STATE OF OHIO v. WAYNE ERVIN
No. 100366
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 17, 2014
[Cite as State v. Ervin, 2014-Ohio-1631.]
BEFORE: Blackmon, J., Jones, P.J., and Rocco, J.
JUDGMENT: AFFIRMED. Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-05-468885-A. RELEASED AND JOURNALIZED: April 17, 2014
Wayne Ervin, pro se
Inmate No. A481-583
Grafton Correctional Institution
2500 South Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James M. Price
Assistant Prosecuting Attorney
Justice Center, 9th Floor
Courts Tower
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Appellant Wayne Ervin, appеals pro se, the trial court‘s denial of his motion to vacate void judgment and assigns the following errors for our review:
I. The Clerk of the Cuyahogа County Common Pleas Court routinely failed to place a time stamp showing journalization by the clerk of court on the entry as required by Criminal Rule 32(C).
II. The trial court committed prejudicial error when it convicted defendant-appellant without formal accusation for acquirеment of jurisdiction over subject matter.
III. Defendant-appellant was denied the right to effective assistance of counsel in violatiоn of his right under the Sixth Amendment to the United States Constitution.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court‘s decision. The apposite facts follow.
{¶3} On August 4, 2005, the Cuyahoga County Grand Jury indicted Ervin on four counts of aggravated murder, two counts of attempted aggravated murder, twо counts of aggravated burglary, six counts of aggravated robbery, and three counts of kidnapping. All charges contained one and threе-year firearm specifications, while the aggravated murder charges contained mass murder specifications, felony murder speсifications, and escape detection specifications.
{¶4} On May 22, 2006, the case proceeded to a jury trial. On June 11, 2006, the jury returned guilty verdicts on all crimes charged. The jury found Ervin not guilty of the one and three-year firearm specifications, but found him guilty of the mass murder, felony murder, and escape detection specifications. The jury concluded that Ervin was not the principal offender but did conclude that he acted with prior calculation and design.
{¶6} On August 21, 2006, Ervin appealed his conviction. While the matter was pending on appeal, Ervin filed a petition to vacate or set aside judgment. On June 4, 2007, the trial court denied the motion to vacate, and Ervin apрealed. On October 25, 2007, this court dismissed Ervin‘s appeal as untimely.
{¶7} On November 8, 2007, in State v. Ervin, 8th Dist. Cuyahoga No. 88618, 2007-Ohio-5942, this court affirmed Ervin‘s conviction. Ervin appealed to the Ohio Supreme Court, but in State v. Ervin, 117 Ohio St.3d 1441, 2008-Ohio-1279, 883 N.E.2d 458, the court declined to hear the case.
{¶8} On February 14, 2008, Ervin filed an application to reopen. On December 12, 2008, this court denied Ervin‘s application to reopen. State v. Ervin, 8th Dist. Cuyahoga No. 88618, 2008-Ohio-6660.
{¶9} On June 3, 2010, Ervin filed a motion to vacate void judgment and to order a new sentencing hearing. The trial court denied the motion the following month. On
{¶10} On March 18, 2013, Ervin filed a motion for relief from judgment. On April 2, 2013, the trial сourt denied the motion. On August 5, 2013, Ervin filed a motion to vacate void judgment. The trial court denied the motion, and Ervin now appeals.
Failure to Time Stamp Journalization of Order
{¶11} In the first assigned errоr, Ervin argues the clerk of court failed to place a time stamp showing journalization of the trial court‘s decision denying his motion to vaсate a void judgment, thereby failing to comply with the requirement set forth in
{¶12}
A judgment of conviction is a final order subject to appeal under
R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge‘s signаture, and (4) the time stamp indicating the entry upon the journal by the clerk.
State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus, modifying State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. We have held in the past that the time stamp regarding when the clerk reсeived the document for filing was sufficient to satisfy the time stamp requirement. See State v. Smith, 8th Dist. Cuyahoga No. 99428, 2013-Ohio-3154, ¶ 10. In the instant case, the
{¶13} Moreover, the failure to comply with
Conviction Without Formal Complaint
{¶14} In the second assigned error, Ervin argues the trial court erred and was without subject matter jurisdiction when it convicted him without a formal complaint. Ervin‘s argument reflects a misunderstanding of Ohio criminal process.
{¶15} Minor criminal prosecutions may be initiated by complaint as provided in
Ineffective Assistance of Counsel
{¶17} In the third assigned error, Ervin argues he was denied the right to the effective assistance of counsel.
{¶18} The doctrine of res judicata is a common doctrinal hurdle that postconviction relief petitioners must clear.
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, аny defense or claimed lack of due process that was raised or could have been raised by the defendant at the trial which resultеd in that judgment of conviction or on an appeal from that judgment.
State v. Warmus, 8th Dist. Cuyahoga No. 99962, 2014-Ohio-928, citing State v. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 13.
{¶19} In the instant case, Ervin argues that counsel was ineffective for failing to attack the validity of the existence of a complaint or proper affidavit. However, Ervin could have raised this in his direct appeal. As such, this claim is barred by the doctrine of res judicata. Accordingly, we overrule the third assigned error.
{¶20} Judgment affirmed.
It is ordered that appellee rеcover of appellant its costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., P.J., and
KENNETH A. ROCCO, J., CONCUR