State v. Barber
2017 Ohio 7338
| Ohio Ct. App. | 2017Background
- Curtis L. Barber was convicted in two Montgomery County cases: Case No. 2000 CR 00497 (plea to robbery, third-degree) and Case No. 2000 CR 01272 (jury convictions including aggravated robbery, aggravated burglary, kidnapping, felonious assault, disrupting public services, and three counts of attempted aggravated murder).
- Sentences (March 2001): 5 years in 00497 (to run concurrently with 01272); in 01272 multiple consecutive terms (ten-year terms for several first-degree felonies and one 1.5-year term), aggregate 41.5 years.
- Barber has repeatedly litigated postconviction and sentencing issues across multiple appeals (Barber I–V), including challenges to counsel, allied-offense merger, Apprendi/Blakely/Foster issues, and postrelease control notifications; many claims were denied or held barred by res judicata.
- In 2008 the trial court entered nunc pro tunc resentencing entries to add postrelease-control notification; Barber continued to file motions (2011–2015) arguing defects in termination entries, sequence of consecutive terms, R.C. 2943.032 compliance, and that attempted aggravated murder is non-cognizable.
- On August 24, 2016 the trial court overruled Barber’s 2015 motion for sentencing and his 2015 motion to vacate; Barber appealed pro se. The appellate court affirms.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Barber) | Held |
|---|---|---|---|
| Whether "attempted aggravated murder" is a cognizable offense | State: it is cognizable when based on R.C. 2903.01(B) because that statute penalizes purposeful killings in connection with listed offenses | Barber: attempted aggravated murder is non-cognizable (analogizing to attempted felony-murder and Nolan); he claims "actual innocence" because no death occurred | Court: Nolan (on attempted felony-murder) is inapplicable; attempted aggravated murder under R.C. 2903.01(B) targets purposeful killings and is cognizable — claim fails |
| Whether termination entries are final appealable orders because they omit explicit adjudications/manner of conviction | State: issue barred by res judicata; alternatively, entries satisfy Crim.R. 32(C) substance | Barber: entries are not final appealable orders because they fail to state the manner/adjudication of guilt and thus are defective | Court: Entries meet Ohio Supreme Court’s Lester criteria (fact of conviction, sentence, judge’s signature, journal timestamp); not void and claim is barred by res judicata |
| Whether trial court’s failure to state sequence for consecutive sentences voids the sentences | State: issue barred by res judicata; trial court not required to specify sequence; postrelease control notification adequate | Barber: absence of specified sequence (and other alleged R.C. 2943.032 and postrelease-control defects) renders judgments void and postrelease control invalid | Court: Failure to state sequence does not render sentence void; R.C. 2943.032 notification was given where applicable; single postrelease-control notification for multiple terms suffices; claims barred by res judicata |
| Whether five-year postrelease-control term in 01272 is void because it might have been imposed after Barber served sentence | State: res judicata bars review; postrelease control applied to first-degree offenses and Barber had not completed those terms by 2008 | Barber: postrelease control is void if court imposed it after he had already served the associated sentence(s) | Court: At resentencing (Aug 8, 2008) Barber had not completed the first-degree sentences to which the five-year PRC could apply; postrelease-control term is not void; claim barred by res judicata |
Key Cases Cited
- State v. Nolan, 141 Ohio St.3d 454 (2014) (attempted felony-murder is not a cognizable crime because attempt requires purposeful or knowing causation)
- State v. Lester, 130 Ohio St.3d 303 (2011) (judgment entry is final if it sets forth fact of conviction, sentence, judge’s signature, and journal timestamp)
- State v. Fischer, 128 Ohio St.3d 92 (2010) (appellate review of a void sentence is not precluded by res judicata)
- State v. Holdcroft, 137 Ohio St.3d 526 (2013) (postrelease-control that was not properly imposed is void; other aspects still governed by res judicata)
- State v. Baker, 119 Ohio St.3d 197 (2008) (discusses effect of omissions in judgment entries and related confusion later addressed in Lester)
- State v. Saxon, 109 Ohio St.3d 176 (2006) (issues that could have been raised on direct appeal but were not are barred by res judicata)