State ex rel. Ross v. Krichbaum

[Cite as State ex rel. Ross v. Krichbaum, 2010-Ohio-1541.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE ex rel., )
BRANDON MOORE, )
) CASE NO. 09 MA 201
RELATOR, )
)
- VS - ) OPINION
) AND
JUDGE R. SCOTT KRICHBAUM, ) JUDGMENT ENTRY
COMMON PLEAS COURT JUDGE, )
)
RESPONDENT. )
CHARACTER OF PROCEEDINGS: Petition for Writ of Mandamus.
JUDGMENT: Petition Granted in Part
and Denied in Part.
APPEARANCES:
For Relator: Brandon Moore, Pro-se
#434-865
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901
For Respondent: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Asst. Prosecuting Attorney
21 W. Boardman Street, 6th Floor
Youngstown, OH 44503
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 30, 2010
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PER CURIAM:
{¶1} On December 30, 2009, Pro-se Relator Brandon Moore filed a petition for
writ of mandamus and/or procedendo with this Court, seeking a writ to compel
Respondent Judge Scott R. Krichbaum to issue a final appealable judgment entry of
sentence for State v. Moore, Mahoning County Court of Common Pleas Case No. 02-CR-
525 in compliance with Crim.R. 32(C) as set forth in State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163. Moore contends that he is entitled to a new
sentencing hearing and a revised sentencing entry that specifies Moore's manner of
conviction. Respondent Krichbaum has filed a combined answer and Civ.R. 12(C) motion
for judgment on the pleadings, arguing that this Court may not retroactively apply Baker to
Moore's original sentencing order, pursuant to our decision in State ex rel. Wells v.
Jefferson Cty. Court of Common Pleas, 7th Dist. No. 08 JE 28, 2008-Ohio-6972, affirmed,
1
122 Ohio St.3d 39, 2009-Ohio-2358, 907 N.E.2d 1166. Moore argues in his response
and supplemental memorandum that this Court is obligated to retroactively apply Baker to
his original sentencing order pursuant to State ex rel Culgan v. Medina Cty. Court of
Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, 895 N.E.2d 805. Because we are
bound to follow the Ohio Supreme Court's decision in Culgan, we must partially grant
Moore's writs of mandamus and procedendo to compel Respondent to issue a sentencing
entry that complies with Crim.R. 32(C).
{¶2} On October 2, 2002, subsequent to a trial by jury, Moore was convicted on
twelve counts of aggravated robbery, rape, complicity to rape, kidnapping, conspiracy to
commit aggravated robbery, and aggravated menacing, with accompanying firearm
specifications. On October 29, 2002, the trial court issued a judgment entry of sentence
imposing maximum consecutive sentences on all counts for a total of 141 years.
Subsequent to Moore's direct appeal, this Court partially reversed and remanded the
decision. State v. Moore, 161 Ohio App.3d 778, 2005-Ohio-3311, 832 N.E.2d 85. Moore
1
Though the Ohio Supreme Court affirmed Wells, it did so on alternative grounds, and did not address the retroactivity
issue.
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then filed an application to reopen his direct appeal based on a speedy trial violation
claim, which this Court denied. State v. Moore, 7th Dist. No. 02 CA 216, 2005-Ohio-5630.
{¶3} On remand, the trial court merged some of Moore's firearm specifications,
acknowledged the dismissal of one count, imposed maximum sentences for the
remaining counts for a total of 112 years, and made the findings required by the then
current law to run the sentences consecutively. Moore filed a second appeal, contending
that the trial court's sentencing decision violated the Ohio Supreme Court's recent
decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. This court
vacated and remanded Moore's case for resentencing in compliance with Foster. State v.
Moore, 7th Dist. No. 05 MA 178, 2007-Ohio-7215.
{¶4} The trial court held a third sentencing hearing on January 4, 2008, and
explained at length all of the factors it considered pursuant to R.C. 2929.11 and R.C.
2929.12 in order to arrive at its sentencing decision. The trial court issued a sentencing
entry on February 5, 2008, re-imposing the 112 year prison term and designating Moore
as a Tier III sexual offender. Moore filed a third appeal, contending that the trial court's
compliance with Foster violated his constitutional rights to due process. Appellate
counsel requested leave to withdraw from the case and filed a no merit brief pursuant to
Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 and State v.
Toney (1970), 23 Ohio App.2d 203, 52 O.O.2d 304, 262 N.E.2d 419. This Court granted
appellate counsel's motion to withdraw and affirmed the decision of the trial court. State
v. Moore, 7th Dist. No. 08 MA 20, 2009-Ohio-1505.
{¶5} On September 17, 2009, Moore filed a pro se "Motion to Resentence
Defendant" with the Mahoning County Court of Common Pleas. Respondent Judge R.
