State v. McCall

2011 Ohio 6368

Opinion

[Cite as State v. McCall, 2011-Ohio-6368.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 10 MA 102 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) DAMON L. McCALL ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 90 CR 493

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: Damon Luell McCall, Pro se #233-304 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: December 9, 2011 [Cite as State v. McCall, 2011-Ohio-6368.] WAITE, P.J.

{1} Appellant Damon McCall shot and killed Hayel Al-Hadid and wounded

Aref Al-Mawadieh in Steve’s Super Saver in Youngstown on July 19, 1990. Appellant

was convicted and sentenced on aggravated murder, felonious assault, and

aggravated robbery on April 4, 1991. The conviction and sentence were upheld on

appeal to this Court. State v. McCall (May 3, 1993), 7th Dist. No. 91 C.A. 66. On

February 19, 2010, Appellant filed a motion for a new sentencing judgment entry that

would comply with Crim.R. 32(C) and State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-

3330, 893 N.E.2d 163. The Baker decision interpreted Crim.R. 32(C), which requires

that a “judgment of conviction shall set forth the plea, the verdict, or findings, upon

which each conviction is based, and the sentence.” Baker held that for a sentencing

judgment to be a final appealable order it must contain: “(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.” Id. at syllabus. Appellant alleged that his original sentencing judgment entry

did not comply with Baker and was not a final appealable order. The trial court

agreed with Appellant and issued an amended judgment entry on June 9, 2010.

Appellant has filed a pro se appeal of that judgment, arguing that his previous appeal

has no res judicata effect since the original sentencing entry filed in 1993 is void. He

now argues for the first time that his indictment was defective and created reversible

error. Based on recent caselaw from the Ohio Supreme Court, we conclude that

Appellant’s argument is barred by res judicata. The judgment of the trial court is

affirmed. -2-

ASSIGNMENT OF ERROR

{2} “STRUCTURAL ERROR RESULTED WHERE APPELLANT WAS

DEPRIVED OF HIS RIGHT TO GRAND JURY INDICTMENT, TO DUE PROCESS

AND A FAIR TRIAL PURSUANT TO ARTICLE 1 SECTION 10 OF THE OHIO

CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENT [SIC] TO

THE U.S. CONSTITUTION WHERE INDICTMENT(S) UPON WHICH APPELLANT

WAS TRIED, CONVICTED AND SENTENCED OMITTED ESSENTIAL ELEMENTS

OF OFFENSES SOUGHT TO BE CHARGED.”

{3} Appellant is seeking to re-appeal the merits of his conviction, despite

the fact that we affirmed his conviction on May 3, 1993. His attempt is based on the

argument that his original sentencing judgment entry was void ab initio. He relies on

State v. Baker, supra, which held that a sentencing judgment entry is not a final

appealable order under Crim.R. 32(C) unless it contains the means or manner of

conviction (whether based on a guilty plea, a no contest plea upon which a court has

made a finding of guilt, a guilty verdict resulting from a jury trial, or a guilty verdict

resulting from a bench trial), as well as the sentence, the signature of the judge, and

entry on the journal by the clerk of court. The state appears to concede that a Baker

error did occur in the original sentencing entry. Although Baker has been somewhat

modified by the Supreme Court recently in State v. Lester, Slip Opinion No. 2011-

Ohio-5204, we will assume arguendo that Baker is applicable, here. Ohio courts

have been struggling to reconcile the holding of Baker, which invalidated many

criminal sentences based on noncompliance with the rules governing final -3-

appealable orders, with that of State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250,

which created a distinction between “void” and “voidable” judgments arising from

sentencing errors. Bezak held that a sentence in which the trial court is required to

notify the defendant of post-release control, but does not, is a void sentence requiring

a new sentencing hearing and a new sentencing judgment entry. It was quickly

apparent in subsequent appellate cases that the Bezak logic likely applied to Crim.R.

32(C) and Baker problems as well. These cases raised the likelihood that all cases

involving Baker errors were now void, creating endless litigation dealing with

noncompliant sentencing entries that, theorectically, should not have been reviewed

on appeal because they were not final appealable orders.

{4} Two recent Ohio Supreme Court cases have effectively eliminated the

Bezak quagmire. In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332, the Ohio Supreme Court concluded that a void sentence may be

reviewed by an appellate court, and that the doctrines of the law of the case and res

judicata apply to subsequent review of the case after the sentencing error is

corrected:

{5} “Fischer's theory is that because the trial court did not properly apply

postrelease-control sanctions, his sentence was void under Bezak. Because his

sentence was void, he contends, there was no sentence, and without a sentence, no

conviction and no final order. In Fischer's view, the absence of a conviction means

the absence of a final, appealable order, and the absence of such an order deprived -4-

the court of appeals of its jurisdiction over the initial appeal, thereby rendering that

appeal invalid. The argument, though creative, fails.

