murder, R.C. 2923.02/2903.01 as charged in count two of the
indictment, both aggr. fel. 1. all remaining counts nolled. Prosecutor
addresses court. Defendant has nothing to say but what had said [sic].
It is ordered by court that defendant, Jeffrey Tobias is sentenced to
Lorain Correctional Institution under both counts; 10 years to 25 years
on count one with three years for firearm specification to be served
prior to and consecutive with the 10 to 25 years sentence; 10 years to
25 years count two with 3 years for firearm spec. To be served prior to
and consecutive to 10-25 years sentence; count one and two to run
concurrent with each other, but consecutive to defendant’s life sentence
he is currently serving in New York in Case No. 06-93, Monroe County,
New York.
Defendant ordered returned to Downstate Corr. Facility, P.O. Box 445,
Red School House Road, R.D. Noel Fishkill, N.Y. 12524, (914) 883-
6600; Attn: Patricia Glynn, Inmate Records Coordinator. Sheriff to
transport defendant.
Journal Entry of Conviction (Sept. 29, 1995).
Tobias filed a motion for a delayed appeal that was denied by this
court on June 30, 1999. On October 13, 2020, Tobias filed a motion to provide the
defendant with a final, appealable order with de novo sentencing hearing requested.
On October 26, 2020, the trial court issued a summary denial and this appeal
ensued.
Tobias assigns a single error:
The trial court erred when it denied appellant’s motion to provide him
with a final, appealable order with de novo sentencing hearing
requested. Tobias complains that there is no single document that
constitutes a final appealable order that disposes of all counts and
specifications in contravention of the requirements of Crim.R. 32(B).
and R.C. 2505.02.
More specifically, Tobias argues that his plea, conviction, and
sentence are set forth in three distinct documents. Tobias states the September 21,
1995 entry recites the plea, conviction, and sentence, but entries entered on
January 8, 2018, and January 9, 2018, do not. Therefore, Tobias posits, there is no
final appealable order in the case.
Tobias cites State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893
N.E.2d 163, to support his position. Subsequently addressed in State v. Lester, 130
Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142:
A judgment of conviction is a final order subject to appeal under
R.C.2505.02 when it sets forth (1) the fact of the conviction, (2) the
sentence, (3) the judge’s signature, and (4) the time stamp indicating
the entry upon the journal by the clerk. (Crim.R. 32(C), explained;
State v. Baker, 119 Ohio St.3d 197, 2008 Ohio 3330, 893 N.E.2d 163,
modified.)
Id. at paragraph one of the syllabus.
Lester addressed the validity of a judgment entry that failed to state
“whether the defendant was convicted through a guilty plea, a no-contest plea upon
which the court 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 ¶ 7. The court was required to
revisit its decision in Baker and Crim.R. 32(C). It determined that “the fact of the
conviction, the sentence, the judge’s signature, and the entry on the journal by the
clerk” are the “substantive provisions” of Crim.R. 32(C) that put “a defendant on
notice that a final judgment has been entered and the time for filing of any appeal
has begun.” Id. at ¶ 11, citing State v. Tripodo, 50 Ohio St.2d 124, 127, 363 N.E.2d
719 (1977).
The trial court in Lester corrected the entry via nunc pro tunc prior to
the appeal. The Lester Court advised that an entry lacking the elements complained
of in the appeal could be corrected by motion pursuant to
Crim.R. 36, in conjunction with Crim.R. 57(B) and 47 and Civ.R. 7(B).
But the fact that a defendant may be entitled to a revised order setting
forth an inadvertently omitted term that is required by Crim.R. 32(C)
as a matter of form does not prevent an original order that conforms to
the substantive requirements of Crim.R. 32(C) from being final.
Lester at ¶ 16.
Tobias concedes that the September 21, 1995 judgment entry contains
the requisite three elements. Review of the January 2018 entries reveal that the
January 8, 2018 entry references the September 21, 1995 sentencing entry and was
issued to remand Tobias upon completion of the term that Tobias was serving in
New York at the time of conviction in this case:
See sentencing journal entry of 9/21/1005. Defendant remanded.
Sheriff ordered to transport defendant Jeffrey Tobias, DOB:
04/030/1972, Gender: Male, Race: Black.
Journal entry No. 101993848 (Jan. 8, 2018).
The January 9, 2018 journal entry states:
[Defendant] sentenced to Lorain Correction to serve sentence in this
case * * * See sentencing journal entry 9/21/1995. Sheriff ordered to
transport defendant Jeffrey Tobias, DOB: 04/30/1972, Gender: Male,
Race: Black.
Journal entry No. 102047545 (Jan. 9, 2018).
The sole sentencing entry issued in this case is the September 21, 1995
entry that constitutes a final appealable order. To that end, we recognize that
because the trial court had subject-matter jurisdiction over the case and personal
jurisdiction over defendant, any sentencing error is deemed “voidable, not void, and
the doctrine of res judicata will apply to collateral attacks on it.” State v. Hudson,
161 Ohio St.3d 166, 2020-Ohio-3849, 161 N.E.3d 608, ¶ 17, citing State v. Harper,
160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 41, and State v. Were, 120
Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 7. See also State ex rel.
Romine v. McIntosh, 162 Ohio St.3d 501, 2020-Ohio-6826, 165 N.E.3d 1262 (the
imposition of compound sentences for allied offenses is a jurisdictional challenge
that must be challenged on direct appeal.). Tobias did not challenge the journal
entries on direct appeal.
Tobias also charged that the 1995 entry failed to dispose of the
R.C. 2941.141 firearm specification that attached to the aggravated burglary charge
under R.C. 2911.11. The entry states that all remaining counts are nolled but does
not specifically say that the firearm specification is nolled. As the state observes,
this argument was not posed on direct appeal and is not subject to collateral attack.
Hudson at ¶ 17, citing Harper at ¶ 41, and Were at ¶ 7.
In addition, we advise that a firearm specification “is contingent upon
an underlying felony conviction.” State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765,
945 N.E.2d 498, ¶ 16. It is “merely a sentencing provision that requires an enhanced
penalty upon certain findings” and is “a sentence enhancement that attaches to a
predicate offense.” Id. The predicate offense was nolled, thus the firearm
specification cannot stand alone.
We find that the trial court did not err when it denied Tobias’s motion
to issue him a final appealable order with a de novo sentencing hearing.
Tobias’s single assigned error lacks merit.
The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
ANITA LASTER MAYS, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
MICHELLE J. SHEEHAN, J., CONCUR