State v. Ginier

2026 Ohio 415

• Court: Ohio Court of Appeals
• Decided: February 5, 2026
• Docket: 2025 AP 08 0030
• Status: Published

Opinion

[Cite as State v. Ginier, 2026-Ohio-415.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, Case No. 2025 AP 08 0030

Plaintiff - Appellee Opinion And Judgment Entry

-vs- Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2019 CR 09 0380 ARTHUR J. GINIER III, Judgment: Affirmed Defendant – Appellant Date of Judgment Entry: February 5, 2026

BEFORE: Craig R. Baldwin; Robert G. Montgomery; David M. Gormley, Judges

APPEARANCES: KRISTINE W. BEARD, for Plaintiff-Appellee; ARTHUR J. GINIER III, PRO SE, Defendant-Appellant.

Montgomery, J.

{¶1} Appellant, Arthur J. Ginier, III, appeals from the trial court’s denial of his

“Motion to Correct Sentencing Entry,” filed on July 14, 2025, to correct a sentencing entry

imposed in 2020 - after being convicted of attempted murder, felonious assault, two

counts of grand theft of a motor vehicle, and theft. For the reasons below, we AFFIRM

the trial court. BACKGROUND FACTS

{¶2} On January 28, 2020, Appellant entered a negotiated plea agreement. As

part of the plea agreement, Appellant pled no contest to attempted murder, felonious

assault, two counts of grand theft of a motor vehicle, and theft. The trial court found

Appellant guilty of the charges and as part of the plea, agreed to impose an aggregate

prison term of seven (7) years minimum to ten and a half (10 ½) years maximum. On

March 20, 2020, Appellant was sentenced to serve seven to ten and a half years on the

attempted murder charge. No additional sentences were imposed for the remaining

convictions, e.g. felonious assault, grand theft auto, and theft.

{¶3} More than five (5) years later, on July 14, 2025, Appellant filed the instant

Motion. In the Motion, Appellant argues that at the time of sentencing, the trial judge failed

to inform him regarding non-life felonies, and that there was a presumption of early

release after the minimum prison term. Appellant requested that the trial court correct the

entry to include such language, in accordance with R.C. 2967.271(B). The trial court

denied the Motion, finding that (1) Appellant failed to provide a transcript of the plea and

sentencing hearing; and (2) his argument is barred by res judicata because he failed to

file a direct appeal.

ASSIGNMENT OF ERROR

{¶4} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT’S SUBSTANTIAL CONSTITUTIONAL AND STATUTORY RIGHTS BY REFUSING TO ISSUE A “NUNC PRO TUNC” ENTRY TO CORRECT THE SENTENCE ENTRY DATED JULY 29TH 2025.”

STANDARD OF REVIEW

{¶5} As set forth, Appellant was convicted in 2020, but he did not file a direct

appeal. Although Appellant calls the instant filing a “Motion” to correct his sentencing entry, it is akin to a post-conviction proceeding since the matter is indeed from 2020.1

This Court has held that a motion to correct or vacate a sentence may be construed as a

petition for post-conviction relief where the motion was filed subsequent to a direct appeal,

claimed a denial of constitutional rights, sought to render the judgment void, and asks to

vacate the judgment or sentence. State v. Krouskoupf, 2024-Ohio-1748, ¶ 35 (5th Dist.),

citing, State v. Reynolds, 79 Ohio St.3d 158, 160-161 (1997). Although no direct appeal

was filed in this case, the post-conviction analysis is applicable.

{¶6} The Ohio Supreme Court defines a post-conviction proceeding as a

collateral civil attack on the judgment, such that the right to file for such relief is a statutory

right, not a constitutional one. State v. Calhoun, 86 Ohio St.3d 279, 281 (1999); State v.

Broom, 2016-Ohio-1028, ¶ 28. The doctrine of res judicata applies to all post-conviction

matters. Krouskoupf, ¶ 36. Pursuant to the doctrine, “a final judgment of conviction bars

the defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that the defendant raised or

could have raised at the trial which resulted in that judgment of conviction or on appeal

from that judgment.” State v. Snyder, 2016-Ohio-832, ¶ 26 (5th Dist.) (emphasis added),

quoting State v. Perry, 10 Ohio St.2d 175 (1967). It is well established that a defendant

cannot raise an issue through post-conviction proceedings if he or she could have raised

the issue on direct appeal. State v. Elmore, 2005-Ohio-5940, ¶ 21 (5th Dist.), quoting

State v. Reynolds, 79 Ohio St.3d 158, 161 (1997).

1 If the Motion is indeed a post-conviction proceeding, Appellant is well beyond any deadline for filing. See R.C. 2953.21(A)(2)(a) (requiring a petition to be filed within 365 days of the transcript being filed in a direct appeal, unless certain requirements are met). If a post-conviction petition is untimely, a trial court generally lacks subject-matter jurisdiction to adjudicate the petition unless an exception applies. State v. Apanovitch, 2018-Ohio-4744, ¶¶ 36, 38. However, because the Motion fails for other reasons set forth herein, we decline to analyze the timeliness issue. {¶7} Upon review, we find that the sentencing issues raised by Appellant in his

Motion and the instant appeal were cognizable on direct appeal, albeit Appellant failed to

file a direct appeal. Thus, any error in the trial court’s notification during sentencing is

barred by res judicata. State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the

syllabus; State v. Feagin, 2023-Ohio-2847, ¶¶ 35-36 (5th Dist.).

{¶8} Additionally, we find the trial court properly denied Appellant’s Motion due

to his failure to file a transcript of the proceedings. It is true that a trial court retains

jurisdiction to correct “clerical errors,” in its judgment entries and issue a “nunc pro tunc”

entry. See State ex rel. Cruzado v. Zaleski, 2006-Ohio-5795, ¶ 19 (stating that trial courts

retain jurisdiction to correct clerical errors in judgment entries so that the entries

accurately reflect the trial court's decision); 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").

{¶9} However, it is incumbent on the party claiming error to provide a transcript

of the proceedings below for appellate review. Knapp v. Edwards Labs., 61 Ohio St.2d

197 (1980). Indeed, Appellant has the burden of demonstrating error by reference to

matters within the record. State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d 1355 (1978).

Where portions of the transcript necessary for resolution of the assigned errors are

omitted from the record, an appellate court has nothing to pass upon and we must

presume the validity of the lower court's proceedings. In re C.M., 2020-Ohio-2834, ¶ 9

(5th Dist.).

{¶10} Here, Appellant suggests the trial court failed to advise him of certain things

at sentencing, namely that the trial judge failed to inform him that for non-life felonies, there is a presumption of early release after the minimum prison term. However,

Appellant does not provide a transcript of that hearing. Thus, the court presumes the

validity of the trial court proceedings. Because Appellant’s Motion raises issues barred

by res judicata and/or does not provide a transcript to support any alleged errors during

sentencing, Appellant’s Motion fails. As such, Appellant’s assignment of error is

overruled.

CONCLUSION

{¶11} The trial court did not err in denying Appellant’s Motion to correct his

sentencing entry.

{¶12} For the reasons stated in our accompanying Opinion, the judgment of the

Tuscarawas County Court of Common Pleas is Affirmed.

{¶13} Costs to Appellant.

By: Montgomery, J.

Baldwin, P.J. and

Gormley, J. concur.