[Cite as State v. Haddix,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : -vs- : : Case No. 2012-CA-00218 DOUGLAS E. HADDIX : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 1995CR0111

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 13, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO DOUGLAS E. HADDIX BY RONALD MARK CALDWELL Box 901 Stark County Prosecutor Leavittsburg, OH 44430 110 Central Plaza S., Ste. 510 Canton, OH 44702 [Cite as State v. Haddix,

.]

Gwin, P.J.

{¶1} Appellant Douglas E. Haddix [“Haddix”] appeals from the November 7,

2012 Judgment Entry of the Stark County Court of Common Pleas denying his motion

to resentence.

Facts and Procedural History

{¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

(E) Determination and judgment on appeal. The appeal will be

determined as provided by App. R. 11. 1. It shall be sufficient compliance

with App. R. 12(A) for the statement of the reason for the court's decision

as to each error to be in brief and conclusionary form. The decision may

be by judgment entry in which case it will not be published in any form.”

{¶3} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusionary decision more quickly than in a case

on the regular calendar where the briefs, facts and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn.,

,

(10th

Dist. 1983)

{¶4} This appeal shall be considered in accordance with the aforementioned

rules.

{¶5} On February 2, 1995, the Stark County Grand Jury indicted Haddix, on

three counts of rape in violation of R.C. 2907.02, one count of felonious assault in

violation of R.C. 2907.12, one count of gross sexual imposition in violation of R.C. Stark County, Case No. 2012-CA-00218 3

2907.05, and one count of endangering children in violation of R.C. 2919.22. Said

charges arose from incidents involving a minor under the age of thirteen.

{¶6} A jury trial commenced on April 25, 1995. At the conclusion of the state's

case-in-chief, the trial court dismissed the endangering count. The jury found appellant

guilty as charged save for one of the rape counts. By judgment entry filed May 30, 1995,

the trial court sentenced appellant to an aggregate indeterminate term of seventeen to

fifty years in prison.

{¶7} Haddix appealed and this court affirmed his convictions and sentences.

State v. Haddix, 5th Dist. No. 95–CA–0175,

(June 3, 1996). For a

complete history of appellant’s underlying case and subsequent journey through the

appellate process see, State v. Haddix, 5th Dist. No. 1998–CA–0096,

(September 28, 1998); State v. Haddix 5th Dist. No. 1999–CA–00227,

(November 15, 1999); State v. Haddix 5th Dist. No. 2011CA00276, 2012-Ohio-

4259.

{¶8} On November 6, 2012, 2011, Haddix filed a motion for resentencing

arguing that one of his criminal sentences was illegal because the original judgment

entry of sentence contained a sentence upon a count upon which he was acquitted by

the jury. By judgment entry filed November 7, 2012, 2011, the trial court denied the

motion.

{¶9} Haddix filed an appeal from the November 7, 2012 judgment entry of the

trial court that denied his motion for resentencing.

Assignment of Error

{¶10} Haddix raises one assignment of error: Stark County, Case No. 2012-CA-00218 4

{¶11} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DISMISSED THE MOTION TO RESENTENCE.”

Analysis

{¶12} Haddix argued before the trial court that he was sentenced for a count of

statutory rape for which he was found not guilty.

{¶13} The original judgment entry of conviction and sentence, filed on May 2,

1995, did reflect that Haddix was sentenced to an indeterminate sentence of 10 to 25

years for the second count of statutory rape. The jury, however, had acquitted Haddix of

this specific count in the indictment. This entire sentencing entry was corrected by a

nunc pro tune entry, filed on May 30, 1995, to correct this error.

{¶14} Haddix filed his original appeal on May 16, 1995. Haddix’s brief was not

filed until December 4, 1995. Thus, Haddix could have, but did not raise this issue in his

direct appeal. However, in the case at bar, the trial court corrected the error by a nun

pro tunc entry filed May 30, 1995. Accordingly, Haddix’s sentence is neither void nor

voidable.

{¶15} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of

due process that was raised or could have been raised by the defendant at the trial,

which resulted in that judgment of conviction, or on an appeal from that judgment. State

v. Szefcyk,

,

(1996), syllabus, approving and following

State v. Perry,

,

(1967), paragraph nine of the

syllabus. It is well-settled that, "pursuant to res judicata, a defendant cannot raise an Stark County, Case No. 2012-CA-00218 5

issue...if he or she could have raised the issue on direct appeal." State v. Reynolds,

,

(1997). Haddix failed to raise the sentencing

issue in his direct appeal. Appellant was represented by counsel on that appeal.

