STATE OF OHIO, Plaintiff-Appellee, - vs - JAMES E. MITCHELL, Defendant-Appellant.
CASE NO. 2019-P-0105
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
June 8, 2020
[Cite as State v. Mitchell, 2020-Ohio-3417.]
MARY JANE TRAPP, J.
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 1993 CR 0294. Judgment: Affirmed in part, reversed in part, and remanded for the issuance of nunc pro tunc entries.
James E. Mitchell, pro se, #A293-032, Marion Correctional Institution, 940 Marion Williamsport Road, P.O. Box 57, Marion, OH 43302 (Defendant-Appellant).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Appellant, James E. Mitchell (“Mr. Mitchell”), appeals the judgment of the Portage County Court of Common Pleas denying his combined motions to correct a journal entry, for resentencing pursuant to
{¶2} Mr. Mitchell contends that the trial court erred by denying his motions.
{¶3} First, he argues that he is entitled to a corrected journal entry memorializing his guilty pleas because it incorrectly references an amended indictment and cites the incorrect statutory subsection of gross sexual imposition under
{¶4} Second, he argues that he is entitled to a corrected sentencing entry because it also incorrectly references an amended indictment.
{¶5} Third, he argues that the sentencing entry does not constitute a final appealable order pursuant to
{¶6} Finally, he argues that the sentencing entry is void because the trial court’s references to an amended indictment constitute a modification of his sentence for which he was not present as required by
{¶7} After a careful review of the record and the pertinent law, we find as follows:
{¶8} First, the trial court did not err by denying Mr. Mitchell’s motion for resentencing. A trial court’s errors under
{¶9} Second, the trial court did not err by denying Mr. Mitchell’s motion for a corrected sentencing order to the extent he sought a “final appealable order” or by denying his motion for a final appealable order. The trial court lacked jurisdiction to consider Mr. Mitchell’s motions, which we construe as successive petitions for
{¶10} Finally, the trial court erred by denying both Mr. Mitchell’s motion to correct the journal entry memorializing his guilty pleas and his motion for a corrected sentencing order to the extent he sought correction of clerical mistakes under
{¶11} Thus, we affirm in part, reverse in part, and remand to the trial court to issue proper nunc pro tunc entries.
Substantive and Procedural History
{¶12} This is Mr. Mitchell’s fourth appeal to this court regarding his convictions from 1994.
{¶13} In 1993, the Portage County Grand Jury indicted Mr. Mitchell for rape in violation of
{¶14} In 1994, Mr. Mitchell entered written and oral pleas of guilty to gross sexual imposition in violation of
{¶15} Prior to sentencing, Mr. Mitchell moved to withdraw his guilty pleas. The trial court held a hearing and denied the motion.
{¶16} The trial court subsequently sentenced Mr. Mitchell to three to 15 years in prison for burglary and two years in prison for gross sexual imposition and ordered the sentences to be served concurrently. The trial court issued a judgment entry memorializing Mr. Mitchell’s sentences.
{¶17} Mr. Mitchell filed an appeal of the trial court’s denial of his presentence motion to withdraw his guilty plea. This court affirmed the trial court’s judgment in State v. Mitchell, 11th Dist. Portage No. 94-P-0070, 1995 WL 411830 (June 23, 1995) (“Mitchell I”).
{¶18} In 2016 and 2017, over twenty years after his convictions, Mr. Mitchell filed several pro se postconviction motions, all of which the trial court denied. Mr. Mitchell appealed, and this court affirmed the trial court’s judgments in State v. Mitchell, 11th Dist. Portage Nos. 2017-P-0007 & 2017-P-0009, 2017-Ohio-8440, appeal not accepted, 152 Ohio St.3d 1445, 2018-Ohio-1600 (“Mitchell II”).
{¶19} In 2018, Mr. Mitchell filed a pro se motion to dismiss his indictment, which the trial court denied. Mr. Mitchell appealed, and this court affirmed the trial court’s judgment in State v. Mitchell, 11th Dist. Portage No. 2018-P-0047, 2019-Ohio-844, appeal not accepted, 156 Ohio St.3d 1445, 2019-Ohio-2498 (“Mitchell III”).
