[Cite as State v. McIntyre, 2016-Ohio-93.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.       27670

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
LEWIS LEROY MCINTYRE, JR.                            COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 09 03 0647

                                 DECISION AND JOURNAL ENTRY

Dated: January 13, 2016



        MOORE, Judge.

        {¶1}     Defendant-Appellant Lewis Leroy McIntyre appeals from the resentencing entry

of the Summit County Court of Common Pleas. We affirm in part and vacate in part.

                                                I.

        {¶2}     This case has a lengthy history with this Court.       We have most recently

summarized it as follows:

        In March 2009, Mr. McIntyre was indicted for tampering with evidence in
        violation of R.C. 2921.12(A)(1), petty theft in violation of R.C. 2913.02(A)(3),
        and obstructing justice in violation of R.C. 2921.32(A)(4). Several months later
        he was charged in a supplemental indictment with tampering with records in
        violation of R.C. 2913.42(A)(1)(B)(4), and obstructing justice in violation of R.C.
        2921.32(A)(6), a felony of the fifth degree. The matter was tried before a jury.
        The trial court granted Mr. McIntyre’s Crim.R. 29 motion with regard to R.C.
        2921.32(A)(4) [count three]1, but a jury convicted Mr. McIntyre of the remaining
        charges. Mr. McIntyre was sentenced to four years in prison.


        1
          At trial, prior to the jury being sworn in, count three was orally amended to reflect a
violation of R.C. 2921.32(A)(6) as opposed to R.C. 2921.32(A)(4). We acknowledge that a
plurality of the Supreme Court of Ohio has recently decided State ex rel. McIntyre v. Summit
County Court of Common Pleas, Slip Opinion No. 2015-Ohio-5343 (involving charges unrelated
                                                2


       Mr. McIntyre appealed, and this Court overruled his first two assignments of
       error. State v. McIntyre, 9th Dist. Nos. 24934, 24945, 2010-Ohio-2569, ¶ 5-10
       (“McIntyre I”). However, we sustained his third assignment of error, vacated his
       felony conviction for obstructing justice [count five] because the verdict form did
       not contain the degree of the offense, and remanded for resentencing on that
       count. Id. at ¶ 14-15.

       Mr. McIntyre moved to reopen his appeal, and this Court granted his motion for
       the limited purpose of considering two assignments of error. See State v.
       McIntyre, 9th Dist. Nos. 24934, 24945, 2012-Ohio-1173, ¶ 3 (“McIntyre II”). Mr.
       McIntyre argued that his convictions for tampering with records and obstructing
       justice were void. Id. at ¶ 4. In his second assignment of error, Mr. McIntyre
       argued that the trial court committed plain error when it sentenced him for allied
       offenses of tampering with records and tampering with evidence. Id. at ¶ 16.

       Mr. McIntyre's assignment of error regarding his arraignment was overruled. Id.
       at ¶ 4-15. However, this Court sustained Mr. McIntyre’s second assignment of
       error. Accordingly, we affirmed Mr. McIntyre’s convictions but reversed and
       remanded the case to the trial court so that it could consider and apply State v.
       Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314 in the first instance. McIntyre II
       at ¶ 16-17.

       On remand, the trial court determined that Mr. McIntyre’s convictions for
       tampering with evidence and tampering with records merged for sentencing
       purposes, and the State elected to proceed on Mr. McIntyre’s tampering with
       evidence conviction. The trial court sentenced Mr. McIntyre to 36 months for
       tampering with evidence and 6 months for obstructing justice [count five].

State v. McIntyre, 9th Dist. Summit No. 26449, 2012-Ohio-5657, ¶ 2-6 (“McIntyre III”).

       {¶3}    Mr. McIntyre again appealed and, inter alia, asserted that the trial court

committed plain error in sentencing him on allied offenses. Id. at ¶ 7. Because the trial court

“examined and applied Johnson to only two of the four offenses,” id. at ¶ 10, we sustained Mr.

