STATE OF OHIO, PLAINTIFF-APPELLEE, VS. JAMES BROWN, DEFENDANT-APPELLANT.
CASE NO. 14 MA 37
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
December 29, 2014
2014-Ohio-5832
JUDGES: Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 95CR776. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney; Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: James Brown, Pro se, #321-471, Marion Correctional Institution, P.O. Box 57, Marion, Ohio 43301
{¶1} Defendant-appellant James Brown appeals the decision of the Mahoning County Common Pleas Court overruling various post-conviction motions he filed. Appellant argues that he is entitled to a new sentencing entry that complies with
{¶2} Appellant also argues that a sentence to “life” in prison was unauthorized by law as the court was required to sentence him to life with possibility of parole after twenty years. He urges that this issue is not barred by res judicata as the sentence is void for exceeding the court‘s statutory authority. Although the mandatory sentence was life with eligibility for parole after twenty years, the failure to specify parole eligibility does not render the sentence void as the court did not attempt to impose life without parole. In any event, the life sentence in appellant‘s case is necessarily read as life with eligibility after twenty years; it cannot be read in any other manner under the applicable statutes, and there is no indication that it will be. The judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{¶3} On October 27, 1995, appellant was indicted for aggravated murder for purposely causing the death of Richard Taylor with prior calculation and design in violation of
{¶4} A March 22, 1996 judgment entry stated that a jury found appellant guilty of aggravated murder with a firearm specification and then sentenced appellant to life imprisonment with a consecutive sentence of three years on the firearm specification to be served prior to the life sentence. The entry was signed by the trial court, date-stamped, and journalized at J1152, p. 312.
{¶6} On August 23, 2013, appellant filed a motion for the issuance of a final appealable order in compliance with
{¶7} On August 26, 2013, appellant filed a motion for an oral hearing and motion for sentencing pursuant to
{¶8} As to the time-stamp argument, the state responded that the sentencing entry fully complied with
{¶9} The court overruled appellant‘s motions on March 19, 2014. A timely notice of appeal was filed. Appellant lists the following two assignments of error:
{¶10} “The filing procedures enumerated in:
{¶12} Appellant scatters separate arguments throughout his brief. There are two threshold issues: (1) whether a date-stamp qualifies as a time-stamp or whether the lack of a stamp providing the exact time of day fails to satisfy
TIME-STAMP
{¶13}
{¶14} In Baker, the Supreme Court held that a judgment of conviction is a final appealable order when it sets forth: (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court. State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 18. This first element was modified in Lester so that the substantive requirements for a final order are the fact of the conviction (rather than the manner of conviction), the sentence, the judge‘s signature, and the entry on the journal by the clerk. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 11 (manner of conviction is clerical which can be corrected nunc pro tunc).
{¶15} The Court then stated in other language: “We hold that a judgment of conviction is a final order subject to appeal under
{¶16} Appellant emphasizes the words “time stamp” and argues that the sentencing order was not final due to the lack of a stamp indicating the precise time of day. He urges that he is not precluded by res judicata from raising the issue now due to the jurisdictional nature of the problem. He compares
{¶17}
{¶18} Appellant believes that “time of filing” means “time of day.” However, the law traditionally speaks of time in terms of days passed, and this court has already disposed of this “time of day” argument. We have essentially ruled that a date-stamp sufficiently complies with the requirement to indorse the “time of filing.” See State v. Moore, 7th Dist. No. 12MA197, 2013-Ohio-0400, ¶ 30-36 (holding that the day of filing is all that is required in file-stamp). That is, the clerk‘s indorsement need not specify the exact time of day. See id. See also Rogers v. Fuerst, 8th Dist. No. 100670, 2014-Ohio-2774, ¶ 8, 10 (defendant misconstrues statutory language as clerk need not provide the exact time of day).
{¶19} Clearly, a date-stamp indicates entry upon the journal by the clerk as required by
{¶20} In fact, the Supreme Court has ruled that even a lack of a date-stamp does not void a filing that was actually filed with the clerk. Zanesville v. Rouse, 126 Ohio St.3d 1, 2010-Ohio-2218, 929 N.E.2d 1044, ¶ 5-8 (the lack of a date or time stamp is not a jurisdictional issue). See also State v. Adams, 7th Dist. No. 12MA26, 2013-Ohio-1433, ¶ 32 (“the indictment, sentencing entries, and other pleadings contain a date-stamp by the Mahoning County Clerk of Courts. Based on the reasoning in Rouse, it appears that this certification demonstrates that these documents were filed with the clerk, regardless of the fact that they do not contain a time-stamp. Thus, the trial court had subject matter jurisdiction over the case“); State v. Morris, 11th Dist. No. 2013-T-0019, 2013-Ohio-5485, ¶ 28-34 (holding that an argument on the lack of a “time stamp” fails to show document irregularity or lack of jurisdiction).
