State v. Harris

[Cite as State v. Harris, 2012-Ohio-1853.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24739
Plaintiff-Appellee :
: Trial Court Case No. 92-CR-907
v. :
:
HERMAN HARRIS, JR. : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 27th day of April, 2012.
...........
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
HERMAN HARRIS, JR., #A285-745, Hocking Correctional Facility, 16959 Snake Hollow
Road, Post Office Box 59, Nelsonville, Ohio 45764-0059
Defendant-Appellant, pro se
.............
FAIN, J.
{¶ 1} Defendant-appellant Herman Harris, Jr. appeals from an order overruling his
Motion to “Correct Void Sentence and/or Judgment,” entered June 24, 2011. Pursuant to
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Crim. R. 32(C) and State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163
(2008), Harris contends that the trial court’s Termination Entry, entered November 17, 1993,
as well as a nunc pro tunc entry, entered April 2, 2010, are not final appealable orders.
Therefore, his sentence should be vacated and a new three-judge panel should be convened for
re-sentencing. Harris also contends that the trial court failed to complete the Verdict Form,
filed November 5, 1993, in accordance with R.C. 2945.75 and R.C. 2945.171. In other
words, he argues that the Verdict Form fails to state the elements of his offenses. Similarly,
Harris contends that both the Termination Entry and the nunc pro tunc entry are invalid
because the degree of the offense is not included for either count upon which he was
convicted. Again, Harris argues that because the elements on the Verdict Form and entries
are allegedly incorrect, his sentence should be vacated and he is entitled to re-sentencing.
Finally, Harris argues that a single judge lacks the authority to issue a nunc pro tunc entry
correcting a previous order issued by a three-judge panel.
{¶ 2} We conclude that the Termination Entry was in fact a final appealable order
and Harris’ four assignments of error are barred by res judicata. Specifically, the
Termination Entry and the nunc pro tunc entry comply with Crim.R. 32(C). State, ex. rel
DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-235. Thus, the Termination Entry was a
final appealable order, and this court properly exercised jurisdiction over the appeal Harris
filed in 1994 appeal. Because this court had jurisdiction, Harris is barred by res judicata
from raising claims pertaining to the Verdict Form and the Termination Entry, which could
have been raised in his initial appeal. Finally, a single judge’s signature on a nunc pro tunc
entry that should be signed by a three-judge panel constitutes reversible error, not a
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jurisdictional defect. Therefore, because Harris failed to appeal from the entry, res judicata
bars him from raising that issue in this appeal. Accordingly, the order of the trial court from
which this appeal is taken is Affirmed.
I. Course of Proceedings
{¶ 3} This case arose after a three-judge panel found Harris guilty of Murder and
Grand Theft in 1993. Harris had been charged with Aggravated Murder with death-penalty
specifications, hence the three-judge panel. He was sentenced to a term of fifteen years to life
for Murder and a term of four to ten years for Grand Theft. Harris appealed; we affirmed.
State v. Harris, 2d Dist. Montgomery No. 14343, 1994 WL 718227 (December 21, 1994).
{¶ 4} Since his original appeal, Harris has filed four subsequent appeals with this
court, one of which resulted in an affirmance; the other three appeals were dismissed. State v.
Harris, 2d Dist. Montgomery No. 18525, 2001 WL 109144 (Feb. 9, 2001); State v. Harris, 2d
Dist. Montgomery No. 23068 (Mar. 25, 2009); State v. Harris, 2d Dist. Montgomery No.
23733 (Jan. 26, 2010); State v. Harris, 2d Dist. Montgomery No. 24178 (Mar. 11, 2011).
{¶ 5} Harris now appeals from the trial court’s order overruling his “Motion to
Correct Void Sentence and/or Judgement.” Harris alleged that the April 2, 2010 nunc pro
tunc entry was invalid pursuant to Crim. R. 32(C) and State v. Baker, 119 Ohio St. 3d 197,
2008-Ohio-3330, 893 N.E.2d 163. He further argued that the entry was invalid because it did
not include the degree of the offense for either count and the entry was signed by one judge
instead of all three judges on the panel. Id. The trial court held that the nunc pro tunc entry
complied with Crim. R. 32(C) and Baker and that Harris’s remaining arguments were barred
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by res judicata.
