State v. BlufordState v. Bluford
JOURNAL ENTRY AND OPINION
{¶ 1} This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs filed by the parties.
PROCEDURAL BACKGROUND
{¶ 2} In the Spring of 1998, the Cuyahoga County Grand Jury indicted defendant-appellant, Roland Bluford, on three counts of rape, in violation of R.C.
{¶ 3} The day before trial was to commence, the State filed a motion to amend the indictment and bill of particulars to reflect that the alleged incidents occurred between March 1991 and February 1992, rather than August 2, 1992 through August 2, 1993, as originally specified. Defense counsel stated that he had no objection to the amеndment and the trial court granted the State‘s motion.1
{¶ 4} At trial, the alleged victim testified that appellant, who was her mother‘s boyfriend, moved in with her family in 1990, when she was nine years old. The viсtim testified that on several occasions while her mother was working, appellant rubbed his hand over her vagina or digitally penetrated her and on another occasion, tried to penetrate her with his penis. Appellant testified that he lived with the victim‘s mother from August 1990 to November 1991 and denied that he ever touched the victim inappropriately.
{¶ 5} The jury found appellant guilty of all three counts and the trial court sentenced appellant to three consecutive terms of life imprisonment.
{¶ 6} Appellant filed a motion for a new trial, arguing that the trial court erred in excluding evidence at trial that the victim‘s mother had forced her to have an abortion one month before shе made the allegations against appellant. The trial court denied the motion without opinion.
{¶ 7} This court subsequently affirmed appellant‘s conviction on appеal, State v. Bluford (Dec. 9, 1999), Cuyahoga App. No. 75228, and the Supreme Court of Ohio denied leave to appeal. State v. Bluford (Apr. 19, 2000), case No. 00-124. This court later denied appellant‘s application for reopening pursuant to App.R. 26(B).
{¶ 8} In April 2000, appellant apparently filed a petition for post-conviction relief. Although the petition is not in the reсord and the docket does not reflect that it was filed, the State filed a motion to dismiss appellant‘s petition on April 27, 2000. As explained in the State‘s motion to dismiss, appellant argued in his petition that he was denied effective assistance of counsel because his counsel failed to obtain the police report regarding the аlleged rapes that was filed by the victim and her mother in September 1997. This police report, apparently newly discovered by appellant, indicated that the victim аnd her mother reported to the police that the rapes occurred “approximately 4-5 years prior to the date of this report, when [the victim‘s] age was 11-12,” not five to six years earlier as charged in the amended indictment.
{¶ 9} On May 19, 2000, the trial court dismissed appellant‘s petition. Contrary to the requirements of R.C.
{¶ 10} Although the trial court never filed findings of fact or conclusions of law,3 in March 2001, appellant filed an appeal of thе trial court‘s dismissal of his petition for post-conviction relief. In a journal entry dated October 9, 2001, this court dismissed appellant‘s appeal, ruling that because the petition did not appear on the docket and apparently was not filed with the clerk of courts, it was not part of the record on appeal and, thereforе, could not be considered by the court.
{¶ 11} In September 2002, appellant filed a motion for a new trial and a motion for an order finding that he was unavoidably prevented frоm discovering new evidence pursuant to
{¶ 12} Appellant subsequently filed a motion to modify the journal entry of October 7, 2002, pursuant to
{¶ 13} On Junе 10, 2003, the trial court denied appellant‘s motion. Appellant timely appealed from this order and has raised one assignment of error for our review.
ASSIGNMENT OF ERROR
{¶ 14} Appellant сontends that the trial court erred in denying his motion to modify the journal entry dated October 7, 2002.
{¶ 15} Appellant spends much time in his brief arguing that the trial court erred because he met thе requirements of
{¶ 16}
{¶ 17} We find no clerical error that needs to be corrected.
{¶ 18} “At the time the action is commenced the clerk shall enter in the appearance docket the names, except as provided in Rule 6(E), of the parties in full, the names of cоunsel and index the action by the name of each defendant. Thereafter the clerk shall chronologically note in the appearance docket all: process issued and returns, pleas and motions, papers filed in the action, orders, verdicts, and judgments. The notations shall be brief but shall show the date of filing and the substance of each order, verdict and judgment.”
{¶ 19} Here, the record reflects that, as required by
{¶ 20} The crux of appellant‘s аrgument is that the time for appeal had already elapsed when he received notice of the trial court‘s order denying his motion for a new trial. Appellant‘s remedy is not modification of the date of that order, however; it is to file a motion for leave to file a delayed appeal pursuant to App.R. 5(A).
{¶ 21} Appellant‘s assignment of error is overruled.
Michael J. Corrigan, P.J. and Anthony O. Calabrese, Jr., J. Concur.