McIntyre’s argument and remanded the matter so that the trial court could consider whether the

other offenses merged. Id. at ¶ 11.

to the present case), which potentially could present a finality issue under the circumstances
involved in this case. However, only three justices concurred in the analysis in that case and
where four justices do not join a decision, it does not constitute a holding of the Court. Fed.
Home Mtge. Copr. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 29. This Court
declines to adopt the analysis in State ex rel. McIntyre in light of the fact that it would
dramatically alter existing case law on what constitutes a final, appealable order in the criminal
context.
                                                  3


         {¶4}    Subsequently, Mr. McIntyre filed several pro se motions in the trial court.

Thereafter, counsel was appointed for purposes of representing Mr. McIntyre at the resentencing

hearing, and counsel filed a motion for a mistrial on all counts. The premise underlying the

motion was counsel’s assertion that the 2009 sentencing entry (and every sentencing entry

thereafter) did not constitute a final appealable order. Counsel argued that, at trial, even though

trial counsel moved pursuant to Crim.R. 29 on count three, the trial court, based upon the facts

raised by the trial court, thought it was granting an acquittal on count five.2          Given that

discussion at trial, counsel maintained that Mr. McIntyre was actually acquitted on count five3

and that that count should have never made it to the jury. Further, under counsel’s reasoning,

count three has remained unresolved as it was never presented to the jury. Mr. McIntyre’s

counsel argued that, because there was no final appealable order, the trial court could consider

whether a mistrial was warranted, even though this Court limited the remand to an allied offenses

issue.

         {¶5}    The trial court granted Mr. McIntyre’s motion for a mistrial, but only with respect

to count three. The trial court concluded that, at trial, it had acquitted Mr. McIntyre of count

five, yet, nonetheless instructed the jury on that count, and failed to instruct the jury on count

three. Thus, the trial court believed count three was still pending and declared a mistrial with

respect to it.

         {¶6}    Following the declaration of a mistrial on count three, the State notified the trial

court that it intended to dismiss count three and that it conceded that the remaining charges


         2
          Nonetheless, the trial court, in the entry journalizing the verdict, granted the Crim.R. 29
motion on count three, and later in the sentencing entry noted that it had dismissed count three.
        3
          In the sentencing entries, the trial court renumbered the remaining counts, following the
acquittal on count three. For ease of discussion, we will refer to the counts by their original
numbers.
                                                   4


merged for purposes of sentencing. The State sought to have Mr. McIntyre sentenced on count

one, tampering with evidence. Subsequently, the trial court held a resentencing hearing. The

trial court concluded that the only counts remaining for resentencing were counts one, two, and

four. The trial court declined to sentence Mr. McIntyre on count 4 (tampering with records),

concluding it merged with count one, but sentenced him on counts one and two (petty theft).

       {¶7}    Despite the trial court’s order granting a mistrial on count three, the resentencing

entry reflects that the trial court issued a directed verdict of not guilty on count three and granted

a Crim.R. 29 motion on count five. The resentencing entry also reflects that it was issued as a

nunc pro tunc entry. There appears to be no dispute that Mr. McIntyre has served his prison

sentences related to these charges.

       {¶8}    Mr. McIntyre has appealed, raising ten assignments of error, which will be

addressed out of sequence and consolidated to facilitate our review.

                                                  II.

       {¶9}    We begin our analysis by addressing an issue underlying Mr. McIntyre’s appeal:

whether the 2009 sentencing entry was a final, appealable order. Despite Mr. McIntyre’s and the

trial court’s beliefs to the contrary, we conclude that it was.

       {¶10} “A judgment of conviction is a final order subject to appeal under R.C. 2505.02

when it 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.” State v. Burns, 9th Dist.

Summit No. 26332, 2013-Ohio-4784, ¶ 6, quoting State v. Lester, 130 Ohio St.3d 303, 2011-

Ohio-5204, paragraph one of the syllabus; see also Crim.R. 32(C). The 2009 sentencing entry

included all of the required elements and resolved all of the charges. Thus, it was a final,

appealable order.
                                                   5


       {¶11} “Absent statutory authority, a trial court is generally not empowered to modify a

criminal sentence by reconsidering its own final judgment.” State v. Gilbert, 143 Ohio St.3d

150, 2014-Ohio-4562, ¶ 8, quoting State v. Carlisle,131 Ohio St.3d 127, 2011-Ohio-6553, ¶ 1.

