State v. Barber
2012 Ohio 2332
Ohio Ct. App.2012Background
- Barber was convicted in 2001 in two cases: robbery in 2000 CR 497 and aggravated robbery, felonious assault, aggravated burglary, kidnapping, disrupting public services, and three counts of attempted aggravated murder in 2000 CR 1272, receiving a combined long sentence with concurrent terms.
- In 2008 the trial court re-sentenced Barber under R.C. 2929.191 to correct a lack of post-release control notification, nunc pro tunc to 2001, imposing the same overall sentence but including post-release control.
- Barber appealed the 2008 re-sentencing; we affirmed in 2010, noting lack of transcript prevented review of allied-offense conduct and that the record did not permit determining whether certain offenses were separately committed or had separate animus.
- In June 2011 Barber filed a pro se motion for re-sentencing under State v. Johnson, arguing a new allied-offenses analysis; the State urged untimely post-conviction relief and nonretroactivity of Johnson; the trial court dismissed.
- Barber appeals pro se arguing Johnson requires a re-sentencing hearing and challenging finality under Crim.R. 32(C); the court ultimately affirms the dismissal and holds Johnson not retroactive and the petition untimely, and that the nunc pro tunc corrections cured Crim.R. 32(C) deficiencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson retroactively applies to Barber's sentence | Barber relies on Johnson for re-sentencing under allied offenses. | State argues Johnson does not apply retroactively to Barber's final conviction. | Johnson not retroactive to Barber’s final sentence. |
| Whether Barber is entitled to a hearing on allied offenses after Johnson | Barber seeks a hearing to determine if offenses are allied. | Record insufficient; Johnson does not mandate retroactive relief here. | Barber's petition untimely; res judicata bars collateral allied-offense claims. |
| Whether the petition was properly before the court given Crim.R. 32(C) finality | Entries lacked manner of conviction, allegedly not final. | Nunc pro tunc corrections remedy Crim.R. 32(C) issues; not a nullity. | Entries cured via nunc pro tunc; final judgment valid. |
Key Cases Cited
- State v. Parson, 2012-Ohio-730 (2d Dist. Montgomery 2012) (retroactivity and finality considerations in postconviction timing)
- State v. Beavers, 2005-Ohio-1205 (2d Dist. Montgomery 2005) (jurisdictional nature of post-conviction deadlines)
- State v. Simpkins, 117 Ohio St.3d 420 (2010) (voidable vs void judgments; res judicata on direct appeal)
- State ex rel. DeWine v. Burge, 2011-Ohio-235 (Ohio Supreme Court 2011) (nunc pro tunc corrections for Crim.R. 32(C) errors; not nullities)
- State v. Lester, 2011-Ohio-5204 (Ohio Supreme Court 2011) (clarifies effect of Crim.R. 32(C) errors and corrections)
- State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (new allied-offenses framework; retroactivity considerations)