State v. Broadnax

[Cite as State v. Broadnax, 2012-Ohio-2535.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24878
Plaintiff-Appellee :
: Trial Court Case No. 2006-CR-1661
v. :
:
TRACY S. BROADNAX, JR. : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 8th day of June, 2012.
...........
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, 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
TRACY S. BROADNAX, JR., #535-489, Lebanon Correctional Institution, Post Office
Box 56, Lebanon, Ohio 45036
Defendant-Appellant, pro se
.............
HALL, J.
{¶ 1} Tracy Broadnax appeals pro se from the trial court’s October 26, 2011, nunc
pro tunc termination entry setting forth the manner of his conviction and the trial court’s
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denial of his motion for resentencing to a statutory minimum prison term.
{¶ 2} In his sole assignment of error, Broadnax contends the trial court erred in
failing to resentence him under H.B. 86, which took effect September 30, 2011, because his
original 2006 termination entry was not a final, appealable order.
{¶ 3} The record reflects that Broadnax was convicted and sentenced in 2006 on
five counts of aggravated robbery and three firearm specifications. He received an aggregate
thirteen-year prison term (concurrent ten-year terms for the aggravated robberies and a
consecutive three years for the firearm specifications). On August 2, 2011, Broadnax filed a
pro se “sentencing memorandum” that was essentially a motion for resentencing. Therein, he
argued that he was entitled to concurrent, minimum sentences of three years for the
aggravated-robbery convictions. Days after Broadnax filed his motion, the State moved for a
nunc pro tunc termination entry in compliance with Crim.R. 32(C). Specifically, the State
noted that Broadnax’s 2006 termination entry failed to mention that his convictions were the
result of no-contest pleas.
{¶ 4} On October 3, 2011, the trial court denied Broadnax’s motion for resentencing
and sustained the State’s motion for a nunc pro tunc termination entry. It explained that
Broadnax was not entitled to a presumptive statutory minimum sentence under former R.C.
2929.14(B) because that provision had been invalidated by State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 270, which was decided before Broadnax was indicted. The trial
court then determined that omitting the manner of conviction from the 2006 termination entry
did not render it void. The trial court found that the proper remedy was a nunc pro tunc
termination entry in compliance with Crim.R. 32(C). The trial court filed such an entry on
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October 26, 2011.
{¶ 5} On appeal, Broadnax insists that his 2006 termination entry was not final and
appealable because it omitted the manner of his conviction. He asserts that no valid
termination entry existed until October 26, 2011. Because H.B. 86 took effect on September
30, 2011, he reasons that he should have received the benefit of the new legislation’s so-called
“Foster fix.”1 We disagree.
{¶ 6} Even assuming, arguendo, that H.B. 86 might be favorable to Broadnax in
some way, it has no applicability to him. Contrary to his argument, the 2006 termination entry
was final and appealable. In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d
142, the Ohio Supreme Court held that a judgment of conviction is final and appealable if it
includes: (1) the fact of conviction, (2) the sentence, (3) the signature of the judge, and (4) a
time stamp indicating entry on the journal by the clerk of courts. Id. at syllabus. We have
examined Broadnax’s 2006 termination entry and find that it includes these elements.
Therefore, his sentence became final long before the enactment of H.B. 86 and he was not
entitled to be resentenced under the new legislation. State v. Du, 2d Dist. Greene No.
2010-CA-27, 2011-Ohio-6306, ¶ 23.
{¶ 7} Finally, we note that omitting the manner of conviction from the 2006
termination entry was an error involving a “matter of form.” Id. at ¶ 12. The trial court
properly corrected this error by filing a nunc pro tunc entry, which itself did not create any
1
H.B. 86 amended portions of R.C. 2929.14, primarily with regard to consecutive sentencing, by reenacting some of the language
severed from the statute by State v. Foster. Notably, H.B. 86 did not reinstate the presumption for minimum sentences for first offenders
previously found in R.C. 2929.14(B), but rather it amended R.C. 2929.11(A) to include, as part of the overriding purposes of sentencing, “to
punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources.”
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new appellate rights. Id. at ¶ 20. Therefore, we have no occasion to address Broadnax’s
argument, raised in his reply brief, that the trial court failed to consider the statutory principles
and purposes of sentencing or the seriousness and recidivism factors.
{¶ 8} Based on the reasoning set forth above, we overrule Broadnax’s assignment of
error and affirm the judgment of the Montgomery County Common Pleas Court.
{¶ 9} .............
FAIN and DONOVAN, JJ., concur.
Copies mailed to:
Mathias H. Heck
Michele D. Phipps
Tracy S. Broadnax, Jr.
Hon. Mary L. Wiseman