STATE OF OHIO v. LORICE MOORE
CASE NO. 12 MA 197
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
August 30, 2013
[Cite as State v. Moore, 2013-Ohio-4000.]
Hоn. Joseph J. Vukovich, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
OPINION; Criminal Appeal from Common Pleas Court, Case No. 02CR318; Judgment Affirmed.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney, Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Lorice Moore, Pro se, #433-460, Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, Ohiо 44430
JUDGES: Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
Dated: August 30, 2013
{1} Defendant-appellant Lorice Moore appeals the decision of the Mahoning County Common Pleas Court which denied his motion to vacate a void sentence on a firearm specification and for a “determination of jurisdiction” on his complicity to murder conviction. Appellant alleges that the three year sеntence on the firearm specification should be vacated because the verdict form insufficiently described the type of specification subject to a three year sentence. He also posits that his complicity to murder conviction should be vacated based upon his claim that there is no time-stamp on or journalization of the indictment or the verdict forms.
{2} Procedurally, he сomplains that the trial court signed the state‘s proposed judgment entry, adding explanations for the ruling a week after the court had already denied his motion. In a reply brief, he attempts to add a new assignment of error, claiming that his sentencing entry is not a final appealable order (and thus we have no jurisdiction) because it does not state that he was acquitted of another offense, which he believes violates
{3} For the following reasons, all of these arguments are without merit. Thus, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{4} On March 28, 2002, appellant was indicted on two alternative counts of murder for purposefully causing the death of Stephen Shackleford in violation of
{5} On August 15, 2002, the jury found appellant guilty of complicity to commit murder in violation of
{6} In 2011, appellant filed a motion which pointed out that the sentencing entry failed to comply with
{7} On September 26, 2012, appellant filed a motion to vacate a void sentence and for a determination of jurisdiction, presenting the arguments set forth in his first and second assignments of error on appeal: the verdict for the firearm specification was insufficient to sentence him to three years and the indictment and verdict forms were not time-stamped or journalized.
{8} On October 2, 2012, the trial court overruled his motion in a brief judgment entry before the state had a chance to respond. The state then submitted its response along with a prepared judgment entry, characterizing the motion as an untimely post-conviction relief petition and alternatively stating that the arguments wеre barred by res judicata. On October 12, 2012, the trial court filed another judgment entry (the state‘s proposed entry) denying the motion again and providing reasons for doing so. Appellant filed a timely notice of appeal.
ASSIGNMENT OF ERROR NUMBER ONE
{9} Appellant‘s first assignment of error provides:
{10} “THE TRIAL COURT COMMITTED ABUSE OF DISCRETION AND ERRED TO THE PREJUDICE OF APPELLANT WHEN IT SENTENCED HIM TO A 3 YEAR MANDATORY PRISON SENTENCE FOR A VIOLATION OF
{11} There are various types of firearm specifications. A one year term of incarceration applies if the “offender had a firearm on or about the offender‘s person or under the offender‘s control while committing the offense.”
{12} Imposition of this sentence is precluded unless the indictment specifies both of these items. Id. Appellant was indicted for a firearm specification under
{13} The jury verdict form stated that the jury found that appellant “did have a firearm on or about his person or under this control while committing the offense, in violation of the
{14} A void sentence can be attacked at any time, and thus issues surrounding it are not barred by the doctrine of res judicata or the timelines for filing post-conviction relief petitions. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 30. Thus, for instance, a motion to correct a void sentence can be filed where a sentencing court disregarded a statute regarding the post release control portion of а sentence. Id. at ¶ 26-28 (though only that portion of the sentenced is voided).
{15} A motion to correct a void sentence is used to correct a facially invalid sentence. Fischer, 128 Ohio St.3d 93 at ¶ 25. It presupposes a valid conviction and thus may not be used to challenge alleged errors in proceedings that occur prior to the imposition of sentence. Id. A motion to correct a void sentence “does not permit reexamination of all perceived errors at trial or in other proceedings prior to sentencing.” Id. at ¶ 31. “[A]lthough
{16} We have recently disposed of various cases where the defendant has tried to extend the Supreme Court‘s post-release control case law on void sentences to other scenarios. In one case, we held that whether consecutive firearm specifications violated a statutory provision involved a factual question as it required reference to pre-sentencing testimony and did not deal with a facially invalid sentence. State v. McCall, 7th Dist. No. 12MA57, 2012-Ohio-5604, ¶ 1-2, 21-22 (emphasizing that a motion to vacate a void sentence is essentially reserved for cases where there is a facially illegal sentence). We have similarly refused to extend the void sentence doctrine to allegations that charges were allied offenses of similar import that should have merged at sentencing. State v. Simmons, 7th Dist. No. 06JE4, ¶ 14-15 (January 8, 2013 J.E.) (reconsideration denied) (such a claim could only make a sentence voidable, not vоid).
