[Cite as State v. Smith, 2020-Ohio-494.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                                 No. 108593
                 v.                              :

DARRYL J. SMITH,                                 :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: February 13, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-90-254890-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Tasha Forchione, Assistant Prosecuting
                 Attorney, for appellee.

                 Darryl J. Smith, pro se.


FRANK D. CELEBREZZE, JR., J.:

                Defendant-appellant         Darryl   Smith   brings   the   instant   appeal

challenging the trial court’s judgment denying his motion for a revised judgment

entry of conviction and sentence and a new trial. Smith argues that the trial court’s

judgment entry of conviction and sentence is not a final appealable order and that
he is entitled to a new trial based on newly discovered evidence of ineffective

assistance of counsel. After a thorough review of the record and law, this court

affirms.

                        I. Factual and Procedural History

             In September 1990, Smith was convicted of aggravated murder, in

violation of R.C. 2903.01, and a three-year firearm specification.          Smith was

sentenced to a prison term of 20 years to life on the aggravated murder conviction,

to be served consecutively with the underlying three-year firearm specification.

             Smith filed his first motion for a new trial on October 2, 1990. Therein,

Smith did not assert that he was denied his constitutional right to effective

assistance of counsel based on defense counsel’s performance during plea

negotiations, nor challenge the validity or final appealable nature of the trial court’s

September 27, 1990 judgment entry memorializing the jury’s verdict and the

imposition of Smith’s prison sentence. The trial court denied the motion for a new

trial on October 23, 1990.

             In November 2001, appellant filed a direct appeal challenging his

conviction and the trial court’s judgment denying his motion for a new trial. State

v. Smith, 8th Dist. Cuyahoga No. 60817, 1992 Ohio App. LEXIS 3011 (June 11, 1992)

(“Smith I”). Smith presented eight assignments of error, none of which alleged that

he was denied his constitutional right to the effective assistance of counsel or

challenged the validity of the trial court’s judgment entry of conviction and sentence.
In June 1992, this court affirmed the trial court’s judgment. The Ohio Supreme

Court denied Smith’s motion for leave to appeal this court’s judgment in Smith I.

             On March 20, 1996, Smith filed his first petition for postconviction

relief. Therein, Smith argued, in relevant part, that he was denied the effective

assistance of counsel at trial because his counsel “failed to advise [Smith] of a

proposed plea bargain.” The state filed a brief in opposition to Smith’s petition on

May 10, 1996. Although it is unclear whether filed by Smith or the state, an affidavit

of the prosecuting attorney that handled Smith’s case, Winston Grays, and a

transcript of a September 14, 1990 pretrial hearing during which plea discussions

took place on the record, were submitted to the trial court for consideration in ruling

upon Smith’s petition.

             On June 3, 1996, the trial court filed a judgment entry denying Smith’s

petition for postconviction relief. On February 5, 1997, the trial court issued a

judgment entry which provided, “in as much as all grounds to set aside judgment

were either ruled on by court of appeals, or should have been presented on appeal,

the court denies the [petition] to vacate and set aside judgment.” The trial court

issued findings of fact and conclusions of law on October 16, 2001, in which the trial

court asserted that Smith filed his petition for postconviction relief alleging that trial

counsel “failed to advise Smith of a proposed plea bargain offered by the State of

Ohio.”
            Smith filed an appeal challenging the trial court’s judgment in

November 2001.      This court dismissed the appeal for failure to comply with

App.R. 9(B). State v. Smith, 8th Dist. Cuyahoga No. 80502.

             On May 30, 2014, Smith filed his second petition for postconviction

relief, captioned “motion to vacate void judgment and sentence.” Therein, Smith

argued, in relevant part, that trial counsel was ineffective during plea negotiations.

Specifically, Smith alleged that he was denied the effective assistance of counsel

because defense counsel “fail[ed] to follow up on an offer of more lenient sentence.”