Scott Krichbaum denied the motion on September 22, 2009. Moore then filed the present
petition for writ of mandamus and/or procedendo with this Court. Moore pleaded specific
facts in his petition, and attached a verification affidavit, an affidavit regarding the
genuineness of his attached exhibits, a memorandum of law in support of his petition, and
a combined affidavit of indigence and of prior civil actions.
{¶6} Moore contends that his original and subsequent sentencing entries did not
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contain the guilty plea, the jury verdict, or the court finding upon which his convictions
were based. Moore argues that his sentencing entry therefore did not constitute a final
appealable order. Moore further argues that the appropriate remedy for his improper
sentencing entry requires that the trial court both hold a new sentencing hearing and
issue a judgment entry of sentence that complies with Crim.R. 32(C) and Baker.
{¶7} In order for a court to issue a writ of mandamus, a relator must have a clear
legal right to the relief prayed for, the respondent must have a clear legal duty to perform
the act requested, and the relator must have no plain and adequate remedy at law. State
ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, at ¶8.
To be entitled to a writ of procedendo, "a relator must establish a clear legal right to
require the court to proceed, a clear legal duty on the part of the court to proceed, and the
lack of an adequate remedy in the ordinary course of law." State ex rel. Miley v. Parrott,
77 Ohio St.3d 64, 65, 1996-Ohio-350, 671 N.E.2d 24. "[P]rocedendo and mandamus will
lie when a trial court has refused to render, or unduly delayed rendering, a judgment."
State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-Ohio-3631, 791 N.E.2d 459,
at ¶5. See, also, Culgan, supra, at ¶8; State ex rel. Agosto v. Cuyahoga Cty. Court of
Common Pleas, 119 Ohio St.3d 366, 2008-Ohio-4607, 894 N.E.2d 314, at ¶8.
{¶8} Crim.R. 32(C) mandates that "[a] judgment of conviction shall set forth the
plea, the verdict, or findings, upon which each conviction is based, and the sentence. * * *
The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment
is effective only when entered on the journal by the clerk." The Ohio Supreme Court held
in Baker that a proper final appealable order in a criminal case requires "(1) the guilty
plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the
sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court."
Baker at syllabus. The decision specified that multiple documents could not constitute
the required final appealable order. Id. at ¶15.
{¶9} In order to seek a remedy for an improper final order that is lacking any of
these four requirements, a defendant must file a motion in the trial court requesting a
revised sentencing entry. Dunn v. Smith, 119 Ohio St.3d 364, 2008-Ohio-4565, 894
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N.E.2d 312, at ¶8. If the trial court refuses the defendant's motion for a revised
sentencing entry, the defendant may compel the trial court to act by filing an action for a
writ of mandamus or procedendo with the court of appeals. Id. at ¶9. The appropriate
remedy for a trial court's failure to comply with Crim.R. 32(C) and Baker is a correction of
the sentencing entry. Id. at ¶10; McAllister v. Smith, 119 Ohio St.3d 163, 2008-Ohio-
3881, 892 N.E.2d 914, at ¶7; Culgan, supra, at ¶11.
{¶10} Moore's October 29, 2002 sentencing entry did not specify the guilty plea,
the jury verdict, or the finding of the court upon which the convictions were based, and
thus it did not constitute a final appealable order. The State concedes that Moore's
sentencing entry does not comply with Baker, but argues that Moore's petition should be
dismissed because Moore did not include a verification affidavit or an affidavit regarding
previous civil actions as required by R.C. 2731.04 and R.C. 2969.25(A). However, Moore
did include a verification affidavit on the final page of his petition, and also a statement
that he had not filed any civil action or appeal in the last five years, which was included in
his Combined Affidavit of Inmate Pursuant to R.C. 2969.21 et seq. Thus the State is
incorrect that Moore's petition should be dismissed on procedural grounds.
{¶11} Additionally, the State argues that Moore's petition should be dismissed
pursuant to this Court's holding that Baker cannot be applied retroactively, and that a
defendant's remedy at law for an improper judgment entry of sentence would be a direct
appeal. Wells at ¶5-6. Moore counters that this Court's analysis in Wells conflicts with
the Ohio Supreme Court's application of Baker in Culgan.
{¶12} In Wells, this Court considered whether a defendant was entitled to writs of
mandamus and procedendo compelling the trial court to enter a sentencing entry that
complied with Crim.R. 32(C), when his convictions in 1997 had been previously reviewed
and affirmed on a direct appeal prior to the Ohio Supreme Court's July 9, 2008 decision in
Baker. This Court noted that although the defendant's sentencing entry did not comply
with Baker, the "Baker holding cannot be applied retroactively to a case in which the
direct appeal became final almost eight years prior to the date Baker was decided.
