[Cite as State v. Bonnell,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96368

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MELVIN BONNELL DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-223820

BEFORE: S. Gallagher, J., Stewart, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: November 10, 2011 ATTORNEYS FOR APPELLANT

Timothy Young Ohio Public Defender

BY: Kimberly S. Rigby Andrew J. King Assistant Ohio Public Defenders 250 East Broad Street, Suite 1400 Columbus, OH 43215

Laurence E. Komp P.O. Box 1785 Manchester, MO 63011

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Matthew E. Meyer Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113

SEAN C. GALLAGHER, J.:

{¶ 1} Appellant Melvin Bonnell appeals the decision of the Cuyahoga County

Court of Common Pleas that denied his motion for resentencing and to issue a final,

appealable order. For the reasons stated herein, we reverse the decision and remand the matter to the trial court for the issuance of a nunc pro tunc entry consistent with this

opinion.

{¶ 2} In 1988, Bonnell was convicted by a jury on two counts of aggravated

murder and one count of aggravated burglary. He was sentenced to death for the

aggravated murders, and the court imposed a sentence of 10 to 25 years in prison for the

aggravated burglary. Appellant pursued his appeal avenues in state and federal courts,

largely to no avail. Of relevance to this matter, in State v. Bonnell (Oct. 5, 1989),

Cuyahoga App. No. 55927, this court merged the two separate murder counts and found

that because the sentence for aggravated burglary was imposed outside of Bonnell’s

presence, he was to be resentenced on said count. Bonnell was resentenced to the same

prison term on the aggravated burglary count on October 25, 1989. On May 21, 2010, 22

years after his conviction and sentence were initially imposed, Bonnell filed a “motion for

resentencing and to issue a final appealable order.” The trial court denied the motion,

and this appeal followed.

{¶ 3} Bonnell’s sole assignment of error is as follows: “The trial court erred by

not granting Bonnell’s motion to vacate because the purported judgment of conviction

does not comply with Crim.R. 32(C) and State v. Baker [

,

,

].”

{¶ 4} Bonnell argues that the sentencing opinion and judgment entries fail to set

forth the conviction on the aggravated burglary count. Therefore, he claims that there is no final, appealable order and that the matter should be remanded to the trial court for

resentencing and the issuance of a judgment in compliance with Crim.R. 32(C).

{¶ 5} Crim.R. 32(C) provides that a “judgment of conviction shall set forth the

plea, the verdict, or findings upon which each conviction is based, and the sentence.” In

Baker, the Ohio Supreme Court expounded on the language of Crim.R. 32(C) and set

forth the elements required for a judgment of conviction to constitute a final appealable

order. Id. at ¶ 18. The court concluded that a judgment of conviction “must include the

sentence and the means of conviction, whether by plea, verdict, or finding by the court, to

be a final appealable order under R.C. 2505.02.” Id. at ¶ 19. The Ohio Supreme

Court’s decision created confusion and spawned numerous appeals.

{¶ 6} In State v. Lester, __ Ohio St.3d __,

, __ N.E.2d __, ¶ 9, the

Ohio Supreme Court recognized that its decision in Baker “created confusion and

generated litigation regarding whether a trial court’s inadvertent omission of a

defendant’s ‘manner of conviction’ affects the finality of a judgment entry of conviction.”

The court found that “the finality of a judgment entry of conviction is not affected by a

trial court’s failure to include a provision that indicates the manner by which the

conviction was effected, because that language is required by Crim.R. 32(C) only as a

matter of form, provided the entry includes all the substantive provisions of Crim.R.

32(C).” Id. at ¶ 12. Nevertheless, the court held that when the manner of conviction is

not included, the defendant remains entitled to a correction to the judgment. Id. at ¶ 16.1

1 As recognized by Justice O’Donnell, the court has once again added As to the substantive requirements of Crim.R. 32(C), the court held as follows: “[A]

judgment of conviction is a final order subject to appeal under R.C. 2505.02 when the

judgment entry 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.” Id.

at ¶ 14.2

{¶ 7} This was a death penalty case in which the trial court issued a separate

sentencing opinion as required by R.C. 2929.03(F). In State v. Ketterer, the Ohio

Supreme Court held that in cases in which the death penalty is imposed, the final,

appealable order consists of both the sentencing opinion filed pursuant to R.C. 2929.03(F)

and the judgment of conviction filed pursuant to Crim.R. 32(C).