{6} “Nothing in Baker discusses void or voidable sentences. Rather, the

syllabus speaks only to the requirement that the judgment of conviction set forth ‘the

sentence’ in addition to the other necessary aspects of the judgment. The judgment

in this case did set forth the sentence. The fact that the sentence was illegal does

not deprive the appellate court of jurisdiction to consider and correct the error. In

fact, R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court to modify or

vacate any sentence that is ‘contrary to law.’ Clearly, no such authority could exist if

an unlawful sentence rendered a judgment nonfinal and unappealable.” (Citiations

omitted.) Id. at ¶38-39.

{7} Fischer, although not entirely overruling Bezak, prohibited courts from

applying Bezak to cases involving sentencing errors arising from Crim.R. 32(C) and

Baker issues. Furthermore, Fischer acknowledged that res judicata applies to

convictions that were reviewed by an appellate court, even though the sentencing

judgment entry on appeal contained a Baker error. Fischer at paragraph one of the

syllabus. “The court of appeals correctly ruled that Fischer, having already had the

benefit of one direct appeal, could not raise any and all claims of error in a second,

successive appeal. * * * In light of our holding, the court of appeals in this case

correctly held that Fischer's remaining claims, which did not involve a void sentence

or judgment, were barred by res judicata.” Fischer at ¶33–36. “Although the

doctrine of res judicata does not preclude review of a void sentence, res judicata still -5-

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.

{8} “We therefore hold that void sentences are not precluded from

appellate review by principles of res judicata and may be reviewed at any time, on

direct appeal or by collateral attack. We further hold that although the doctrine of res

judicata does not preclude review of a void sentence, 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. The scope of an appeal from a

resentencing hearing in which a mandatory term of postrelease control is imposed is

limited to issues arising at the resentencing hearing.” Id. at ¶40.

{9} In State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235,

943 N.E.2d 535, the Ohio Supreme Court reaffirmed Fischer. It held that a Baker

error was a clerical error and that the remedy for the error was the issuance of a

corrected sentencing entry. Id. at ¶18. Burge reaffirmed that a sentencing entry that

failed to comply with Baker did not deprive a court of appeals from reviewing the

underlying conviction: “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 and not to issue a new

sentencing order reflecting what, in a successive judge's opinion, the court should

have ruled. These circumstances are thus distinguishable from egregious defects,

such as an entry that is not journalized, that permit a court to vacate its previous -6-

orders. Moreover, the technical failure to comply with Crim.R. 32(C) by not including

the manner of conviction in Smith's sentence is not a violation of a statutorily

mandated term, so it does not render the judgment a nullity.” (Emphasis in original.)

Burge at ¶19.

{10} Given the Supreme Court of Ohio's intervening decisions in Burge and

Fischer, Appellant cannot relitigate issues that were either raised, or should have

been raised, in his earlier direct appeal. “Under the doctrine of res judicata, a final

judgment of conviction bars the convicted defendant from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of

due process that was raised or could have been raised by the defendant at the trial

which resulted in that judgment of conviction or on an appeal from that judgment.”

State v. Perry (1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104. The trial court’s

reissuance of the sentencing judgment entry on June 9, 2010, based on a perceived

Baker error, did not nullify our previous judgment affirming Appellant’s conviction in

full. Appellant could have raised errors dealing with the indictment, but did not, in his

direct appeal. He cannot attempt to litigate those errors now.

{11} Further, even if Appellant was not barred from raising his argument on

appeal, it would be overruled. Appellant argues that counts one and three of the

indictment fail to adequately apprise him of his crimes by failing to specify a culpable

mental state, even though the indictment tracks the language of the statutory

sections under which he is charged. Appellant relies primarily on State v. Colon, 118

Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, in support, but that case has been -7-

overruled by State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26.

Horner held that: “An indictment that charges an offense by tracking the language of

the criminal statute is not defective for failure to identify a culpable mental state when

the statute itself fails to specify a mental state.” Id. at paragraph one of the syllabus.

{12} For the aforementioned reasons, Appellant cannot now challenge the

validity of his indictment when he failed to raise this error on direct appeal. The fact

that the trial court reissued Appellant’s sentencing judgment entry due to a Baker

error does not provide a second opportunity to challenge the underlying conviction

after that conviction was upheld by us some eighteen years ago. The case on which

Appellant bases his argument, i.e., State v. Colon, has been overruled by the Ohio

Supreme Court. Appellant’s sole assignment of error is overruled and the judgment

of the trial court is affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs in judgment only.