[Cite as State v. O'Neal, 2012-Ohio-5564.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0032-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE WILLIAM B. O'NEAL COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 04 CR 0547
DECISION AND JOURNAL ENTRY
Dated: December 3, 2012
CARR, Judge.
{¶1} Appellant, William O’Neal, appeals the judgment of the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} This case stems out of a violent episode that occurred at a night club in Medina on
the night of October 13, 2004.
{¶3} On November 21, 2004, the Medina County Grand Jury indicted O’Neal on a
myriad of charges. After initially pleading not guilty to the charges at arraignment, O’Neal
entered into a plea agreement with the State and pleaded guilty to three counts of kidnapping
with firearm specifications, two counts of felonious assault with firearm specifications, one count
of carrying a concealed weapon, and one count of illegal possession of a firearm in a liquor
permit premises. The trial court merged several counts and O’Neal was sentenced on one count
of kidnapping, one count of felonious assault with a firearm specification, one count of carrying 2
a concealed weapon, and one count of possession of a firearm in a liquor permit premise, for a
total prison term of thirteen years.
{¶4} This matter has a lengthy appellate history. O’Neal appealed from the trial
court’s initial sentencing entry and raised one assignment of error, arguing that the consecutive
sentences violated his constitutional rights. This Court reversed and remanded for proceedings
consistent with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. State v. O’Neal, 9th Dist. No.
05CA0076-M, 2006-Ohio-1904. The trial court held a resentencing hearing on June 9, 2006, and
issued a new sentencing entry on June 14, 2006. While O’Neal had been resentenced pursuant to
our decision in his first appeal, the trial court ultimately imposed the same total prison sentence
of thirteen years. On appeal, this Court held that the trial court’s June 14, 2006 sentencing entry
was not a final, appealable order because it did not contain a finding of guilt by the trial court
after O’Neal’s guilty plea. State v. O’Neal, 9th Dist. No. 06CA0056-M, 2007-Ohio-2266. The
trial court issued a nunc pro tunc sentencing entry on April 4, 2007, indicating that O’Neal had
be found guilty after entering his plea. O’Neal filed a third notice of appeal and we determined
that the matter was “now properly before this Court.” State v. O’Neal, 9th Dist. No. 07CA0050-
M, 2008-Ohio-1325, ¶ 4. In addressing the merits of O’Neal’s appeal in our March 24, 2008
decision, this Court overruled his four assignments of error and affirmed his conviction and
sentence. Id. at ¶ 20.
{¶5} While his third appeal was pending, on October 31, 2007, O’Neal filed a petition
for post-conviction relief in the trial court. On March 25, 2008, the trial court denied the petition
on the basis that is was untimely. Counsel for O’Neal filed a notice of appeal, and O’Neal
himself filed a pro se notice of appeal from the March 25, 2008 judgment entry. O’Neal
subsequently dismissed Case No. 08CA0025-M and proceeded under the notice of appeal filed 3
by counsel. In our decision released on December 15, 2008, this Court affirmed the trial court’s
denial of O’Neal’s petition for post-conviction relief. State v. O’Neal, 9th Dist. No. 08CA0028-
M, 2008-Ohio-6572.
{¶6} On April 22, 2009, O’Neal filed a motion to invalidate his sentence. The trial
court denied the motion and O’Neal filed his sixth notice of appeal in this matter. On appeal,
this Court held that the nunc pro tunc sentencing entry issued by the trial court did not comport
with the statutory mandates regarding the imposition of post-release control. On the authority of
State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, this Court concluded that O’Neal was
entitled to a new sentencing hearing due to the post-release control error. State v. O’Neal, 9th
Dist. No. 09CA0045-M, 2010-Ohio-1252, ¶ 14.
{¶7} Before the trial court conducted the resentencing hearing, O’Neal moved to
withdraw his plea, and he also moved to dismiss the indictment on the basis that the trial court
had lost jurisdiction due to unreasonable delay without imposing a sentence. The trial court
denied O’Neal’s motions and he filed his seventh notice of appeal, raising numerous assignments
of error. This Court concluded that the trial court did not have the authority to address O’Neal’s
motion to withdraw his plea, and that the trial court properly exercised its jurisdiction in
resentencing O’Neal. State v. O’Neal, 9th Dist. No. 10CA0140-M, 2012-Ohio-396, ¶ 7 - ¶ 10.