{¶21} Consequently, appellant‘s initial arguments regarding the lack of the exact time of day within the file-stamp are without merit.
LIFE SENTENCE
{¶22} Appellant was indicted for aggravated murder in violation of
{¶23} The March 22, 1996 sentencing entry stated that the jury found appellant guilty of “Aggravated Murder,
If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge of aggravated murder, the trial court shall impose a sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment on the offender.
{¶24} The statute likewise provided that if the indictment charging aggravated murder does contain a specification for aggravating circumstances under
{¶25} Contrary to the state‘s suggestion below,
{¶26} The state‘s response below seemed to misunderstand appellant‘s argument and did not address whether appellant‘s entry should have specified that the life sentence had parole eligibility after twenty years. And, the state‘s brief on appeal does not address the issue concerning the life sentence at all.
{¶27} At the March 20, 1996 sentencing hearing, the state explicitly declared that life with parole eligibility after twenty years was the mandatory sentence. (Tr. 2). The court merely stated life when imposing sentence at the hearing and in the entry. Again, the entry specified that the life sentence was imposed pursuant to
{¶28} We recognize that, in a direct appeal, the Eighth District remanded a life sentence with a failure to specify eligibility for parole after twenty years with orders to conform the entry to
{¶29} Contrary to appellant‘s contention, this does not present a
{¶30} The Second District has addressed a defendant‘s argument in a motion for resentencing that the imposition of a life sentence instead of an indeterminate life sentence was void. See State v. Johnston, 2d Dist. No. 25652, 2013-Ohio-4401. The
{¶31} The Perry case contains the general doctrine that res judicata bars the defendant from raising in any proceeding, except an appeal, any defense or claimed lack of due process that was raised or could have been raised by the defendant on an appeal of the judgment. Perry, 10 Ohio St.2d at 180. An exception to the doctrine exists where the sentence or the sanctions involved in the sentence are void. See State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 7, 9. The exception is very limited and has been applied sparingly. Id. at ¶ 8, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 27 (when judge fails to impose statutorily-mandated post-release control, that part of sentence is void), State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 18 (failure to include mandatory driver‘s license suspension as part of sentence), and State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 12, 17 (failure to include mandatory fine as part of sentence).
{¶32} It has been stated that a motion to correct a void sentence can be used to correct a facially invalid portion of a sentence. Fischer, 128 Ohio St.3d 93 at ¶ 25. As it appears from appellant‘s filings that he raises his contentions in order to eventually re-present his appellate case in general, we note that even if one sanction within a sentence is considered void, the proceedings cannot be used to challenge other alleged errors in the proceedings, i.e. res judicata would still apply to other
{¶33} We understand appellant‘s concern that where the entry merely states life and there are statutorily various types of life sentences, there could appear to be an uncertain sentence as a bystander to the law may need to research the former sentencing statute in order to ascertain that the life sentence carried with it eligibility for parole after twenty years.
{¶34} Nevertheless, we are not presented with a case where the court attempted to expressly impose a life sentence with no chance of parole. When appellant was sentenced, the sentencing statutes for aggravated murder with no capital specification provided no sentencing options for the trial court; there was one mandated sentence: life (and that came with parole eligibility after twenty years). See Former
{¶35} Notably, the Ohio Administrative Code provides that a life sentence imposed via
{¶36} Contrary to appellant‘s concern, the parole board and prison system are unlikely to proceed under the impression that he was sentenced to life without parole. Rather, it is likely that the system will proceed as though he was sentenced to life with parole eligibility after twenty years as mandated by the applicable statute at the time of sentencing. Moreover, there is no indication that the sentencing entry will be read as imposing a definite life sentence with no chance of parole (or something other than life
{¶37} Here, the sentence to life without specifying eligibility for parole was entered at a time when the mandated sentence was life with parole eligibility after twenty years. It cannot be read to conclude it was an attempt to impose life without parole. Therefore, it was not beyond the court‘s authority and did not present a matter of voidness. Accordingly, we affirm the trial court‘s judgment upholding the denial of appellant‘s motion for (re)sentencing.
Waite, J., concurs.
DeGenaro, P.J., concurs in judgment only.