{¶20} In April 2019, Mr. Mitchell filed three combined pro se motions. In a “motion to correct journal entry,” Mr. Mitchell contended that the trial court’s journal entry memorializing his guilty pleas incorrectly states that he entered guilty pleas to “an amended indictment” and cites the incorrect subsection of gross sexual imposition under
{¶21} In a “motion for re-sentencing pursuant to
{¶22} In a “motion for a final appealable order pursuant to
{¶23} In July 2019, Mr. Mitchell filed a pro se “motion for corrected sentencing entry.” Mr. Mitchell contended that the trial court’s sentencing entry incorrectly states that he was sentenced for offenses “as amended” in the indictment. Further, Mr. Mitchell argued that the sentencing entry does not comply with
{¶24} In August 2019, the trial court issued a judgment entry denying all of Mr. Mitchell’s motions. Mr. Mitchell filed a notice of appeal and a motion for leave to file a delayed appeal, which this court granted.
{¶25} Mr. Mitchell asserts the following four assignments of error:
{¶26} “[1.] The trial court erred in denying appellant’s Motion to Correct Journal Entry.
{¶27} “[2.] The trial court erred in denying appellant[’]s Motion for a Corrected Sentencing Entry.
{¶28} “[3.] The trial court erred in denying appellant’s Motion for a Final Appealable Order.
{¶29} “[4.] The trial court erred [in] denying appellant’s Motion for Resentencing pursuant to
{¶30} We address Mr. Mitchell’s assignments of error out of order and collectively for ease of discussion.
Void Sentence
{¶31} We first address Mr. Mitchell’s fourth assignment of error, where he challenges the trial court’s denial of his motion for resentencing. Mr. Mitchell contends that the trial court violated
Crim.R. 43(A)
{¶32}
{¶33} Mr. Mitchell was originally indicted on charges of aggravated burglary and rape, but he subsequently pleaded guilty to the offenses of burglary and gross sexual
Trial Court Jurisdiction
{¶34} We first determine whether the trial court had jurisdiction to consider Mr. Mitchell’s motion for resentencing. Whether a court has subject matter jurisdiction is a question of law that we review de novo. (Citations omitted.) Smith v. Dietelbach, 11th Dist. Trumbull No. 2011-T-0007, 2011-Ohio-4308, ¶14.
{¶35} A trial court lacks the authority to reconsider its own valid, final judgment in a criminal case, with two exceptions: (1) when a void sentence has been imposed, and (2) when the judgment contains a clerical error. (Citation omitted.) State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, ¶14. A trial court may also address petitions for postconviction relief to claiming the denial or infringement of constitutional rights. See
{¶36} The state argues that Mr. Mitchell cannot be resentenced because he has served his prison sentences in the underlying case.
{¶37} The trial court sentenced Mr. Mitchell in 1994 to concurrent prison terms of two years for gross sexual imposition and three to 15 years for burglary. Thus, it appears
{¶38} In support of its argument, the state cites State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014. In Holdcroft, the offender was sentenced to a ten-year prison sentence for aggravated arson and to another five years for arson, to be served consecutively. Id. at ¶2. The trial court imposed postrelease control but did not state how long the sanction would be imposed, or to which sentence it applied. Id. The offender served over ten years in prison before the trial court held a new sentencing hearing to correct its error. Id. at ¶3.
{¶39} The Supreme Court of Ohio held that “[a] trial court does not have authority to resentence a defendant for the purpose of adding a term of postrelease control as a sanction for a particular offense after the defendant has already served the prison term for that offense.” Id. at ¶18. According to the court, “while a void sanction may be modified, a valid sanction generally cannot.” Id. at ¶14, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶17. However, “once a valid prison sanction has been served, * * * the court has lost jurisdiction to modify the sentence.” Holdcroft at ¶14, citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, ¶28-30.
{¶40} We find the present case is distinguishable from Holdcroft, as it does not involve the imposition of postrelease control. In addition, Mr. Mitchell is challenging his
{¶41} Further, Mr. Mitchell was sentenced prior to the General Assembly’s enactment of Ohio’s postrelease control statute. Under that system, the Tenth District has held that criminal jurisdiction ends “upon the defendant’s release from incarceration, probation or parole, whichever event occurs last.” See State v. Nye, 10th Dist. Franklin No. 95APA11-1490, 1996 WL 303675, *3 (June 4, 1996). Unless the Adult Parole Authority has issued a certificate of final release, an offender remains incarcerated pursuant to the jurisdiction of the sentencing court. Hylton v. McAninch, 4th Dist. Ross No. 95 CA 2115, 1995 WL 766372, *3 (Dec. 28, 1995).
