[Cite as State v. Day, 2013-Ohio-4806.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99790
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DAN DAY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-432083
BEFORE: McCormack, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: October 31, 2013 FOR APPELLANT
Dan J. Day, pro se Inmate No. A450-702 Mansfield Correctional Institution P.O. Box 788 Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Diane Smilanick Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. This is the third time Dan Day’s 2003 murder conviction
and sentence is before this court. Before us in the instant appeal is the trial court’s
denial of his “Motion to Revise Sentencing Entry and Issue Final Judgment.” He claims
the trial court failed to “journalize the sentence actually pronounced in open court” at his
2003 sentencing hearing. Finding no merit to his claim, we affirm the trial court’s
judgment.
{¶2} In 2002, Day was indicted for two counts of murder for beating his wife, who
bled to death from the injuries she sustained. Count 1 of the indictment charged him
with murder (purposely causing the victim’s death) and Count 2 charged him with felony
murder (causing the victim’s death as a proximate cause of committing a felonious
assault). The matter was tried to a jury. The trial court instructed the jury on both
murder and the lesser included offense of reckless homicide with respect to Count 1, and
only on felony murder with respect to Count 2.
{¶3} The jury returned a verdict of not guilty of murder but guilty of reckless
homicide under Count 1, and guilty of felony murder under Count 2. Because reckless
homicide in Count 1 was an allied offense of felony murder in Count 2, the state
requested Count 1 to be merged into Count 2 for sentencing. The court sentenced Day
on the merged Count 2, to a term of 15 years to life. {¶4} On direct appeal from his conviction and sentence, Day raised 11 assignments
of error. Nine of these errors related to his conviction, and two related to his sentence.
Regarding his sentence, he argued the trial court erred by sentencing him for murder
rather than for reckless homicide — the lesser of the two allied offenses. He also argued
that the murder offense of which he was convicted was functionally equivalent to
involuntary manslaughter, yet the law imposed disparate penalties for the same offense.
{¶5} We found none of his claims to have merit and affirmed his conviction and
sentence in State v. Day, 8th Dist. Cuyahoga No. 83138, 2004-Ohio-1449, discretionary
appeal not allowed, State v. Day, 103 Ohio St.3d 1427, 2004-Ohio-4524, 814 N.E.2d 490.
{¶6} Six years later, in 2010, Day filed with this court an application for reopening
pursuant to App.R. 26(B), claiming his appellate counsel provided ineffective
assistance of counsel. This court denied the motion in State v. Day, 8th Dist. Cuyahoga
No. 83138, 2010-Ohio-3862.
{¶7} Two years later, in 2012, Day filed with the trial court the instant motion,
styled as “Motion to Revise Sentencing Entry and Issue a Final Judgment.” The court
denied the motion, and Day appealed. His sole assignment of error in this appeal states:
Because the sentence pronounced by a trial court regarding a defendant’s
sentence does not constitute a final order until journalized, the trial court’s
failure to journalize the sentence actually pronounced in open court has
effectively deprived the appellant of the final judgment necessary to effect a
valid appeal of right as to that sentence in violation of appellant’s right to due process and equal protection of the law as guaranteed by the 14th
Amendment to the United Constitution.
{¶8} Day claims that, although the trial court sentenced him to 15 years to life on
the merged Count 2 (felony murder) at the sentencing hearing, in its sentencing entry, it
imposed 15 years to life on Count 1 instead. He claims that, as such, the trial court
“never journalized the sentence actually pronounced from the bench in open court on June
2, 2013 for Count 2: Murder.” He argues that, as a result, his sentence was not a final
order “capable of properly invoking this court’s jurisdiction.” Day claims the trial court
is obligated to issue a revised sentencing entry reflecting the sentence it pronounced from
the bench — 15 years to life on Count 2.
