State v. Curtis

[Cite as State v. Curtis, 2018-Ohio-911.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-08-010
: OPINION
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:
RICHARD CURTIS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. 2009-2041
Zachary A. Corbin, Brown County Prosecuting Attorney, Mary McMullen, 510 East State
Street, Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee
Richard Curtis, #A615995, Marion Correctional Institution, P.O. Box 57, Marion, Ohio 43301-
0057, defendant-appellant, pro se
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Richard Curtis, appeals from a decision of the Brown
County Court of Common Pleas denying his "Motion for Full Revised Entry Pursuant to
Crim.R. 32(C), R.C. 2505.02, and R.C. 2929.03." For the reasons discussed below, we
affirm the trial court's denial of said motion.
{¶ 2} In 2009, appellant was convicted by a jury of aggravated murder with a firearm
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specification and murder with a firearm specification for causing the death of his wife, who
was killed in 1996. His conviction was affirmed on direct appeal in State v. Curtis, 12th Dist.
Brown No. CA2009-10-037, 2010-Ohio-4945, appeal not accepted for review, 129 Ohio St. 3d
1410, 2011-Ohio-3244 (hereafter, "Curtis I").
{¶ 3} Thereafter, appellant filed a number of petitions for postconviction relief, all of
which were denied by the trial court. Appellant appealed the February 11, 2015 denial of one
of his petitions for postconviction relief in State v. Curtis, 12th Dist. Brown No. CA2015-02-
007, 2015-Ohio-3404 (hereafter, "Curtis II"). That appeal involved issues relating to alleged
deficiencies in the sentencing entry. We found that the trial court had properly merged
appellant's aggravated murder and murder convictions at sentencing and imposed a proper
sentence on the aggravated murder charge. Id. at ¶ 16-17. However, in the sentencing
entry, the trial court had included an "unnecessary reference" to a sentence for the merged
offense of murder. Id. at ¶ 17. We therefore determined that the unnecessary reference
imposing a sentence on the murder charge should be deleted from the entry and modified
the judgment entry to reflect this exclusion. Id. at ¶ 18-19. We also determined that the trial
court erred by including a reference to postrelease control in the sentencing entry as an
individual sentenced for murder is not subject to postrelease control "because that crime is
an unclassified position to which the postrelease control statute does not apply." Id. at ¶ 21.
We therefore modified appellant's sentencing entry to delete the reference to the imposition
of postrelease control. Id. at ¶ 22. We then remanded the matter to the trial court with
instructions to correct the sentencing entry to reflect these modifications. Id. at ¶ 23.
{¶ 4} On August 26, 2015, the trial court complied with our remand instructions in
Curtis II and issued a "Judgment Entry of Sentence Nunc Pro Tunc to September 25, 2009."
Nearly two years later, on July 28, 2017, appellant filed a "Motion for Full Revised Entry
Pursuant to Crim.R. 32(C), R.C. 2505.02, and R.C. 2929.03," in which he requested that the
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court conduct a de novo sentencing hearing and issue a revised sentencing entry. The state
moved to dismiss appellant's motion, and on August 2, 2017, the trial court granted the
state's motion to dismiss.
{¶ 5} Appellant timely appealed the dismissal of his "Motion for Full Revised Entry
Pursuant to Crim.R. 32(C), R.C. 2505.02, and R.C. 2929.03," raising three assignments of
error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
PREJUDICE OF DEFENDANT-APPELLANT WHEN NOT MAKING A RESENTENCING
ENTRY BECAUSE THE JUDGMENT OF CONVICTION IS VOID OF THE CLERK'S
JOURNALIZED ENTRY.
{¶ 8} In his first assignment of error, appellant argues that his sentencing entry, as
corrected by the trial court's August 26, 2015 nunc pro tunc entry, is not a final, appealable
order because the nunc pro tunc entry was not journalized by the clerk of court.
{¶ 9} "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." (Emphasis added.)
State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, paragraph one of the syllabus.
{¶ 10} "Dockets and journals are distinct records kept by clerks." State ex rel. White
v. Junkin, 80 Ohio St. 3d 335, 337 (1997). R.C. 2303.12 provides that the "clerk of the court
of common pleas shall keep at least four books. They shall be called the appearance
docket, trial docket * * *, journal, and execution docket."
{¶ 11} In the present case, the court's August 26, 2015 nunc pro tunc entry contains
both a time-stamp and a journal stamp by the clerk of courts. The journal stamp is located
on the bottom, right-hand corner of both pages of the entry and bears the numbers "5370773
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and 5370774." Appellant's argument that the August 26, 2015 nunc pro tunc entry was not
journalized is, therefore, without merit and his first assignment of error is overruled.
{¶ 12} Assignment of Error No. 2:
{¶ 13} [THE] TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
PREJUDICE OF DEFENDANT-APPELLANT WHEN DISMISSING HIS MOTION FOR
RESENTENCING AS THE TRIAL COURT WAS IN VIOLATION OF R.C. 2929.11, 2929.12
AND 2029.13.
{¶ 14} In his second assignment of error, appellant argues that the trial court erred in
imposing his sentence as the court "failed to make considerations of factors in R.C. 2929.11
and 2929.12."
{¶ 15} We find that appellant's arguments are barred by the doctrine of res judicata, as
his arguments should have been made on direct appeal in Curtis I. "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. Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-
6175, ¶ 10.
{¶ 16} Appellant's second assignment of error is therefore overruled.
{¶ 17} Assignment of Error No. 3:
{¶ 18} [THE] TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
PREJUDICE OF DEFENDANT-APPELLANT IN MAKING AN ATTEMPT TO CORRECT
DEFENDANT'S JUDGMENT OF FINAL CONVICTION IN A NUNC PRO TUNC ENTRY.
{¶ 19} In his third assignment of error, appellant argues the trial court erred in
correcting his sentencing entry by issuing a nunc pro tunc entry. Appellant contends that he
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was entitled to a new sentencing hearing as his sentence is void.
{¶ 20} We find no merit to appellant's argument. The claims appellant makes in
support of his argument that he is entitled to a new sentencing hearing were previously
raised and rejected in Curtis II. There, we stated that "to the extent that appellant claims his
sentence is 'void' and he should be provided with a de novo sentencing hearing, we find his
argument to be without merit. * * * * Although appellant desires the remedy of a new
sentencing hearing, that remedy is not appropriate in this case. Rather, in similar
circumstances, courts have held that a trial court may simply correct the sentencing entry by
eliminating any reference to postrelease control." Curtis II, 2015-Ohio-3404 at ¶ 17, 22. The
trial court complied with our remand instructions from Curtis II when it issued a corrected
sentencing entry without holding a hearing, and appellant is barred from relitigating the same
issues in his present appeal.
{¶ 21} Appellant's third assignment of error is therefore overruled.
{¶ 22} Judgment affirmed.
S. POWELL, P.J., and RINGLAND, J., concur.
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