,

,

. So long as the requisite elements are in those two

orders, a final, appealable order is present.

{¶ 8} The sentencing opinion filed May 27, 1988, states that Bonnell was indicted

on December 30, 1987, with charges on “numerous felony counts and two counts of

aggravated murder with specifications.” The opinion proceeds to state as follows: “On

March 3, 1988 the jury found the defendant guilty in the guilt phase of this capital murder

case, and on March 22, 1988 the jury found proof beyond a reasonable doubt that the

confusing and unnecessary language and complicated the problem. Id. at ¶ 32, O’Donnell, J., concurring in part and dissenting in part. Nonetheless, we are bound to follow the decision. 2 Insofar as the Ohio Supreme Court held in Lester that a defendant who has exhausted his appeals remains entitled to a correction of the judgment entry where Crim.R. 32(C) is not complied with, we reject the state’s argument that Bonnell’s aggravating circumstances which defendant was found guilty of committing did outweigh

the mitigating factors in the case. Subsequently the Court accepted and followed the

recommendation of the jury in making a similar finding and sentenced the defendant to

death in the electric chair.” After setting forth various findings, the sentencing opinion

pronounces “[o]n both counts of aggravated murder with specification, the defendant is

sentenced to death in the electric chair.”

{¶ 9} In the nunc pro tunc sentencing entry filed May 27, 1988, the court

indicated “[t]he court concurs with the jury finding of the death penalty.” The court

proceeded to order his execution. The court also sentenced Bonnell to a term of 10 to 25

years on Count 1, aggravated burglary. Subsequent to an appeal, the trial court issued a

sentencing entry filed October 20, 1989, which resentenced Bonnell to the same term on

the aggravated burglary count. The judge signed and the clerk of court certified each of

the three documents.

{¶ 10} Bonnell argues that the sentencing opinion and entries fail to properly

journalize the aggravated burglary conviction and the related finding of guilt on that

count. He states the sentencing opinion only addresses the conviction for aggravated

murder and only references that he was indicted on “numerous felony counts,” with no

specification as to the nature of those charges. We agree.

{¶ 11} Our review reflects that the fact of conviction was only discussed in relation

to the aggravated murder counts. The aggravated burglary count is not specifically

motion amounts to an untimely petition for postconviction relief. mentioned in the sentencing opinion, and neither the fact nor the manner of conviction

was indicated on that count. As a result, the trial court failed to technically comply with

Crim.R. 32(C).

{¶ 12} However, we do not agree with the remedy requested by Bonnell. Bonnell

claims he is entitled to have the trial court issue a final, appealable order, so as to enable

him to again invoke jurisdiction to appeal his judgment of conviction. We are not

persuaded by his argument.

{¶ 13} The Ohio Supreme Court has found that the technical failure to conform to

Crim.R. 32(C) does not render the judgment a nullity. State ex rel. DeWine v. Burge,

,

,

, at ¶ 19. In State ex rel. DeWine,

the court held that the remedy for correcting a sentencing entry that does not comply with

Crim.R. 32(C) is to issue a corrected sentencing entry. Id. at ¶ 23. As expressed by the

court:

“Consistent with the treatment of Crim.R. 32(C) errors as clerical mistakes that can be remedied by a nunc pro tunc entry, we have expressly held that ‘the remedy for a failure to comply with Crim.R. 32(C) is a revised sentencing entry rather than a new hearing.’ State ex rel. Alicea v. Krichbaum,

,

,

, ¶ 2; see also State ex rel. Culgan v. Medina Cty. Court of Common Pleas,

,

,

, ¶ 10–11 (a defendant is entitled to a sentencing entry that complies with Crim.R. 32(C)); Dunn v. Smith,

,

,

(when a trial court fails to comply with Crim.R. 32(C), ‘the appropriate remedy is correcting the journal entry’).

