[Cite as State v. Walker,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96486

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ANTHONY WALKER DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-268354

BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J.

RELEASED AND JOURNALIZED: February 23, 2012 2

ATTORNEY FOR APPELLANT

David L. Doughten The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: T. Allan Regas Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 3

EILEEN A. GALLAGHER, J.:

{¶1} Defendant-appellant, Anthony Walker, appeals from a nunc pro tunc

journal entry issued by the Cuyahoga County Court of Common Pleas on February 11,

2011. Appellant argues that the trial court may not correct a judgment that is void

pursuant to State v. Baker,

,

,

, with a

nunc pro tunc journal entry. For the following reasons, we overrule appellant’s sole

assignment of error and affirm the judgment of the trial court.

{¶2} On June 19, 1991, appellant was indicted and charged with two counts of

aggravated murder with specifications for mass murder and felony murder. Appellant

was also charged with aggravated burglary, aggravated robbery, attempted murder, and

kidnapping. Each of the counts contained a three-year firearm specification.

Appellant pled not guilty to the charges.

{¶3} The case proceeded to a jury trial and, on November 2, 1991, appellant was

found guilty of all counts. On November 21, 1991, the trial court accepted the jury’s

recommendation and imposed a death sentence for appellant’s convictions of aggravated

murder and imposed sentences on all other counts.

{¶4} This court reversed appellant’s convictions and remanded the case for a

new trial due to ineffective assistance of counsel in State v. Walker, 8th Dist. No. 62862,

(Oct. 28, 1993). (“Walker I.”) 4

{¶5} Appellant’s retrial commenced on November 9, 1995 and, on February 11,

1996, a jury found appellant guilty of six of seven counts. The jury found appellant

guilty of aggravated burglary, aggravated robbery, attempted murder, kidnapping, and

aggravated murder with the mass murder specification. The jury also found appellant

guilty of all firearm specifications. On February 13, 1996, the trial court sentenced

appellant to an aggregate prison term of 33 years to life. This sentence was not

journalized until May 26, 1998, nunc pro tunc for March 13, 1996.

{¶6} On June 25, 1998, appellant again appealed his conviction to this court.

Appellant argued that the trial court erred:

in refusing to grant a mistrial for jury misconduct; in giving improper instructions to the jury; in failing to journalize defendant’s conviction for two years; and for allowing irrelevant and prejudicial evidence. Ineffective assistance of counsel is also asserted for failure to object to allegedly incomplete jury instructions. State v. Walker, 8th Dist. No. 74773,

, *1 (Nov. 4, 1999). (“Walker II.”)

On November 15, 1999, this court affirmed appellant’s convictions and sentence.

{¶7} On June 23, 2010, appellant filed a motion for resentencing and the

issuance of a revised judgment entry of his original case pursuant to Crim.R. 47.

Appellant asserted that the trial court failed to enter a final appealable order in his 1996

trial and, therefore, his case is still pending before the trial court and he is entitled to a

new sentencing hearing. The trial court granted the motion, in part, and entered a nunc

pro tunc entry on February 11, 2011, for the purpose of correcting a clerical error that

had omitted the appellant’s manner of conviction, i.e., a jury verdict. The trial court 5

issued a revised sentencing journal entry, but denied appellant’s motion that he was

entitled to a new sentencing hearing.

{¶8} Appellant appeals, raising the following sole assignment of error:

{¶9} “The trial court may not correct a judgment void pursuant to State v. Baker,

,

with a nunc pro tunc entry.”

{¶10} We find no merit to this assigned error.

{¶11} Appellant claims that his sentencing entry does not conform to Crim.R.

32(C) under Baker. Relying on Baker, appellant asserts that the trial court has to this

point failed to issue a final appealable order from his 1996 trial. The Ohio Supreme

Court held in Baker 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. Simply stated, a defendant is entitled to appeal an order that sets forth the manner of conviction and the sentence.

.

{¶12} The Ohio Supreme Court revisited its Baker holding in State v. Lester,

,

,

, to clarify the necessary components

of the manner of conviction and a trial court’s ability to record nunc pro tunc journal

entries to correct clerical omissions.

