State v. Adams

[Cite as State v. Adams, 2014-Ohio-649.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 MA 111
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
DuJUAN L. ADAMS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 00 CR 102
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: DuJuan L. Adams, Pro se, #395-935
Marion Correctional Institution
P. O. Box 57
940 Marion-Williamsport Road
Marion, Ohio 43302
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: February 21, 2014
[Cite as State v. Adams, 2014-Ohio-649.]
WAITE, J.
{¶1} This matter involves Appellant DuJuan Adam’s sixth appeal from the
Mahoning County Common Pleas Court’s decision denying his pro se “Motion for
Issuance of ‘Revised’ Judgment Entry of Conviction and Sentence; and Motion for
Assessment of Subject Matter Jurisdiction.” Appellant alleges that there are defects
in the nunc pro tunc entry correcting omissions in his 2006 resentencing entry. The
nunc pro tunc entry was not a final appealable order, but is not defective for that
reason, as it relates back to the 2006 re-entry of sentence which was a final
appealable order. The validity of those entries, and the fact that they were properly
filed, journalized, and appear in the record have already been decided. Appellant’s
appeal is moot. His assignments of error are overruled, and the judgment of the trial
court is affirmed.
Factual and Procedural History
{¶2} The factual history of this case with regard to Appellant’s original
August of 2000 conviction for the assault and shooting of two men was fully set forth
in our prior decision, State v. Adams, 2006-Ohio-1761 (7th Dist.), and is not directly
relevant here.
{¶3} Appellant initially filed a timely appeal of his 2000 conviction, which was
subsequently dismissed for lack of prosecution. We granted Appellant’s 2005 motion
to file a delayed appeal. Appellant raised four assignments of error in that appeal,
which were overruled in part and sustained in part. Although we affirmed Appellant’s
convictions, we agreed with his challenge of the imposition of multiple prison terms
and the apparent judicial fact-finding underlying his sentence. We vacated the
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sentence and remanded the matter for resentencing in compliance with State v.
Foster, 109 Ohio St. 3d 1, 2006-Ohio-856. Appellant appealed this decision to the
Ohio Supreme Court, which declined jurisdiction.
{¶4} On remand from our decision, the trial court resentenced Appellant to
maximum consecutive terms with a single firearms specification. Appellant filed a
timely appeal of this new sentence, again citing Foster. State v. Adams, 2007-Ohio-
5352. We overruled Appellant’s single assignment of error.
{¶5} In 2011, the trial court denied Appellant’s pro se motion seeking a new
sentencing hearing. Appellant appealed that decision. On review, we found that
Appellant was entitled only to a nunc pro tunc entry containing his method of
conviction and a hearing pursuant to R.C. 2929.191 on the limited issue of the
imposition of postrelease control and remanded. State v. Adams, 7th Dist. No. 11
MA 65, 2011-Ohio-6128.
{¶6} Appellant had his limited resentencing hearing on January 26, 2012.
During this hearing Appellant raised several issues, including the allegation that his
sentencing entries were invalid because they were not time-stamped. The trial court
declined to address any issue other than the postrelease control sanctions as
directed on remand. After hearing, the trial court issued a nunc pro tunc entry in
conformance with our instructions on remand. Appellant filed an appeal from this
nunc pro tunc entry.
{¶7} In March of 2013 we addressed his appeal in State v. Adams, 7th Dist.
No. 12 MA 26, 2013-Ohio-1433. Appellant had raised four assignments of error. In
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Appellant’s fourth assignment of error, he claimed: “[t]he trial court was without
subject matter jurisdiction over Appellant because the indictment and subsequent
pleadings, including the sentencing entries, were not properly filed.” This assignment
addressed the exact same subject matter as he raises in the instant appeal. Id. at
¶28.
ASSIGNMENT OF ERROR NO. 1
Whether compliance with the filing procedures of: O.R.C. § 2303.08;
and, O.R.C. § 2303.10 is discretionary, and a clerk of courts’ failure to
do so implicates a final appealable order as defined in: Crim. R. 32(C);
and, State v. Baker, 119 Ohio St.3d 197. see also: State v. Miller, 9th
Dist. No. 06CA0046-M, 2007 Ohio 1353 [all errors sic]
ASSIGNMENT OF ERROR NO. 2
Whether a [date] and [time] received stamp of the Mahoning County
Sheriff’s Department will suffice in lieu of any compliance (by the clerk
of courts) to the mandatory filing procedures of: O.R.C. § 2303.08; and
O.R.C. § 2303.10, and constitute ‘clerical adherence’ to a specific order
of the court to endorse a [‘time stamp’] on such judgment entry.
*accord: O.R.C. § 2303.17. [all errors sic]
{¶8} In State v. Adams, 2013-Ohio-1433, supra, Appellant’s fifth appeal, we
specifically addressed the filing of the pleadings and sentencing entries in this matter,
and found under Zanesville v. Rouse, 126 Ohio St.3d 1, 2010-Ohio-2218, 929 N.E.2d
1044:
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A review of the record reveals that the indictment, sentencing entries,
and other pleadings were date-stamped by the Mahoning County Clerk
of Courts, but these pleadings do not indicate the time of filing.
Two statutes [designate] the information the common pleas court clerk
indorses on filings with that office; R.C. 2303.08 provides that the time
of filing shall be noted, whereas the date of filing shall be noted
pursuant to R.C. 2303.10.
