State v. Adams

2014 Ohio 649

Opinion

[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 -2-

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 -3-

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: -4-

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. -5-

{¶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 -7-

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 -8-

reason Appellant’s assignments of error are overruled and the judgment of the trial

Vukovich, J., concurs.

DeGenaro, P.J., concurs.