Smith argued that the prosecutor offered a plea agreement under which Smith

would plead guilty to murder without a firearm specification. In support of his

ineffective assistance claim, Smith asserted that he “was never given an opportunity

to accept, reject or follow up on the proposed offer to plead guilty.” Smith relied on

the same evidence based upon which he filed his third petition for postconviction

relief in January 2019 — (1) the affidavit of prosecutor Grays and (2) the transcript

of the September 14, 1990 pretrial hearing during which plea discussions took place

on the record between the state, defense counsel, and the trial court. Smith alleged

that he was not present in the courtroom for these discussions.

             The trial court denied Smith’s second postconviction petition on

December 23, 2014. Smith filed an appeal challenging the trial court’s judgment on

January 30, 2015. On March 10, 2015, this court dismissed Smith’s appeal for

failure to comply with App.R. 4(A). State v. Smith, 8th Dist. Cuyahoga No. 102561.
              The instant appeal pertains to the third petition for postconviction

relief that Smith filed on January 9, 2019, captioned “motion for a (corrected or

revised sentencing entry) final, appealable order — [Crim.R.] 32(C). To include

motion for a new trial — [Crim.R. 33(A)(4) and (6)], also motion for an assignment

of counsel — [Crim.R. 44(A) and (D)].” Therein, Smith alleged that the trial court’s

September 27, 1990 judgment entry was not a final appealable order, and as a result,

requested that the trial court issue a revised judgment entry. Smith further argued

that he was entitled to a new trial because he was denied his constitutional right to

the effective assistance of counsel during plea negotiations. In support of his

motion, Smith submitted (1) the trial court’s September 27, 1990 judgment entry,

(2) the indictment returned by the grand jury in July 1990, (3) a portion of a

transcript that appears to be the trial court’s instructions to the jury during Smith’s

1990 trial, (4) the affidavit from prosecutor Grays, executed on May 3, 1996, and (5)

a portion of the transcript from the September 14, 1990 pretrial hearing.

             The state filed a brief in opposition on April 19, 2019. On April 24,

2019, the trial court denied Smith’s motion. It is from this judgment that Smith filed

the instant appeal on May 21, 2019. He assigns two errors for review:

      I. The trial court abused its discretion by denying to correct or revise
      [Smith’s] journal entry under Crim.R. 32(C) and R.C.
      2929.14(B)(A)(iii) [sic].

      II. The trial court abused its discretion by not modifying the [Smith’s]
      verdict or findings accordingly, without granting a new trial and
      passing sentence on such verdict or finding as modified under Crim.R.
      33(A)(4)[,](6) and the United States Supreme Court 2010 ruling on the
      Sixth Amendment.
                                 II. Law and Analysis

                                  A. Judgment Entry

              In his first assignment of error, Smith argues that the trial court

abused its discretion by failing to revise the September 27, 1990 judgment entry of

conviction and sentence. Smith contends that the judgment entry is not a final

appealable order because the trial court failed to specify that the jury found him

guilty on the three-year firearm specification underlying the aggravated murder

count.    Smith argues that he is entitled to relief, correction or revision of the

judgment entry, pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330,

893 N.E.2d 163.

              In Baker, the Ohio Supreme Court held 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.” Id. at syllabus.

              As an initial matter, we note that Smith did not request in his petition,

nor does he request in this appeal, that the trial court mp.erely correct the judgment

entry by incorporating the jury’s verdict on the firearm specification. Rather, in his

petition, Smith appeared to argue that the sentence on the three-year firearm

specification should be vacated because the trial court’s September 27, 1990

judgment entry did not specify that the jury found Smith guilty on the specification.
              Nevertheless, Smith’s challenge to the judgment entry is moot, barred

by res judicata, and meritless.

              First, Smith’s challenge to the sentence on the three-year firearm

specification is moot. The trial court’s September 27, 1990 judgment entry ordered

Smith to serve the three-year sentence on the firearm specification before the

sentence of 20 years to life on the aggravated murder conviction, consistent with the

direction set forth in R.C. 2941.145. Accordingly, Smith completely served the three-

year sentence on the firearm specification well over a decade ago. After Smith

completed his sentence on the firearm specification, his challenge to the sentence

and the trial court’s judgment entry became moot. See State v. Freeman, 8th Dist.