{¶16} Haddix had the opportunity to raise this issue on direct appeal, but, he

failed to do so. The doctrine of res judicata bars appellant from raising this issue anew

via a motion to vacate a sentence. State v. Foy, 5th Dist. No.2009–CA–00239, 2010–

Ohio–2445, ¶ 8. See also State v. Miller, 5th Dist. No.2011–CA–00074, 2011–Ohio–

3039.

{¶17} In an analogous situation, the Ohio Supreme Court concluded that an

offender is entitled to a de novo sentencing hearing for the trial court to correct a

sentence that omitted notice of post release control. * * * Importantly, because Bezak

had already completed his term of imprisonment, the trial court could not, consistent

with our decision in Hernandez * * * conduct a resentencing. State v. Bezak,

,

,

.

{¶18} Recently, the Ohio Supreme Court in State v. Fischer,

,

2010- Ohio-6238, the limited its holding in Bezak and concluded that the defendant is

only entitled to a hearing for the proper imposition of post release control. In Fischer, the

Court stated:

We similarly hold that when a judge fails to impose statutorily

mandated post release control as part of a defendant's sentence, that part

of the sentence is void and must be set aside. (Footnote omitted.) Neither

the Constitution nor common sense commands anything more. Stark County, Case No. 2012-CA-00218 6

This principle is an important part of the analysis of void sentences

that we have not focused upon in prior cases involving post release

control, including Bezak,

,

,

. Thus, we reaffirm the portion of the syllabus in Bezak that states

‘[w]hen a defendant is convicted of or pleads guilty to one or more

offenses and post-release control is not properly included in a sentence

for a particular offense, the sentence for that offense is void,’ but with the

added proviso that only the offending portion of the sentence is subject to

review and correction.

However, we now modify the second sentence in the Bezak

syllabus as ill considered. That sentence states that the offender is entitled

to a new sentencing hearing for the offense for which post release control

was not imposed properly.

,

,

. It does not recognize a principle that we overlooked in Bezak:

when an appellate court concludes that a sentence imposed by a trial

court is in part void, only the portion that is void may be vacated or

otherwise amended.

Id. at ¶¶26-27. The court in Fisher, supra, further held that “[a]lthough 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. Accordingly, appellant could not raise new issues, or

issues he had previously raised on his direct appeal. State v.

See also,

State v. Ketterer,

,

,

. “Consequently, Stark County, Case No. 2012-CA-00218 7

the sentencing hearing was…not a de novo hearing but a ministerial act to create a new

journal entry with the addition of the corrected language noting that post-release control

was mandatory.“ State v. Davis, Washington App. No. 10CA9,

.

{¶19} Under Fisher, all other parts of Haddix’s sentence were valid and

remained in full force and effect. In the case at bar, the sole purpose of the nunc pro

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

verdict and the jury found him not guilty of one of the counts, a fact that was obvious to

the court and all the parties. It is apparent, then, that the nunc pro tunc entry merely

corrected a clerical omission in the resentencing order and made the entry reflect what

had already happened, which was Haddix's conviction by jury verdict and sentence

upon the counts that he jury had found him guilty. The trial court's addition indicating the

removal of a sentence upon the count that the jury found Haddix not guilty affected only

the form of the entry and made no substantive changes.

{¶20} In State v. Lester, the Ohio Supreme Court observed,

R.C. 2505.02 sets forth the conditions under which an order is final

and may be reviewed, affirmed, or modified, with or without retrial. Crim.R.

32(C) specifies the substantive requirements that are to be included within

a judgment of conviction that make it final for purposes of appeal. We find

that appellant's original judgment entry of conviction meets the Crim.R.

32(C) requirements because it contained the fact of the conviction, the

sentence, the judge's signature, and the time stamp indicating the entry

upon the journal by the clerk. Therefore, the original judgment entry of

conviction was a final order subject to appeal under R.C. 2505.02. Stark County, Case No. 2012-CA-00218 8

Moreover, the absence of the language required by Crim.R. 32(C) as a

matter of form indicating how appellant's conviction was effected has not

deprived appellant of any opportunity to appeal his conviction or sentence,

as he has appealed numerous times, and in none of those previous direct

appeals or collateral procedures did appellant raise any arguments

regarding the lack of finality of the judgment of conviction. Lester, 2007-

Ohio-4239,

;

,

; 2007-

Ohio-5627,

; and (May 11, 2009), 3d Dist. No. 2–08–24.

