STATE OF OHIO v. STANLEY S. BURDEN
C.A. No. 27298
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
October 8, 2014
[Cite as State v. Burden, 2014-Ohio-4456.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 1995 08 2330
HENSAL, Judge.
{¶1} Stanley Burden appeals a judgment of the Summit County Court of Common Pleas that denied his motion to dismiss a void sentence and/or judgment order. For the following reasons, this Court affirms.
I.
{¶2} In 1995, Mr. Burden entered a plea of guilty to one count of rape, and the trial court sentenced him to 10 to 25 years imprisonment. In 1997, the court adjudicated him a sexual predator under
{¶3} In October 2013, Mr. Burden moved the trial court to dismiss its nunc pro tunc order, arguing that the order had impermissibly modified his sentence. Mr. Burden argued that the trial court did not have authority to use a nunc pro tunc order to impose additional sentencing terms. He also argued that the court could not use a nunc pro tunc order to correct mistakes in its
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PREJUDICE ERROR/PLAIN ERROR WERE (SIC) THE COURT IMPOSED SENTENCE AND OR JUDGMENT THROUGH A NUNC PRO TUNC ORDER
{¶4} In his first assignment of error, Mr. Burden argues that the trial court improperly used a nunc pro tunc order to modify the sentencing entry it issued in 1995. Mr. Burden is mistaken, however, about which entry the nunc pro tunc order modified. As Mr. Burden has noted, the trial court originally sentenced him in 1995. On June 10, 1997, it held a hearing on whether he is a sexual predator. On June 11, 1997, the court entered an order finding that he is a sexual predator under
THE TRIAL COURT COMMITTED PREJUDICE ERROR/PLAIN ERROR
{¶5} In his second assignment of error, Mr. Burden argues that the trial court incorrectly determined that res judicata barred his argument that it incorrectly found that he is a sexual predator. He argues that, because the court‘s entry is void, res judicata does not apply.
{¶6} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Ohio Supreme Court held that the doctrine of res judicata does not preclude the review of a void sentence. Id. at paragraph three of the syllabus. Mr. Burden has not pointed to any precedent, however, that has held that an order that incorrectly adjudicates a defendant a sexual predator is void. See State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 8 (“The Fischer rule does not apply to most sentencing challenges.“). Rather, we agree with the trial court that, because Mr. Burden could have challenged the trial court‘s sexual-predator finding on direct appeal, his argument is barred under the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus (“[A] final judgment of conviction bars a convicted defendant * * * from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant * * * on an appeal from that judgment.“). Mr. Burden‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED PREJUDICE ERROR/PLAIN ERROR WERE (SIC) THE COURT HAD NO SUBJECT MATTER JURISDICTION TO CLASSIFY THE DEFENDANT AS A SEXUAL PREDATOR PURSUANT TO
If a person * * * pleaded guilty to a sexually oriented offense prior to the effective date of this section, if the person was not sentenced for the offense on or after the effective date of this section, and if, on or after the effective date of this section, the offender is serving a term of imprisonment in a state correctional institution, prior to the offender‘s release from the term of imprisonment, the department of rehabilitation and correction shall determine whether to recommend that the offender be adjudicated as being a sexual predator. * * * If the department determines that it will recommend that the offender be adjudicated as being a sexual predator, it immediately shall send the recommendation to the court that sentenced the offender * * * and the court shall proceed in accordance with division (C)(2) of this section
* * * *
If the court determines by clear and convincing evidence that the offender is a sexual predator, it shall enter its determination in the offender‘s institutional record, shall attach the determination to the offender‘s sentence, shall specify that the determination was pursuant to division (C) of this section, and shall provide a copy of the determination to the offender, to the prosecuting attorney, and to the department of rehabilitation and correction. The offender and the prosecutor may appeal as a matter of right the judge‘s determination under this division as to whether the offender is, or is not, a sexual predator.
Upon review of
{¶8} Mr. Burden also argues that the trial court violated the constitutional prohibitions on ex post facto laws when it imposed additional reporting and registration requirements on him years after it sentenced him for his crimes. In State v. Cook, 83 Ohio St.3d 404 (1998), however,
III.
{¶9} The trial court did not err when it denied Mr. Burden‘s motion to dismiss a void sentence and/or judgment order. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
JENNIFER HENSAL
FOR THE COURT
MOORE, J. CONCURS.
BELFANCE, P. J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
STANLEY S. BURDEN, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.