Cuyahoga No. 106363, 2018-Ohio-2936, ¶ 5; State v. Bostic, 8th Dist. Cuyahoga No.

84842, 2005-Ohio-2184, ¶ 21 (“Any appeal of a sentence already served is moot.”).

              Second, Smith’s challenge to the judgment entry and sentence on the

firearm specification fails on the merits. The trial court’s judgment entry complied

with Baker and constituted a final appealable order because it set forth the fact of

Smith’s aggravated murder conviction, Smith’s sentence, the judge’s signature, and

the time stamp indicating the entry upon the journal by the clerk. State v. Lester,

130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142.

              Furthermore, we find no merit to Smith’s argument that the trial

court’s judgment entry was not a final appealable order based on the trial court’s

failure to specify the verdict on the firearm specification.
              This is not a case in which the trial court completely failed to address

the firearm specification in the judgment entry. The trial court’s September 27, 1990

judgment entry addressed the jury’s verdict on the firearm specification: “We, the

jury, having been duly impaneled and sworn, find defendant, Darryl J. Smith, guilty

of aggravated murder, [R.C.] 2903.01, as charged in the indictment.” (Emphasis

added.)

              Smith was charged in a one-count indictment with “Aggravated

Murder R.C. 2903.01 With Firearm Specification.”           (Emphasis added.)      The

indictment alleged, in relevant part,

      The Jurors of the Grand Jury * * * Do find and present that [Smith] * *
      * unlawfully

      purposely with prior calculation and design, caused the death of
      another, to-wit:

      Timothy Welch.

      Specification One: (Firearm)

      The Grand Jurors further find and specify that [Smith] had a firearm
      on or about their person or under their control while committing the
      [aggravated murder] offense charged in this count of the indictment.

(Emphasis added.) See indictment, filed on July 17, 1990.

              The trial court’s judgment entry also addressed the sentence on the

firearm specification: “It is ordered and adjudged that defendant, Darryl J. Smith

be imprisoned and confined in the Lorain [Correctional] Institution for three (3)

years actual on gun specification followed by twenty (20) years to life and pay the

cost of this prosecution.” (Emphasis added.)
              “[T]he failure to address and sentence with regard to any

specifications does not render a sentencing entry a non-final, non-appealable

order. The failure of a trial court to address a specification constitutes a sentencing

error that must be addressed upon appeal.” (Emphasis added.) State ex rel. Carter

v. Saffold, 8th Dist. Cuyahoga No. 100322, 2013-Ohio-5596, ¶ 5, citing State ex rel.

Jones v. Ansted, 131 Ohio St.3d 125, 2012-Ohio-109, 961 N.E.2d 192, and State ex

rel. Cunningham v. Lindeman, 126 Ohio St.3d 481, 2010-Ohio-4388, 935 N.E.2d

393.

              In this case, the trial court’s failure to specify that the jury found

appellant guilty on the three-year firearm specification in the judgment entry did

not affect the final appealable nature of the judgment entry.

              Finally, Smith’s challenge to the judgment entry and sentence on the

firearm specification are barred by res judicata. As this court recognized in Saffold,

any error pertaining to the trial court’s failure to specify the jury’s verdict on the

firearm specification in the judgment entry constituted a sentencing error that

Smith could have, and should have raised on direct appeal. Smith failed to do so,

and as a result, his argument pertaining to the judgment entry is barred by res

judicata.

              For all of the foregoing reasons, we find no basis upon which to

conclude that the trial court erred or abused its discretion in denying Smith’s motion

to correct or revise the September 27, 1990 judgment entry. Smith’s first assignment

of error is overruled.
                                      B. New Trial

               In his second assignment of error, Smith argues that he was entitled

to a new trial pursuant to Crim.R. 33(A)(4) and (6) because he was denied his

constitutional right to the effective assistance of counsel.         Specifically, Smith

contends that his trial counsel was ineffective during plea negotiations, and that he

was prejudiced by counsel’s deficient performance. In support of his ineffective

assistance claim, Smith directs this court to the May 1996 affidavit of prosecutor

Grays and the partial transcript of the September 14, 1990 pretrial hearing.

