Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court T.C. NO. 1993-CR-556
MATHIAS H. HECK, JR., by SARAH HUTNIK, Atty. Reg. No. 95900,
Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Montgomery
County Courts Building, 301 West Third Street, Dayton, Ohio
45422 Attorney for Plaintiff-Appellee.
JAVALEN WOLFE, #287364, Madison Correctional Institute, P.O.
BOX 740, London, Ohio 43140 Defendant-Appellant, Pro se.
1} Defendant-appellant Javalen Wolfe, pro se,
appeals from a decision of the Montgomery County Court of
Common Pleas overruling his Motion to Dismiss on Double
Jeopardy Grounds. On October 26, 2017, Wolfe filed a timely
notice of appeal with this Court.
2} We set forth the history of the case in State
v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, 26983,
2016-Ohio-4897, and repeat it herein in pertinent part:
On October 6, 1993, the Montgomery County Grand Jury returned
an indictment charging Wolfe with one count of aggravated
murder in violation of R.C. 2903.01(B), one count of
aggravated robbery in violation of R.C. 2911.01(A)(1), and
two firearm specifications. The charges stemmed from the
February 7, 1993 shooting death of Todd Grills. Wolfe pled
not guilty to the charges and the matter went to a jury
trial. Wolfe's first trial ended in a hung jury, whereas
his second trial resulted in his conviction for the
lesser-included offense of murder with a firearm
specification. The aggravated robbery charge was dismissed at
the request of the State by an entry of nolle prosequi dated
January 20, 1994. The entry was subsequently journalized on
January 31, 1994.
Immediately following trial, the trial court sentenced Wolfe
to serve an indefinite prison term of 15 years to life for
murder that was to be served consecutive to a three-year
prison sentence for the attendant firearm specification. On
January 25, 1994, the trial court issued a judgment entry
reflecting that sentence. The entry also ordered Wolfe to pay
court costs and awarded him jail-time credit, but left blank
the amount of court costs to be imposed and the days of
jail-time credit to be awarded.
Wolfe subsequently filed a direct appeal from his conviction
and sentence, which we affirmed in State v. Wolfe,
2d Dist. Montgomery No. 14420, 1995 WL 140717 (Mar. 29,
1995). Nearly 20 years later, on June 4, 2014, Wolfe filed a
pro se Motion to Re-hear and Correct Termination Entry,
wherein he argued that the January 25, 1994 termination entry
journalizing his conviction and sentence was defective. The
trial court overruled the motion and Wolfe appealed from that
decision. Upon review, we held that the trial court should
have corrected the judgment entry to include, among other
things, the amount of court costs imposed and a jail-time
credit of 284 days. See State v. Wolfe, 2d Dist.
Montgomery No. 26313, 2015-Ohio-1585, ¶ 1, 7. We also
held that the judgment entry should be corrected to reflect
that the aggravated robbery charge was dismissed by nolle
prosequi. Id. at ¶ 1, 9. Accordingly, we
reversed the trial court's decision overruling
Wolfe's Motion to Re-Hear and Correct Termination Entry
and remanded the matter for further proceedings consistent
with our opinion. Id. at ¶ 1, 10.
Id. at ¶¶ 2, 3, and 4.
3} While his second appeal was pending, Wolfe filed
a pro se Motion to Correct Clerical Mistake, wherein he
argued that there was no final appealable order with respect
to his conviction because the trial court failed to
journalize the jury's verdict. Wolfe, 2d Dist.
Montgomery Nos. 26681, 26729, 26983, 2016-Ohio-4897, at
¶ 5. On May 21, 2015, the trial court issued a nunc pro
tunc termination entry, which made the corrections that we
ordered on remand. Id. at ¶ 6. Thereafter, on
September 22, 2015, Wolfe filed a pro se Motion to Record the
Verdict wherein he argued that the verdict was not properly
journalized, the trial court improperly journalized an
acquittal for aggravated murder, the trial court erred in
permitting the jury to consider the lesser-included offense
of murder, and the evidence adduced at trial did not support
his murder conviction. Id. at ¶¶ 22, 23.
The trial court overruled the motion, and Wolfe appealed. We
consolidated Wolfe's appeals and overruled all off his
assignments of error, thereby affirming the judgment of the
trial court. Id. at ¶ 25.
4} On August 15, 2017, Wolfe filed a Motion to
Dismiss on Double Jeopardy Grounds. In his motion, Wolfe made
the following arguments, to wit: 1) after his initial
indictment for aggravated murder was dismissed, he was never
re-indicted but was convicted for the same murder; 2) the
trial court did not have the jurisdiction to convict him on
the lesser included offense of murder. The trial court
overruled Wolfe's motion in a decision issued on
September 26, 2017, finding that the arguments he raised were
barred by res judicata.
5} It is from this judgment that Wolfe now appeals.
6} Wolfe's sole assignment of ...