{¶9} We construe Day’s “Motion to Revise Sentencing Entry” as a petition for
postconviction relief. State v. Bankston, 10th Dist. Franklin. No. 13AP-250,
2013-Ohio-4346, ¶ 7, citing State v. Reynolds, 79 Ohio St.3d 158, 160, 1997-Ohio-304,
679 N.E.2d 1131 (“where a criminal defendant, subsequent to his or her direct appeal,
files a motion seeking vacation or correction of his or her sentence on the basis that his or
her constitutional rights have been violated, such a motion is a petition for postconviction
relief as defined in R.C. 2953.21”). We review the trial court’s decision regarding
postconviction proceedings for an abuse of discretion. State v. Gondor, 112 Ohio St.3d
377, 2006-Ohio-6679, 860 N.E.2d 77. Finally, we note that res judicata is applicable in
all postconviction relief proceedings. State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d
233 (1996). {¶10} First, pursuant to R.C. 2953.21(A)(2), a petition for postconviction relief is
to be filed within the 180-day time limitation. A trial court may consider an untimely
petition only if (1) the petitioner is “unavoidably prevented” from discovering the facts
upon which the petition is based, or (2) the petitioner “shows by clear and convincing
evidence that a reasonable factfinder would not have found him guilty but for
constitutional error at trial.” State v. Sharif, 8th Dist. Cuyahoga No. 79325, 2001 Ohio
App. LEXIS 4354 (Sept. 27, 2001), *9-10. Day filed his “Motion to Revise Sentencing
Entry” nine years after his conviction, without demonstrating why he was delayed.
{¶11} Second, Day’s allegation of a defect in the sentencing entry is barred by
res judicata, because he could have raised the issue on his direct appeal. State v. Byrd,
145 Ohio App.3d 318, 332, 762 N.E.2d 1043 (1st Dist.2001) (appellant’s claim relating to
an alleged sentencing defect was barred by res judicata because he could have raised this
claim on direct appeal and he presented no evidence outside the record demonstrating
why he failed to do so).
{¶12} Even if we were to consider the allegation, we do not perceive a defect in
the sentencing entry claimed by Day. The sentencing entry stated, in pertinent part:
The jury returns a verdict of not guilty of murder * * * as charged in count one, but guilty of reckless homicide * * *, the lesser included offense under count one of the indictment; guilty of murder * * * as charged in count two.
***
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[Cite as State v. Day, 2013-Ohio-4806.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99790
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DAN DAY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-432083
BEFORE: McCormack, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: October 31, 2013 FOR APPELLANT
Dan J. Day, pro se Inmate No. A450-702 Mansfield Correctional Institution P.O. Box 788 Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Diane Smilanick Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. This is the third time Dan Day’s 2003 murder conviction
and sentence is before this court. Before us in the instant appeal is the trial court’s
denial of his “Motion to Revise Sentencing Entry and Issue Final Judgment.” He claims
the trial court failed to “journalize the sentence actually pronounced in open court” at his
2003 sentencing hearing. Finding no merit to his claim, we affirm the trial court’s
judgment.
{¶2} In 2002, Day was indicted for two counts of murder for beating his wife, who
bled to death from the injuries she sustained. Count 1 of the indictment charged him
with murder (purposely causing the victim’s death) and Count 2 charged him with felony
murder (causing the victim’s death as a proximate cause of committing a felonious
assault). The matter was tried to a jury. The trial court instructed the jury on both
murder and the lesser included offense of reckless homicide with respect to Count 1, and
only on felony murder with respect to Count 2.
{¶3} The jury returned a verdict of not guilty of murder but guilty of reckless
homicide under Count 1, and guilty of felony murder under Count 2. Because reckless
homicide in Count 1 was an allied offense of felony murder in Count 2, the state
requested Count 1 to be merged into Count 2 for sentencing. The court sentenced Day
on the merged Count 2, to a term of 15 years to life. {¶4} On direct appeal from his conviction and sentence, Day raised 11 assignments
of error. Nine of these errors related to his conviction, and two related to his sentence.
Regarding his sentence, he argued the trial court erred by sentencing him for murder
rather than for reckless homicide — the lesser of the two allied offenses. He also argued
that the murder offense of which he was convicted was functionally equivalent to
involuntary manslaughter, yet the law imposed disparate penalties for the same offense.
{¶5} We found none of his claims to have merit and affirmed his conviction and
sentence in State v. Day, 8th Dist. Cuyahoga No. 83138, 2004-Ohio-1449, discretionary
appeal not allowed, State v. Day, 103 Ohio St.3d 1427, 2004-Ohio-4524, 814 N.E.2d 490.
{¶6} Six years later, in 2010, Day filed with this court an application for reopening
pursuant to App.R. 26(B), claiming his appellate counsel provided ineffective
assistance of counsel. This court denied the motion in State v. Day, 8th Dist. Cuyahoga
No. 83138, 2010-Ohio-3862.
{¶7} Two years later, in 2012, Day filed with the trial court the instant motion,
styled as “Motion to Revise Sentencing Entry and Issue a Final Judgment.” The court
denied the motion, and Day appealed. His sole assignment of error in this appeal states:
Because the sentence pronounced by a trial court regarding a defendant’s
sentence does not constitute a final order until journalized, the trial court’s
failure to journalize the sentence actually pronounced in open court has
effectively deprived the appellant of the final judgment necessary to effect a
valid appeal of right as to that sentence in violation of appellant’s right to due process and equal protection of the law as guaranteed by the 14th
Amendment to the United Constitution.