The Ohio Supreme Court has explained that the filing of the complaint
invokes the jurisdiction of the trial court, but that a pleading is ‘filed’
when it is properly deposited with the clerk of courts. Once a pleading
is filed, then the clerk’s duty is to certify the act of filing. A clerk’s failure
to [time]-stamp a document does not create a jurisdictional defect, and
when a pleadings lacks an [i]ndorsement from the clerk, filing may be
proven by other means. (Citations omitted.)
Id. at ¶29-31. Ultimately, we concluded that: “the indictment, sentencing entries, and
other pleadings contain a date-stamp by the Mahoning County Clerk of Courts * * * it
appears that this certification demonstrates that these documents were filed with the
clerk, regardless of the fact that they do not contain a time-stamp. Thus, the trial
court had subject matter jurisdiction over the case* * *.” Id. at ¶32. Once we
determined that the entries were properly filed, despite the clerk’s omission of the
time-stamp, we overruled Appellant’s assignment of error and affirmed the trial
court’s judgment.
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{¶9} Appellant now argues that because the 2012 nunc pro tunc entry in this
matter, correcting the earlier entry that omitted mention of the method of conviction
and postrelease control information, does not have a time-stamp, it is not a final
appealable order and he is being held unlawfully in the absence of a final order.
{¶10} “To journalize a decision means that certain formal requirements have
been met, i.e., the decision is reduced to writing, it is signed by a judge, and it is filed
with the clerk so that it may become a part of the permanent record of the court.”
State v. Ellington, 36 Ohio App.3d 76, 78 (1987). While we have previously indicated
that certain of Appellant’s prior sentencing entries were not time-stamped by the clerk
of courts, it is abundantly apparent that they were date stamped and journalized upon
receipt. Each entry appears in the docket and file of the trial court. Appellant does
not dispute that his sentencing entries, including the nunc pro tunc entry at issue,
appear in the record, are signed by the judge, and set forth in writing the decision of
the court. It is equally clear that the clerk of courts’ dated stamp appears on each
entry, reflecting that all entries were filed with the clerk. Because the original
sentencing entry in this matter was journalized and appears in the record, it cannot
be void.
{¶11} Appellant is correct that the nunc pro tunc entry is not a final appealable
order. In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, the
Ohio Supreme Court held that a “nunc pro tunc judgment entry issued for the sole
purpose of complying with Crim.R. 32(C) to correct a clerical omission in a final
judgment entry is not a new final order from which a new appeal may be taken.” Id.-6-
at paragraph two of the syllabus. The fact that the nunc pro tunc entry is not itself a
final appealable order does not in any way effect the validity of Appellant’s sentence
and the legality of his incarceration. As stated in R.C. 2929.191:
The court’s placement upon the journal of the entry nunc pro tunc
before the offender is released from imprisonment under the term shall
be considered, and shall have the same effect, as if the court at the
time of original sentencing had included the statement in the judgment
of conviction entered on the journal and had notified the offender* * *
R.C. 2929.191, sections (A)(2) and (B)(2).
{¶12} Both elements of Appellant’s 2012 nunc pro tunc entry correcting
omissions in his sentence relate back to the 2006 sentencing entry. The 2012 nunc
pro tunc entry was not a new final order from which a new appeal could be taken.
Appellant offers no authority to show that a trial court’s decision to deny the type of
motion he filed is a final appealable order, nor does the decision appear to be a final
order as defined by R.C. 2505.02(B). Not only does Appellant attempt to appeal the
wrong order, we have already resolved all of the issues Appellant now raises in an
earlier appeal when we held that Appellant’s convictions and sentence are valid and
issued by a court with jurisdiction.
{¶13} Where there is no genuine dispute as to the validity of Appellant’s
sentence because the entry was filed and journalized, the omission of a time-stamp
is, at most, a technical defect that does not serve to alter the substance of the order
or the jurisdictional basis of Appellant’s detention. An omission by a clerk may be
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remedied by the clerk without affecting the validity, effect, or jurisdictional basis of
Appellant’s 2006 sentence. Appellant is mistaken in both the significance of the
alleged defect and the nature of his remedy. No right of appeal arises from
Appellant’s 2012 nunc pro tunc entry, but the fact that it is not a final appealable
order does not make it defective because the relevant final order in this matter, on
this issue, was the 2006 entry of sentence. We have already found this entry valid.
{¶14} The principle of “[r]es judicata may be applied to bar further litigation of
issues that were raised previously or could have been raised previously in an
appeal.” State v. Houston, 73 Ohio St.3d 346, 347, 652 N.E.2d 1018 (1995), citing
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). We have already
determined in an earlier appeal filed by Appellant that there is no jurisdictional defect
in the underlying sentencing entry, the entry is not void and is not voidable due to
some alleged defect arising from the possible omission of a time-stamp on the nunc
pro tunc entry. Res judicata applies to bar further appeal on the issues surrounding
the validity of Appellant’s sentencing entry and the jurisdiction of the trial court.
Conclusion
{¶15} Appellant’s appeal from the trial court’s decision denying his motion for
the issuance of a final appealable order is without merit. The validity of Appellant’s
2006 sentencing and 2012 nunc pro tunc entry was resolved by us in State v.
Adams, 7th Dist. No. 12 MA 26, 2013-Ohio-1433. Appellant does not raise any new
issues that were not or could not have been addressed in a prior appeal. For this
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reason Appellant’s assignments of error are overruled and the judgment of the trial
court is affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.