State v. Viceroy
2012 Ohio 2494
Ohio Ct. App.2012Background
- Viceroy was indicted in 1994 for felonious assault with a firearm specification and a violence specification.
- A 1995 jury found him guilty of felonious assault and the firearm specification; the verdict on the violence specification is unclear.
- The original sentencing entry imposed a 3-year sentence on the firearm specification and 3–15 years on felonious assault, with unclear language about the verdict on the violence spec.
- This court issued a writ of procedendo in 2011-Ohio-5563 directing a final, appealable order that correctly resolved the firearm specification and the violence specification.
- In 2010 the trial court issued a corrected sentencing entry stating the violence specification was dismissed and the firearm specification was mandatory, to run consecutively with the felonious assault sentence.
- Viceroy then sought another procedendo action arguing the resentencing entry was not a final appealable order; the appellate court denied relief and affirmed the corrected entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Crim.R.32(C) finality and correction | Viceroy argues the corrections violated Crim.R.32(C) and created a new adverse final order. | State contends corrections were clerical and did not create a new appealable order. | Correction under Crim.R.32(C) proper; no new final order; hearing not required. |
| Ineffective assistance of counsel | Viceroy claims trial counsel failed to object to victim testimony and challenge firearm operability. | State argues no merit to ineffective-assistance claim. | No merit to ineffective-assistance claim. |
| Cumulative error and due process | Viceroy claims cumulative errors deprived him of due process. | State argues no cumulative error given no reversible individual errors. | Cumulative-error doctrine inapplicable; due process not violated. |
Key Cases Cited
- State v. Baker, 119 Ohio St.3d 197 (2008) (clarifies Crim.R. 32(C) finality requirements)
- State v. Lester, 130 Ohio St.3d 303 (2011) (finality not affected by omission of manner of conviction; correction allowed)
- State ex rel. DeWine v. Burge, 128 Ohio St.3d 236 (2011) (remedy for Crim.R.32(C) noncompliance is a corrected entry)
- State v. Triplett, 2011-Ohio-1713 (2011) (limits on successive appeals after corrected entries)
- State v. Avery, 2011-Ohio-4182 (2011) (res judicata applies after correction; no second bite at appeal)