“This result is logical. The trial court and the parties all proceeded under the presumption that the sentencing entry for Smith constituted a final, appealable order. Any failure to comply with Crim.R. 32(C) was a mere oversight that vested the trial court with specific, limited jurisdiction to issue a new sentencing entry to reflect what the court had previously ruled and not to issue a new sentencing order reflecting what, in a successive judge’s opinion, the court should have ruled. These circumstances are thus distinguishable from egregious defects, such as an entry that is not journalized, that permit a court to vacate its previous orders. Cf. State ex rel. White v. Junkin (1997),

, 337–338,

. Moreover, the technical failure to comply with Crim.R. 32(C) by not including the manner of conviction in Smith’s sentence is not a violation of a statutorily mandated term, so it does not render the judgment a nullity. Cf. State v. Bezak,

,

,

, ¶ 10–12, quoting Romito v. Maxwell (1967),

, 267–268,

,

; see also State v. Fischer,

,

,

, ¶ 39 (‘fact that the sentence was illegal does not deprive the appellate court of jurisdiction to consider and correct the error’).”

Id. at ¶ 18-19.

{¶ 14} Likewise, in Lester, the court determined that “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 final order from which a new appeal may

be taken.” Id. at ¶ 20. While in Lester the court found that the “fact of conviction” must

be included in the judgment entry of conviction, the court set forth this requirement with

the understanding that “the purpose of Crim.R. 32(C) is to ensure that a defendant is on

notice concerning when a final judgment has been entered and the time for filing an

appeal has begun to run.” Lester, at ¶ 20, citing State v. Tripodo (1977),

,

; App.R. 4(A). Like the defendant in Lester, Bonnell had

notice of his conviction, which was evident throughout the record, and was apparent to

the defendant who had exhausted the appellate process. See id. at ¶13. {¶ 15} Similarly, in State v. Fischer, the Ohio Supreme Court rejected the notion

that a defendant could raise any and all errors relating to his conviction when his original

sentence was deemed void for the failure to include postrelease control and he had

already appealed his conviction.

,

,

.

Instead, the court limited the scope of relief to correcting only the illegal sentence and

found res judicata still applied to other aspects of the merits of the conviction.

See,

also, State v. Wilson,

,

,

(applying

law of the case and res judicata to convictions and unaffected sentences upon remand for

an allied- offenses sentencing error).

{¶ 16} Additionally, Ohio appellate courts have found that where a trial court

issues a corrected judgment entry to comply with Crim.R. 32(C), a defendant who has

already had the benefit of a direct appeal cannot raise any and all claims of error in

successive appeals. State v. Triplett, Lucas App. No. L-10-1158,

;

State v. Avery, Union App. No. 14-10-35,

; State v. Harris,

Richland App. No. 10-CA-49,

. In such circumstances, res

judicata remains applicable and the defendant is not entitled to a “second bite at the

apple.” Avery, at ¶ 14. Aptly stated, “[n]either the Constitution nor common sense

commands anything more.” Fischer,

. As argued by the state

herein, to hold otherwise would open the floodgates and “enable validly convicted and

sentenced prisoners throughout the state to circumvent res judicata by arguing, after all direct and collateral appeals are exhausted, that their sentencing documents are

improperly worded[.]”

{¶ 17} In this case, all parties were aware that Bonnell was convicted by a jury on

the aggravated burglary charge for which he was sentenced, as evidenced by his appeal of

that charge. Further, the reviewing courts exercised jurisdiction over his appeals, and

heard and decided his case. Thus, unlike the defendant in Baker, Bonnell was not

deprived the opportunity to appeal his conviction. Rather, Bonnell was given full

opportunity to litigate all of the issues relating to his conviction and sentence, and his

substantive rights were not prejudiced in any way.

{¶ 18} Accordingly, we conclude that the proper remedy is for the trial court to

issue a nunc pro tunc entry that includes the fact and manner of conviction on the

aggravated burglary charge. As no new or substantial right is affected under R.C.

2505.02(A)(1) by the correction, and appellant has already exhausted the appellate

process, the corrected judgment entry is not a new final order from which a new appeal

may be taken.

Judgment reversed; case remanded with instructions.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR