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State v. McIntyre

Court of Appeals of Ohio, Ninth District, Summit

May 23, 2018

STATE OF OHIO Appellee
v.
LEROY L. MCINTYRE Appellant

          APPEAL 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.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          SCHAFER, JUDGE.

         {¶1} Defendant/Appellant, LeRoy Lewis McIntyre, Jr. appeals his convictions in the Summit County Court of Common Pleas. For the reasons that follow, we affirm.

         I.

         {¶2} 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.

         {¶3} 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 victim.

         {¶4} 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".

         {¶5} 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.

         {¶6} 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 the trial.

         {¶7} 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."

         {¶8} 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.

         {¶9} 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 yet sentenced.

         {¶10} 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.

         {¶11} 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 six").

         {¶12} 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 ...


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