STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO v. DELBERT M. FOWLER
CASE NO. 14 MA 124
SEVENTH DISTRICT
March 18, 2015
2015-Ohio-1053
OPINION
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Delbert M. Fowler, Pro se #A320-746 Grafton Correctional Institution 2500 South Avon Belden Road Grafton, Ohio 44044
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
{¶1} Pro se Appellant Delbert N. Fowler appeals the judgment of the Mahoning County Court of Common Pleas overruling a motion to vacate his conviction and sentence for murder, aggravated burglary, aggravated robbery, and kidnapping. Appellant presents two arguments on appeal. The first is that his conviction was not final pursuant to
{¶2} Furthermore, Appellant has already had a direct appeal of his sentence. The sentence was reviewed as a final appealable order and was affirmed, and no further appeal was taken. Any question as to the status of the sentencing entry of the trial court judgment should have been taken up with the Ohio Supreme Court but was not. Thus, the matter is now res judicata.
{¶3} Appellant also argues that he was improperly allowed to enter a guilty plea to a charge that was not in the indictment. The record reflects that the indictment was amended to include the change from aggravated murder to murder. Any alleged error in whether the plea conforms to the indictment could have been addressed in a direct appeal and is now also res judicata.
Background
{¶4} On June 23, 1995, Appellant was indicted by the Mahoning County Grand Jury on counts of aggravated murder, aggravated burglary, aggravated robbery, and kidnapping, along with corresponding firearm specifications. The crimes were committed against Hector and Arlene Ramirez. Appellant entered into a
{¶5} On February 21, 1996, the court sentenced Appellant to fifteen years to life in prison for murder. On each of the three remaining counts, the trial court sentenced him to ten to twenty-five years in prison. The trial court merged the firearm specifications and imposed one three-year prison term. All the sentences were to be served consecutively.
{¶6} On February 29, 1996, Appellant filed a motion to correct his sentence, arguing that counts two through four were allied offenses that should have merged at sentencing and that the trial court incorrectly stated the minimum prison term. The trial court denied the motion. Appellant filed an appeal. We reviewed the entire sentence and determined that there were no allied offenses. We held that the minimum prison term was incorrectly calculated, but there was no reversible error since the correct minimum prison term would be automatically recalculated, at the appropriate time, pursuant to the sentencing statutes. Fowler, supra.
{¶7} On May 25, 2007, Appellant filed a motion to vacate his conviction and sentence. The motion was denied on May 30, 2007. No appeal was taken.
{¶8} On June 30, 2014, Appellant filed another motion seeking to vacate his conviction. The trial court denied the motion on August 21, 2014. This appeal followed.
ASSIGNMENTS OF ERROR NOS. ONE AND TWO
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT‘S MOTION SEEKING NOTICE OF PLAIN ERROR PURSUANT TO CRIMINAL RULE 52(B). WHERE THERE IS NO SOUND PROCESS TO SUPPORT THE JUDGMENT OF DENIAL.
THE TRIAL COURT WAS AND STILL IS WITHOUT SUBJECT MATTER JURISDICTION TO SENTENCE THE APPELLANT IN VIOLATION OF THE 14th AMENDMENT AND CRIMINAL RULE 11, WHERE THERE WAS NO CONVICTION PRIOR TO THE SENTENCE BEING IMPOSED.
{¶9} In these first two assignments of error, Appellant argues that the trial court should have sustained his motion to vacate the conviction as void because there was no final appealable order of conviction when the sentence was issued on February 21, 1996. Appellant bases his argument on a former version of
conviction in the sentencing entry. The judgment entry in this case states that Appellant pleaded guilty to murder and the other charges in the indictment, but does not expressly use the word convicted when setting forth the guilty plea. Appellant believes that there was never a final appealable order because the word convicted or some similar word, is not expressly stated in the entry.
