Criminal Appeal from Common Pleas Court, Case No. 02CR318.
For Plaintiff-Appellee: Attorney Paul Gains Prosecuting Attorney Attorney Ralph Rivera Assistant Prosecuting Attorney.
For Defendant-Appellant: Lorice Moore, Pro se #433-460 Trumbull Correctional Institution.
JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro.
(¶1} Defendant-appellant Lorice Moore appeals the decision of the Mahoning County Common Pleas Court which denied his motion to vacate a void sentence on a firearm specification and for a "determination of jurisdiction" on his complicity to murder conviction. Appellant alleges that the three year sentence on the firearm specification should be vacated because the verdict form insufficiently described the type of specification subject to a three year sentence. He also posits that his complicity to murder conviction should be vacated based upon his claim that there is no time-stamp on or journalization of the indictment or the verdict forms.
(¶2} Procedurally, he complains that the trial court signed the state's proposed judgment entry, adding explanations for the ruling a week after the court had already denied his motion. In a reply brief, he attempts to add a new assignment of error, claiming that his sentencing entry is not a final appealable order (and thus we have no jurisdiction) because it does not state that he was acquitted of another offense, which he believes violates Crim.R. 32(C).
(¶3} For the following reasons, all of these arguments are without merit. Thus, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
(¶4} On March 28, 2002, appellant was indicted on two alternative counts of murder for purposefully causing the death of Stephen Shackleford in violation of R.C. 2903.02(A). Firearm specifications under R.C. 2941.145(A) were attached to both counts. The case was tried to a jury, who was instructed on the offenses of murder and complicity to commit murder. The jury was provided verdict forms for murder, an accompanying firearm specification, involuntary manslaughter, an accompanying firearm specification, complicity to murder, and a corresponding firearm specification, complicity to involuntary manslaughter, and an accompanying firearm specification.
(¶5} On August 15, 2002, the jury found appellant guilty of complicity to commit murder in violation of R.C. 2923.03(A)(2) and 2903.02(A) and the accompanying firearm specification. In an August 26, 2002 entry, the trial court sentenced appellant to fifteen years to life in prison plus three years on the firearm specification. His conviction was upheld on appeal. State v. Moore, 7th Dist. No. 02CA152, 2004-Ohio-2320.
(¶6} In 2011, appellant filed a motion which pointed out that the sentencing entry failed to comply with Crim.R. 32(C) as the judgment stated the fact of conviction but not the manner of conviction. On December 1, 2011, the trial court agreed and issued a nunc pro tunc sentencing order, adding that appellant was convicted by a panel of twelve jurors.
(¶7} On September 26, 2012, appellant filed a motion to vacate a void sentence and for a determination of jurisdiction, presenting the arguments set forth in his first and second assignments of error on appeal: the verdict for the firearm specification was insufficient to sentence him to three years and the indictment and verdict forms were not time-stamped or journalized.
(¶8} On October 2, 2012, the trial court overruled his motion in a brief judgment entry before the state had a chance to respond. The state then submitted its response along with a prepared judgment entry, characterizing the motion as an untimely post-conviction relief petition and alternatively stating that the arguments were barred by res judicata. On October 12, 2012, the trial court filed another judgment entry (the state's proposed entry) denying the motion again and providing reasons for doing so. Appellant filed a timely notice of appeal.
ASSIGNMENT OF ERROR NUMBER ONE
(¶9} Appellant's first assignment of error provides:
(¶10} "THE TRIAL COURT COMMITTED ABUSE OF DISCRETION AND ERRED TO THE PREJUDICE OF APPELLANT WHEN IT SENTENCED HIM TO A 3 YEAR MANDATORY PRISON SENTENCE FOR A VIOLATION OF R.C. 2941.141, WHICH RENDERS ...