State v. TriplettState v. Triplett
Jeffrey M. Gamso and Jeffrey L. Helmick, for appellant.
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PER CURIAM.
{¶1} This matter is before the court on appellee‘s, state of Ohio, “Mоtion to Dismiss Re-Appeal.” Appellee argues that the recent Supreme Court of Ohio decisions State ex rel. Dewine v. Burge, Slip Opinion No. 2011-Ohio-235, and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, require the court to find appellant‘s, Timothy Triplett, “re-appeal” оf his conviction is barred by res judicata and dismiss this appeal.
{¶2} Appellant filed an opposition memorandum to the state‘s motion. Appellant argues that his re-appeal is not barred by res judicata and relies principally on this court‘s holdings in State v. Mitchell, 187 Ohio App.3d 315, 2010-Ohio-1766, and State v. Lampkin, 6th Dist. No. L-09-1270, 2010-Ohio-1971. Based upon our review of the record and parties’ memoranda, we find appellee‘s argument well-taken and dismiss this appeal.
Background
{¶3} This appeal arises from the Lucas County Court of Common Pleas’ correction of a noncompliant
Re-appeals, Res Judicata, and Final Judgments
{¶5} Appellant timely appealed the May 11, 2010 judgment and is seeking to re-appeal the merits of his conviction, even though this court has already affirmed his conviction. Triplett, 2006-Ohio-5465. This court, like other courts, has struggled to reconcile the implications оf the Ohio Supreme Court‘s holdings in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, which this court perceived as eliminating the distinction between “void” and “voidable” judgments, with the procedural complexities arising from noncompliant
{¶6} In State v. Mitchell, citing an earlier decision by this court in State v. Lampkin, 6th Dist. No. L-09-1270, 2010-Ohio-1971, the court concluded that res judicata did not bar a subsequent appeal of a corrected Baker/
{¶7} As part of its analysis, the court also concluded that the “void” judgment analysis employed by the Ohio Supreme Court in Bezak and other post release control cases extended to noncompliant
{¶8} The Mitchell court concluded by foreshadowing that the Ohio Supreme Court would soon clarify the ambiguities arising from these sentencing issues:
{¶9} “The court concurs with Mitchell. While the practical implications indeed may be ‘onerous’ and ‘messy,’ this court is bound by the rulings of the Ohio Supreme Court, and we believe that today‘s rеsult is consistent with, and mandated by, the court‘s decisions in Baker, Culgan, and Simpkins.
{¶10} “The Ohio Supreme Court may also reexamine these issues in the near future. The court is mindful that on March 30, 2010, the Ohio Supreme Court heard
Interim Supreme Court of Ohio Decisions
{¶11} The Mitchell court was correct. In two recent cases, State ex rel. Dewine v. Burge, 2011-Ohio-235, and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Supreme Court of Ohio clarified and narrowed its void judgment and Baker jurisprudence, and reaffirmed that res judicata remains a bar to prеviously litigated appeals.
{¶12} First, in State ex rel. Dewine v. Burge, the court expressly rejected the Mitchell holding that a noncompliant Baker entry is a “void” judgment:
{¶13} “Any failure to comply with
{¶14} Second, in State v. Fischer, 2010-Ohio-6238, the Supreme Court of Ohio also rejected the reasoning espoused in Mitchell and Lampkin, and concluded that a previous appeal litigated under the auspices of a faulty sentencing entry does not preclude the application of law of the case or res judicata:
{¶15} “Fischer‘s theory is that because the trial court did not properly apply postrelease-control sanctions, his sentence was void under Bezak. Because his sentence was void, he cоntends, there was no sentence, and without a sentence, no conviction and no final order. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182 (‘a “conviction” consists of a guilty verdict and the imposition of a sentence or penalty’ [emphasis sic]); State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus (to be a final, appealable order, a judgment of conviction must include the sentence). In Fischer‘s view, the absence of a conviction means the absence of a final,
{¶16} The court went on to hold that because Fischer already had the benefit of one direct appeal, res judicata applied to preclude him from re-appealing the merits of his conviction once the trial court corrected the postrelease control sentencing error:
{¶17} “The court of appeals correctly ruled that Fischer, having already had the benefit of one direct appeal, could not raise any and all claims of error in a second, successive appeal. 181 Ohio App.3d 758, 2009-Ohio-1491, 910 N.E.2d 1083. The court of appeals based its decision on the law-of-the-case doctrine, which provides that ‘the decision of a reviewing court in a case remains the law оf that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.’ Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 11 OBR 1, 462 N.E.2d 410.
{¶18} “* * *
{¶19} “* * * In light of our holding, the court of appeals in this case correctly held that Fischer‘s remaining claims, which did not involve a void sentence or judgment, were barred by res judicata.” Fischer, 2010-Ohio-6238, ¶ 33-36.
{¶20} Thus, given the Supreme Court of Ohio‘s intervening decisions in Burge and Fischer, this court finds that the reasoning espoused in Mitchell and Lampkin for not
{¶21} In this casе, appellant is appealing the May 11, 2010 judgment correcting his noncompliant Baker/
Pending Conflict
{¶22} This court is aware that the Supreme Court of Ohio recently accepted a certified conflict between State v. Lampkin, 6th Dist. No. L-09-1270, 2010-Ohio-1971, State v. Lampkin, 6th Dist. No. L-09-1270, 2010-Ohio-4934, and State v. Lester, July 12, 2010, 3d Dist. No. 2-10-20, for review. See State v. Lampkin, 127 Ohio St.3d 1546, 2011-Ohio-647. See, also, State v. Lester, 126 Ohio St.3d 1579, 2010-Ohio-4542. The certified questions presented are : (1) Is a nunc pro tunc judgment filed for the purpose of correcting a clerical omission in a prior sentencing judgment by adding “means of conviction” language, which was readily apparent throughout the record and to the pаrties but not originally included as required by
{¶23} While the Ohio Supreme Court may provide somе additional clarification on these issues, we find that significant questions unanswered at the time of Mitchell and Lampkin have been answered by the court‘s intervening decisions in Burge and Fischer to our satisfaction for purposes of these proceedings.
{¶24} This appeal is dismissed. Appellant is ordered to pay the costs of this appеal pursuant to
APPEAL DISMISSED.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Arlene Singer, J. ____________________________
Stephen A. Yarbrough, J.
CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.