[Cite as State v. Avery, 2011-Ohio-4182.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-10-35
v.
EDWARD AVERY, SR., OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 1997 CR 0020
Judgment Affirmed
Date of Decision: August 22, 2011
APPEARANCES:
Craig M. Jaquith for Appellant
David W. Phillips and Terry L. Hord for Appellee Case No. 14-10-35
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Edward B. Avery, Sr. (“Avery”), appeals the
judgment entry of the Union County Court of Common Pleas, resentencing Avery
to correct an error in the imposition of postrelease control. On appeal, Avery
raises several issues pertaining to his original 1997 convictions for rape,
kidnapping, aggravated burglary, and robbery. For the reasons set forth below, the
judgment is affirmed.
{¶2} On August 1, 1997, a jury found Avery guilty of first degree rape,
second degree robbery, first degree aggravated burglary, and first degree
kidnapping. Avery was sentenced to maximum sentences of ten years
imprisonment for the counts of rape, aggravated burglary and kidnapping, to be
served consecutively to each other, and eight years imprisonment for the count of
robbery, to be served concurrently to the sentences for the other counts, for a total
of thirty years of imprisonment. In addition, the trial court adjudicated Avery a
sexual predator.
{¶3} Avery appealed his conviction to this Court, asserting four
assignments of error. This Court affirmed the conviction and sentence in a
decision dated April 14, 1998. See State v. Avery (1998), 126 Ohio App.3d 36,
709 N.E.2d 875 (or, “Avery I”). Avery's motion for leave to file a delayed appeal
to the Ohio Supreme Court was denied at 91 Ohio St.3d 1462, 743 N.E.2d 401.
-2- Case No. 14-10-35
{¶4} On January 12, 2004, Avery filed a request for review and
modification of his sentence. The trial court overruled Avery's motion without
holding an evidentiary hearing and he appealed that decision. On August 9, 2004,
we affirmed the trial court’s decision, finding that the trial court's refusal to hold
an evidentiary hearing on the motion was appropriate as the motion was untimely
and barred by res judicata. See State v. Avery, 3d Dist. No. 14-04-06, 2004-Ohio-
4165 (or, “Avery II”).
{¶5} Subsequently, Avery filed a motion to correct inaccuracies in his
sentencing entry and a motion for resentencing because of the trial court’s failure
to properly inform him of postrelease control (“PRC”). Counsel was appointed for
Avery and on September 22, 2010, a hearing was held on all of his pending
motions, along with additional issues that were raised at the hearing. On
November 23, 2010, a de novo sentencing hearing was held. On November 24,
2010, the trial court resentenced Avery to an aggregate sentence of thirty years in
prison (with credit for time served) and correctly informed him as to PRC. The
resentencing entry also included the method of conviction, which was lacking in
the previous judgment entry. See Crim.R. 32(C); State v. Baker, 119 Ohio St.3d
197, 2008-Ohio-3330, 893 N.E.2d 163.
{¶6} It is from this judgment that Avery now brings his third appeal before
this Court, raising the following three assignments of error.
-3- Case No. 14-10-35
First Assignment of Error
The trial court erred by not declaring a mistrial when a dismissed alternate juror was present for two hours during jury deliberations.
Second Assignment of Error
The trial court erred in its instructions to the jury on kidnapping, and thereby deprived Mr. Avery of his right to a fair trial before a properly instructed jury, and of his right to due process of law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.
Third Assignment of Error
The trial court erred when it did not merge rape and kidnapping as allied offenses.
{¶7} Although the issues that Avery raises in this appeal have either
previously been addressed on appeal, or could have been raised at the time of his
previous appeals, he again seeks to revisit these issues after his new sentencing
hearing. However, a recent decision by the Supreme Court of Ohio has clarified
the extent of review that is applicable after a new sentencing hearing is held due to
a trial court’s failure to properly impose PRC. See State v. Fischer, 128 Ohio
St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332.