This Court specifically noted that the scope of O’Neal’s resentencing hearing was limited to the
proper imposition of post-release control pursuant to State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238. Id. at ¶ 6. Thus, the terms of his sentence as stated in the April 4, 2007 nunc pro
tunc sentencing entry remained in place. We further held that O’Neal’s allied offenses argument
was barred by the doctrine of res judicata, and that defense counsel had not rendered ineffective
assistance. Id. at ¶ 6, ¶ 12. 4
{¶8} On March 14, 2012, O’Neal filed a pro se motion in the trial court to correct
clerical errors in the judgment entry pursuant to Crim.R. 36. The trial court denied the motion on
March 27, 2012.
{¶9} O’Neal filed a timely notice of appeal and raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN NOT CORRECTING A CLERICAL ERROR, APPARENT FROM THE RECORD, THAT ERRONEOUSLY RECORDED THE TERMS OF A SENTENCE WERE TO BE SERVED CONSECUTIVELY AND NOT CONCURRENTLY AS ORDERED BY THE TRIAL COURT, AT THE JUNE 9, 2006 SENTENCING HEARING IN CASE NO. 04CR0547, AS AUTHORIZED UNDER CRIM.R. 36. THE TRIAL COURT’S FAILURE TO CORRECT THE ERROR HAS VIOLATED THE DEFENDANT’S CONSTITUTIONAL RIGHTS UNDER BOTH THE UNITED STATES AND OHIO CONSTITUTIONS TO DUE PROCESS, EQUAL PROTECTION OF THE LAW AND THE PROTECTION AGAINST DOUBLE JEOPARDY.
{¶10} In his assignment of error, O’Neal argues that the trial court erred by denying his
motion to correct a clerical error in the judgment entry. This Court disagrees.
{¶11} In his motion filed on March 14, 2012, O’Neal asked the trial court to correct a
clerical error in the April 4, 2007 nunc pro tunc entry which related back to the June 14, 2006
sentencing entry. O’Neal asserted that both entries erroneously stated that the prison terms for
kidnapping and felonious assault were to be served consecutively, when in actuality they were
ordered to be served concurrently at his sentencing hearing. O’Neal asked the trial court to
correct the “clerical error” pursuant to Crim.R. 36. The trial court denied O’Neal’s motion. On
appeal, O’Neal argues he is entitled to a sentencing entry that reflects the statements made on the
record at his sentencing hearing. O’Neal further argues that the error resulted in the
aforementioned judgment entries not being final, appealable orders. 5
{¶12} As an initial matter, an affirmative mistake in a sentencing entry is mere error for
which a defendant has an adequate remedy by way of direct appeal. State ex rel. Galloway v.
Lucas Cty. Court of Common Pleas, 130 Ohio St.3d 206, 2011-Ohio-5259, ¶ 3.
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[Cite as State v. O'Neal, 2012-Ohio-5564.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0032-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE WILLIAM B. O'NEAL COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 04 CR 0547
DECISION AND JOURNAL ENTRY
Dated: December 3, 2012
CARR, Judge.
{¶1} Appellant, William O’Neal, appeals the judgment of the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} This case stems out of a violent episode that occurred at a night club in Medina on
the night of October 13, 2004.
{¶3} On November 21, 2004, the Medina County Grand Jury indicted O’Neal on a
myriad of charges. After initially pleading not guilty to the charges at arraignment, O’Neal
entered into a plea agreement with the State and pleaded guilty to three counts of kidnapping
with firearm specifications, two counts of felonious assault with firearm specifications, one count
of carrying a concealed weapon, and one count of illegal possession of a firearm in a liquor
permit premises. The trial court merged several counts and O’Neal was sentenced on one count
of kidnapping, one count of felonious assault with a firearm specification, one count of carrying 2
a concealed weapon, and one count of possession of a firearm in a liquor permit premise, for a
total prison term of thirteen years.
