State v. Orr

2014 Ohio 501

• Court: Ohio Court of Appeals
• Decided: February 13, 2014
• Docket: 100166
• Status: Published

Opinion

[Cite as State v. Orr, 2014-Ohio-501.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100166

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MAXIE ORR, JR. DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-541628

BEFORE: S. Gallagher, J., Boyle, A.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: February 13, 2014 FOR APPELLANT

Maxie Orr, Jr., pro se Inmate #600-040 Grafton Correctional Institution 2500 S. Avon-Beldon Road Grafton, OH 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Mary H. McGrath Assistant Prosecuting Attorney Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, J.:

{¶1} Appellant Maxie Orr, Jr., appeals from the order of the Cuyahoga County

Court of Common Pleas that denied his motion to merge illegal firearm specifications.

For the reasons stated herein, we affirm.

{¶2} In January 2011, Orr was convicted of attempted murder, aggravated robbery,

theft, carrying a concealed weapon, discharge of a firearm on or near prohibited premises,

and firearm specifications. He was sentenced to nine years in prison. His convictions

and sentence were affirmed on direct appeal in State v. Orr, 8th Dist. Cuyahoga No.

96377, 2011-Ohio-6269 (“Orr I”).

{¶3} In Orr I, the court addressed an allied offenses of similar import challenge

and ruled as follows:

The trial court did merge the felonious assault conviction into the

attempted murder conviction and also merged the kidnapping conviction

into the aggravated robbery conviction. Therefore, the issue now is

whether the attempted murder and the aggravated robbery convictions, and

their separate firearm specifications, should merge as well. Applying the

merger analysis to the facts, they should not. The record evidence reflects

that the aggravated robbery was completed before defendant shot at [the

victim]. Accordingly, the offenses were not committed with the same

conduct and should not be merged.

Id. at ¶ 38. {¶4} In June 2013, Orr filed a motion to merge illegal firearm specifications,

claiming that the trial court erred in imposing consecutive sentences on the three-year

firearm specifications in Counts 1 and 2. The trial court denied the motion, finding res

judicata barred the claim.

{¶5} Orr filed this appeal, raising two assignments of error for our review. His

first assignment of error asserts that the case lacks a final order because the trial court’s

entry denying his motion does not include “a time stamp showing journalization by the

clerk of court” as required by Crim.R. 32(C). This argument is misguided. Crim.R.

32(C) pertains to the judgment of conviction. In this case, Orr already filed a direct

appeal from the judgment of conviction, and his convictions and sentence were affirmed

in Orr I. Further, insofar as a judgment of conviction is required to bear a time stamp

showing journalization, we have previously found that a time stamp reflecting the

judgment entry had been received for filing is sufficient to provide notice of

journalization by the clerk and complies with the requirement of Crim.R. 32(C). State v.

Smith, 8th Dist. Cuyahoga No. 99428, 2013-Ohio-3154; see also State v. Caulton, 7th

Dist. Mahoning No. 12 MA 150, 2013-Ohio-2953, ¶ 22 (finding a date stamp showing the

date the judgment entry filed with the clerk for journalization complies with the purpose

of Crim.R. 32(C) by placing the defendant on notice that the 30-day time for filing an

appeal has begun pursuant to App.R. 4(A)).

{¶6} Orr’s motion to merge illegal firearm specifications was effectively an

untimely postconviction motion. Under R.C. 2953.21(A)(2), Orr was required to file a petition for postconviction relief “no later than one hundred eighty days after the date on

which the trial transcript is filed in the court of appeals in the direct appeal of the

judgment of conviction.” Orr’s first assignment of error is overruled.

{¶7} Orr’s second assignment of error claims the trial court erred in denying his

motion to merge the firearm specifications, which he asserts were part of the same

transaction. However, not only was Orr’s motion untimely, the issue he raises is barred

by res judicata. Orr maintains he did not raise the issue of merging the two firearm

specifications in Orr I. However, our review reflects that merger of the offenses and

their firearm specifications was raised and addressed in Orr I, 8th Dist. Cuyahoga No.

96377, 2011-Ohio-6269, at ¶ 37-38. To the extent Orr argues the issue of merger as it

relates to the two firearm specifications was not raised in his first appeal, we nonetheless

find that the issue is barred by res judicata because it could have been raised, or was not

successfully challenged, on direct appeal in Orr I. Therefore, we overrule the second

assignment of error.

{¶8} Judgment affirmed.

It is ordered that appellee recover from 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. 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.

SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and EILEEN T. GALLAGHER, J., CONCUR