{¶8} The Ohio Supreme Court abrogated portions of State v. Bezak, 114
Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, and held that “the new
sentencing hearing to which an offender is entitled under Bezak is limited to
-4- Case No. 14-10-35
proper imposition of postrelease control.” Fischer at ¶29, 942 N.E.2d 332. When
postrelease control is not properly included in a sentence for a particular offense,
the sentence for that offense is void, but “only the offending portion of the
sentence is subject to review and correction.” Id. at ¶27, 942 N.E.2d 332. The new
sentencing hearing is limited to the proper imposition of postrelease control. Id. at
¶29, 942 N.E.2d 332.
{¶9} The scope of relief is limited and does not permit a reexamination of
all the perceived errors at trial or in other proceedings. Id. at ¶25, 942 N.E.2d 332,
citing Hill v. United States (1962), 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d
417. The doctrine of “res judicata still applies to other aspects of the merits of a
conviction, including the determination of guilt and the lawful elements of the
ensuing sentence.” Id. at paragraph three of the syllabus, 942 N.E.2d 332; State v.
Hall, 3d Dist. No. 12-10-11, 2011-Ohio-659, ¶12.
{¶10} The three assignments of error raised by Avery do not pertain to the
imposition of PRC. Therefore, they are barred by the doctrine of res judicata and
are not subject to another appellate review.
{¶11} However, Avery also argues that res judicata is not applicable
because he contends that the 1997 sentencing entry was not a proper final
appealable order pursuant to State v. Baker. See 119 Ohio St.3d 197, supra.
Therefore, Avery asserts that the opinion issued by this court in his 1998 direct
-5- Case No. 14-10-35
appeal is void because this Court did not have jurisdiction. He maintains that
Avery I and Avery II cannot serve as preclusive judgments under the doctrine of
res judicata.
{¶12} Crim.R. 32(C) provides that a “judgment of conviction shall set forth
the plea, the verdict, or findings upon which each conviction is based, and the
sentence.” In Baker, the Ohio Supreme Court explained this requirement by
holding that 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 on the journal by the clerk of court.” 119 Ohio St.3d 197, at
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[Cite as State v. Avery, 2011-Ohio-4182.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-10-35
v.
EDWARD AVERY, SR., OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 1997 CR 0020
Judgment Affirmed
Date of Decision: August 22, 2011
APPEARANCES:
Craig M. Jaquith for Appellant
David W. Phillips and Terry L. Hord for Appellee Case No. 14-10-35
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Edward B. Avery, Sr. (“Avery”), appeals the
judgment entry of the Union County Court of Common Pleas, resentencing Avery
to correct an error in the imposition of postrelease control. On appeal, Avery
raises several issues pertaining to his original 1997 convictions for rape,
kidnapping, aggravated burglary, and robbery. For the reasons set forth below, the
judgment is affirmed.
{¶2} On August 1, 1997, a jury found Avery guilty of first degree rape,
second degree robbery, first degree aggravated burglary, and first degree
kidnapping. Avery was sentenced to maximum sentences of ten years
imprisonment for the counts of rape, aggravated burglary and kidnapping, to be
served consecutively to each other, and eight years imprisonment for the count of
robbery, to be served concurrently to the sentences for the other counts, for a total
of thirty years of imprisonment. In addition, the trial court adjudicated Avery a
sexual predator.
{¶3} Avery appealed his conviction to this Court, asserting four
assignments of error. This Court affirmed the conviction and sentence in a
decision dated April 14, 1998. See State v. Avery (1998), 126 Ohio App.3d 36,
709 N.E.2d 875 (or, “Avery I”). Avery's motion for leave to file a delayed appeal
to the Ohio Supreme Court was denied at 91 Ohio St.3d 1462, 743 N.E.2d 401.