“Once a final judgment has been issued pursuant to Crim.R. 32, the trial court’s jurisdiction

ends.” Gilbert at ¶ 9. Further, should an appellate court remand a matter to the trial court, upon

remand, “[a] trial court has no authority to extend or vary the mandate of the appellate court.”

State v. Gilcreast, 9th Dist. Summit No. 27804, 2015-Ohio-4745, ¶ 9, quoting State v. O’Neal,

9th Dist. Medina No. 07CA0050-M, 2008-Ohio-1325, ¶ 11, citing Nolan v. Nolan, 11 Ohio St.3d

1, 4 (1984).

       {¶12} When this Court last remanded the matter to the trial court, it did so to allow the

trial court to “consider whether Mr. McIntyre’s convictions should merge.” McIntyre III, 2012-

Ohio-5657, ¶ 11. “In a remand based only on an allied-offenses sentencing error, the guilty

verdicts underlying a defendant’s sentences remain the law of the case and are not subject to

review.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 15. “[T]he trial court must

hold a new sentencing hearing for the offenses that remain after the state selects which allied

offense or offenses to pursue.” Id. at paragraph one of the syllabus. Given that it does not

appear that the trial court found any additional offenses to be allied, the trial court’s entry should

have reflected the same. The trial court’s 2015 sentencing entry clearly exceeded the scope of

our remand. The trial court did not have the authority to dismiss count five – a count that was

resolved in the 2009 sentencing entry by the jury’s guilty verdict. Nor did the trial court have

authority to alter the sentence on that count, absent a conclusion that it was an allied offense that

merged for purposes of sentencing.        To the extent the trial court’s 2015 sentencing entry

exceeded the scope of our remand, it is vacated.
                                                    6


                                                III.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT LOST JURISDICTION TO FILE A JUDGMENT ENTRY
       OF CONVICTION AND SENTENCE BECAUSE IT FAILED TO COMPLY
       WITH THE MANDATORY REQUIREMENTS OF SUP.R. 7.

       {¶13} Mr. McIntyre asserts in his third assignment of error that the trial court lacked

jurisdiction to file the sentencing entry in this case because it failed to file it within 30 days as

required by Sup.R. 7.

       {¶14} Sup.R. 7 provides that, “[t]he judgment entry specified in Civil Rule 58 and in

Criminal Rule 32 shall be filed and journalized within thirty days of the verdict, decree, or

decision. If the entry is not prepared and presented by counsel, it shall be prepared and filed by

the court.”   Mr. McIntyre argues that because the resentencing hearing took place on July 18,

2014, the trial court was required to issue a judgment entry within thirty days. The trial court did

not issue an entry until January 9, 2015.

       {¶15} Mr. McIntyre has failed to cite to any case law that would indicate that the trial

court’s failure to comply with Sup.R. 7 deprived the trial court of jurisdiction to enter a

sentencing entry. See App.R. 16(A)(7). Assuming there was a delay in issuing Mr. McIntyre’s

sentencing entry, and that Sup.R. 7 applied to a resentencing, Mr. McIntyre’s remedy was to file

a complaint for a writ of mandamus or procedendo. See State ex rel. Culgan v. Medina Cty.

Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, ¶ 8, quoting State ex rel.

Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-Ohio-3631, ¶ 5 (“[P]rocedendo and mandamus

will lie when a trial court has refused to render, or unduly delayed rendering, a judgment.”). As

Mr. McIntyre has not demonstrated that the trial court lacked jurisdiction to enter the sentencing

entry, we overrule his third assignment of error.
                                                  7


                                 ASSIGNMENT OF ERROR IV

         THE TRIAL COURT ERRED BY ISSUING A “NUNC PRO TUNC” ENTRY
         THAT DOES NOT PROPERLY CONSTITUTE AS A NUNC PRO TUNC.

