Case Information
*1
[Cite as
State v. Harris
,
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24739 Plaintiff-Appellee :
: Trial Court Case No. 92-CR-907 v. :
: HERMAN HARRIS, JR. : (Criminal Appeal from
: (Common Pleas Court) Defendant-Appellant :
:
. . . . . . . . . . .
O P I N I O N Rendered on the 27 th day of April, 2012.
. . . . . . . . . . .
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post Office Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee HERMAN HARRIS, JR., #A285-745, Hocking Correctional Facility, 16959 Snake Hollow Road, Post Office Box 59, Nelsоnville, Ohio 45764-0059
Defendant-Appellant, pro se
. . . . . . . . . . . . .
FAIN, J.
Defendant-appellant Herman Harris, Jr. appeals from an order overruling his
Motion to “Correct Void Sentence and/or Judgment,” entered June 24, 2011. Pursuant to
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Crim. R. 32(C) and
State v. Baker
, 119 Ohio St.3d 197,
and Harris’ four assignments of error are barred by
res judicata
. Specifically, the
Termination Entry and the nunc pro tunc entry comply with Crim.R. 32(C).
State, ex. rel
DeWine v. Burge
, 128 Ohio St.3d 236,
I. Course of Proceedings This case arose aftеr a three-judge panel found Harris guilty of Murder and
Grand Theft in 1993. Harris had been charged with Aggravated Murder with death-penalty
specifications, hence the three-judge panel. He was sentenced to a term of fifteen years tо life
for Murder and a term of four to ten years for Grand Theft. Harris appealed; we affirmed.
State v. Harris
, 2d Dist. Montgomery No. 14343,
II. Violation of Crim.R. 32(C) Does Not Render A Sentencing Entry Void. Although not assigned as an error, Harris argues throughout his appellate brief that his original sentencing entry and the nunc pro tunc entry did nоt comply with Crim.R. 32(C) and State v. Baker , thereby rendering his convictions void. Specifically, Harris contends that the Termination Entry is not a final appealable order because it fails to set forth the manner of his conviction. That is, the entry did not indicаte that Harris was found guilty by a three-judge panel. Moreover, Harris contends that the nunc pro tunc entry issued April 2, 2010 correcting this clerical error is also void because it did not change his convictions to reflect the lessеr degrees of Murder and Grand Theft. Harris argues that because these entries are not final appealable orders, he is not only entitled to a vacated verdict and re-sentencing, but that this court did not have jurisdiction ovеr his original appeal. We disagree. Crim.R. 32(C) provides, “A judgment of conviction shall set forth the plea,
the verdict, or findings, upon which each conviction is based, and the sentence. * * * The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.” Therefore, “[a] judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court uрon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry of the journal by the clerk of courts.” Baker at syllabus. “Clerical errors in judgment, orders, or other parts of the record, and errors in
the record arising frоm oversight or omission, may be corrected by the court at any time.”
Crim.R. 36. “A nunc pro tunc entry is the proper method for correcting clerical errors.”
State
v. Kendrick
, 2d Dist. No. 24626,
tunc entry was in compliance with Crim.R. 32(C) and Baker and was the proper means to *6 correct the clerical error in the Termination Entry. Harris’s assertion that failure to alter his conviction renders the nunc pro tunc entry void is without merit. In the case of Crim.R. 32(C) compliance, a change to the substance of the entry is inappropriate because an entry is required to reflect what the court actually intended, not what it should have done. Moreover, contrary to Harris’s contention, the Termination Entry is a final appealable order despite the necessity for the nunc pro tunc entry. Therefore, this court properly had jurisdiction to hear and decide his 1994 appeal.
