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State v. Isa

Court of Appeals of Ohio, Second District, Champaign

October 27, 2017

STATE OF OHIO Plaintiff-Appellee
v.
ABRAHAM ISA Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2007-CR-207

          JANE A. NAPIER, Atty. Reg., Assistant Prosecuting Attorney, Champaign County Prosecutor's Office, Attorney for Plaintiff-Appellee

          ABRAHAM ISA, Inmate, Defendant-Appellant-Pro Se

          OPINION

          TUCKER, J.

         {¶ 1} Abraham Isa appeals from a judgment of the Champaign County Court of Common Pleas which denied his motion to vacate a void judgment as well as his motion to correct a clerical error. For the following reasons, the trial court's judgment will be affirmed.

         I. Facts and Procedural History

         {¶ 2} In 2007, Isa was convicted of thirteen counts of gross sexual imposition and two counts of rape involving five young women, two of whom were minors. The trial court sentenced Isa to an aggregate prison term of 24 1/2 years. His conviction was affirmed on direct appeal. State v. Isa, 2d Dist. Champaign No. 07-CA-37, 2008-Ohio-5906 (Isa I).

         {¶ 3} In 2009, Isa filed two motions for re-sentencing. The first motion asserted that his sentence was void due to a post-release control defect with the second motion asserting his sentence was improperly computed. We affirmed the trial court's denial of these motions. State v. Isa, 2d Dist. Champaign Nos. 10-CA-1, 10-CA-2, 2010-Ohio-3770 (Isa II ). With respect to the issue of post-release control, raised in Case No. 10-CA-1, we stated: "Based upon the record, we find no merit to Isa's contention that his sentence is void due either to a failure to provide for post-release control or a failure to advise him of post-release control." Id. at ¶ 16.

         {¶ 4} Isa later filed a "Motion to Vacate Sentence [as] Contrary to Law, " in which he asserted ineffective assistance of defense counsel, in part for allegedly advising him to reject a favorable plea bargain. The trial court treated the motion as a petition for post- conviction relief, and we affirmed the trial court's denial of that motion. State v. Isa, 2d Dist. Champaign No. 2012-CA-44, 2013-Ohio-3382 (Isa III ). Isa subsequently filed a motion for leave to file a delayed motion for a new trial and a motion for a new trial. We affirmed the trial court's denial of this motion, as well. State v. Isa, 2d Dist. Champaign No. 2013-CA-20, 2014-Ohio-139 (Isa IV).

         {¶ 5} Isa filed three additional motions in late 2013, seeking resentencing, to contest his classification under the Adam Walsh Act, a new trial, a change of venue, and for disqualification of the elected trial judge. In February 2014, a visiting judge denied each of these motions/petitions. Isa did not appeal these rulings.

         {¶ 6} On August 13, 2014, Isa filed a "Motion for Re-Sentencing Based on Void Judgment." Isa claimed that the trial court failed to notify him about the possibility of community service in lieu of court costs, and that the trial court failed to impose postrelease control as to counts 1 through 13 and counts 16 and 17. Isa states that the trial court did not properly incorporate post-release control and other notifications into its judgment entry.

         {¶ 7} On August 26, 2014, the trial court (visiting judge) overruled his motion for resentencing. The court reasoned that the court of appeals had addressed and rejected Isa's argument regarding the imposition of post-release control in Isa II, and that the law of the case doctrine barred re-litigation of that issue. With respect to cost costs, the trial court noted that a court "errs if it fails to inform the defendant that he can be ordered to perform community service if he fails to pay court costs." However, the trial court found that Isa's motion with respect to the imposition of court costs was barred by res judicata. We affirmed. State v. Isa, 2d Dist. Champaign No. 2014-CA-31, 2015-Ohio-2876 (Isa V).

         {¶ 8} In August 2015, Isa filed a motion for new trial pursuant to Crim.R. 33 in which he claimed that he had recently discovered new evidence demonstrating that his sons had committed the offenses and then manipulated the victims so that they accused Isa. He also filed a motion to correct a void judgment claiming that the trial court violated the prohibition against sentence packaging as set forth in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824. The trial court denied both motions. Isa filed separate appeals. The denial of the motion for new trial was affirmed in State v. Isa, 2d Dist. Champaign No. 2015-CA-35, 2016-Ohio-4979 (Isa VI), while the denial of the motion to correct a void judgment was affirmed in State v. Isa, 2d Dist. Champaign No. 2015-CA-44, 2016-Ohio-4980 (Isa VII).

         {¶ 9} On December 29, 2016, turning to the instant appeal, Isa filed a motion to vacate a void judgment in which he argues that because the trial court, during the sentencing hearing, did not impose a prison term for his convictions on Counts 9, 11 and 12, the subsequent imposition in the termination entry of 18 months imprisonment on each of these counts resulted in a void sentence that must be vacated. He also argues that the discrepancy between the sentencing hearing and the termination entry effectively constitutes a sentence modification that was made outside his presence in violation of Crim.R. 43(A). The trial court denied the motion by entry filed February 21, 2017. The trial court found that Isa's motion was barred by the doctrine of res judicata. The trial court further found that the record evinced a clear intent by the trial court to impose the 18 month prison terms during the sentencing hearing. Isa timely filed an appeal.

         {¶ 10} On March 8, 2017, Isa filed a motion to correct clerical error in which he claimed that the termination entry should be amended by a nunc pro tunc order vacating the imposition of the 18 month sentences for the three relevant counts. The trial court denied this motion, by entry dated June 5, 2017, finding that the motion was premature as the appeal pending on the denial of the motion to vacate would be determinative of the issue. The trial court alternatively found that the motion was ...


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