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The State of Ohio v. Lester

October 13, 2011

THE STATE OF OHIO,
APPELLEE,
v.
LESTER,
APPELLANT.



APPEAL from and CERTIFIED by the Court of Appeals for Auglaize County, No. 2-10-20.

SYLLABUS BY THE COURT

SYLLABUS OF THE COURT 1. A judgment of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) the time stamp indicating the entry upon the journal by the clerk. (Crim.R. 32(C), explained; State v. Baker, The opinion of the court was delivered by: Cupp, J.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Lester, Slip Opinion No. 2011-Ohio-5204.]

NOTICE

This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

SLIP OPINION NO. 2011-OHIO-5204

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Lester, Slip Opinion No. 2011-Ohio-5204.] Criminal procedure--Crim.R. 32(C)--Requirements for a judgment entry of conviction--Entry corrected as to formal requirement not subject to new appeal.

Submitted April 6, 2011-

{¶1} We are asked to determine this question: Is a nunc pro tunc judgment entry that is issued for the sole purpose of complying with Crim.R. 32(C) to correct a clerical omission in a prior final judgment entry a new final order from which a new appeal may be taken? We conclude that no new right of appeal is created by such an entry, and we affirm the judgment of the court of appeals.

I. Background

{¶2} In 2006, a jury found appellant, Steven Lester, guilty of various crimes. Appellant was sentenced to prison, and he was advised at the sentencing hearing that he would be subject to postrelease control after completing his prison term. In accordance with Crim.R. 32(C), the judgment entry of conviction stated, "The Court finds the Defendant has been convicted of [abduction, theft, attempted felonious assault, and aggravated menacing]," but the judgment entry did not set out whether the conviction was based upon a guilty or no-contest plea or upon a bench trial or jury trial. Appellant appealed, and the court of appeals vacated part of the sentence and remanded the cause for resentencing because of an error in the sentence regarding postrelease control. Third Dist. No. 2-06-31, 2007-Ohio-4239. Appellant meanwhile filed a motion for post-conviction relief, which was dismissed by the trial court. The dismissal was affirmed by the appellate court, and this court declined further discretionary review. Third Dist. No. 2-07-23, 2007-Ohio-5627; 117 Ohio St.3d 1439, 2008-Ohio-1279, 883 N.E.2d 457.

{¶3} On remand, the trial court resentenced appellant to the same prison term to which it had originally sentenced him, and it corrected the postrelease- control portion of the sentence. Again, the sentencing entry stated, "The Court finds the Defendant has been convicted of [abduction, theft, attempted felonious assault, and aggravated menacing]," but the judgment entry did not set out how appellant's original convictions were effected, that is, whether they were based upon a guilty or no-contest plea or findings after a bench trial or a verdict after a jury trial.

{¶4} Appellant again appealed. The court of appeals affirmed the trial court's sentence. Third Dist. No. 2-07-34, 2008-Ohio-1148. This court declined to accept a discretionary appeal. 119 Ohio St.3d 1413, 2008-Ohio-3880, 891 N.E.2d 771. Appellant then filed a second motion for post-conviction relief, which the trial court also denied. The denial was affirmed by the appellate court, and this court declined further review. (May 11, 2009) Third Dist. No. 2-08-24; 122 Ohio St.3d 1524, 2009-Ohio-4776, 913 N.E.2d 459.

{¶5} On April 5, 2010, the trial court sua sponte filed a nunc pro tunc judgment entry. The nunc pro tunc entry supplemented the wording of the original resentencing judgment entry by adding the following sentence to the existing text: "The Court finds the Defendant has been convicted, pursuant to a verdict at Jury Trial returned May 16, 2006, of [abduction, theft, attempted felonious assault, and aggravated menacing]." (Emphasis sic.) Appellant filed a notice of appeal from this nunc pro tunc entry in the Third District Court of Appeals. Before the matter was set for briefing, the appellate court sua sponte dismissed the appeal for lack of jurisdiction. (May 12, 2010) Third Dist. App. No. 2-10-20. The court concluded that the nunc pro tunc entry had been issued "for the sole purpose of retrospectively correcting a clerical omission in the prior sentencing judgment to comply with Crim.R. 32. No new or substantial right was affected under R.C. 2505.02(A)(1) [the final-order statute] by correction of the sentencing judgment to reflect what actually occurred and what clearly was evident throughout the record and, especially, to appellant. Appellant exhausted the appellate process when the resentencing judgment was reviewed and affirmed on appeal, and the Ohio Supreme Court declined to accept it on further appeal." The court held that the April 5, 2010 nunc pro tunc entry, consequently, was not a final order subject to appeal.

{¶6} Thereafter, appellant obtained a certification of a conflict of the decision in this case with that of State v. Lampkin, Lucas App. No. L-09-1270, 2010-Ohio-1971. We recognized the conflict and accepted appellant's discretionary appeal. 126 Ohio St.3d 1579 and 1581, 2010-Ohio-4542, 934 N.E.2d 353 and 354.

II. Crim.R. 32(C) and State v. Baker

{¶7} As a threshold matter to the question presented in this appeal, we must address a separate issue: whether a judgment entry of conviction that states the fact of defendant's conviction but does not state how the conviction was effected is nevertheless a final order from which an appeal may be taken. This issue arises because the judgment entry of conviction prior to the nunc pro tunc entry in the case now before us stated the fact of defendant's conviction but did not state whether the defendant was convicted through a guilty plea, a no-contest plea upon which the court made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial. Resolution of this foregoing issue requires a discussion of Crim.R. 32(C) and our decision in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.

{¶8} Crim.R. 32(C) specifies what a judgment entry of conviction must contain: "A judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence."*fn1 In State v. Baker, we confirmed that a judgment entry of conviction must contain the Crim.R. 32(C) elements to be final and subject to appeal: "A judgment of conviction is a final appealable order under R.C. 2505.02 when 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, syllabus.

{¶9} In Baker, we also stated that Crim.R. 32 only requires a trial court "to sign and journalize a document memorializing the sentence and the manner of the conviction: a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial." (Emphasis added.) Id. at ¶ 14. However, this foregoing sentence appears to have created confusion and generated litigation regarding whether a trial court's inadvertent omission of a defendant's "manner of conviction" affects the finality of a judgment entry of conviction. See, e.g., State v. Lampkin, Lucas App. No. L-09-1270, 2010-Ohio-5988, certified conflict and discretionary appeal accepted, 127 Ohio St.3d 1544, 1546, 2011-Ohio-647, 941 N.E.2d 802, 803 (holding that a judgment of conviction that does not comply with Baker is not a final, appealable order); State v. Tuggle, Lucas App. No. L-09- 1317, 2010-Ohio-4162, ¶ 4, discretionary appeal and cross-appeal not accepted, 128 Ohio St.3d 1411, 2011-Ohio-828, 942 N.E.2d 384 (finding that the appellant's original appeal was a legal nullity and that the appeal following resentencing was the appellant's first appeal as of right); State v. Hooper, Montgomery App. No. 22883, 2010-Ohio-4041, discretionary appeal accepted, 128 Ohio St.3d 1499, 2011-Ohio-2420, 947 N.E.2d 683 (rejecting the argument that an entry that omitted the manner of the conviction was not a final, appealable order); State v. Heft (June 4, 2010), Logan App. No. 8-10-05, discretionary appeal accepted, ...


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