-2- Case No. 14-10-35
{¶4} On January 12, 2004, Avery filed a request for review and
modification of his sentence. The trial court overruled Avery's motion without
holding an evidentiary hearing and he appealed that decision. On August 9, 2004,
we affirmed the trial court’s decision, finding that the trial court's refusal to hold
an evidentiary hearing on the motion was appropriate as the motion was untimely
and barred by res judicata. See State v. Avery, 3d Dist. No. 14-04-06, 2004-Ohio-
4165 (or, “Avery II”).
{¶5} Subsequently, Avery filed a motion to correct inaccuracies in his
sentencing entry and a motion for resentencing because of the trial court’s failure
to properly inform him of postrelease control (“PRC”). Counsel was appointed for
Avery and on September 22, 2010, a hearing was held on all of his pending
motions, along with additional issues that were raised at the hearing. On
November 23, 2010, a de novo sentencing hearing was held. On November 24,
2010, the trial court resentenced Avery to an aggregate sentence of thirty years in
prison (with credit for time served) and correctly informed him as to PRC. The
resentencing entry also included the method of conviction, which was lacking in
the previous judgment entry. See Crim.R. 32(C); State v. Baker, 119 Ohio St.3d
197, 2008-Ohio-3330, 893 N.E.2d 163.
{¶6} It is from this judgment that Avery now brings his third appeal before
this Court, raising the following three assignments of error.
-3- Case No. 14-10-35
First Assignment of Error
The trial court erred by not declaring a mistrial when a dismissed alternate juror was present for two hours during jury deliberations.
Second Assignment of Error
The trial court erred in its instructions to the jury on kidnapping, and thereby deprived Mr. Avery of his right to a fair trial before a properly instructed jury, and of his right to due process of law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.
Third Assignment of Error
The trial court erred when it did not merge rape and kidnapping as allied offenses.
{¶7} Although the issues that Avery raises in this appeal have either
previously been addressed on appeal, or could have been raised at the time of his
previous appeals, he again seeks to revisit these issues after his new sentencing
hearing. However, a recent decision by the Supreme Court of Ohio has clarified
the extent of review that is applicable after a new sentencing hearing is held due to
a trial court’s failure to properly impose PRC. See State v. Fischer, 128 Ohio
St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332.
{¶8} The Ohio Supreme Court abrogated portions of State v. Bezak, 114
Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, and held that “the new
sentencing hearing to which an offender is entitled under Bezak is limited to
-4- Case No. 14-10-35
proper imposition of postrelease control.” Fischer at ¶29, 942 N.E.2d 332. When
postrelease control is not properly included in a sentence for a particular offense,
the sentence for that offense is void, but “only the offending portion of the
sentence is subject to review and correction.” Id. at ¶27, 942 N.E.2d 332. The new
sentencing hearing is limited to the proper imposition of postrelease control. Id. at
¶29, 942 N.E.2d 332.
{¶9} The scope of relief is limited and does not permit a reexamination of
all the perceived errors at trial or in other proceedings. Id. at ¶25, 942 N.E.2d 332,
citing Hill v. United States (1962), 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d
417. The doctrine of “res judicata still applies to other aspects of the merits of a
conviction, including the determination of guilt and the lawful elements of the
ensuing sentence.” Id. at paragraph three of the syllabus, 942 N.E.2d 332; State v.
Hall, 3d Dist. No. 12-10-11, 2011-Ohio-659, ¶12.
{¶10} The three assignments of error raised by Avery do not pertain to the
imposition of PRC. Therefore, they are barred by the doctrine of res judicata and
are not subject to another appellate review.
{¶11} However, Avery also argues that res judicata is not applicable
because he contends that the 1997 sentencing entry was not a proper final
appealable order pursuant to State v. Baker. See 119 Ohio St.3d 197, supra.
Therefore, Avery asserts that the opinion issued by this court in his 1998 direct
-5- Case No. 14-10-35
appeal is void because this Court did not have jurisdiction. He maintains that
Avery I and Avery II cannot serve as preclusive judgments under the doctrine of
res judicata.