{¶42} The record before us does not reflect the issuance of a certificate final release with respect to the underlying convictions. Therefore, we cannot say the trial court lacked jurisdiction to consider Mr. Mitchell’s motion for resentencing.
Analysis
{¶43} Mr. Mitchell’s assertion that his sentencing entry is void raises a question of law that we review de novo. See State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶5; State v. Brown, 11th Dist. Lake No. 2017-L-038, 2017-Ohio-7963, ¶8 (“[A]n appellate court‘s standard of review on the denial of a motion to vacate void judgment is de novo”).
{¶44} The Supreme Court of Ohio has determined that a trial court’s violation of
{¶45} Most recently, the Supreme Court of Ohio has revisited its prior void-sentence jurisprudence and held that “[a] sentence is void when a sentencing court lacks jurisdiction over the subject-matter of the case or personal jurisdiction over the accused.” State v. Harper, Slip Opinion No. 2020-Ohio-2913, ¶42.
{¶46} Since Mr. Mitchell’s sentence is not void, his arguments are subject to res judicata. State v. Walker, 5th Dist. Richland No. 15CA104, 2016-Ohio-1462, ¶20 (“Unlike void sentences, voidable sentences are not reviewable at any time and are subject to res judicata”). The Supreme Court of Ohio has held that “a convicted defendant is precluded under the doctrine of res judicata 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 appeal from that judgment.” (Emphasis deleted.) State v. Szefcyk, 77 Ohio St.3d 93, 96 (1996).
{¶47} Mr. Mitchell could have raised this argument on direct appeal. Instead, in Mitchell I, Mr. Mitchell chose to appeal only the trial court’s denial of his presentence motion to withdraw his guilty pleas.
{¶48} Even if Mr. Mitchell’s arguments were not barred by the doctrine of res judicata, the trial court’s references to an amended indictment in the sentencing entry did not constitute a modification of Mr. Mitchell’s sentence that required his presence under
{¶49} The cases Mr. Mitchell cites are distinguishable because they involve sentencing entries that altered terms of the defendants’ punishments. See Kovach at ¶29 (involving prison sentences set forth in an amended entry that were not the same as the prison sentences imposed at the sentencing hearing); Jordan at ¶49 (involving a sentencing entry containing consecutive sentences that were not imposed during the sentencing hearing).
{¶50} Here, the trial court’s references to an amended indictment in the sentencing entry did not add punishment or alter Mr. Mitchell’s prison sentences in any respect. Rather, they appear to be clerical mistakes amenable to a corrective entry under
{¶51} In fact, Mr. Mitchell acknowledged as much by filing a separate motion seeking the correction of these errors. We address the trial court’s denial of this separate motion below in our discussions of Mr. Mitchell’s second assignment of error.
{¶52} Accordingly, the trial court did not err in denying Mr. Mitchell’s motion for resentencing.
{¶53} Mr. Mitchell’s fourth assignment of error is without merit.
Final Appealable Order
{¶54} Mr. Mitchell’s second and third assignments of error are interrelated, so we address them together.
{¶55} Mr. Mitchell’s second assignment of error challenges the trial court’s denial of his motion for a corrected sentencing entry. Within this assignment of error, Mr. Mitchell contends that the sentencing entry is not a final appealable order. His third assignment of error challenges the trial court’s denial of his motion for a final appealable order.
Crim.R. 32(C)
{¶56} The Supreme Court of Ohio has held that to constitute a final appealable order under
{¶57} Mr. Mitchell contends that his sentencing entry violates
{¶58} As the state notes, there was no subsection (C) in
Trial Court Jurisdiction
{¶59} Mr. Mitchell did not identify the procedural mechanism pursuant to which he sought a “final appealable order” from the trial court.