II. Violation of Crim.R. 32(C) Does Not Render A Sentencing Entry Void.
{¶ 6} Although not assigned as an error, Harris argues throughout his appellate brief
that his original sentencing entry and the nunc pro tunc entry did not comply with Crim.R.
32(C) and State v. Baker, thereby rendering his convictions void. Specifically, Harris
contends that the Termination Entry is not a final appealable order because it fails to set forth
the manner of his conviction. That is, the entry did not indicate that Harris was found guilty
by a three-judge panel. Moreover, Harris contends that the nunc pro tunc entry issued April
2, 2010 correcting this clerical error is also void because it did not change his convictions to
reflect the lesser degrees of Murder and Grand Theft. Harris argues that because these entries
are not final appealable orders, he is not only entitled to a vacated verdict and re-sentencing,
but that this court did not have jurisdiction over his original appeal. We disagree.
{¶ 7} Crim.R. 32(C) provides, “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.” Therefore, “[a] judgment of
conviction is a final appealable order under R.C. 2505.02 when it sets forth (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 of the journal by the clerk of courts.”
Baker at syllabus.
{¶ 8} “Clerical errors in judgment, orders, or other parts of the record, and errors in
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the record arising from oversight or omission, may be corrected by the court at any time.”
Crim.R. 36. “A nunc pro tunc entry is the proper method for correcting clerical errors.” State
v. Kendrick, 2d Dist. No. 24626, 2012-Ohio-504. “[N]unc pro tunc entries are limited in
proper use to reflecting what the court actually did, not what the court might or should have
decided.” DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-235, 943 N.E.2d 535, at ¶ 17,
quoting State ex. rel Mayer v. Henson, 97 Ohio St. 3d 276, 2001-Ohio-6323, 779 N.E.2d 223,
at ¶ 14. “A nunc pro tunc entry is often used to correct a sentencing entry that, because of a
mere oversight or omission, does not comply with Crim.R. 32(C). Id. (citations omitted).
{¶ 9} “Consistent with the treatment of Crim.R. 32(C) errors as clerical mistakes
that can be remedied by a nunc pro tunc entry, [the Supreme Court of Ohio] expressly held
that ‘the remedy for a failure to comply with Crim.R. 32(C) is a revised sentencing entry
rather than a new hearing.’ ” Id. at ¶ 18, quoting State ex. rel Alicea v. Krichbaum, 126 Ohio
St.3d 194, 2010-Ohio-3234, 931 N.E.2d 1079, at ¶ 2. Furthermore, “the technical failure to
comply with Crim.R. 32(C) by not including the manner of conviction * * * is not a violation
of the statutorily mandated terms, so it does not render the judgment a nullity.” DeWine at ¶
19 (emphasis sic, citations omitted). See, also State v. Lester, 130 Ohio St. 3d 303,
2011-Ohio-5204, 958 N.E.2d 142. “[T]he 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.
{¶ 10} Thus, the trial court properly denied Harris’s motion because the nunc pro
tunc entry was in compliance with Crim.R. 32(C) and Baker and was the proper means to
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correct the clerical error in the Termination Entry. Harris’s assertion that failure to alter his
conviction renders the nunc pro tunc entry void is without merit. In the case of Crim.R.
32(C) compliance, a change to the substance of the entry is inappropriate because an entry is
required to reflect what the court actually intended, not what it should have done.
{¶ 11} Moreover, contrary to Harris’s contention, the Termination Entry is a final
appealable order despite the necessity for the nunc pro tunc entry. Therefore, this court
properly had jurisdiction to hear and decide his 1994 appeal.
III. Claims Relating to the Verdict Form are Precluded
Based On the Doctrine of Res Judicata.
