Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case Nos.
2000-CR-1272 and 2000-CR-0497
MATHIAS H. HECK, JR., by HEATHER N. JANS, Attorney for
L. BARBER, Defendant-Appellant-Pro Se.
1} Defendant-appellant, Curtis L. Barber, appeals
pro se from two decisions issued by the trial court on August
24, 2016, in which the court: (1) overruled his motion for
sentencing in Case No. 2000 CR 00497 and Case No. 2000 CR
01272; and (2) in the latter case, overruled his motion to
vacate. Barber argues that the trial court erred because the
termination entries in both cases do not set forth legally
sufficient adjudications of guilt; because the termination
entries do not indicate the sequence in which he is to serve
the consecutive terms of imprisonment to which the court
sentenced him; because the termination entries do not comply
with the requirements of R.C. 2943.032; and because one of
the crimes for which he was convicted in Case No. 2000 CR
01272-attempted aggravated murder-is not a cognizable
offense. For the following reasons, the decisions of the
trial court are affirmed.
Facts and Procedural History
2} In Case No. 2000 CR 00497, a grand jury issued an
indictment against Barber charging him with robbery by
inflicting, attempting to inflict or threatening to inflict
physical harm on another person while committing or
attempting to commit a theft offense, a second degree felony
in violation of R.C. 2911.02(A)(2). Barber eventually entered
a plea of guilty to a lesser included offense of robbery
under R.C. 2911.02(A)(3), using or threatening to use force
against another person while committing or attempting to
commit a theft offense-a third degree felony.
3} In Case No. 2000 CR 01272, a grand jury issued an
indictment against Barber charging him with one count of
aggravated robbery under R.C. 2911.01 (A)(3); one count of
felonious assault with a deadly weapon under R.C. 2903.11
(A)(2); one count of aggravated burglary under R.C.
2911.11(A)(1); one count of kidnapping under R.C.
2905.01(A)(2); one count of disrupting public services under
R.C. 2909.04(A)(1); and three counts of attempted aggravated
murder under R.C. 2903.01(B) and 2923.02(A). This case
proceeded to a trial by jury and resulted in a verdict of
guilty on all counts.
4} On March 5, 2001, Barber appeared before the
trial court for sentencing. The court imposed a sentence of
five years in Case No. 2000 CR 00497. In Case No. 2000 CR
01272, the court imposed sentences of ten years each for
Barber's convictions on the charges of aggravated
robbery, aggravated burglary, and kidnapping; one and
one-half years for his conviction on the charge of disrupting
public services; and ten years for the merged charges of
felonious assault and attempted aggravated murder. The court
ordered that Barber serve the sentence imposed in Case No.
2000 CR 00497 concurrently with the sentences imposed in Case
No. 2000 CR 01272, although it ordered that each of the
sentences in Case No. 2000 CR 01272 be served consecutively.
5} Barber filed a direct appeal in Case No. 2000 CR
01272, raising two assignments of error. State v.
Barber, 2d Dist. Montgomery No. 18784, 2002-Ohio-7100,
¶ 1-4 [hereinafter Barber I]. First, he argued
that the trial court had improperly refused to allow him to
introduce into evidence a certain statement allegedly made by
the victim, and second, he argued that the State, in its
closing statement, had unfairly commented on his choice not
to testify in his own defense. We found that "this
appeal [was] wholly frivolous" and affirmed the trial
court. Id. at ¶ 13.
6} With our decision in his direct appeal still
pending, Barber filed a petition for post-conviction relief
on October 15, 2002, which the trial court dismissed as
untimely. On May 16, 2006, Barber filed another petition for
post-conviction relief. The trial court denied this petition,
as well, and Barber initiated his second appeal. Raising four
assignments of error, Barber argued essentially that
"the trial court should have granted his petition
because the * * * imposi[tion] [of] maximum, consecutive, and
non-minimum sentences * * * violat[ed] * * * Apprendi v.
New Jersey, 530 U.S. 466[, 120 S.Ct. 2348, 147 L.Ed.2d
435] (2000), Blakely v. Washington, 542 U.S. 296[,
124 S.Ct. 2531, 159 L.Ed.2d 403] (2004) and State v.
Foster, " 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470 State v. Barber, 2d Dist Montgomery No
21837, 2007-Ohio-5649, ¶ 3 [hereinafter Barber II] We
affirmed, concurring with the trial court's determination
that Barber's petition did not meet the jurisdictional
requirements of R.C. 2953.23(A). Id. at ¶ 7-9.
7} On August 7, 2008, the trial court resentenced
Barber pursuant to R.C. 2929.191 because, when he was
originally sentenced, it had not notified him that he would
be subject to a mandatory period of postrelease control
following his release from prison. The court, on August 8,
2008, accordingly docketed revised, nunc pro tunc termination
entries in Case Nos. 2000 CR 00497 and 2000 CR 01272, after
which Barber timely filed a third notice of
8} In his third appeal, Barber presented six
assignments of error, arguing that his defense counsel had
not provided effective assistance at trial; that the trial
court erred by imposing more than one criminal sanction for
allied offenses of similar import; and that his convictions
for aggravated burglary, aggravated robbery, and attempted
aggravated murder were void because the indictment in Case
No. 2000 CR 01272 did not specify the mens rea for these
offenses. State v. Barber, 2d Dist. Montgomery No.
22929, 2010-Ohio-831, ¶ 4-7, 19-20 and 25-27
[hereinafter Barber III]. We found that Barber's
arguments lacked merit, were barred by res judicata, or were
unsupported by the record-because Barber had not filed
transcripts of his trial and his resentencing hearing-and we
affirmed the trial court. Id. at ¶ 12-13,
16-17, 22 and 28-29.
9} On June 14, 2011, Barber filed a motion for
resentencing in Case No. 2000 CR 01272. He argued in the
motion that the trial court should grant him a hearing,
pursuant to R.C. 2941.25 and the then-recent decision of the
Ohio Supreme Court in State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, to determine
whether some or all of the crimes for which he had been
convicted were allied offenses. He further argued that the
termination entries in the case (i.e. the original entry of
March 7, 2001 and the revised entry of August 8, 2008) were
not final appealable orders because neither specified the
manner of his conviction. The trial court overruled
Barber's motion, leading to Barber's fourth appeal.
State v. Barber, 2d Dist. Montgomery No. 24770,
2012-Ohio-2332, ¶ 1 [hereinafter Barber IV]. We
affirmed, finding that the motion amounted to an untimely
petition for post-conviction relief, that Johnson
did not apply, and that the trial court's nunc pro tunc
termination entry of August 8, 2008 did constitute a final
appealable order. Id. at 10, 12-14 and 20-21.
10} Undaunted, Barber filed a combined motion for
sentencing and an allied offense determination in Case Nos.
2000 CR 00497 and 2000 CR 01272 on October 3, 2013, asserting
that the termination entries of August 8, 2008 did not
properly indicate whether postrelease control was mandatory
or discretionary; that the trial court did not make the
findings required by Crim.R. 25 at his resentencing hearing
of August 7, 2008; and, regardless of the fact that the court
had merged several offenses during his original sentencing,
that additional allied offenses of similar import should also
have been merged. The court overruled Barber's motion,
and Barber commenced a fifth appeal. State v.
Barber, 2d Dist. Montgomery No. 26612, 2015-Ohio-4607,
¶ 9 [hereinafter Barbe ...