III. Claims Relating to the Vеrdict Form are Precluded Based On the Doctrine of Res Judicata . Harris’s Second, Third, and Fourth Assignments of Error are as follows:
ASSIGNMENT OF ERROR NUMBER TWO: THE DEFENDANT/ APPELLANT, MR. HERMAN HARRIS, JR[.] WAS DENIED “EQUAL PROTECTION” OF LAW AND “DUE PROCESS” OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, OHIO BILL OF RIGHTS: ARTICLE I, §§ 2, AND 16 OF THE OHIO CONSTITUTION, WHEN THE TRIAL COURT FAILED TO PROPERLY COMPLETE THE VERDICT FORM (NOVEMBER 5th, 1993 CASE NO. 92-CR-907 MONTGOMERY COUNTY COMMON PLEAS COURT). THE APPELLANT MR. HARRIS SHOULD HAVE BEEN SENTENCED AND/OR CONVICTED ON THE NEXT LESSER OFFENSE REDUCING THE “GRAND THEFT” TO AN OFFENSE OF “THEFT” BECAUSE THE “VERDICT FORM” DOES NOT CITE THE DEGREE OF THE OFFENSE, AND THE OFFENSE OF “MURDER” CITES NO DEGREE OF THE OFFENSE, NOR, *7 MAKES NO MENTION OF THE “ELEMENTS” WITHIN THE VERDICT FORM. THEREFORE, THE “MURDER” OFFENSE SHOULD HAVE BEEN A FINDING OF GUILT ON THE LESSER OFFENSE OF “VOLUNTARY MANSLAUGHTER” OR “INVOLUNTARY MANSLAUGHTER.” THE TRIAL COURT AND/OR SENTENCING COURT COMMITTED PLAIN ERROR BY SENTENCING THE DEFENDANT/APPELLANT MR. HARRIS, TO THE GREATER CRIMINAL OFFENSE THAT’S UNAUTHORIZED BY STATUTES.
ASSIGNMENT OF ERROR NUMBER THREE: THE TRIAL COURT ERRORED [sic] WHEN IT FAILED TO IMPOSE SENTENCES OF THE NEXT LESSER OFFENSE ON “MISDEMEANOR THEFT” O.R.C. §§ 2913.02 (MISDEMEANOR OF THE FIRST DEGREE MAXIMUM SENTENCE SIX (6) MONTHS AND A $1,000.00 DOLLAR FINE), AND THE LESSER OFFENSE(S) OF INVOLUNTARY MANSLAUGHTER OR VOLUNTARY MANSLAUGHTER. THE VERDICT FORM FAILS TO PROPERLY STATE THE FELONY DEGREE(S) OF THE CRIMINAL OFFENSE OF “MURDER” AND THE CRIMINAL OFFENSE OF “GRAND THEFT,” NOR DOES THE VERDICT FORM PROPERLY STATE THE “ELEMENTS” TO DESCRIBE THE ACTUAL FELONY STATUTE OF “MURDER” IN ORDER TO PROPERLY CHARGE THE OFFENSE AND TO IMPOSE THE SENTENCE FOR THE CRIMINAL OFFENSE OF “GRAND THEFT” AND “MURDER.” THE VERDICT FORM DID NOT COMPLY WITH OHIO REVISED CODE §§ 2945.75(a)(2) AND SUCH IS NOT SUFFICIENT TO CONVICT THE APPELLANT MR. HARRIS OF THE CLASSIFIED OFFENSE OF “MURDER” AND “GRAND THEFT,” PURSUANT TO OHIO REVISED CODE §§ 2945.75(a)(2). THE *8 APPELLANT MR. HARRIS, WAS DENIED “EQUAL PROTECTION OF LAWS” AND “DUE PROCESS OF LAW” UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, OHIO BILL OF RIGHTS: ARTICLE I, § 2 AND 16 OHIO CONSTITUTION. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR.
ASSIGNMENT OF ERROR NUMBER FOUR/FOURTH CONSTITUTIONAL ERROR: OHIO REVISED CODE [§§ 2945.17.1] §§ 2945.171 “VERDICT IN WRITING”; OHIO REVISED CODE §§ 2945.75(A)(2) “DEGREE OF OFFENSE; CHARGE; AND VERDICT”; OHIO RULES OD [sic] CRIMINAL PROCEDURE CRIM.R. 31(A) “VERDICT RETURN;” AND OHIO RULES OF CRIMINAL PROCEDURES CRIM.R. 32(C) “SENTENCES” ARE BEING APPLIED IN A [sic] UNCONSTITUTIONAL MANNER THAT HAVE DENIED THE APPELLANT MR. HARRIS THE “EQUAL PROTECTION OF LAWS” AND “DUE PROCESS OF LAW” PROTECTIONS GUARANTEED BY BOTH THE FOURTEENTH AMENDMENT “CLAUSES” OF THE UNITED STATES CONSTITUTION, AND THE OHIO BILL OF RIGHTS: ARTICLES I, §§§ [sic] 2 AND 16, OF THE OHIO CONSTITUTION. OHIO REVISED CODE [§§ 2945.17.1] §§ 2945.171 “VERDICT IN WRITING”; OHIO REVISED CODE §§ 2945.75(A)(2) “DEGREE OF OFFENSE; CHARGE; AND VERDICT”; CRIM.R. 31(A) “VERDICT RETURN”; AND CRIM.R. 32(C) “SENTENCES” HAS BEEN APPLIED IN A DISCRIMINATORY NATURE AND/OR DISCRIMINATORY MANNER AS TO VIOLATE THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND THE OHIO BILL OF RIGHTS: ARTICLES I, §§ 2 AND 16, OF THE OHIO CONSTITUTION. *9 THE TRIAL COURT COMMITTED PLAIN ERROR AND ABUSED ITS DISCRETION. The above assignments of error are addressed together because each is concerned with
the validity of the original Verdict Form, entered in 1993. Harris contends that the Verdict Form fails to state the degrees of the offenses of which he was convicted. He argues that he is therefore entitled to a vacatеd verdict and re-sentencing by a three-judge panel to the lesser degrees of his original convictions of Murder and Grand Theft. The doctrine of res judicata bars these claims from being raised in the appeal before us. Res judicata is a doctrine of judicial preclusion. There are two theories on
which it operates, claim preclusion (estoppel by judgment) and issue preclusion (collateral
estoppel).
