Case Information
*1
[Cite as
State v. Haddix
,
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2012-CA-00218 DOUGLAS E. HADDIX :
: Defendant-Appellant : O P I N I O N CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 1995CR0111 JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 13, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO DOUGLAS E. HADDIX BY RONALD MARK CALDWELL Box 901
Stark County Prosecutor Leavittsburg, OH 44430 110 Central Plaza S., Ste. 510
Canton, OH 44702
[Cite as
State v. Haddix
,
Gwin, P.J.
{¶1} Appellant Douglas E. Haddix [“Haddix”] appeals from the November 7, 2012 Judgment Entry of the Stark County Court of Common Pleas denying his motion to resentence.
Facts and Procedural History
{¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal. The appeal will be
determined as provided by App. R. 11. 1. It shall be sufficient compliance
with App. R. 12(A) for the statement of the reason for the court's decision
as to each error to be in brief and conclusionary form. The decision may
be by judgment entry in which case it will not be published in any form.”
One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusionary decision more quickly than in a case
on the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn .,
rules. On February 2, 1995, the Stark County Grand Jury indicted Haddix, on
three counts of rape in violation of R.C. 2907.02, one count of felonious assault in violation of R.C. 2907.12, one count of gross sexual imposition in violation of R.C. *3 2907.05, and one count of endangering children in violation of R.C. 2919.22. Said charges arose from incidents involving a minor under the age of thirteen.
{¶6} A jury trial commenced on April 25, 1995. At the conclusion of the state's case-in-chief, the trial court dismissed the endangering count. The jury found appellant guilty as charged save for one of the rape counts. By judgment entry filed May 30, 1995, the trial court sentenced appellant to an aggregate indeterminate term of seventeen to fifty years in prison.
{¶7} Haddix appealed and this court affirmed his convictions and sentences. State v. Haddix , 5th Dist. No. 95–CA–0175, 1996 WL 363510(June 3, 1996). For a complete history of appellant’s underlying case and subsequent journey through the appellate process see , State v. Haddix, 5th Dist. No. 1998–CA–0096, 1998 WL 753263(September 28, 1998); State v. Haddix 5th Dist. No. 1999–CA–00227, 1999 WL 107980(November 15, 1999); State v. Haddix 5th Dist. No. 2011CA00276, 2012-Ohio- 4259. On November 6, 2012, 2011, Haddix filed a motion for resentencing
arguing that one of his criminal sentences was illegal because the original judgment entry of sentence contained a sentence upon a count upon which he was acquitted by the jury. By judgment entry filed November 7, 2012, 2011, the trial court denied the motion. Haddix filed an appeal from the November 7, 2012 judgment entry of the
trial court that denied his motion for resentencing.
Assignment of Error Haddix raises one assignment of error:
{¶11} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DISMISSED THE MOTION TO RESENTENCE.”
Analysis
{¶12} Haddix argued before the trial court that he was sentenced for a count of statutory rape for which he was found not guilty. The original judgment entry of conviction and sentence, filed on May 2,
1995, did reflect that Haddix was sentenced to an indeterminate sentence of 10 to 25 years for the second count of statutory rape. The jury, however, had acquitted Haddix of this specific count in the indictment. This entire sentencing entry was corrected by a nunc pro tune entry, filed on May 30, 1995, to correct this error. Haddix filed his original appeal on May 16, 1995. Haddix’s brief was not
filed until December 4, 1995. Thus, Haddix could have, but did not raise this issue in his direct appeal. However, in the case at bar, the trial court corrected the error by a nun pro tunc entry filed May 30, 1995. Accordingly, Haddix’s sentence is neither void nor voidable. Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel 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 at the trial,
which resulted in that judgment of conviction, or on an appeal from that judgment. State
v. Szefcyk ,
offender is entitled to a de novo sentencing hearing for the trial court to correct a
sentence that omitted notice of post release control. * * * Importantly, because Bezak
had already completed his term of imprisonment, the trial court could not, consistent
with our decision in Hernandez * * * conduct a resentencing. State v. Bezak , 114 Ohio
St.3d 94,
2010- Ohio-6238, the limited its holding in Bezak and concluded that the defendant is only entitled to a hearing for the proper imposition of post release control. In Fischer , the Court stated:
We similarly hold that when a judge fails to impose statutorily mandated post release control as part of a defendant's sentence, that part of the sentence is void and must be set aside. (Footnote omitted.) Neither the Constitution nor common sense commands anything more.