{¶ 12} Harris’s Second, Third, and Fourth Assignments of Error are as follows:
ASSIGNMENT OF ERROR NUMBER TWO: THE DEFENDANT/ APPELLANT,
MR. HERMAN HARRIS, JR[.] WAS DENIED “EQUAL PROTECTION” OF LAW AND
“DUE PROCESS” OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE
UNITED STATES CONSTITUTION, OHIO BILL OF RIGHTS: ARTICLE I, §§ 2, AND 16
OF THE OHIO CONSTITUTION, WHEN THE TRIAL COURT FAILED TO PROPERLY
COMPLETE THE VERDICT FORM (NOVEMBER 5th, 1993 CASE NO. 92-CR-907
MONTGOMERY COUNTY COMMON PLEAS COURT). THE APPELLANT MR.
HARRIS SHOULD HAVE BEEN SENTENCED AND/OR CONVICTED ON THE NEXT
LESSER OFFENSE REDUCING THE “GRAND THEFT” TO AN OFFENSE OF “THEFT”
BECAUSE THE “VERDICT FORM” DOES NOT CITE THE DEGREE OF THE OFFENSE,
AND THE OFFENSE OF “MURDER” CITES NO DEGREE OF THE OFFENSE, NOR,
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MAKES NO MENTION OF THE “ELEMENTS” WITHIN THE VERDICT FORM.
THEREFORE, THE “MURDER” OFFENSE SHOULD HAVE BEEN A FINDING OF
GUILT ON THE LESSER OFFENSE OF “VOLUNTARY MANSLAUGHTER” OR
“INVOLUNTARY MANSLAUGHTER.” THE TRIAL COURT AND/OR SENTENCING
COURT COMMITTED PLAIN ERROR BY SENTENCING THE
DEFENDANT/APPELLANT MR. HARRIS, TO THE GREATER CRIMINAL OFFENSE
THAT’S UNAUTHORIZED BY STATUTES.
ASSIGNMENT OF ERROR NUMBER THREE: THE TRIAL COURT ERRORED
[sic] WHEN IT FAILED TO IMPOSE SENTENCES OF THE NEXT LESSER OFFENSE
ON “MISDEMEANOR THEFT” O.R.C. §§ 2913.02 (MISDEMEANOR OF THE FIRST
DEGREE MAXIMUM SENTENCE SIX (6) MONTHS AND A $1,000.00 DOLLAR FINE),
AND THE LESSER OFFENSE(S) OF INVOLUNTARY MANSLAUGHTER OR
VOLUNTARY MANSLAUGHTER. THE VERDICT FORM FAILS TO PROPERLY
STATE THE FELONY DEGREE(S) OF THE CRIMINAL OFFENSE OF “MURDER” AND
THE CRIMINAL OFFENSE OF “GRAND THEFT,” NOR DOES THE VERDICT FORM
PROPERLY STATE THE “ELEMENTS” TO DESCRIBE THE ACTUAL FELONY
STATUTE OF “MURDER” IN ORDER TO PROPERLY CHARGE THE OFFENSE AND
TO IMPOSE THE SENTENCE FOR THE CRIMINAL OFFENSE OF “GRAND THEFT”
AND “MURDER.” THE VERDICT FORM DID NOT COMPLY WITH OHIO REVISED
CODE §§ 2945.75(a)(2) AND SUCH IS NOT SUFFICIENT TO CONVICT THE
APPELLANT MR. HARRIS OF THE CLASSIFIED OFFENSE OF “MURDER” AND
“GRAND THEFT,” PURSUANT TO OHIO REVISED CODE §§ 2945.75(a)(2). THE
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APPELLANT MR. HARRIS, WAS DENIED “EQUAL PROTECTION OF LAWS” AND
“DUE PROCESS OF LAW” UNDER THE FOURTEENTH AMENDMENT OF THE
UNITED STATES CONSTITUTION, OHIO BILL OF RIGHTS: ARTICLE I, § 2 AND 16
OHIO CONSTITUTION. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED PLAIN ERROR.
