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State v. Mack

Court of Appeals of Ohio, Tenth District

August 31, 2017

State of Ohio, Plaintiff-Appellee,
v.
Levio D. Mack, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 94CR-201

          On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

          On brief: Levio D. Mack, pro se.

          DECISION

          HORTON, J.

         {¶ 1} Defendant-appellant, Levio D. Mack, pro se, appeals from a September 12, 2016 judgment of the Franklin County Court of Common Pleas denying appellant's motion for sentencing. For the following reasons, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Appellant confessed to having shot the victim, Edgar Pettus, while robbing him and then attempting to start a fire to hide the evidence. On January 14, 1994, appellant was indicted on the following charges: Count 1 of the indictment, aggravated murder with two capital specifications and one firearm specification; Count 2 of the indictment, aggravated robbery with three specifications; Count 3 of the indictment, aggravated robbery with one specification; and Count 4 of the indictment, aggravated arson with one specification.

         {¶ 3} On May 31, 1994, appellant entered guilty pleas to a stipulated lesser included offense of Count 1 of the indictment, aggravated murder without the capital specifications but with the firearm specification, and Count 3 of the indictment, aggravated robbery without the specification. The trial court's judgment entry stated, in pertinent part:

The Court finds that on May 31, 1994, the Defendant entered pleas of guilty to the stipulated lesser included offense of Count One of the indictment, to wit: Aggravated Murder without death specifications, but with firearm specification in violation of R.C. 2903.01, a Felony of the First degree; and to Count Three of the indictment, to wit: Aggravated Robbery without specification in violation of R.C. 2911.01, a Felony of the First degree, and was found guilty of said charges by the Court.

(Emphasis added.) (June 1, 1994 Jgmt Entry at 1.)

         {¶ 4} The trial court imposed a sentence of 20 years to life with respect to the aggravated murder charge, 3 additional years as to the firearm specification, and 6 to 25 years on the aggravated robbery charge. All prison terms were ordered to be served consecutively. Eventually, appellant filed a direct appeal and this court affirmed. State v. Mack, 10th Dist. No. 94APA07-992 (Aug. 10, 1999).

         {¶ 5} In the years that followed appellant's conviction, he has filed a number of motions that the trial court has construed as petitions for postconviction relief. As relevant to this appeal, on September 13, 2013, appellant filed a "MOTION FOR ISSUANCE OF A FINAL APPEALABLE ORDER." On October 1, 2013, the trial court overruled the motion as untimely, barred by res judicata, and otherwise lacking merit. Appellant filed a timely notice of appeal and this court affirmed. State v. Mack, 10th Dist. No. 13AP-887, 2014-Ohio-1648.

         {¶ 6} On October 22, 2015, appellant filed a motion for sentencing, arguing that the trial court's sentencing entry of June 1, 1994 was void because the entry clearly and erroneously stated that aggravated murder was "a Felony of the First degree, " and for failing to indicate the sequence in which the consecutive sentences were to be served.

         {¶ 7} On September 12, 2016, the trial court denied appellant's motion. The trial court noted that:

Defendant argues that his sentence is void and as a result, he is entitled to be resentenced. His argument hinges on the fact that the Judgment Entry erroneously classified Aggravated Murder in violation of R.C. 2903.01 as "a Felony of the First degree, " when in fact Aggravated Murder is an unspecified felony.
* * *
The record clearly establishes that the inclusion of "a Felony of the First Degree" in the Judgment Entry was an ...

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