{¶12} Crim.R. 32(C) provides that a “judgment of conviction shall set forth
the plea, the verdict, or findings upon which each conviction is based, and the
sentence.” In Baker, the Ohio Supreme Court explained this requirement by
holding that 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 on the journal by the clerk of court.” 119 Ohio St.3d 197, at
the syllabus.
{¶13} Although Avery’s original sentencing entry may not have technically
complied with Baker and Crim.R. 32(C), that does not mean that it was necessary
to conduct a resentencing hearing on this matter nor does it mean that the original
sentence was a nullity. The Ohio Supreme Court has stated that “the technical
failure to comply with Crim. R. 32(C) by not including the manner of conviction
in [a defendant’s] sentence is not a violation of a statutorily mandated term, so it
does not render the judgment a nullity.” (Emphasis sic.) State ex rel. DeWine v.
Burge, 128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶19. The Ohio
Supreme Court observed that the appropriate remedy for a violation of Crim.R.
-6- Case No. 14-10-35
32(C) is “resentencing,” however, it “did not suggest that this term encompassed
anything more than issuing a corrected sentencing entry that complies with
Crim.R. 32(C).” Id at ¶20. The Supreme Court distinguished an error in failing to
state the method of conviction “from egregious defects, such as an entry that is not
journalized, that permit a court to vacate its previous orders.” Id. at ¶19. It
explained its reasoning as follows:
Pursuant to Crim.R. 36, “[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time.” “[C]ourts possess inherent authority to correct clerical errors in judgment entries so that the record speaks the truth.” State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19. “[N]unc pro tunc entries ‘are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided.’” State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 14, quoting State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 164, 656 N.E.2d 1288. 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). [Citations omitted.]
Consistent with the treatment of Crim.R. 32(C) errors as clerical mistakes that can be remedied by a nunc pro tunc entry, we have 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.” State ex rel. Alicea v. Krichbaum, 126 Ohio St.3d 194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶ 2; see also State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, 895 N.E.2d 805, ¶ 10–11 (a defendant is entitled to a sentencing entry that complies with Crim.R. 32(C)); Dunn v. Smith, 119 Ohio St.3d 364, 2008-Ohio-4565, 894 N.E.2d
-7- Case No. 14-10-35
312, ¶ 10 (when a trial court fails to comply with Crim.R. 32(C), “the appropriate remedy is correcting the journal entry”).
Id. at ¶¶17-18.
{¶14} In this case, as in Burge, the trial court and all the parties proceeded
under the presumption that the sentencing entry for Avery was a final appealable
order. “Any failure to comply with Crim.R. 32(C) was a mere oversight that
vested the trial court with specific, limited jurisdiction to issue a new sentencing
entry to reflect what the court had previously ruled * * *.” (Emphasis sic) Id. at
¶19. The trial court’s November 24, 2010 sentencing entry corrected the “mere
oversight” of the previous failure to state the method of conviction. All of the
parties were aware of the fact that Avery was found guilty after a jury trial and the
record reflected this fact in numerous places. The trial court’s correction of the
sentencing entry to reflect what had actually occurred was merely a nunc pro tunc
correction that did not render the previous judgment a nullity. Avery, having
already had the benefit of a direct appeal, cannot raise any and all claims of error
in successive appeals. See Fischer at ¶33; State v. Harris, 5th Dist. No. 10-CA-49,
2011-Ohio-1626, ¶30. Avery is not entitled to “another bite at the apple” as a
result of this corrected judgment entry.
{¶15} Avery's new judgment entry of sentencing, which corrected the
portion of the sentence pertaining to PRC and specified the method of conviction,
-8- Case No. 14-10-35
cannot be used as a vehicle to reopen all of the other aspects of his case. Avery's
appeal from that judgment is limited to the subject of postrelease control. Res
judicata is still applicable to the issues Avery has raised today. Based on the
above, Avery's three assignments are overruled.
{¶16} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ROGERS, P.J. and SHAW, J., concur.
/jlr
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