,

,

. The same is true in the

case at bar, Haddix has not been deprived of any opportunity to appeal his conviction or

sentence, as he has appealed numerous times, and in none of those previous direct

appeals or collateral procedures did appellant raise any arguments regarding the

original judgment entry of sentence. With respect to nunc pro tunc judgment entries, the

Lester court observed,

It is well settled that courts possess the authority to correct errors in

judgment entries so that the record speaks the truth. State ex rel. Fogle v.

Steiner (1995),

, 163–164,

; Crim.R.

36. Errors subject to correction by the court include a clerical error,

mistake, or omission that is mechanical in nature and apparent on the

record and does not involve a legal decision or judgment. State v. Miller,

,

,

; Crim.R. 36.

Nunc pro tunc entries are used to make the record reflect what the court

actually decided and not what the court might or should have decided or Stark County, Case No. 2012-CA-00218 9

what the court intended to decide.

;

.

“Nunc pro tunc” means “now for then” and is commonly defined as

“[h]aving retroactive legal effect through a court's inherent power.” Black's

Law Dictionary (9th Ed. 2009) 1174. Therefore, a nunc pro tunc entry by its

very nature applies retrospectively to the judgment it corrects. See, e.g.,

; Fogle at 163–164,

. Appellate courts

throughout the state have consistently applied these principles. See, e.g.,

State v. Harrison, Butler App. Nos. CA2009–10–272 and CA2010–01–

019,

,

, ¶ 24, citing State v. Battle,

Summit App. No. 23404,

,

, ¶ 6

(“generally, [a] nunc pro tunc entry relates back to the date of the journal

entry it corrects”); State v. Yeaples (3d Dist.),

, 2009-

Ohio-184,

(“A nunc pro tunc entry is the procedure

used to correct clerical errors in a judgment entry, but the entry does not

extend the time within which to file an appeal, as it relates back to the

original judgment entry”); State v. Breedlove (1st Dist. 1988),

,

, quoting Natl. Life Ins. Co. v. Kohn (1937),

,

,

(“ ‘The power to

make nunc pro tunc entries is restricted ordinarily to the subsequent

recording of judicial action previously and actually taken. It is a simple

device by which a court may make its journal speak the truth.’ It ‘speaks

the truth’ by correcting a judicial record that fails to show an order or a Stark County, Case No. 2012-CA-00218 10

judgment of the court because the order or judgment was not recorded at

all in the first instance”).

.

{¶21} In the case now before us, the original sentencing order complied with the

substantive requirements of Crim.R. 32(C), was a final order for purposes of R.C.

2505.02, and was appealed by Haddix. The sole purpose of the nunc pro tunc entry was

to correctly state that Haddix's original conviction did not include a conviction on the

second count of statutory rape and therefore Haddix was not sentenced on that count. It

is apparent, then, that the nunc pro tunc entry merely corrected a clerical omission in

the sentencing order and made the entry reflect what had already happened, which was

Haddix was found guilty, but not of the second count of statutory rape and to remove

the sentence for that count, as set forth in the jury’s verdict.

{¶22} Thus, Haddix has already received the benefit that he sought in his motion

to resentence. We must be mindful of the “ * * * elementary proposition of law that an

appellant, in order to secure reversal of a judgment against him, must not only show

some error but must also show that that error was prejudicial to him.” See Smith v.

Flesher,

,

(1967); State v. Stanton,

,

(1968); Wachovia Mtg. Corp. v Aleshire, 5th Dist. No. 09

CA 4,

, ¶16. See, also, App.R. 12(D).

{¶23} The arguments presented by Haddix in the present case could have been

presented in a direct appeal from the trial court's sentencing entry, but they were not. As

a result, res judicata bars appellant from raising them in this appeal.

{¶24} Appellant’s sole assignment of error is denied. Stark County, Case No. 2012-CA-00218 11

{¶25} For the forgoing reasons, the judgment of the Stark County Court of

Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER

WSG:clw 0429 [Cite as State v. Haddix,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : DOUGLAS E. HADDIX : : : Defendant-Appellant : CASE NO. 2012-CA-00218

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER