State v. PortisState v. Portis
- Reporters:
- ,
- Before:
- Grady
Mark J. Miller, Atty. Reg. No. 0076300, 555 City Park Avenue, Columbus, OH 43215 Attorney for Defendant-Appellant
OPINION
GRADY, P.J.:
{¶ 1} In 2008, Defendant-Appellant Portis was convicted, following a jury trial, of complicity to commit robbery. We affirmed his conviction and eight year sentence on direct appeal. State v. Portis, Clark App. No. 2008CR22, 2009-Ohio-1776 (“Portis I“).
{¶ 2} Following our decision in Portis I, Defendant moved to vacate his judgment of
{¶ 3} In State v. Portis, Clark App. No. 10CA0045, 2010-Ohio-5287 (“Portis II“), we dismissed the appeal Defendant filed. We held that the failure to specify the manner of Defendant‘s conviction, a jury verdict, was a failure to comply with
{¶ 4} Following our decision in Portis II, on November 1, 2010, the trial court journalized an amended judgment of conviction, sua sponte, correcting the two
FIRST ASSIGNMENT OF ERROR
{¶ 5} “THE TRIAL COURT ERRED IN ALLOWING THE STATE TO USE A PEREMPTORY CHALLENGE IN A RACIALLY DISCRIMINATORY MANNER IN VIOLATION OF THE APPELLANT‘S EQUAL PROTECTION RIGHTS.”
THIRD ASSIGNMENT OF ERROR
{¶ 6} “THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO THE UNITED STATES AND OHIO CONSTITUTIONS.”
{¶ 7} “THE TRIAL COURT ERRED IN EXCLUDING APPELLANT‘S JURY INSTRUCTION FOR COMPLICITY BECAUSE THE JURY INSTRUCTION GIVEN DID NOT EXPRESSLY INCLUDE THE REQUISITE MENTAL STATE FOR THE CHARGE OF COMPLICITY.”
FIFTH ASSIGNMENT OF ERROR
{¶ 8} “THE STATE OF OHIO PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION FOR COMPLICITY AND THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT‘S CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL.”
SIXTH ASSIGNMENT OF ERROR
{¶ 9} “THE APPELLANT‘S CONVICTION FOR COMPLICITY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
SEVENTH ASSIGNMENT OF ERROR
{¶ 10} “APPELLANT‘S STATE CONSTITUTIONAL RIGHT TO A GRAND JURY INDICTMENT AND HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS WERE VIOLATED WHEN HIS INDICTMENT DID NOT CHARGE THE MENS REA ELEMENT OF THE CRIME OF ROBBERY AND HE WAS CONSEQUENTLY TRIED AS THOUGH ROBBERY WAS A STRICT LIABILITY OFFENSE.”
EIGHTH ASSIGNMENT OF ERROR
{¶ 11} “APPELLANT‘S ORIGINAL SENTENCE IS NOT CONSISTENT WITH
{¶ 12} The foregoing assignments of error implicate matters that could have been raised or were raised in Defendant‘s prior merit appeal in Portis I. The State has moved to dismiss the appeal on that account, at least to the extent of the foregoing assignments of error.
{¶ 13} The doctrine of res judicata provides that “[a] valid, final judgment rendered on the merits bars all subsequent actions based on any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Township (1995), 73 Ohio St.3d 379, Syllabus by the Court. The doctrine, as applied to claims, has historically been called estoppel by judgment in Ohio. Id. Res judicata is not a basis for dismissal of a claim. Rather, it is a basis on which courts rely to preclude adjudication of a claim or claims.
{¶ 14} Subsequent to our decision in Portis II, on October 29, 2010, the Supreme Court of Ohio decided two cases relevant to the State‘s res judicata argument.
{¶ 15} On December 23, 2010, the Supreme Court rendered its decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. In Fischer, the trial court had failed to notify the defendant of the terms of his post release control, which the court is required by
{¶ 16} “1. A sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.
{¶ 17} “2. The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.) {¶ 18} “3. Although 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.
{¶ 19} “4. The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing.”
{¶ 20} On October 13, 2011, the Supreme Court rendered its decision in State v. Lester, ___ Ohio St.3d ___, 2011-Ohio-5204.
{¶ 21} “1. A judgment of conviction is a final order subject to appeal under
R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge‘s signature, and (4) the time stamp indicating the entry upon the journal by the clerk. (Crim.R.32(C) , explained; State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, modified.){¶ 22} “2. A nunc pro tunc judgment entry issued for the sole purpose of complying with
Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new finalorder from which a new appeal may be taken.”
{¶ 23} Lester reasoned that the four elements of a judgment of conviction set out in paragraph 1 of its Syllabus are necessary to make a
{¶ 24} The holding in Lester effectively reversed our holding in Portis II that omission of the manner of Defendant‘s conviction from his original judgment of conviction rendered that judgment non-final. The further issue is whether omission of the terms of Defendant‘s post release control requirements from that judgment of conviction rendered it non-final because, as we held in Portis II, post release control is an element of the defendant‘s sentence which, per Lester, is necessary to create a final order for purposes of
{¶ 25} The answer to that inquiry, we believe, lies in Fischer, which limited the effect of a post release control defect to that element of a defendant‘s sentence and held that “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 conviction.” Syllabus, paragraph three. On that basis, the court could correct the omission of the post release control requirements it had imposed from the judgment of conviction through an order nunc pro tunc. Lester.
{¶ 27} The first, third, fourth, fifth, sixth, seventh, and eighth assignments of error are overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 28} “THE TRIAL COURT ERRED IN IMPOSING A SENTENCE OF ONE YEAR IN PRISON FOR VIOLATION OF POST-RELEASE CONTROL BECAUSE APPELLANT WAS NOT PROPERLY NOTIFIED OF POST-RELEASE CONTROL AND THEREFORE THE ADULT PAROLE AUTHORITY DID NOT HAVE AUTHORITY TO SUPERVISE APPELLANT.”
{¶ 29} When the court imposed Defendant‘s sentence in the present case, Case No. 07CR1063, the court also imposed a consecutive one-year prison term for Defendant‘s resulting violation of post release control requirements imposed on Defendant in connection with his prior conviction in Case No. 03CR1064. The court again imposed the one-year sentence in the amended judgment of conviction from which this appeal was taken.
{¶ 31} The State argues that the error is nevertheless moot because, subsequent to the final order from which this appeal was taken on December 1, 2010, the trial court on July 1, 2011, amended its judgment of conviction a second time to remove the one-year sentence. It appears that the court did so in compliance with our mandate in another appeal, State v. Portis, Clark App. No. 2010CA95, 2011-Ohio-2429. Nevertheless, because the present appeal was pending, the court lacked jurisdiction to do that. See, State ex rel. Special Prosecutors v. Judges, Court of Common Pleas (1978), 55 Ohio St.2d 94. Because of that lack of jurisdiction, the court‘s order rescinding Defendant‘s one-year conviction is void and a legal nullity. The second assignment of error is sustained. The present case will be remanded to the trial court to enter another order omitting the one-year sentence.
DONOVAN, J., And HALL, J., concur.
GRADY, P.J.
Copies mailed to:
Andrew R. Picek, Esq. Mark J. Miller, Esq.
Hon. Douglas M. Rastatter