         {¶16} Mr. McIntyre argues in his fourth assignment of error that the trial court erred in

issuing his sentencing entry as a nunc pro tunc entry.

         {¶17} “A court may issue a nunc pro tunc to correct a clerical mistake in an entry so that

the entry reflects what actually occurred in open court.” State v. Stevens, 9th Dist. Summit No.

27366, 2015-Ohio-4009, ¶ 5, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 30.

Here the trial court’s entry was issued subsequent to a limited remand by this Court. That

remand involved a limited resentencing to consider and resolve allied offense issues that were

not previously resolved by the trial court. Accordingly, the trial court’s 2015 sentencing entry

was not issued to correct a clerical error. Thus, we agree that the trial court erred in categorizing

its entry as such. The portion of the entry which states it is a nunc pro tunc entry is vacated.

         {¶18} Mr. McIntyre’s fourth assignment of error is sustained to the extent discussed

above.

                                 ASSIGNMENT OF ERROR IX

         THE TRIAL COURT ERRED BY FAILING TO PROPERLY MERGE ALL
         OFFENSES AS ALLIED DURING SENTENCING.

         {¶19} Mr. McIntyre asserts in his ninth assignment of error that the trial court erred in

failing to merge the petty theft charge with the tampering charges.

         {¶20} We note that Mr. McIntyre’s argument on this point contains only three sentences.

See App.R. 16(A)(7). Unsurprisingly, it is not well developed.

         {¶21} However, even if it were developed, we would conclude, based upon the

particular facts of this case, that this assignment of error is moot.        “[W]hen an appellant
                                                8


completes a misdemeanor sentence without requesting a stay pending appeal and does not offer

evidence from which this Court could infer that the appellant would suffer collateral disability or

loss of civil rights stemming from the misdemeanor conviction, the appeal is moot.” State v.

Boone, 9th Dist. Summit No. 26104, 2013-Ohio-2664, ¶ 7. We have applied this analysis under

circumstances similar to those of this case. See id. at ¶ 3, 6, 8. Mr. McIntyre has made no

argument that he will suffer any collateral disability or loss of civil rights. There is no dispute

that Mr. McIntyre has completed his misdemeanor sentences and there is nothing in the record

that suggests Mr. McIntyre requested a stay of sentencing on these counts pending appeal. See

State v. McIntyre, 9th Dist. Summit Nos. 24934, 24945 (Aug. 5, 2010) (“Appellant was

sentenced to serve six months of incarceration. As he has served his sentence and has failed to

request the trial court to stay the conviction, we conclude that any issue with regard to his petty

theft conviction is moot.”) Thus, Mr. McIntyre’s appeal with respect to this issue is moot. Mr.

McIntyre’s ninth assignment of error is overruled.

                                ASSIGNMENT OF ERROR VIII

       THE TRIAL COURT ERRED BY NOT GRANTING A FULL MISTRIAL.

       {¶22} Mr. McIntyre asserts in his eighth assignment of error that the trial court erred in

not granting a mistrial on all counts.

       {¶23} His argument is premised on the conclusion that the 2009 sentencing entry was

not a final appealable order. Thus, he asserts that the trial court had jurisdiction to grant a

mistrial on all counts, and it erred in failing to do so. However, because the 2009 sentencing

entry was final, the trial court lacked jurisdiction to grant his motion. See Gilbert, 143 Ohio

St.3d 150, 2014-Ohio-4562, at ¶ 8-9. Mr. McIntyre’s eighth assignment of error is overruled.
                                                   9


However, as the trial court did not have jurisdiction to grant Mr. McIntyre’s motion for a

mistrial, we vacate its order to the extent it granted a mistrial on count three.

                                  ASSIGNMENT OF ERROR X

       THE TRIAL COURT ERRED BY NOT RELEASING [MR. MCINTYRE]
       FROM CUSTODY AFTER THE OPEN COURT HEARING ON JULY 18,
       2014.