{¶60} Mr. Mitchell did not assert that the trial court’s alleged
{¶61} In his reply brief, Mr. Mitchell suggests that his requests were petitions for postconviction relief pursuant to
{¶62} A petitioner‘s failure to satisfy
{¶63}
{¶64} A petition for postconviction relief is not a panacea for every perceived ill endured at the trial court level. State v. Edwards, 4th Dist. Ross No. 14CA3474, 2015-Ohio-3039, ¶8. The statute expressly states that a petition for postconviction relief exists to address constitutional problems. Id.;
{¶65} In addition, Mr. Mitchell has filed numerous postconviction motions beginning in 2016. See Mitchell II and Mitchell III. Pursuant to
{¶66} Mr. Mitchell made no attempt to show he meets these requirements, and it appears he cannot meet them. Postconviction relief is appropriate only when it concerns errors based upon facts and evidence dehors, i.e., outside, the record. Harman at *1, citing State v. Cole, 2 Ohio St.3d 112, 114 (1982). An appellant may not raise claims in his petition for postconviction relief that are based on alleged errors that solely occurred on the record. Id. And since Mr. Mitchell pleaded guilty, he cannot meet the requirements of
{¶67} Accordingly, the trial court did not err in denying Mr. Mitchell’s requests for a “final appealable order” because it was without jurisdiction to consider them.
Res Judicata and the Law of the Case
{¶68} Even if the trial court had jurisdiction to consider Mr. Mitchell’s requests for a “final appealable order,” he cannot prevail.
{¶69} We review a trial court‘s decision granting or denying a petition for postconviction relief filed pursuant to
{¶70} Mr. Mitchell’s arguments are barred by the doctrine of res judicata. Mr. Mitchell could have raised arguments regarding his sentencing entry on direct appeal, which would have been the proper time and vehicle. See State v. Grenter, 11th Dist. Ashtabula No. 2011-A-0013, 2011-Ohio-6003, ¶12. Instead, in Mitchell I, Mr. Mitchell chose to appeal only the trial court’s denial of his presentence motion to withdraw his guilty pleas. He may not now find his way into court through a side entrance with what appear to be pre-textual motions filed for the purpose of appealing his convictions and sentences anew. See Grenter at ¶12.
{¶71} Mr. Mitchell argues that res judicata is inapplicable because the sentencing entry was not a final appealable order. Therefore, he contends that he could not have filed a direct appeal and that his prior requests for postconviction relief were premature. However, the Supreme Court of Ohio has expressly rejected this argument, finding that res judicata applies when a prior appeal was litigated under an allegedly voidable
{¶72} Mr. Mitchell’s arguments are also barred by doctrine of the law of the case. Under this doctrine, “the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). This doctrine ensures the consistency of results in a case and avoids endless litigation by settling the issues. Id. It precludes a litigant from attempting to rely on arguments at a retrial which were fully pursued, or available to be pursued, in a first appeal. Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404-05 (1996).
{¶73} We previously affirmed the trial court’s judgments denying Mr. Mitchell’s presentence and post-sentence motions to withdraw his guilty pleas and denying his multiple postconviction motions. See Mitchell I at *3; Mitchell II at ¶20, 35; Mitchell III at ¶14-15. Thus, both Mr. Mitchell and this court have always proceeded under the presumption that the sentencing entry was a final appealable order. See Mitchell I at *1 (“This is an accelerated calendar appeal, emanating from a final judgment of the Portage County Court of Common Pleas”); see also State v. I‘Juju, 10th Dist. Franklin No. 15AP-692, 2016-Ohio-3078, ¶10 (“[B]y reviewing and affirming the trial court‘s judgment * * *, this court implicitly found the trial court‘s judgment was a final appealable order, and the doctrine of law of the case would preclude both the trial court and this court from concluding it was not a final appealable order”).
{¶74} As to Mr. Mitchell’s contention that there are unresolved charges of rape and aggravated burglary, he previously made this argument in Mitchell III in the context
{¶75} Accordingly, the trial court did not abuse its discretion in denying Mr. Mitchell’s requests for a “final appealable order” because his arguments are barred by the doctrines of res judicata and law of the case.
{¶76} The discussed portion of Mr. Mitchell’s second assignment of error and his third assignment of error are without merit.