ASSIGNMENT OF ERROR NUMBER FOUR/FOURTH CONSTITUTIONAL
ERROR: OHIO REVISED CODE [§§ 2945.17.1] §§ 2945.171 “VERDICT IN WRITING”;
OHIO REVISED CODE §§ 2945.75(A)(2) “DEGREE OF OFFENSE; CHARGE; AND
VERDICT”; OHIO RULES OD [sic] CRIMINAL PROCEDURE CRIM.R. 31(A) “VERDICT
RETURN;” AND OHIO RULES OF CRIMINAL PROCEDURES CRIM.R. 32(C)
“SENTENCES” ARE BEING APPLIED IN A [sic] UNCONSTITUTIONAL MANNER
THAT HAVE DENIED THE APPELLANT MR. HARRIS THE “EQUAL PROTECTION
OF LAWS” AND “DUE PROCESS OF LAW” PROTECTIONS GUARANTEED BY BOTH
THE FOURTEENTH AMENDMENT “CLAUSES” OF THE UNITED STATES
CONSTITUTION, AND THE OHIO BILL OF RIGHTS: ARTICLES I, §§§ [sic] 2 AND 16,
OF THE OHIO CONSTITUTION. OHIO REVISED CODE [§§ 2945.17.1] §§ 2945.171
“VERDICT IN WRITING”; OHIO REVISED CODE §§ 2945.75(A)(2) “DEGREE OF
OFFENSE; CHARGE; AND VERDICT”; CRIM.R. 31(A) “VERDICT RETURN”; AND
CRIM.R. 32(C) “SENTENCES” HAS BEEN APPLIED IN A DISCRIMINATORY
NATURE AND/OR DISCRIMINATORY MANNER AS TO VIOLATE THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND THE
OHIO BILL OF RIGHTS: ARTICLES I, §§ 2 AND 16, OF THE OHIO CONSTITUTION.
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THE TRIAL COURT COMMITTED PLAIN ERROR AND ABUSED ITS DISCRETION.
{¶ 13} The above assignments of error are addressed together because each is concerned with
the validity of the original Verdict Form, entered in 1993. Harris contends that the Verdict Form
fails to state the degrees of the offenses of which he was convicted. He argues that he is therefore
entitled to a vacated verdict and re-sentencing by a three-judge panel to the lesser degrees of his
original convictions of Murder and Grand Theft. The doctrine of res judicata bars these claims from
being raised in the appeal before us.
{¶ 14} Res judicata is a doctrine of judicial preclusion. There are two theories on
which it operates, claim preclusion (estoppel by judgment) and issue preclusion (collateral
estoppel). Grava v. Parkman Twp., 73 Ohio St. 3d 379, 653 N.E.2d 226, 228 (1995). “Both
theories of res judicata are used to prevent relitigation of issues already decided by a court, or
matters that should have been brought as part of a previous action.” Chargin Falls v. Geauga
Cty. Bd. of Commrs, 11th Dist. Geauga No. 2003-G-2530, 2004-Ohio-5310, citing Lasko v.
Gen. Motors Corp, 11th Dist. Trumbull No.2002-T-0143, 2003-Ohio-4103. When a final
judgment is rendered by a court of competent jurisdiction, claim preclusion “bars all claims
that were litigated in a prior action as well as all claims which might have been litigated in that
action.” Deaton v. Burney, 107 Ohio App. 3d 407, 410, 669 N.E.2d 1 (2d Dist. 1995), citing
Grava at syllabus. In other words, “the doctrine of res judicata requires [a party] to present
every ground for relief in the first action, or be forever barred from asserting it.” Grava at
229, citing Rogers v. Whitehall, 25 Ohio St. 3d 67, 69, 494 N.E.3d 1387 (1986).
{¶ 15} In the case before us, Harris is precluded from bringing forth claims relating to
the Verdict Form. This court had, and exercised, jurisdiction over Harris’ first appeal,
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decided in 1994. Therefore, Harris’s failure to have raised these claims relating to Verdict
Form during his initial appeal precludes him from raising them now, based upon the doctrine
of res judicata.
{¶ 16} Although not expressly assigned as error, Harris contends that the original
Termination Entry in 1993, as well as the nunc pro tunc entry of April 2, 2010, are also
invalid, because they do not state the necessary degrees for the Murder conviction or the
Grand Theft conviction. For the reasons set forth above, res judicata also bars these claims.
{¶ 17} Harris’s Second, Third, and Fourth Assignments of Error are overruled.
IV. A Nunc Pro Tunc Entry Signed By A Single Judge When the Original Trial
Was Presided Over By A Three-Judge Panel is Reversible Error.
