FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 1991-01-0135
STEPHEN P. HANUDEL, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
Defendant/Appellant, LeRoy Lewis McIntyre, Jr. appeals his
convictions in the Summit County Court of Common Pleas. For
the reasons that follow, we affirm.
This matter arises from series of clerical mistakes, each
compounding upon the previous. Much of the history of this
case has been set forth by this Court in previous appeals.
See State v. McIntyre, 9th Dist. Summit No. 15348,
1992 Ohio App. LEXIS 2775, (May 27, 1992) (direct appeal);
State v. McIntyre, 9th Dist. No. 17095, 1995 Ohio
App. LEXIS 4742, (Oct. 25, 1995) (post-conviction relief
appeal); State ex rel McIntyre v. Alexander, 9th
Dist. No. 22234, 2005-Ohio-160 (habeas appeal); State v.
McIntyre, 9th Dist. No. 25292, 2010-Ohio-4658; State
v. McIntyre, 9th Dist. No. 25666, 2011-Ohio-3668;
State v. McIntyre, 9th Dist. No. 25898,
2011-Ohio-6593; State v. McIntyre, 9th Dist. Summit
No. 25800 (Dec. 30, 2011) (journal entry dismissing appeal);
State v. McIntyre, 9th Dist. No. 26677,
2013-Ohio-2077. However, the procedural history as relevant
to this appeal is as follows.
On February 7, 1991, the Summit County Grand Jury filed an
open indictment ("initial indictment"), charging
McIntyre for felonious assault in violation of former R.C.
2903.11(A)(2), with an attached firearm specification and a
prior aggravated felony specification, listing G.T. as the
On February 27, 1991, the grand jury issued secret supplement
one, charging McIntyre with felonious assault in violation of
former R.C. 2903.11(A)(2), with a firearm specification,
listing R.T. as the victim ("secret supplement
one"). The firearm specification was identified as
"specification one to count one of supplement one".
On July 24, 1991, the grand jury filed a second supplemental
indictment ("supplement two") to the initial
indictment, adding a prior aggravated felony specification to
count one of supplement one and including the first
significant clerical mistake in this case. Although the
charge of felonious assault in secret supplement one already
had a "specification one to count one of supplement
one" attached, supplement two also identified the prior
aggravated felony specification as "specification one to
count one of supplement one". Supplement two also
included a charge for aggravated burglary in violation of
former R.C. 2911.11(A)(2) and (3), with a firearm
specification attached and listing R.T. and T.J. as victims.
Additionally, "[b]efore trial, the trial court granted
an oral motion to amend one of the felonious-assault counts
to add a second victim." State ex rel. McIntyre v.
Summit Cty. Court of Common Pleas, 144 Ohio St.3d 589,
2015-Ohio-5343, ¶ 2. No entries were ever filed
journalizing the amendment.
A jury trial commenced on the above charges on August 8,
1991. However, McIntyre failed to appear for the second day
of trial. Although defense counsel moved for a continuance or
a mistrial, those motions were overruled and the trial
continued in McIntyre's absence. McIntyre, 1992
Ohio App. LEXIS 2775 at *5. A visiting judge presided over
After deliberation, the jury returned a verdict finding
McIntyre guilty of the crime of felonious assault, as
contained in count one of the initial indictment and guilty
of specification one (firearm). However, the jury found
McIntyre not guilty of specification two to count one (prior
aggravated felony). The jury further found McIntyre guilty of
the crime of aggravated burglary, as contained in count one
of supplement two, with specification one to count one of
supplement two (firearm). Nonetheless, the jury was unable to
reach a verdict as to the amended charge of felonious assault
against R.T. and a second victim as well as the related
specifications. Accordingly, the trial court
"discharge[d] the jury without prejudice in reference to
the prosecution of those charges."
However, when the trial court memorialized the above verdict
in its journal entry dated August 18, 1991, and filed
September 9, 1991, rather than stating that the jury was
unable to reach a decision as to the amended
felonious assault in amended count one of supplement
one, the trial court instead stated that the jury was
"unable to reach a decision on a verdict as to the
charge of FELONIOUS ASSAULT, as contained in count one of
supplement one[.]" Additionally, in regard to the
incorrectly labeled second "specification one to count
one of supplement one" the trial court incorrectly
labeled that specification as "specification one to
count one of the supplement two to the
indictment." (Emphasis added.) Thus leading to the
second significant clerical error in this case.
Meanwhile, on August 14, 1991, McIntyre was arrested for
assault. The Summit County Grand Jury subsequently indicted
McIntyre for failing to appear at trial ("supplement
three"), in violation of R.C. 2937.29. Additionally, on
August 28, 1991, the grand jury indicted McIntyre on charges
of felonious assault, in violation of R.C. 2903.11(A)(2), and
having weapons under disability, in violation of R.C.
2923.13(A)(2) ("supplement four"). Although
McIntyre's new felonious assault and having weapons while
under disability charges were unrelated to McIntyre's
previous felonious assault or aggravated burglary charges,
the new indictments were filed under the same case number as
the offenses for which McIntyre was previously tried, but not
On September 9, 1991, the trial court filed a sentencing
entry dated August 29, 1991, wherein the trial court
sentenced McIntyre for the felonious assault and aggravated
robbery charges and related specifications for which the jury
had previously found him guilty. The August 29, 1991
sentencing entry did not address the post-conviction
indictments for failure to appear at trial, felonious
assault, or having weapons while under disability.
On October 15, 1991, the Summit County Grand Jury filed a
fifth supplemental indictment ("supplement five")
adding a prior aggravated felony specification to the charge
for felonious assault as contained in supplement four, and a
specification for a prior offense of violence to the charge
for having weapons while under disability as contained in
supplement four. Then, on May 19, 1992, the Summit County
Grand Jury indicted McIntyre on another count of felonious
assault, in violation of R.C. 2903.11(A)(1)/(A)(2), with a
prior aggravated felony specification ("supplement
Finally, on May 22, 1992, the trial court filed a sentencing
entry dated May 21, 1992, memorializing a plea deal resolving
all of McIntyre's post-trial indictments. McIntyre
appealed his convictions, raising five assignments of error.
McIntyre, 1992 Ohio App. LEXIS 2775 at *5. This
Court, as well as the Supreme Court of Ohio, affirmed.
See Id. at *17; State v. McIntyre, 67 Ohio
St.3d 1509 (1993). Since then, McIntyre has filed countless
motions and numerous ...