STATE OF OHIO, Plaintiff-Appellee -vs- DAVID L. HORN, Defendant-Appellant
Case No. 13 CAA 12 0087
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 28, 2014
[Cite as State v. Horn, 2014-Ohio-1814.]
Hon. W. Scott Gwin, P.J.; Hon. Patricia A. Delaney, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County Court of Common Pleas, Case No. 08-CR-1-05-0268; JUDGMENT: Affirmed
For Plaintiff-Appellee
CAROL HAMILTON O‘BRIEN BY KYLE E. ROHRER 140 North Sandusky Street Delaware, OH 43015
For Defendant-Appellant
DAVID HORN, PRO SE
Gwin, P.J.
{¶1} Defendant-appellant David L. Horn appeals from the December 3, 2013 judgment entry of the Delaware County Common Pleas Court denying his motion for final appealable order. Plaintiff-appellee is the State of Ohio.
Facts & Procedural History
{¶2} Appellant was convicted after a jury trial of grand theft of a motor vehicle, aggravated robbery with a firearm specification, and kidnapping with a firearm specification. On October 31, 2008, appellant was sentenced to a total prison term of fourteen years and six months. In a judgment entry of sentence on October 31, 2008, the trial court stated:
[d]efendant has been convicted of grand theft of a motor vehicle, as set forth in Count One of the indictment, a violation of
R.C. 2913.02(A)(2) , a felony of the fourth degree, AND; of Aggravated Robbery, as set forth in Count Two, a violation ofR.C. 2911.01(A)(1) , a felony of the first degree, AND; of the Firearm Specification attached to Count Two, a violation ofR.C. 2941.145 , AND; of Count Three of Kidnapping, as set forth in Count Three of the Indictment, a violation ofR.C. 2905.01(A)(2) , a felony of the first degree, and of the Firearm Specification attached to Count Three, a violation ofR.C. 2941.145 .
The October 31, 2008 judgment entry also recited appellant‘s sentence on each count, detailed appellant‘s appeal rights, and notified appellant of the imposition of post-
{¶3} On November 12, 2008, the trial court entered a judgment entry on verdict, indicating the case was tried to a jury and appellant requested the jury be polled after the verdict. Appellant filed an appeal of his conviction on November 19, 2008. Appellant argued in his direct appeal that he was deprived of his right to counsel under the Ohio and federal constitutions because the trial court failed to ensure appellant‘s waiver of counsel was knowing, voluntary, and intelligent. On November 10, 2009, we affirmed appellant‘s convictions in State v. Horn, Delaware No. 08 CAA 11 0069, 2009-Ohio-5983.
{¶4} On December 17, 2009, the trial court sua sponte issued a nunc pro tunc judgment entry of sentence. The nunc pro tunc entry contained the same information as contained in the first entry, except instead of stating, “[d]efendant has been convicted of * * *” the offenses, states, “[a]fter a jury trial, a verdict of guilty was returned and the Court accepted the verdict of Guilty to the charge[s] of * * *” the offenses listed.
{¶5} On October 3, 2012, appellant filed a motion to re-open his appeal. This Court denied his motion to re-open on October 23, 2012. On December 10, 2012, appellant filed an appeal to the Ohio Supreme Court. The Ohio Supreme Court declined to accept jurisdiction of the case on February 6, 2013. Appellant then filed a motion for final appealable order asking for his immediate release or a de novo sentencing hearing on November 7, 2013. Appellee filed a response to appellant‘s motion for a final appealable order on November 21, 2013. The trial court issued a
{¶6} Appellant appeals the December 3, 2013 judgment entry of the Delaware County Court of Common Pleas and assigns the following as error:
{¶7} “I. [THE] TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT‘S MOTION FOR FINAL APPEALABLE ORDER PURSUANT TO CRIM. R. 32(C) AND BAKER.”
I.
{¶8} In his sole assignment of error, appellant argues the trial court abused its discretion when it denied his motion for final appealable order. Appellant contends a valid judgment of conviction is comprised of a single document and there are three judgment entries in this case. Further, since there are three judgment entries, there has been no final appealable order. We disagree with appellant.
{¶9} Appellant argues the trial court erred in denying his motion because the trial court relied on multiple documents to constitute a final appealable order in violation of State v. Baker, 119 Ohio St.3d 197, 893 N.E.2d 163 (2008). Pursuant to
{¶10} In this case, the October 31, 2008 judgment entry of sentence included the fact that appellant was convicted, the sentence on each count, the fact that the sentences are to be served consecutively, the trial court judge‘s signature, and the time stamp of the Delaware County Clerk of Courts indicating journalization. The original judgment entry of sentence recited appellant had been convicted of the various offenses, but did not disclose the manner of conviction. In its December 17, 2009 nunc pro tunc judgment entry of sentence, the trial court added the following language, “[a]fter a Jury Trial, a verdict of Guilty was returned and the Court accepted the verdict of Guilty to” the listed charges.
{¶11} In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, the Ohio Supreme Court held that a nunc pro tunc entry issued for the sole purpose of complying with
{¶13} Thus, the original October 31, 2008 entry was a final order subject to appeal under
{¶14} The October 31, 2008 judgment entry of sentence is a valid, final appealable order and any new challenges to it are barred by the doctrine of res judicata. Res judicata is defined as “[a] valid, final judgment rendered upon the merits bars all
{¶15} Appellant‘s assignment of error is overruled and the December 3, 2013 judgment entry by the Delaware County Common Pleas Court is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur