[Cite as State v. Cosby,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24863

v. : T.C. NO. 10CR3387/1

ANTWON L. COSBY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 20th day of July , 2012.

..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MICHAEL C. THOMPSON, Atty. Reg. No. 0041420, 5 N. Williams Street, Wright-Dunbar Business Village, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

CUNNINGHAM, J. (by assignment)

{¶ 1} Antwon L. Cosby pled guilty to aggravated burglary and aggravated 2

robbery, both first degree felonies. The court merged the convictions and sentenced Cosby

to a mandatory five years in prison for the aggravated robbery.

{¶ 2} Cosby appeals from his conviction, claiming that the trial court erred in

imposing a mandatory prison sentence due to a prior first degree felony conviction. For the

following reasons, the trial court’s judgment will be affirmed.

I.

{¶ 3} In October 2010, Cosby was indicted for aggravated burglary, kidnapping,

aggravated robbery, having a weapon while under disability, and burglary; the first three

charges included a firearm specification. Shortly before the scheduled trial, Cosby pled

guilty to the aggravated burglary and aggravated robbery charges, both first degree felonies.

In exchange for his plea, the State agreed to dismiss the three remaining counts and the

firearm specifications. Cosby also agreed to pay restitution for all of the counts.

{¶ 4} At the beginning of the plea hearing, the court stated that “the sentence that

it would deliver to Mr. Cosby is going to be a period of five years of incarceration.” The

court told Cosby during the plea colloquy that he was not eligible for community control

because he had a prior first or second degree “felony in your background and that when you

get a second first-degree felony or a second second-degree felony, that second offense of a

first- or second-degree felony level becomes a mandatory time case.” At the end of the

hearing, Cosby signed a plea form with the parties’ agreement, which included a statement

that the prison term for all counts was mandatory.

{¶ 5} A sentencing hearing was scheduled for October 6, 2011. On the morning

of the sentencing hearing, Cosby filed a motion for the imposition of a non-mandatory prison 3

sentence. Cosby acknowledged that he had pled guilty to aggravated robbery, a first degree

felony, in State v. Cosby, Montgomery C.C.P. 2001 CR 2877. However, Cosby argued that

the judgment entry in his prior case was not a final appealable order because it failed to

specify the manner of his conviction. Cosby thus contended that his prison sentence in this

case was not required to be mandatory under R.C. 2929.13(F)(6).

{¶ 6} The trial court denied Cosby’s motion for non-mandatory prison time at the

sentencing hearing. The court merged Cosby’s convictions, and the State elected to have

him sentenced for aggravated robbery. The court imposed the agreed five-year sentence and

court costs; it did not impose restitution or fines.

{¶ 7} \ Cosby appeals from his conviction, raising one assignment of error.

II.

{¶ 8} Cosby’s sole assignment of error reads:

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR THE IMPOSITION OF A NON-MANDATORY PRISON

SENTENCE.

{¶ 9} In his assignment of error, Cosby claims that his 2002 first degree felony

conviction could not serve as the basis for a mandatory prison sentence under R.C.

2929.13(F)(6).

{¶ 10} R.C. 2929.13(F)(6) provides:

Notwithstanding divisions (A) to (E) of this section, the court shall impose a

prison term or terms * * * for any of the following offenses: * * *

(6) Any offense that is a first or second degree felony and that is not 4

set forth in division (F)(1), (2), (3), or (4) of this section, if the offender

previously was convicted of or pleaded guilty to aggravated murder, murder,

any first or second degree felony * * *[.]

{¶ 11} Cosby asserts that his 2002 conviction is “void” and does not count against

him for purposes of R.C. 2929.13(F)(6), because the judgment of conviction in his prior case

failed to state the manner of his conviction, as required by Crim.R. 32(C). Cosby argues

that we should follow State v. Fischer,

,

,

, in which the Supreme Court of Ohio held that the failure to properly impose

post-release control renders the post-release control portion of that judgment entry void.

{¶ 12} Citing State v. Lester,

,

,

, the State responds that the finality of Cosby’s prior conviction was not affected by the

trial court’s failure to state the manner of the conviction. The State asserts that Cosby’s

2002 conviction met the requirements of a valid, final judgment, and thus the trial court was

required to impose a mandatory sentence under R.C. 2929.13(F)(6).

{¶ 13} Crim.R. 32(C) requires that a judgment of conviction set forth “the plea, the

verdict, or findings, upon which each conviction is based, and the sentence,” that the

judgment be signed by the trial judge, and that the clerk enter the judgment on the journal.

In 2008, the Supreme Court of Ohio interpreted Crim.R. 32(C) to mean that “a judgment of

conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty

plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the

sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court.”

State v. Baker,

,

,

. 5

{¶ 14} The Supreme Court’s holding 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.”

.

Accordingly, in Lester, the Supreme Court attempted to clarify “the substantive requirements

that must be included within a judgment entry of conviction to make it final for purposes of

appeal.” Id. at ¶ 11. The Supreme Court held that the substantive requirements of Crim.R.

32(C) are “the fact of the conviction, the sentence, the judge’s signature, and the entry on the

journal by the clerk.” (Emphasis in original.) Id.

{¶ 15} In so holding, the Lester court concluded that the manner of conviction was

not a substantive requirement of Crim.R. 32(C). It explained:

Crim.R. 32(C) does not require a judgment entry of conviction to recite the

manner of conviction as a matter of substance, but it does require the

judgment entry of conviction to recite the manner of conviction as a matter of

form. The identification of the particular method by which a defendant was

convicted is merely a matter of orderly procedure rather than of substance.

A guilty plea, a no-contest plea upon which the court has made a finding of

guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting

from a jury trial explains how the fact of a conviction was effected.

Consequently, 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 6

substantive provisions of Crim.R. 32(C).

. The court thus made clear that “the fact that a defendant may be entitled to a

revised order setting forth an inadvertently omitted term that is required by Crim.R. 32(C) as

a matter of form does not prevent an original order that conforms to the substantive

requirements of Crim.R. 32(C) from being final.” Id. at ¶ 16.

{¶ 16} Cosby’s 2002 judgment entry indicates that Cosby was “convicted” of

aggravated robbery with a deadly weapon, a first degree felony, and that he was sentenced to

four years in prison; as part of the sentence, another case – Montgomery C.C.P 2001 CR

1138/1 – was administratively terminated. Cosby also received 390 days of jail time credit.

The judgment entry was signed by the trial judge and entered on the journal by the clerk.

Although the 2002 judgment entry did not identify the manner of conviction, the entry

complied with the substantive requirements of Crim.R. 32(C). Thus, in accordance with

Lester, the entry constituted a final appealable order under R.C. 2505.02.

{¶ 17} In his reply brief, Cosby acknowledges that the absence of the manner of

conviction may be corrected with a nunc pro tunc entry. He contends, however, that his

2002 conviction is void until the trial judge in his prior case issues such an entry; that court

has not done so.

{¶ 18} As discussed above, a judgment entry is final under Crim.R. 32(C) when it

complies with the substantive requirements of that rule. A nunc pro tunc entry which

includes the manner of conviction that was inadvertently omitted from the judgment entry

merely corrects a clerical error in the judgment.

. Cosby’s 2002 judgment

entry was a final order when it was issued in 2002, and its finality is not affected by the trial 7

court’s failure to issue a nunc pro tunc entry in the case to correct the omission of the

manner of Cosby’s conviction.

{¶ 19} In short, Cosby’s 2002 judgment entry is not void for failure to include the

manner of conviction. Rather, Cosby’s 2002 conviction for aggravated robbery constituted

a prior first degree felony for purposes of R.C. 2929.13(F)(6). Consequently, the trial court

did not err in denying Cosby’s motion for a non-mandatory sentence.

{¶ 20} Cosby’s sole assignment of error is overruled.

III.

{¶ 21} The trial court’s judgment will be affirmed.

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GRADY, P.J. and FAIN, J., concur.

(Hon. Penelope R. Cunningham, First District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Andrew T. French Michael C. Thompson Hon. Mary L. Wiseman