{17} We have also held that a violation of the defendant‘s speedy trial rights would not result in a void conviction and sentence. State v. Weaver, 7th Dist. No. 12BE21, 2013-Ohio-430, ¶ 1. Finally, we have ruled that even if the trial court violated a statute mandating that reasons for a jury discharge be entered on the journal, this would not be a jurisdictional issue as even if such failure would render a decision voidable, it would not render it void. State v. Green, 7th Dist. No. 12MA105, 2013-Ohio-893, ¶ 1, 18-19. The Supreme Court has extended thе void sentence exception to only a limited number of circumstances, and this court has expressed that it is disinclined to establish new precedent in other areas. See cases reviewed above.
{18} Furthermore, multiple appellate districts have ruled that even a specific statutory verdict form issue will not void a sentence. State v. Henson, 6th Dist. No. E-11-068, 2012-Ohio-3730, ¶ 16-18; State v. Love, 11th Dist. No. 2011-L-159, 2012-Ohio-3029, ¶ 17-21; State v. Myers, 10th Dist. No. 11AP-909, 2012-Ohio-2733, ¶ 7; State v. Grooms, 9th Dist. No. 25819, 2011-Ohio-6062, ¶ 11; State v. Hines, 193 Ohio App.3d 660, 2011-Ohio-3125, 953 N.E.2d 387, ¶ 16 (3d Dist.). See also State v. Foy, 5th Dist. No. 2009-CA-239, 2010-Ohio-2445, ¶ 7-10 (disagreeing with defendant‘s argument that his sentence was void due to deficient verdict form and holding that res judicata prohibits defendant from raising deficient verdict form in a motion for resentencing).
{19} That is,
{20} Still, the aforementioned case law applying this statute is instructive to thе issue here because if a violation of this statute does not make a sentence void, then neither would the deficiency alleged by appellant here. We thus conclude that the verdict form issue here would not result in a void sentence.
{21} In fact, the claim appellant makes would not even constitute reversible error, let alone error resulting in a void sentence. That is, it has been conсluded that a verdict form referring to the specific statutory provision making the offense a certain degree sufficiently satisfies the statute. State v. Hughley, 8th Dist. No. 90323, 2009-Ohio-3274, ¶ 15-16 (verdict forms citing to statute sufficiently allege degree of offense). See also State v. Stone, 11th Dist. No. 98-A--0102 (Dec. 10, 1999) (upholding a .145 firearm specification even though the verdict form did not have the additional language or cite the proper code section, noting that the defendant was charged under .145 and the jury was instructed under .145). And, the Supreme
{22} In the Eafford case, the defendant was indicted for felony possession of cocaine, the evidence at trial dealt only with cocaine, and the jury instructions referred only to the drug of cocaine. The verdict form stated only that the defendant was guilty of possession of drugs “as charged in Count Two of the indictment” and cited a statutory subdivision that generally referred to drugs without specifying the type of drugs. As there was no objection below, the issue was reviewed for plain error on direct appeal. The Eighth District vacated the felony conviction for possession of drugs and held that because the verdict form failed to specify the degree of the offense or mention the drug cocaine, the defendant could be convicted of only a misdemeаnor. Id. at ¶ 7.
{23} The Supreme Court reversed that appellate decision and upheld the conviction for felony possession of cocaine. Id. at ¶ 19. The Court concluded that the use of this verdict form did not constitute plain error. Id. at ¶ 18-19 (defendant could not show that but for this verdict form, the result would have been different).
{24} Here, the citation in appellant‘s verdict form to
{25} Regardless, as explained above, we need not make this merit determination because there is no jurisdictional issue and the matter does not otherwise fall under the void sentence exception as narrowly extended by the Supreme Court. We conclude that, in a case where the indictment fully chаrges the specification and the jury was fully instructed on the specification, a verdict form that states the defendant had a firearm on or about his person or under his control while committing the offense and cites the proper statutory section for a three year firearm
{26} Upon this holding, appellant does not dispute the remainder of the law applied by the state here. That is, the motion, filed ten years after trial, would constitute an untimely post-conviction relief petition. See
{27} And, as the state alternatively points out, this verdict form issue could have been raised on direct appeal to this court but was not. See State v. Moore, 7th Dist. No. 02CA152, 2004-Ohio-2320. As a result, appellant‘s motion raising the issue of verdict forms is barred by the doctrine of res judicata. See Foy, 5th Dist. No. 2009-CA-239 at 7-10 (disagreeing with defendant‘s argument that his sentence was void due to deficient verdict form and holding that res judicata prohibits defendant from raising deficient verdict form in a motion for resentencing). See generally State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997); State v. Perry, 10 Ohio St.2d 175, 180-181, 226 N.E.2d 104 (1967); State v. West, 7th Dist. No. 07JE26, 2009-Ohio-3347, ¶ 24 (issues that could have been raised in direct appeal are barred by res judicata from being raised in a post-conviction relief petition). Accordingly, this assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{28} Appellant‘s second assignment of error alleges:
{29} “THE TRIAL COURT WAS WITHOUT SUBJECT MATTER JURISDICTION OVER APPELLANT BECAUSE THE INDICTMENT AND
{30} Under this assignment of error, appellant attempts to avоid the state‘s res judicata and untimely post-conviction relief arguments by labeling his complaints about certain filings as jurisdictional issues. These arguments are all frivolous and seem to be the result of some new misunderstanding of legal terminology circulating among pro se inmates.
