State v. BolesState v. Boles
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Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
James F. Schaller, II, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Damiene Boles appeals a July 28, 2010 judgment of the Lucas County Court of Common Pleas denying him postconviction relief from a conviction for murder, a violation of
{¶ 2} A direct appeal to this court followed. Transcripts of trial court proceedings were filed on appeal on January 14, 2009. While the appeal was pending, Boles filed his first petition for postconviction relief on July 7, 2008. The trial court denied that petition in a judgment journalized on October 10, 2008. This appeal concerns a subsequent petition for postconviction relief filed by appellant on June 14, 2010, and denied by the trial court in a judgment of July 28, 2010.
{¶ 3} A detailed description of the history of this case can be gained through a review of decisions and judgments issued by this court in State v. Boles, 6th Dist. No. L-07-1255, 2009-Ohio-512 (”Boles I“) and State v. Boles, 190 Ohio App.3d 431, 2010-Ohio-5503, 942 N.E.2d 417 (6th Dist.) (”Boles II“).
{¶ 4} In Boles I, this court affirmed appellant‘s conviction on direct appeal in a judgment issued on February 6, 2009. Subsequently, appellant challenged the judgment on State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163 and
{¶ 5} In its July 28, 2010 judgment, the trial court denied appellant‘s second petition for postconviction relief on the grounds that it was untimely under
{¶ 6} Appellant has appealed the July 28, 2010 judgment to this court. Appellant asserts one assignment of error on appeal:
Assignment of Error
I. The trial court erred finding that appellant‘s petition for post-conviction relief was filed outside of the 180 day time limit. Findings of Fact, Conclusions of Law and Judgment Entry (July 28, 2010).
{¶ 7} Appellant contends that the original judgment of conviction, filed on July 23, 2007, was void under Baker and
{¶ 8} The state disagrees. It argues first that a trial court‘s failure to include the manner of conviction in its July 23, 2007 judgmеnt did not render the judgment void and the trial court was correct that the petition was untimely under
{¶ 9} The Ohio Supreme Court issued its decision in State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142 during the pendency of this appeal. In our view, the decision in Lester is dispositive of the central issues in this appeal.
{¶ 10} In Lester, the defendant was found guilty by a jury verdict at trial of various crimes and, as here, the original trial court judgment included a statement that the defendant had been convicted of the offenses but did not state the manner of conviction. Id. at ¶ 2.
{¶ 11} On direct appeal, the court of appeals vacated part of the sentence and remanded for resentencing with respect to postrelease control. On remand, the trial court‘s resentencing judgment entry also failed tо include a statement as to the manner of conviction. Id. at ¶ 3. The defendant in Lester appealed the trial court judgment on remand and the court of appeals affirmed. Id. at ¶ 4.
{¶ 12} Subsequently the trial court sua sponte filed a nunc pro tunc judgment entry adding a sentence to the original sentencing judgment entry stating that the defеndant had
{¶ 13} In Lester, the Ohio Supreme Court modified its decision in Baker and identified the following substantive requirements under
We hold that a judgment of conviction is а final order subject to appeal under
R.C. 2505.02 when the judgment entry sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge‘s signature, and (4) the time stamp indicating the entry upon the journal by the clerk. Lester at ¶ 14.
{¶ 14} Accordingly, under Lester it is a substantive requirement under
{¶ 15} With respect to further apрeal of a nunc pro tunc entry amending the judgment of conviction to include a statement as to the manner of conviction, the court in Lester held that “a nunc pro tunc judgment entry issued for the sole purpose of complying with
{¶ 16} Applying the Ohio Supreme Court‘s decision in Lester, we conclude that the July 23, 2007 judgment of conviction complied with the substantive requirements of
{¶ 17} Accordingly, we hold that the trial court did not err in dismissing appellant‘s petition for postconviction relief as untimely under
{¶ 18} We appreciate that the doctrine of the law of the case generally applies to appellate courts and under the doctrine “the decision of an appellate court in a prior appeal will ordinarily be followed in a later appeal in the same case and court.” Nolan v. Nolan, 11 Ohio St.3d 1, 4, 462 N.E.2d 410 (1984). We reached a different conclusion as to the validity of the July 23, 2007 judgment оf conviction in a judgment issued on October 27, 2009, in an earlier appeal in this case. However, an intervening decision by the Ohio Supreme Court presents an exception to the law of the case doctrine. Nolan v. Nolan at 5.
{¶ 19} We find appellant‘s Assignment of Error is not well-taken.
{¶ 20} Justice having been afforded thе party complaining, we affirm the trial court judgment. We order appellant to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A cеrtified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
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JUDGE
Arlene Singer, P.J.
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Thomas J. Osowik, J.
JUDGE
CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Cоurt of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.