{¶4} This matter has a lengthy appellate history. O’Neal appealed from the trial
court’s initial sentencing entry and raised one assignment of error, arguing that the consecutive
sentences violated his constitutional rights. This Court reversed and remanded for proceedings
consistent with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. State v. O’Neal, 9th Dist. No.
05CA0076-M, 2006-Ohio-1904. The trial court held a resentencing hearing on June 9, 2006, and
issued a new sentencing entry on June 14, 2006. While O’Neal had been resentenced pursuant to
our decision in his first appeal, the trial court ultimately imposed the same total prison sentence
of thirteen years. On appeal, this Court held that the trial court’s June 14, 2006 sentencing entry
was not a final, appealable order because it did not contain a finding of guilt by the trial court
after O’Neal’s guilty plea. State v. O’Neal, 9th Dist. No. 06CA0056-M, 2007-Ohio-2266. The
trial court issued a nunc pro tunc sentencing entry on April 4, 2007, indicating that O’Neal had
be found guilty after entering his plea. O’Neal filed a third notice of appeal and we determined
that the matter was “now properly before this Court.” State v. O’Neal, 9th Dist. No. 07CA0050-
M, 2008-Ohio-1325, ¶ 4. In addressing the merits of O’Neal’s appeal in our March 24, 2008
decision, this Court overruled his four assignments of error and affirmed his conviction and
sentence. Id. at ¶ 20.
{¶5} While his third appeal was pending, on October 31, 2007, O’Neal filed a petition
for post-conviction relief in the trial court. On March 25, 2008, the trial court denied the petition
on the basis that is was untimely. Counsel for O’Neal filed a notice of appeal, and O’Neal
himself filed a pro se notice of appeal from the March 25, 2008 judgment entry. O’Neal
subsequently dismissed Case No. 08CA0025-M and proceeded under the notice of appeal filed 3
by counsel. In our decision released on December 15, 2008, this Court affirmed the trial court’s
denial of O’Neal’s petition for post-conviction relief. State v. O’Neal, 9th Dist. No. 08CA0028-
M, 2008-Ohio-6572.
{¶6} On April 22, 2009, O’Neal filed a motion to invalidate his sentence. The trial
court denied the motion and O’Neal filed his sixth notice of appeal in this matter. On appeal,
this Court held that the nunc pro tunc sentencing entry issued by the trial court did not comport
with the statutory mandates regarding the imposition of post-release control. On the authority of
State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, this Court concluded that O’Neal was
entitled to a new sentencing hearing due to the post-release control error. State v. O’Neal, 9th
Dist. No. 09CA0045-M, 2010-Ohio-1252, ¶ 14.
{¶7} Before the trial court conducted the resentencing hearing, O’Neal moved to
withdraw his plea, and he also moved to dismiss the indictment on the basis that the trial court
had lost jurisdiction due to unreasonable delay without imposing a sentence. The trial court
denied O’Neal’s motions and he filed his seventh notice of appeal, raising numerous assignments
of error. This Court concluded that the trial court did not have the authority to address O’Neal’s
motion to withdraw his plea, and that the trial court properly exercised its jurisdiction in
resentencing O’Neal. State v. O’Neal, 9th Dist. No. 10CA0140-M, 2012-Ohio-396, ¶ 7 - ¶ 10.
This Court specifically noted that the scope of O’Neal’s resentencing hearing was limited to the
proper imposition of post-release control pursuant to State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238. Id. at ¶ 6. Thus, the terms of his sentence as stated in the April 4, 2007 nunc pro
tunc sentencing entry remained in place. We further held that O’Neal’s allied offenses argument
was barred by the doctrine of res judicata, and that defense counsel had not rendered ineffective
assistance. Id. at ¶ 6, ¶ 12. 4
{¶8} On March 14, 2012, O’Neal filed a pro se motion in the trial court to correct
clerical errors in the judgment entry pursuant to Crim.R. 36. The trial court denied the motion on
March 27, 2012.