       {¶24} In his tenth assignment of error, Mr. McIntyre maintains that the trial court erred

in failing to release him from custody after his resentencing hearing.

       {¶25} Again his argument is premised on the conclusion that the 2009 sentencing entry

was not a final, appealable order. This argument appears to center around the fact that Mr.

McIntyre’s convictions in this matter resulted in the Adult Parole Authority revoking his parole

in another case. Mr. McIntyre thus maintains that, because there was no final, appealable order

in the instant matter, the Adult Parole Authority lacked jurisdiction to revoke Mr. McIntyre’s

parole, and as Mr. McIntyre had served his sentence in this case, the trial court should have

ordered Mr. McIntyre released.

       {¶26} As noted above, the 2009 sentencing entry was a final, appealable order. Mr.

McIntyre has not argued that he should have been released if the 2009 entry was final and

appealable, and we therefore overrule his argument on that basis.            App.R. 16(A)(7).   Mr.

McIntyre’s tenth assignment of error is overruled.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY NOT ISSUING AN ACQUITTAL
       PURSUANT TO CRIM.R. 29 ON THE TAMPERING WITH EVIDENCE,
       TAMPERING WITH RECORDS, AND THEFT CHARGES BECAUSE THE
       EVIDENCE WAS INSUFFICIENT AS TO [MR. MCINTYRE’S] PURPOSE.



                                  ASSIGNMENT OF ERROR II
                                                10


       THE TRIAL COURT ERRED BY NOT GRANTING [MR. MCINTYRE’S]
       CRIM.R. 29 MOTION FOR ACQUITTAL ON THE TAMPERING WITH
       EVIDENCE CHARGE BECAUSE THE EVIDENCE WAS INSUFFICIENT AS
       TO THE COURT FILES AND THEIR CONTENTS CONSTITUTING AS
       “EVIDENCE.”

                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED BY ENGAGING IN                                    IMPROPER
       QUESTIONING OF WITNESSES THAT WAS PREJUDICIAL.

                                ASSIGNMENT OF ERROR VI

       THE TRIAL COURT ERRED BY ALLOWING IMPERMISSIBLE HEARSAY
       EVIDENCE.

                                ASSIGNMENT OF ERROR VII

       THE TRIAL COURT               ERRED       BY    PROVIDING        FAULTY         JURY
       INSTRUCTIONS.

       {¶27} Mr. McIntyre’s first, second, fifth, sixth, and seventh assignments of error all

relate to alleged trial errors. Mr. McIntyre’s arguments are barred by res judicata.

       {¶28} As stated above, Mr. McIntyre’s 2009 sentencing entry was a final, appealable

order. “The scope of an appeal from a new sentencing hearing is limited to issues that arise at

the new sentencing hearing.” Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, at ¶ 30. Mr.

McIntyre’s resentencing hearing was limited to considering whether certain offenses were allied.

The trial court did not find any additional offenses were allied. Moreover, “the guilty verdicts

underlying [his] sentences remain[ed] the law of the case and [were] not subject to review.”

McIntyre III, 2012-Ohio-5657, at ¶ 13, quoting Wilson at ¶ 15. Accordingly, res judicata bars

him from raising these arguments now. McIntyre III at ¶ 13.

       {¶29} Mr. McIntyre’s first, second, fifth, sixth, and seventh assignments of error are

overruled.

                                                IV.
                                                 11


       {¶30} Mr. McIntyre’s fourth assignment of error is sustained to the extent stated above

and the trial court’s sentencing entry is vacated to the extent discussed above. Additionally, the

trial court’s order granting Mr. McIntyre’s motion for a mistrial is vacated to the extent it granted

the mistrial with respect to count three. Mr. McIntyre’s remaining assignments of error are

overruled. The trial court is instructed to issue a sentencing entry that comports with the allied

offense determinations it made at the most recent resentencing hearing and this Court’s opinion.

                                                                         Judgment affirmed in part,
                                                                                   vacated in part,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                      CARLA MOORE
                                                      FOR THE COURT
                                        12



WHITMORE, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

STEPHEN P. HANUDEL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