              After reviewing the record, we find that Smith’s arguments pertaining

to the trial court’s denial of his motion for a new trial are procedurally defective, fail

on the merits, and are barred by res judicata.

               First, Smith’s arguments are procedurally defective. In his January

2019 motion, Smith appeared to argue that he was entitled to a new trial based on

newly discovered evidence. However, Smith did not file his new trial motion within

the time prescribed by Crim.R. 33, nor did Smith seek leave from the trial court prior

to filing the untimely motion.

               Crim.R. 33(B) provides that a motion for a new trial based on newly

discovered evidence “shall be filed within one hundred twenty days after the day

upon which the verdict was rendered,” unless it appears, by clear and convincing

proof, that the movant was unavoidably prevented from discovering the new

evidence. A defendant is “unavoidably prevented” from filing a timely motion for

new trial if the defendant had no knowledge of the existence of the ground
supporting the motion for new trial and could not have learned of the existence of

that ground within the time prescribed for filing the motion for new trial in the

exercise of reasonable diligence. State v. Walden, 19 Ohio App.3d 141, 145-146, 483

N.E.2d 859 (10th Dist.1984). “Res judicata bars all subsequent new trial motions

that are based on claims that were brought or could have been brought on direct

appeal or in prior motions filed under Crim.R. 33.” State v. Williamson, 8th Dist.

Cuyahoga Nos. 107117, 107162, and 107916, 2019-Ohio-1985, ¶ 14, citing State v.

Bridges, 8th Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298, ¶ 25.

               In the instant matter, almost 30 years have passed since the jury

returned its verdict in September 1990. A defendant who fails to file a timely motion

for a new trial must first seek leave from the trial court prior to filing his or her new

trial motion. State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 10,

citing State v. Mathis, 134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999).

              Smith did not request leave to file his new trial motion, much less

demonstrate that he was unavoidably prevented from discovering the evidence —

Grays’s affidavit and the transcript from the September 14, 1990 pretrial hearing —

based upon which he claimed he was entitled to relief. The record reflects that Smith

was aware of his purported ineffective assistance of counsel claim and the evidence

upon which he relies as early as 1996 when he filed his first petition for

postconviction relief.    The record reflects that Smith asserted his ineffective

assistance of counsel claim based on counsel’s purported deficient performance
during plea negotiations in his first petition for postconviction relief, filed in March

1996, and his second petition for postconviction relief, filed in May 2014.

              Because Smith failed to file a motion for leave before filing his motion

for a new trial, we find no basis upon which to conclude that the trial court abused

its discretion in denying Smith’s motion. “A trial court does not abuse its discretion

in denying a motion for new trial filed outside the Crim.R. 33(B) timeframe where

the defendant does not first seek leave to file the motion.” (Citations omitted.) State

v. Golden, 10th Dist. Franklin No. 13AP-927, 2014-Ohio-2148, ¶ 10; State v. Tucker,

8th Dist. Cuyahoga No. 95556, 2011-Ohio-4092, ¶ 29-30.

              Second, notwithstanding the procedural deficiencies of Smith’s

motion for a new trial, the evidence based upon which Smith claims he is entitled to

relief does not establish good cause for the untimely new trial motion.

              In his 1996 affidavit, Grays averred, in relevant part,

      Prior to the scheduled trial date, a plea bargain, sanctioned by a
      [supervisor], was offered to the defendant, Darryl J. Smith through
      his [defense counsel]. This plea bargain was not accepted by the
      defendant, Darryl J. Smith, and the case proceeded to trial. I was
      present [in the] courtroom when the defendant refused the plea
      bargain, prior to the trial date, although I cannot recall whether or not
      this was done on the record.