Nunc Pro Tunc Entries
{¶77} Finally, we address Mr. Mitchell’s first assignment of error and the remaining portion of his second assignment of error.
{¶78} In his first assignment of error, Mr. Mitchell challenges the trial court’s denial of his motion to correct the journal entry memorializing his guilty pleas. Mr. Mitchell contends that the plea entry incorrectly states that he pleaded guilty to an “amended indictment” and cites the wrong statutory subsection for gross sexual imposition. Within his second assignment of error, Mr. Mitchell contends that the sentencing entry also incorrectly references an amended indictment.
{¶79} Mr. Mitchell requests that the trial court issue corrected entries. The state concedes that Mr. Mitchell is entitled to have any clerical errors corrected via a nunc pro tunc entry.
Crim.R. 36
{¶80}
{¶81} According to the Supreme Court of Ohio, “courts possess the authority to correct errors in judgment entries so that the record speaks the truth.” Lester, supra, at ¶18, citing State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163-64 (1995). “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.” Id., citing Miller, supra, at ¶15. “Nunc pro tunc entries are used to reflect what the court actually decided and not what the court might or should have decided or what the court intended to decide.” (Citations omitted.) Id., citing Miller at ¶15; Fogle at 164; See also State v. Williamson, 8th Dist. Cuyahoga Nos. 100563 & 101115, 2014-Ohio-3909, ¶16 (“The trial court could not nunc what it did not first tunc”).
Trial Court Jurisdiction
{¶82} While
Standard of Review
{¶83}
Crim.R. 36 Analysis
{¶84} A review of the record reflects that the plea and sentencing entries both contain clerical mistakes pursuant to
{¶85} First, Mr. Mitchell did not plead guilty to, nor was he sentenced for, offenses set forth in an “amended indictment.” Rather, Mr. Mitchell pleaded guilty to and was sentenced for the lesser offenses of gross sexual imposition (as opposed to the indicted charge of rape) and burglary (as opposed to the indicted charge of aggravated burglary).
{¶86} Second, Mr. Mitchell pleaded guilty to gross sexual imposition in violation of
{¶87} Third, the sentencing entry does not contain the fact of his conviction as required by
{¶88} As indicated, the purpose of
{¶89} Accordingly, we find the trial court erred by denying Mr. Mitchell’s motion to correct the journal entry and by denying his motion for a corrected sentencing entry to the extent Mr. Mitchell sought correction of clerical errors.
{¶90} Pursuant to
{¶91} The trial court shall also issue a nunc pro tunc sentencing entry that (1) states Mr. Mitchell was convicted of gross sexual imposition in violation of
{¶92} We emphasize that the trial court’s issuance of proper nunc pro tunc entries will not create new final orders from which new appeals may be taken. A nunc pro tunc entry does not affect substantive rights. New York Frozen Foods, Inc. v. Bedford Hts. Income Tax Bd. of Rev., 144 Ohio St.3d 1481, 2016-Ohio-465, ¶9. “Nunc pro tunc” means “now for then” and is commonly defined as “[h]aving retroactive legal effect through a court‘s inherent power.” Lester at ¶19, quoting Black‘s Law Dictionary 1174 (9th Ed.2009). Therefore, a nunc pro tunc entry by its very nature applies retrospectively to the judgment it corrects. Id. It is not a new final order from which a new appeal may be taken. Id. at paragraph two of the syllabus.
{¶93} Mr. Mitchell’s first assignment of error and the remaining portion of his second assignment of error have merit.
Conclusion
{¶94} In sum, the trial court did not err by (1) denying Mr. Mitchell’s motion for resentencing pursuant to
{¶95} The trial court did err by (1) denying Mr. Mitchell’s motion to correct the journal entry memorializing his guilty pleas, and (2) denying his motion for a corrected sentencing order to the extent he sought correction of clerical mistakes under
{¶96} Therefore, we remand this matter to the trial court to issue proper nunc pro tunc entries as described above.
{¶97} Based on the foregoing, the judgment of the Portage County Court of Common Pleas is affirmed in part, reversed in part, and remanded to the trial court for the issuance of proper nunc pro tunc entries.
TIMOTHY P. CANNON, P.J.,
MATT LYNCH, J.,
concur.