Although a new interpretation of a rule or statute by the Ohio Supreme Court is generally
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applied to cases that are then pending on appeal, this new interpretation is not applied to
cases that have already completed the direct appeal process. State v. Evans (1972), 32
Ohio St.2d 185, 186, 291 N.E.2d 466. A new rule of law issued by the Ohio Supreme
Court only applies to active cases pending on the date of announcement of the new rule.
State v. Lynn (1966), 5 Ohio St.2d 106, 108, 214 N.E.2d 226." Wells at ¶5. This Court
further concluded that Wells had a prior adequate remedy at law through his opportunity
to raise the sentencing formality issue in his direct appeal, and thus that mandamus could
not lie. Id. at ¶6.
{¶13} In Culgan, the Supreme Court of Ohio considered whether a defendant was
entitled to writs of mandamus and procedendo compelling the trial court to enter a
judgment on his convictions that complied with Crim.R. 32(C), even though his
convictions in 2002 had been previously reviewed and affirmed on a direct appeal.
Culgan at ¶3. The Ohio Supreme Court concluded that the defendant was entitled to a
new sentencing entry irrespective of prior appellate review, because the original
sentencing entry did not constitute a final appealable order. Id. at ¶10-11. Because the
Ohio Supreme Court applied Baker to Culgan's petitions even though Culgan's
convictions and direct appeal had been finalized prior to the decision in Baker, this Court
can no longer hold that Baker may only be applied prospectively. We therefore conclude
that we are obligated to apply Baker retrospectively.
{¶14} The dissenting opinion in Culgan noted that the defendant was not deprived
of the opportunity to appeal his convictions even though his sentencing entry did not
specify the manner of conviction, and the appellate court was able to determine that the
defendant had pleaded guilty to the counts for which he was convicted. Culgan at ¶15.
Indeed, the injury from a formally improper sentencing entry as articulated in Baker is that
"appellate review of the case would be impossible." Baker at ¶16. The dissenting opinion
in Culgan concluded that the defendant had already been provided an adequate remedy
at law through his appeal, and thus that the majority's conclusion compelled a vain act
which elevated form over substance. Culgan at ¶16-17.
{¶15} In the case at hand, Moore was provided review of the merits of his case on
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appeal, and further consideration of sentencing issues in two additional appeals. To say
that Moore is now entitled to a new sentencing entry due to the possibility that "appellate
review of the case would be impossible" truly does seem to elevate form over substance.
However, because we can find no pertinent distinctions between the case at hand and
that of Culgan, we find that we must reach the same conclusion issued in Culgan and
grant Moore's writs to the extent that they demand a sentencing entry that complies with
Crim.R. 32(C).
{¶16} Moore further argues that the trial court must be compelled to hold a new
sentencing hearing in order to produce a valid sentencing entry. In support of his
argument, Moore cites to the Ninth District's opinion in Culgan upon remand from the
Ohio Supreme Court. State v. Culgan, 9th Dist. No. 08CA0080-M, 2009-Ohio-2783. On
remand, the Ninth District noted that the trial court had issued a nunc pro tunc judgment
entry in order to comply with the Ohio Supreme Court's decision. Id. at ¶5. The Ninth
District reversed and remanded the trial court's nunc pro tunc entry, holding that the trial
court was also required to resentence Culgan in compliance with Foster. Id. at ¶6. Moore
contends that the Ninth District's conclusion indicates that he must be afforded a new
sentencing hearing.
{¶17} We find that the Ninth District's post-remand decision does not apply to the
case at hand for multiple reasons. The Ohio Supreme Court specified in Foster that the
decision was only to be applied to cases then pending on direct review. Foster at ¶104.
Culgan was sentenced on August 2, 2002, his sentence was affirmed by the Ninth District
on May 28, 2003, and the Ohio Supreme Court declined further review on November 5,
2003. Culgan's case was therefore not pending on direct review when Foster was
decided on February 27, 2006. Because Foster is limited to prospective application, we
would not have reached the same conclusion as the Ninth District in Culgan. Moreover,
Moore's case is factually distinguishable from Culgan, as Moore has already been
resentenced in compliance with Foster. Moore cites no further authority to justify a new
sentencing hearing, and we find no legal basis for the same. We conclude that Moore is
not entitled to a new sentencing hearing, and is only entitled to a revised sentencing entry
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pursuant to Ohio Supreme Court decisions in Dunn, McAllister, and Culgan, supra. We
therefore deny Moore's writs to the extent that they demand a new sentencing hearing.
{¶18} Given the foregoing, we partially grant Moore's writs of mandamus and
procedendo to compel Respondent to issue a revised sentencing entry that complies with
Crim.R. 32(C).
{¶19} Costs taxed against Respondent. Final Order. Clerk to serve notice upon
the parties as provided by the Civil Rules.
DeGenaro, J., concurs.
Donofrio, J., concurs.
Waite, J., concurs.