      ***

      I have contacted the [court reporter’s] office to request a transcript of
      the proceeding wherein the plea bargain offered by the State of Ohio
      was refused by defendant Smith, and was informed that there is no
      transcript of such a proceeding.

      I have obtained a copy of the transcript of one proceeding prior to trial
      in the above-captioned case, wherein I informed the Court and defense
      counsel that I would discuss the possibility of a plea bargain, a plea to
      murder without a gun specification, with my supervisor. A copy of the
      pertinent pages from this transcript are attached as Exhibit A (1) — (3),
      which I attest to be true and accurate copies from the transcript of
      proceedings in CR 254890A, on September 14, 1990.

(Emphasis added.)

              The transcript of the September 14, 1990 pretrial hearing, which Grays

referenced in his affidavit, also does not support Smith’s ineffective assistance of

counsel claim or argument that he is entitled to a new trial. Smith’s ineffective

assistance claim is based entirely on the assumption that the discussion during the

September 14, 1990 proceeding, and the prosecutor’s reference to a plea of murder

without a firearm specification, under which Smith would face a prison term of 15

years to life, constituted a formal plea offer, rather than a discussion about a

potential plea agreement, by the state to Smith and his attorney. This argument is

entirely contradicted by the record before this court.

              During the September 14, 1990 hearing, Grays confirmed that an

amendment from aggravated murder with a three-year firearm specification to

murder without a firearm specification would have to be discussed with and

approved by his supervisor. To the extent that Smith suggests that either the state

or the trial court “offered” a plea agreement under which the aggravated murder

count and underlying three-year firearm specification would be amended to

manslaughter, this argument is also entirely unsupported by the record. When the

trial court asked whether the state had considered or would consider amending the

aggravated murder count to manslaughter, Grays categorically rejected the trial
court’s suggestion, explaining that he would not even propose such an amendment

to his supervisor.

              Finally, Smith’s ineffective assistance of counsel claim and argument

that he is entitled to a new trial are barred by res judicata. As noted above, Smith

raised an identical ineffective assistance of counsel argument in his first and second

petitions for postconviction relief, and in doing so, relied upon the same evidence he

submitted in support of his January 2019 motion.

              Under the doctrine of res judicata,

      a defendant who was represented by counsel is barred from raising an
      issue in a petition for postconviction relief if the defendant raised or
      could have raised the issue at trial or on direct appeal. State v.
      Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997); State v.
      Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus. According
      to Szefcyk, res judicata is applicable to all postconviction proceedings.
      Id. at 95. A trial court may dismiss a petition for postconviction relief
      without holding an evidentiary hearing when the claims raised in the
      petition are barred by the doctrine of res judicata. Szefcyk at syllabus.

State v. Vaughn, 8th Dist. Cuyahoga No. 107746, 2019-Ohio-798, ¶ 14; see State v.

Mack, 8th Dist. Cuyahoga No. 101261, 2018-Ohio-301, ¶ 15 (res judicata also

prevents relief on successive petitions for postconviction relief that raise issues that

were or could have been raised in the original petition).

              For all of the foregoing reasons, we find no basis upon which to

conclude that the trial court abused its discretion in denying Smith’s motion for a

new trial. Smith’s second assignment of error is overruled.

               Finally, in Smith’s motion, he requested that counsel be assigned to

represent him, pursuant to Crim.R. 44(A), in the event that the trial court “forces
[Smith] into further proceedings.” Motion at p. 13. Because no further proceedings

are necessary, Smith’s request for appointment of counsel is moot.

                                   III. Conclusion

              After thoroughly reviewing the record, we affirm the trial court’s

judgment denying Smith’s motion. The trial court did not err or abuse its discretion

in denying the motion to the extent that Smith requested a revised judgment entry

of conviction and sentence, and the trial court did not abuse its discretion in denying

the motion to the extent that Smith argued that he was entitled to a new trial.

              Judgment affirmed.

      It is ordered that appellee recover from 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.

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

of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