{¶ 18} Harris’s First Assignment of Error is as follows:
THE HONORABLE JUDGE MARY L. WISEMAN, MONTGOMERY COUNTY
COMMON PLEAS COURT COMMITTED PLAIN ERROR AND/OR ERROR WHEN THE
HONORABLE JUDGE MARY L. WISEMAN SIGNED A NUNC PRO TUNC ORDER
ATTEMPTING TO CORRECT A PREVIOUS ORDER FROM A THREE-JUDGE PANEL
NOVEMBER 17, 1993 TERMINATION ENTRY THAT’S NOT IN COMPLIANCE [WITH]
McALLISTER v. SMITH, 119 Ohio St. 3d 163, 2008-Ohio-3881, at ¶ 9, citing GARRETT v.
WILSON, 5th Dist. No. 07-CA-60, 2007-Ohio-4853; STATE v. SESSLER, 891 N.E.2d 318;
STATE v. PELFREY, 860 N.E.2d 735; STATE v. PUSEY, No. 17-90-1 (3rd Dist.); STATE v.
WILLIAMS, 2007-WL 1174838, OHIO APP. 9TH DIST. 2007; AND STATE v. BAKER, 119
Ohio St. 3d 197, 2008-Ohio-3330, 983 N.E.2d 163; And OHIO RULES OF CRIMINAL
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PROCEDURE 31(a) AND 32(c) UNDER THE CONTROLLING CASE AUTHORITY OF
STATE v. MELTON, 2010 WL 2857803 (Ohio App. 8th Dist.) 2010-Ohio-3409. THE
HONORABLE JUDGE MARY L. WISEMAN DOES NOT HAVE THE JUDICIAL
AUTHORITY AND/OR JUDICIAL POWER TO CURE ANY PREVIOUS THREE-JUDGE
PANEL COURT ORDER THAT’S [NOT] IN COMPLIANCE WITH CONSTITUTIONAL
STANDARDS, AND THE ABOVE CITED AUTHORITIES.
{¶ 19} Essentially, Harris contends that the trial court judge did not have the authority to
issue a nunc pro tunc entry correcting the Termination Entry originally issued by a three-judge panel.
In our view, this is not a jurisdictional defect, but was at most reversible error on the part of the trial
court to have issued the nunc pro tunc entry on the signature of a single judge.
{¶ 20} The Ohio Constitution, Article IV, Section 4(B) provides: “The courts of
common pleas and divisions thereof shall have such original jurisdiction over all justiciable
matters and such powers of review of proceedings of administrative officers and agencies as
may be provided by law.” In the exercise of the General Assembly’s prerogative to establish
the jurisdiction of the common pleas courts, R.C. 2931.03 provides: “The court of common
pleas has original jurisdiction of all crimes and offenses, except in cases of minor offenses the
exclusive jurisdiction of which is vested in courts inferior to the court of common pleas.”
Thus, a common pleas court has broad jurisdiction over all criminal cases. In exercising that
jurisdiction, there are many substantive and procedural errors of law that a common pleas
court may commit, and upon appellate review, substantive or procedural errors of law, if
sufficiently prejudicial, may afford a basis for reversal of a judgment or order. In our view, a
single judge’s signature on a nunc pro tunc entry that ought to have been signed by the
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members of a three-judge panel is an example of a procedural error of law that may result in
reversal on appeal, if a timely appeal is filed. But the jurisdiction of the trial court is not
thereby implicated.
{¶ 21} At the time it was issued, April 2, 2010, the nunc pro tunc entry was a final
appealable order. Because Harris failed to appeal from that order, he has forfeited a claim
based upon the fact that it was signed by only one judge of the common pleas court. As with
the other issues he seeks to raise in this appeal, it is barred by res judicata, because he could
have raised the issue in an appeal from the April 2, 2010 order, but did not.
{¶ 22} Harris’s First Assignment of Error is overruled.
V. Conclusion
{¶ 23} All of Harris’s assignments of error having been overruled, the order of the
trial court from which this appeal is taken is Affirmed.
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GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Herman Harris, Jr.
Hon. Mary L. Wiseman