Grava v. Parkman Twp.,
the Verdict Form. This court had, and exercised, jurisdiction over Harris’ first appeal, *10 decided in 1994. Therefore, Harris’s failure to have raised these claims relating to Verdict Form during his initial appeal precludes him from raising them now, based upon the doctrine of res judicata . Although not expressly assigned as error, Harris contends that the original
Termination Entry in 1993, as well as the nunc pro tunc entry of April 2, 2010, are also invalid, because they do not state the necessary degrees for the Murder conviction or the Grand Theft conviction. For the reasons set forth above, res judicata also bars these claims. Harris’s Second, Third, and Fourth Assignments of Error are overruled.
IV. A Nunc Pro Tunc Entry Signed By A Single Judge When the Original Trial Was Presided Over By A Three-Judge Panel is Reversible Error. Harris’s First Assignment of Error is as follows:
THE HONORABLE JUDGE MARY L. WISEMAN, MONTGOMERY COUNTY
COMMON PLEAS COURT COMMITTED PLAIN ERROR AND/OR ERROR WHEN THE
HONORABLE JUDGE MARY L. WISEMAN SIGNED A NUNC PRO TUNC ORDER
ATTEMPTING TO CORRECT A PREVIOUS ORDER FROM A THREE-JUDGE PANEL
NOVEMBER 17, 1993 TERMINATION ENTRY THAT’S NOT IN COMPLIANCE [WITH]
McALLISTER v. SMITH
, 119 Ohio St.3d 163,
issue a nunc pro tunc entry correcting the Termination Entry originally issued by a three-judge panel. In our view, this is not a jurisdictional defect, but was at most reversible error on the part of the trial court to have issued the nunc pro tunc entry on the signature of a single judge. The Ohio Constitution, Article IV, Section 4(B) provides: “The courts of
common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters and such powers of review of proceedings of administrative officers and agencies as may be provided by law.” In the exercise of the General Assembly’s prerogative to establish the jurisdiction of the common pleas courts, R.C. 2931.03 provides: “The court of common pleas has original jurisdiction of all crimes and offenses, except in cases of minor offenses the exclusive jurisdiction of which is vested in courts inferior to the court of common pleas.” Thus, a common pleas court has broad jurisdiction over all criminal cases. In exercising that jurisdiction, there are many substantive and procedural errors of law that a common pleas court may commit, and upon appellate review, substantive or procedural errors of law, if sufficiently prejudicial, may afford a basis for reversal of a judgment or order. In our view, a single judge’s signature on a nunc pro tunc entry that ought to have been signed by the *12 members of a three-judge panel is an example of a рrocedural error of law that may result in reversal on appeal, if a timely appeal is filed. But the jurisdiction of the trial court is not thereby implicated. At the time it was issued, April 2, 2010, the nunc pro tunc entry was a final
appеalable order. Because Harris failed to appeal from that order, he has forfeited a claim based upon the fact that it was signed by only one judge of the common pleas court. As with the other issues he seеks to raise in this appeal, it is barred by res judicata , because he could have raised the issue in an appeal from the April 2, 2010 order, but did not. Harris’s First Assignment of Error is overruled.
V. Conclusion All of Harris’s assignments of error having been overruled, the order of the
trial court from which this appeal is taken is Affirmed.
. . . . . . . . . . . . .
GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Herman Harris, Jr.
Hon. Mary L. Wiseman