{¶9} O’Neal filed a timely notice of appeal and raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN NOT CORRECTING A CLERICAL ERROR, APPARENT FROM THE RECORD, THAT ERRONEOUSLY RECORDED THE TERMS OF A SENTENCE WERE TO BE SERVED CONSECUTIVELY AND NOT CONCURRENTLY AS ORDERED BY THE TRIAL COURT, AT THE JUNE 9, 2006 SENTENCING HEARING IN CASE NO. 04CR0547, AS AUTHORIZED UNDER CRIM.R. 36. THE TRIAL COURT’S FAILURE TO CORRECT THE ERROR HAS VIOLATED THE DEFENDANT’S CONSTITUTIONAL RIGHTS UNDER BOTH THE UNITED STATES AND OHIO CONSTITUTIONS TO DUE PROCESS, EQUAL PROTECTION OF THE LAW AND THE PROTECTION AGAINST DOUBLE JEOPARDY.
{¶10} In his assignment of error, O’Neal argues that the trial court erred by denying his
motion to correct a clerical error in the judgment entry. This Court disagrees.
{¶11} In his motion filed on March 14, 2012, O’Neal asked the trial court to correct a
clerical error in the April 4, 2007 nunc pro tunc entry which related back to the June 14, 2006
sentencing entry. O’Neal asserted that both entries erroneously stated that the prison terms for
kidnapping and felonious assault were to be served consecutively, when in actuality they were
ordered to be served concurrently at his sentencing hearing. O’Neal asked the trial court to
correct the “clerical error” pursuant to Crim.R. 36. The trial court denied O’Neal’s motion. On
appeal, O’Neal argues he is entitled to a sentencing entry that reflects the statements made on the
record at his sentencing hearing. O’Neal further argues that the error resulted in the
aforementioned judgment entries not being final, appealable orders. 5
{¶12} As an initial matter, an affirmative mistake in a sentencing entry is mere error for
which a defendant has an adequate remedy by way of direct appeal. State ex rel. Galloway v.
Lucas Cty. Court of Common Pleas, 130 Ohio St.3d 206, 2011-Ohio-5259, ¶ 3. Thus, to the
extent that the trial court did impose a sentence that varied from what was discussed at the
sentencing hearing, that error did not result in the sentencing entry being non-final.
{¶13} With respect to O’Neal’s argument regarding clerical error, we note that the total
sentence reflected in the trial court’s April 4, 2007 sentencing entry accurately reflected the total
sentence imposed by the trial court at the June 9, 2006 sentencing hearing. In its April 4, 2007
sentencing entry, the trial court imposed a seven-year prison term on the felonious assault charge
that was to be served consecutively to the three-year prison term for the attendant firearm
specification. The trial court also imposed a three-year prison term on the kidnapping charge
which it ordered to run consecutively to the sentences for felonious assault and the gun
specification, for a total prison term of thirteen years. This was consistent with the total sentence
articulated by the trial court at the sentencing hearing, where it specifically informed O’Neal that
he was “looking at thirteen years.” The confusion in this matter arises from the fact that the trial
court mistakenly stated at the sentencing hearing that the prison terms for kidnapping and
felonious assault would be served concurrently, while the total length of the sentence clearly
indicates the trial court intended to run those sentences consecutively. Because the sentencing
entry itself does not contain a clerical mistake or error, the trial court properly denied O’Neal’s
motion to correct a clerical error in the judgment entry. To the extent that O’Neal has identified
a misstatement by the judge at the sentencing hearing, any error is harmless as it did not impact
the length of his sentence. See State v. Foster, 9th Dist. No. 11CA0114-M, 2012-Ohio-4199, ¶ 7,
fn. 1. 6
{¶14} O’Neal’s assignment of error is overruled.
III.
{¶15} O’Neal’s assignment of error is overruled. The judgment of the Medina County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
WHITMORE, P. J. CONCURS. 7
MOORE, J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
WILLIAM B. O’NEAL, pro se, Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting Attorney, for Appellee.