State v. Avery
2011 Ohio 4182
Ohio Ct. App.2011Background
- Avery was convicted in 1997 of first-degree rape, second-degree robbery, first-degree aggravated burglary, and first-degree kidnapping, with a sexual predator designation, and sentenced to 30 years total to be served concurrently/consecutively as ordered.
- Avery I (1998) affirmed conviction and sentence on direct appeal; leave to Supreme Court denied.
- Avery II (2004) affirmed trial court’s denial of a post-sentencing review/modification as untimely and barred by res judicata.
- In 2010, after misinforming him about postrelease control, Avery was resentenced; a de novo hearing was held and a corrected sentencing entry issued.
- The three issues on this appeal challenge a mistrial due to an alternate juror, jury instructions on kidnapping, and the merger of rape and kidnapping; the court applies Fischer to limit review to PRC-related concerns; res judicata bars re-litigation of these issues.
- The corrected sentencing entry did not void the original judgment; the new entry was a nunc pro tunc correction, and the appeal is limited to PRC, with other issues barred by res judicata.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mistrial due to an alternate juror present during deliberations | Avery contends mistrial was required | State argues issues are barred and unrelated to PRC | barred by res judicata; no reversible error on PRC grounds |
| Jury instructions on kidnapping deprived due process | Avery challenges jury instructions | Instructions error not preserved for PRC review | barred by res judicata; no independent review of trial errors |
| Rape and kidnapping allied offenses merger | Avery argues merger of offenses | Not revisitable post-resentencing beyond PRC | barred by res judicata; not reconsidered on PRC appeal |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (limits new sentencing review to PRC imposition after Bezak violation)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (Bezak scope clarified; new hearing limited to PRC)
- State ex rel. DeWine v. Burge, 128 Ohio St.3d 236 (2011-Ohio-235) (clerical/Crim.R.32(C) correction; nunc pro tunc remedy for 32(C) error)
- State ex rel. Alicea v. Krichbaum, 126 Ohio St.3d 194 (2010-Ohio-3234) (sentencing entry correction canonical remedy for 32(C) noncompliance)
- Dunn v. Smith, 119 Ohio St.3d 364 (2008-Ohio-4565) (remedy for Crim.R.32(C) violations is corrected journal entry)
- State v. Culgan, 119 Ohio St.3d 535 (2008-Ohio-4609) (requirement of Crim.R.32(C) compliance for sentencing entry)
- State v. Baker, 119 Ohio St.3d 197 (2008-Ohio-3330) (Crim.R.32(C) specifications for final appealable order; impact on remediation)