{¶13} The court in Lester held that the “the finality of a judgment entry of

conviction is not affected by a trial court’s failure to include a provision that indicates 6

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).” Lester, at ¶ 12. The court explained that the absence

of the “identification of the particular method by which a defendant was convicted is

merely a matter of orderly procedure rather than of substance.” Id. at ¶ 12. Thus,

even though the trial court’s original journal entry omitted that appellant was convicted

by a jury, this omission was merely a clerical mistake and non-substantive, as appellant

was already on notice concerning when the final judgment was entered. Id. at ¶ 10.

See also State v. Melton, 8th Dist. No. 96621,

,

, at ¶

17-18 (“The fact the entry shows that Melton agreed to the plea and the court accepted

the plea was sufficient to provide Melton with notice of his conviction and that the time

for appeal had commenced. In fact, for the past 15 years Melton has been attempting to

appeal his conviction. Therefore, he was well aware his conviction was final.”).

{¶14} Lester clarified 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.”

Lester, at ¶ 20. As expressed in Lester, when “the sole purpose of the nunc pro tunc

entry was to correctly state that appellant’s original conviction was based on a jury

verdict, a fact that was obvious to the court and all the parties,” then it is apparent “that

the nunc pro tunc entry merely corrected a clerical omission in the resentencing order 7

and made the entry reflect what had already happened, which was appellant’s conviction

by jury verdict.”

{¶15} The facts in this case are substantially similar to the fact pattern presented

in Lester. As in Lester, appellant was present in open court and heard the jury verdict,

has previously appealed his sentence in which his assignments of error recognized that

the jury found him guilty, and has had his convictions and sentence affirmed by this

court. See State v. Walker, 8th Dist. No. 74773,

, at *13 (Nov. 4,

1999). Compare

; State v. Bonnell, 8th Dist. No. 96368,

,

, at ¶ 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.”). No contradiction exists in the

record to show appellant did not have knowledge that he was convicted by a jury.

Moreover, in the journal entry from May 26, 1998, nunc pro tunc for March 13, 1996,

the court reports that appellant was in court with counsel and was advised of his right to

appeal from his convictions and his right to proceed to a mitigation hearing before a jury

for the purposes of sentencing. Appellant waived his right to a sentencing hearing and

his right to appeal the sentence in order to enter into a sentencing agreement.

{¶16} Even though the trial court’s journal entry from May 26, 1998, nunc pro

tunc for March 13, 1996, lacked the fact that a jury found appellant guilty, the judgment

of conviction is a final order subject to appeal under R.C. 2505.02 because it set forth: 8

“(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.” Lester, at ¶ 14; see also

Bonnell, at ¶ 6, 14 (“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.”)

{¶17} A clerical omission does not render the judgment a nullity. Bonnell, at ¶

13. The Ohio Supreme Court has held that “[c]onsistent 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. DeWine v. Burge,

,

,

, at ¶ 18, citing State ex rel. Alicea v.

Krichbaum,

,

,

, ¶ 2. Therefore,

the clerical omission of appellant’s manner of conviction by a jury entitles him only to a

corrected sentencing entry, which the trial court provided in the nunc pro tunc journal

entry of February 11, 2011.

{¶18} This court finds that the omission of appellant’s manner of conviction was

a clerical error and non-substantive to appellant’s final appealable order. Therefore, the

trial court may enter a nunc pro tunc judgment to correct the omission from the March

13, 1996 judgment entry.

{¶19} Appellant’s sole assignment of error is overruled. 9

{¶20} The judgment of the trial court is affirmed.

It is ordered that appellee recover of appellant 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS; COLLEEN CONWAY COONEY, P.J., DISSENTING WITH SEPARATE OPINION

COLLEEN CONWAY COONEY, P.J., DISSENTING:

{¶21} I respectfully dissent because I would dismiss the instant appeal pursuant

to State v. Lester,

,

,

, paragraph two

of the syllabus, which states:

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 final order from which a new appeal may be taken. 10

{¶22} This court reviewed Walker’s arguments in 1999 and affirmed his

convictions and sentence, as the majority states.

{¶23} I would dismiss this attempt to file another appeal and find no reasonable

grounds existed to file the appeal or to pursue it once Lester was decided.