{31} For instance, he contends that the indictment lacks a time-stamp, was not journalized, violates
{32} In addition, it is judgments, not indictments, which are subject to
{33} We also point out here that the filing of the charging document with the clerk invokes the court‘s jurisdiction, and a clerk‘s subsequent failure to file-stamp the charging instrument is not a jurisdictional issue. City of Zanesville v. Rouse, 126 Ohio St.3d 1, 929 N.E.2d 1044, 2010-Ohio-2218, ¶ 7-8, remedy changed on reconsideration in 126 Ohio St.3d 1227, 933 N.E.2d 260, 2010-Ohio-3754 (from reinstating trial verdict to remanding to appellate court to address issues it previously found moot).
{34} And, in case appellant‘s argument regarding the lack of a time-stamp is a complaint that the actual time of day was not included in the stamp, we also use the Rouse case to dispel any such notion. In that case, the Supreme Court used time-stamp, date-stamp, and file-stamp interchangeably. Id. at ¶ 6-7, 9, citing
{35} Appellant also claims that the jury‘s guilty verdicts lack a time-stamp. However, the verdicts were in fact time-stamped and docketed on August 15, 2002. We also note that they were journalized at volume 1595, pages 130-131.
{36} Finally, he makes no specific argument here but does mention, in his opening paragraph under this assignment, that the sentencing entries were likewise not properly filed. However, the original sentencing entry and the nunc pro tunc entry filed to add the means of conviction were both file-stamped, docketed, and entered in the court‘s journal. See Green, 7th Dist. No. 12MA105 at ¶ 25. In accordance, this assignment of error is wholly without merit.
ASSIGNMENT OF ERROR NUMBER THREE
{37} Appellant‘s third assignment of error contends:
{38} “THE TRIAL COURT COMMITTED ABUSE OF DISCRETION AND ERRED TO THE PREJUDICE OF APPELLANT WHEN IT ALLOWED THE STATE TO ISSUE A NEW JUDGMENT ENTRY BY MEANS OTHER THAN
{39} As aforementioned, on October 2, 2012, the trial court denied appellant‘s motion to vacate his sentence in a brief entry without providing the state with time to respond. Thus, when the state thereafter filed its response with an attached proposed entry containing a rationale for rejecting appellant‘s claims, the trial court signed the proposed entry to provide further support for its decision. Appellant claims that the issuance of this October 12, 2012 judgment was prejudicial error.
{40} This argument is without merit. With regards to the complaint that the trial court “allowed the state to issue a new judgment entry,” we point out that the state did not issue a judgment entry. It was the court that issued a judgment entry.
{41} As tо the second part of his argument, dealing with the issuance of a judgment after a final judgment was already entered, even if there were a procedural issue, it would be harmless, not to mention without meaningful remedy. And, as this appeal involves legal issues, we have resolved this appeal without resort to the trial court‘s explanations in the later entry. As the suggested error could not be prejudicial, this assignment of error is overruled.
ASSIGNMENT IMPROPERLY SET FORTH IN REPLY BRIEF
{42} Appellant‘s reply brief purports to sets forth the following additional assignment:
{43} “THE TRIAL COURT COMMITTED ABUSE OF DISCRETION AND ERRED TO THE PREJUDICE OF APPELLANT WHEN IT ISSUED A JUDGMENT ENTRY (August 26, 2002) THAT IS NOT IN COMPLIANCE WITH STATE V. BAKER OR
{44} Initially, we note that a reply brief is not the place for raising new assignments of error. State v. Clark, 38 Ohio St.3d 252, 258, 527 N.E.2d 844 (1988). See also State ex rel. Am. Subcontractors Assn., Inc. v. Ohio State Univ., 129 Ohio St.3d 111, 2011-Ohio-2881, 950 N.E.2d 535, ¶ 40 (new argument in reply brief is forbidden). In any event, appellant‘s contention here is substantively without merit.
{45} Appellant was indicted and tried on alternative counts of murder and cоmplicity to murder. The jury found him guilty of complicity to murder and signed only that verdict form (and the accompanying specification). Appellant contends here that the court violated
{46} However, the Supreme Court has already pronounced that where the defendant has been convicted of a crime,
{47} “It does not require a reiteration of those counts and specifications for which there were no convictions, but resolved in other ways, such as dismissals, nolled counts, or not guilty findings.” State ex rel. Rose v. McGinty, 128 Ohio St.3d 371, 2011-Ohio-761, 944 N.E.2d 672, ¶ 3, citing State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2. Thus, contrary to appellant‘s argument, “the sentencing entry did not need to include the dispositions of the counts that [he] was originally charged with but that were not the basis for his convictions and sentence.” Id. In accordance, this purported assignment of error lacks merit.
{48} For all of these reasons, the judgment of the trial court is hereby affirmed.
Waite, J., concurs.
DeGenaro, P.J., concurs.