This principle is an important part of the analysis of void sentences
that we have not focused upon in prior cases involving post release
control, including Bezak ,
However, we now modify the second sentence in the Bezak
syllabus as ill considered. That sentence states that the offender is entitled
to a new sentencing hearing for the offense for which post release control
was not imposed properly. 114 Ohio St.3d 94,
Id. at ¶¶26-27. The court in Fisher , supra, further held that “[a]lthough the doctrine of res
judicata does not preclude review of a void sentence, res judicata still applies to other
aspects of the merits of a conviction, including the determination of guilt and the lawful
elements of the ensuing sentence. Accordingly, appellant could not raise new issues, or
issues he had previously raised on his direct appeal. State v. Fischer, supra ; See also,
State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9,
R.C. 2505.02 sets forth the conditions under which an order is final
and may be reviewed, affirmed, or modified, with or without retrial. Crim.R.
32(C) specifies the substantive requirements that are to be included within
a judgment of conviction that make it final for purposes of appeal. We find
that appellant's original judgment entry of conviction meets the Crim.R.
32(C) requirements because it contained the fact of the conviction, the
sentence, the judge's signature, and the time stamp indicating the entry
upon the journal by the clerk. Therefore, the original judgment entry of
conviction was a final order subject to appeal under R.C. 2505.02.
*8
Moreover, the absence of the language required by Crim.R. 32(C) as a
matter of form indicating how appellant's conviction was effected has not
deprived appellant of any opportunity to appeal his conviction or sentence,
as he has appealed numerous times, and in none of those previous direct
appeals or collateral procedures did appellant raise any arguments
regarding the lack of finality of the judgment of conviction. Lester , 2007-
Ohio-4239,
130 Ohio St.3d 303,
It is well settled that courts possess the authority to correct errors in
judgment entries so that the record speaks the truth. State ex rel. Fogle v.
Steiner (1995), 74 Ohio St.3d 158, 163–164, 656 N.E.2d 1288; Crim.R.
36. Errors subject to correction by the court include a clerical error,
mistake, or omission that is mechanical in nature and apparent on the
record and does not involve a legal decision or judgment. State v. Miller,
“Nunc pro tunc” means “now for then” and is commonly defined as
“[h]aving retroactive legal effect through a court's inherent power.” Black's
Law Dictionary (9th Ed.2009) 1174. Therefore, a nunc pro tunc entry by its
very nature applies retrospectively to the judgment it corrects. See, e.g.,
Miller at ¶ 14, 15; Fogle at 163–164, 656 N.E.2d 1288. Appellate courts
throughout the state have consistently applied these principles. See, e.g.,
State v. Harrison , Butler App. Nos. CA2009–10–272 and CA2010–01–
019,
{¶21} In the case now before us, the original sentencing order complied with the substantive requirements of Crim.R. 32(C), was a final order for purposes of R.C. 2505.02, and was appealed by Haddix. The sole purpose of the nunc pro tunc entry was to correctly state that Haddix's original conviction did not include a conviction on the second count of statutory rape and therefore Haddix was not sentenced on that count. It is apparent, then, that the nunc pro tunc entry merely corrected a clerical omission in the sentencing order and made the entry reflect what had already happened, which was Haddix was found guilty, but not of the second count of statutory rape and to remove the sentence for that count, as set forth in the jury’s verdict. Thus, Haddix has already received the benefit that he sought in his motion
to resentence. We must be mindful of the “ * * * elementary proposition of law that an
appellant, in order to secure reversal of a judgment against him, must not only show
some error but must also show that that error was prejudicial to him.” See Smith v.
Flesher , 12 Ohio St. 2d 107, 233 N.E. 2d 137(1967); State v. Stanton , 15 Ohio St.2d
215, 217, 239 N.E.2d 92, 94(1968); Wachovia Mtg. Corp. v Aleshire , 5th Dist. No. 09
CA 4,
presented in a direct appeal from the trial court's sentencing entry, but they were not. As a result, res judicata bars appellant from raising them in this appeal. Appellant’s sole assignment of error is denied. *11 For the forgoing reasons, the judgment of the Stark County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. WILLIAM B. HOFFMAN _________________________________ HON. SHEILA G. FARMER WSG:clw 0429
[Cite as
State v. Haddix
,
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO :
:
Plaintiff-Appellee :
:
: -vs- : JUDGMENT ENTRY
:
DOUGLAS E. HADDIX :
:
:
Defendant-Appellant : CASE NO. 2012-CA-00218
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. WILLIAM B. HOFFMAN _________________________________ HON. SHEILA G. FARMER