{¶8} Day claims that, although the trial court sentenced him to 15 years to life on
the merged Count 2 (felony murder) at the sentencing hearing, in its sentencing entry, it
imposed 15 years to life on Count 1 instead. He claims that, as such, the trial court
“never journalized the sentence actually pronounced from the bench in open court on June
2, 2013 for Count 2: Murder.” He argues that, as a result, his sentence was not a final
order “capable of properly invoking this court’s jurisdiction.” Day claims the trial court
is obligated to issue a revised sentencing entry reflecting the sentence it pronounced from
the bench — 15 years to life on Count 2.
{¶9} We construe Day’s “Motion to Revise Sentencing Entry” as a petition for
postconviction relief. State v. Bankston, 10th Dist. Franklin. No. 13AP-250,
2013-Ohio-4346, ¶ 7, citing State v. Reynolds, 79 Ohio St.3d 158, 160, 1997-Ohio-304,
679 N.E.2d 1131 (“where a criminal defendant, subsequent to his or her direct appeal,
files a motion seeking vacation or correction of his or her sentence on the basis that his or
her constitutional rights have been violated, such a motion is a petition for postconviction
relief as defined in R.C. 2953.21”). We review the trial court’s decision regarding
postconviction proceedings for an abuse of discretion. State v. Gondor, 112 Ohio St.3d
377, 2006-Ohio-6679, 860 N.E.2d 77. Finally, we note that res judicata is applicable in
all postconviction relief proceedings. State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d
233 (1996). {¶10} First, pursuant to R.C. 2953.21(A)(2), a petition for postconviction relief is
to be filed within the 180-day time limitation. A trial court may consider an untimely
petition only if (1) the petitioner is “unavoidably prevented” from discovering the facts
upon which the petition is based, or (2) the petitioner “shows by clear and convincing
evidence that a reasonable factfinder would not have found him guilty but for
constitutional error at trial.” State v. Sharif, 8th Dist. Cuyahoga No. 79325, 2001 Ohio
App. LEXIS 4354 (Sept. 27, 2001), *9-10. Day filed his “Motion to Revise Sentencing
Entry” nine years after his conviction, without demonstrating why he was delayed.
{¶11} Second, Day’s allegation of a defect in the sentencing entry is barred by
res judicata, because he could have raised the issue on his direct appeal. State v. Byrd,
145 Ohio App.3d 318, 332, 762 N.E.2d 1043 (1st Dist.2001) (appellant’s claim relating to
an alleged sentencing defect was barred by res judicata because he could have raised this
claim on direct appeal and he presented no evidence outside the record demonstrating
why he failed to do so).
{¶12} Even if we were to consider the allegation, we do not perceive a defect in
the sentencing entry claimed by Day. The sentencing entry stated, in pertinent part:
The jury returns a verdict of not guilty of murder * * * as charged in count one, but guilty of reckless homicide * * *, the lesser included offense under count one of the indictment; guilty of murder * * * as charged in count two.
***
The court imposes a prison term at Lorain Correctional Institution, Count 1 to merge with Count 2 for sentencing purposes[,] for a term of 15 years to life.” {¶13} Although an added punctuation may have made the statement clearer, there
is no doubt in the sentencing entry the trial court merged Count 1 (reckless homicide) into
Count 2 (felony murder), and imposed a term of 15 years to year to life on Count 2,
reflecting exactly the sentence it had pronounced at the sentencing hearing. Any
“revision” of the judgment entry requested by Day is unnecessary.
{¶14} Finally, it is unclear how a “revised” judgment reflecting his 15-year-to-life
term on Count 2 would benefit Day. His assignment of error states the trial court’s
“failure to journalize the sentence actually pronounced in open court has effectively
deprived the appellant of the final judgment necessary to effect a valid appeal of right as
to that sentence.” This claim is perplexing because Day did successfully exercise his
right to appeal, raising a multitude of claims regarding his conviction of murder on Count
2 as well as his sentence for the conviction, which this court fully considered in Day,
supra.
{¶15} For the foregoing reasons, the assignment of error is without merit and the
trial court’s denial of Day’s “Motion to Revise Sentencing Entry and Issue Final
Judgment” is affirmed.
{¶16} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________ TIM McCORMACK, JUDGE
MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR