State v. Whitt

2017 Ohio 7549

• Court: Ohio Court of Appeals
• Decided: September 8, 2017
• Docket: 2017CA0007
• Status: Published

Opinion

[Cite as State v. Whitt, 2017-Ohio-7549.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : STEPHEN H. WHITT : Case No. 2017CA0007 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case No. 09 CR 0067

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 8, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JASON W. GIVEN STEPHEN H. WHITT, pro se Coshocton County Prosecuting Attorney LECI 318 Chestnut Street PO Box 56 Coshocton, Ohio 43812 Lebanon, Ohio 45036 Coshocton County, Case No. 2017CA0007 2

Baldwin, J.

{¶1} Appellant Stephen H. Whitt appeals a judgment of the Coshocton County

Common Pleas Court denying his motion to “Nullify Judgment Entry and Discharge

Defendant.” Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 20, 2009, the Coshocton County Grand Jury indicted appellant on

two counts of rape in violation of R.C. 2907.02 and two counts of sexual battery in violation

of R.C. 2907.03. Said charges arose from incidents involving a child when the child was

twelve and thirteen years old.

{¶3} A bench trial commenced on April 13, 2010. By judgment entry filed April

15, 2010, the trial court found appellant guilty of all counts. By judgment entry of

sentencing filed June 15, 2010, the trial court sentenced appellant to an aggregate

indefinite term of twenty-five years to life in prison and then merged the sexual battery

counts with the rape counts.

{¶4} Appellant appealed and this Court affirmed his conviction, but reversed the

sentences on the sexual battery counts which had been imposed prior to the merge. State

v. Whitt, 5th Dist. Coshocton App. No. 10–CA–10, 2011–Ohio–3022.

{¶5} On January 30, 2012, the trial court conducted a resentencing hearing. By

judgment entry of resentencing filed February 8, 2012, the trial court merged the sexual

battery counts with the rape counts and sentenced appellant to an aggregate indefinite

term of twenty-five years to life in prison. The sentence was affirmed by this Court. State

v. Whitt, 5th Dist. Coshocton App. No. 12–CA–3, 2012–Ohio–3094. Coshocton County, Case No. 2017CA0007 3

{¶6} On May 12, 2017, appellant filed a motion to nullify the judgment entry and

discharge the defendant. The trial court overruled the motion on May 16, 2017. Appellant

assigns three errors to this judgment entry:

{¶7} “I. THE COURT LACKED SUBJECT MATTER JURISDICTION UNDER

CRIM. R. 7(D), WHICH DOES NOT PERMIT THE AMENDMENT OF AN INDICTMENT

WHEN IT CHANGES THE PENALTY OR DEGREE OF THE CHARGES OF THE

OFFENSES, THIS VIOLATED DUE PROCESS AND EQUAL PROTECTION, IN THE

14TH AMENDMENT.

{¶8} “II. THE JOURNAL ENTRY IS VOID, AND THIS CREATED THAT THE

APPELLATE COURT HAD NO JURISDICTION TO HEAR AN APPEAL WITHOUT A

PROPER JOURNAL ENTRY UNDER CRIM. R. 32(C), R.C. 2505.02, AND OHIO

CONST. ART IV AND 3(B)(2).

{¶9} “III. THE TRIAL COURT NEVER ESTABLISHED VENUE BEYOND A

REASONABLE DOUBT, AND THE VENUE STATUTE HAS SUBJECT MATTER

JURISDICTION, AND TERRITORY WHICH THE STATE MUST PROVE BEYOND A

REASONABLE DOUBT, (R.C.2901.12(A)), FEDERAL LAW IN VENUE STATUTE

STATES THAT THE COURT MUST PROVE ALL OF THE CRIMES WERE COMMITTED

IN COUNTY WHERE CRIME WAS COMMITTED.”

I.

{¶10} In his first assignment of error, appellant argues that the court erred in

permitting an amendment of the indictment that changed the penalty or degree of the

charged offenses in violation of Crim. R. 7(D). Coshocton County, Case No. 2017CA0007 4

{¶11} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding, other than a direct appeal from the judgment, any defense or lack of due

process that was raised or could have been raised at the trial which resulted in the

judgment of conviction, or on appeal from that judgment. State v. Szefcyk, 77 Ohio St.3d

93, 1996–Ohio–337, 671 N.E.2d 233, syllabus. A claimed error in the amendment of the

indictment pursuant to Crim. R. 7(D) is barred by res judicata if not raised on direct appeal.

State v. Brust, 4th Dist. Pike No. 95CA551, 1995 WL 716755 (November 20, 1995). As

appellant could have raised this issue on direct appeal from his judgment of conviction

and sentence, it is now barred by res judicata.

{¶12} The first assignment of error is overruled.

II.

{¶13} In his second assignment of error, appellant argues that this Court lacked

subject matter jurisdiction over his 2010 appeal because the judgment of conviction and

sentence did not comply with Crim. R. 32, and was thus not a final appealable order.

{¶14} In State v. Baker, the Ohio Supreme Court interpreted Crim.R. 32(C) and

held that a judgment of conviction is not a final, appealable order unless it sets forth “(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.” 119 Ohio St.3d. 197, 2008–Ohio–3330, 893 N.E.2d 163, at syllabus. State

v. Lester later modified Baker by holding that a judgment of conviction need not state the

manner of conviction (i.e., a plea or a verdict) in order to constitute a final, appealable

order, but need only set forth (1) the fact of the conviction, (2) the sentence, (3) the judge's Coshocton County, Case No. 2017CA0007 5

signature, and (4) the time-stamp by the clerk. 130 Ohio St.3d 303, 2011–Ohio–5204,

958 N.E.2d 142, at paragraph one of the syllabus.

{¶15} The judgment entry which this Court reviewed in appellant’s 2010 appeal

states that he was found guilty after a bench trial, sets forth the sentence of the court, is

signed by the judge, and was entered by the clerk of courts on the journal. The judgment

was a final, appealable order and this Court was not without jurisdiction to review

appellant’s 2010 appeal.

{¶16} The second assignment of error is overruled.

III.

{¶17} In his third assignment of error, appellant argues that the State failed to

prove venue and subject matter jurisdiction at his trial. This issue was raised in

appellant’s first appeal and found to be without merit. State v. Whitt, 5th Dist. Coshocton

App. No. 10–CA–10, 2011–Ohio–3022, ¶¶23-39. Appellant’s third assignment of error is

therefore barred by res judicata. Szefcyk, supra.

{¶18} The third assignment of error is overruled. Coshocton County, Case No. 2017CA0007 6

{¶19} The judgment overruling appellant’s motion to nullify judgment and

discharge defendant is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Delaney, P.J. and

Hoffman, J. concur.