State v. Moore
2011 Ohio 6220
Ohio Ct. App.2011Background
- Appellant Brandon Moore was convicted in 2002 on multiple counts including aggravated robbery, rape, kidnapping, and related offenses, with a lengthy aggregate sentence.
- On direct appeal, this court remanded for resentencing; after resentencing the court again imposed maximum, consecutive terms totaling 112 years.
- Following Foster, the court's resentencing was vacated and reaffirmed after remand; a subsequent 2008 resentencing again upheld a 112-year term.
- In 2009 this court affirmed; in 2009–2010 Moore sought to compel a final, appealable judgment entry under Crim.R. 32(C) via mandamus/proceedings.
- In 2010 the trial court issued a nunc pro tunc sentencing entry to comply with this court’s Baker-based direction; Moore appealed again.
- This court dismissed Moore’s appeal, holding that the 2010 nunc pro tunc entry, issued to correct a clerical omission, is not a new final order subject to appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the nunc pro tunc entry final and appealable? | Moore | Moore | Dismissed; nunc pro tunc entry is not a new final order. |
| Does Lester require a final, appealable judgment to set out the manner of conviction? | State | Moore | Lester controls; form-only omission does not affect finality if substantive Crim.R. 32(C) provisions are present. |
| Does res judicata bar Moore’s Graham-based arguments? | State | Moore | Yes; Graham argument barred by res judicata and thus not reviewable. |
| Should the trial court have merged allied offenses for sentencing? | State | Moore | Not reached; case dismissed on Lester/Staffrey grounds. |
| Are Counts materially defective or improper to sustain a sentence? | State | Moore | Abandoned; appeal dismissed as to final order issues based on Lester/Staffrey. |
Key Cases Cited
- State v. Baker, 119 Ohio St.3d 197 (2008-Ohio-3330) (Crim.R. 32(C) required final judgment with substantive provisions)
- State v. Lester, Ohio St.3d (2011-Ohio-5204) (nunc pro tunc correction adding means of conviction not a new appealable order)
- State v. Staffrey, 2011-Ohio-5760 (2011-Ohio-5760) (where nunc pro tunc addition did not create new appeal rights)
- Graham v. Florida, 560 U.S. 48 (2010) (juvenile sentencing limits; Eighth Amendment constraints)
- State v. Green, 2010-Ohio-6271 (2010-Ohio-6271) (res judicata principles applied to appellate arguments)
- State v. Perry, 10 Ohio St.2d 175 (1967) (principles of finality and retry restrictions)