{¶10} Appellant is mistaken on a number of levels here. First, the version of
{¶11} Following this, many convictions were challenged on the grounds that the sentencing entries were not final and appealable because the manner of conviction was not expressly stated in the sentencing entry. To alleviate some
considerable confusion in this area, the Ohio Supreme Court later clarified Baker by holding that where the sentencing entry states the fact of conviction, but fails to state the manner in which the conviction was obtained (such as through a guilty plea or a jury trial), the entry is still final and appealable. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, modifying Baker, 119 Ohio St.3d 197.
{¶12} Appellant concludes, based on Baker and Lester, that a sentencing entry that includes the guilty plea and the sentence, but does not explicitly say that the defendant was convicted, violates former
{¶13} The sentencing entry in this case contains the guilty plea, the sentence, and the signature of the judge, and was a final appealable order pursuant to former
{¶14} Appellant may be confused because
the sentence. This language reflects a change after Appellant was sentenced and does not apply to his situation.
{¶15} Regardless of Appellant‘s arguments regarding the appealability of the February 21, 1996 judgment, any questions regarding the status of that judgment as a final appealable order should have been made in the earlier direct appeal or a further appeal to the Ohio Supreme Court. We have already reviewed and affirmed Appellant‘s sentence, and no further appeal was taken. Appellant is essentially arguing that we had no authority to review and decide the previous appeal because there was no final appealable order from the trial court. It is axiomatic that, [a] court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction on issue raised, and a party challenging its jurisdiction has a remedy at law in appeal from an adverse holding of the court that it has such jurisdiction * * *. State ex rel. Miller v. Court of Common Pleas of Lake Cty., 151 Ohio St. 397, 397, 86 N.E.2d 464 (1949). Although this rule typically arises in questions over the jurisdiction of the lower courts, it also applies to the jurisdiction of a court of appeal. State ex rel. Emery-Thompson Mach. & Supply Co. v. Jones, 96 Ohio St. 506, 511-512, 118 N.E. 115 (1917).
{¶16} If Appellant believed there was error in our acceptance and review of the February 21, 1996 judgment as a final appealable order, his remedy was by way of further review in the Ohio Supreme Court, and not in a postconviction attempt at the trial court level to have the sentence declared void. We have recently held in another case involving the holdings of Baker and Lester, [a]ppellant is mistaken,
however, that the finality of his original sentencing entries is voided or disturbed by a defect in form. Finality was established in his original appeal as of right. The appellate decision is res judicata as to the issue in this matter. The principle of ‘[r]es judicata may be applied to bar further litigation of issues that were raised previously or could have been raised previously in an appeal.’ State v. Houston, 73 Ohio St.3d 346, 347, 652 N.E.2d 1018 (1995), citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). State v. Gilmore, 7th Dist. No. 11 MA 30, 2014-Ohio-5059, ¶11.
{¶17} The trial court‘s judgment entry conforms to former
ASSIGNMENT OF ERROR NO. THREE
THE TRIAL COURT VIOLATED APPELLANT‘S RIGHTS WHEN IT SENTENCED APPELLANT TO A CRIME THAT WAS NOT MENTION [SIC] WITHIN THE BODY OF THE INDICTMENT.
{¶18} Appellant contends that he was convicted of murder (through a guilty plea arising from a
Fowler, 7th Dist. No. 96 C.A. 58, 1999 WL 61063, at *1 (Feb. 1, 1999). Thus, it is an established fact in this appeal that the indictment was amended. Further, errors in the content or form of the charges in the indictment must be raised and reviewed on direct appeal rather than on collateral review of post-judgment motions. Since the error was not raised in the prior appeal, the matter is now res judicata. State v. Sloane, 7th Dist. No. 06 MA 144, 2009-Ohio-1175, ¶46.
Conclusion
{¶19} Appellant argues that his sentencing judgment entry was not a final order when it was entered in 1996, and that his indictment was not properly amended to reflect a change in the charge from aggravated murder to murder. The record reveals that the sentencing judgment entry conforms to former
Donofrio, P.J., concurs.
Robb, J., concurs.