[Cite as State v. Day, 2013-Ohio-4806.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99790



                                      STATE OF OHIO
                                            PLAINTIFF-APPELLEE

                                             vs.

                                          DAN DAY
                                            DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-432083

        BEFORE: McCormack, J., Boyle, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: October 31, 2013
FOR APPELLANT

Dan J. Day, pro se
Inmate No. A450-702
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Diane Smilanick
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1}    This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. This is the third time Dan Day’s 2003 murder conviction

and sentence is before this court.    Before us in the instant appeal is the trial court’s

denial of his “Motion to Revise Sentencing Entry and Issue Final Judgment.” He claims

the trial court failed to “journalize the sentence actually pronounced in open court” at his

2003 sentencing hearing. Finding no merit to his claim, we affirm the trial court’s

judgment.

       {¶2} In 2002, Day was indicted for two counts of murder for beating his wife, who

bled to death from the injuries she sustained. Count 1 of the indictment charged him

with murder (purposely causing the victim’s death) and Count 2 charged him with felony

murder (causing the victim’s death as a proximate cause of committing a felonious

assault).   The matter was tried to a jury. The trial court instructed the jury on both

murder and the lesser included offense of reckless homicide with respect to Count 1, and

only on felony murder with respect to Count 2.

       {¶3} The jury returned a verdict of not guilty of murder but guilty of reckless

homicide under Count 1, and guilty of felony murder under Count 2. Because reckless

homicide in Count 1 was an allied offense of felony murder in Count 2, the state

requested Count 1 to be merged into Count 2 for sentencing. The court sentenced Day

on the merged Count 2, to a term of 15 years to life.
       {¶4} On direct appeal from his conviction and sentence, Day raised 11 assignments

of error.   Nine of these errors related to his conviction, and two related to his sentence.

Regarding his sentence, he argued the trial court erred by sentencing him for murder

rather than for reckless homicide — the lesser of the two allied offenses.   He also argued

that the murder offense of which he was convicted was functionally equivalent to

involuntary manslaughter, yet the law imposed disparate penalties for the same offense.

       {¶5} We found none of his claims to have merit and affirmed his conviction and

sentence in State v. Day, 8th Dist. Cuyahoga No. 83138, 2004-Ohio-1449, discretionary

appeal not allowed, State v. Day, 103 Ohio St.3d 1427, 2004-Ohio-4524, 814 N.E.2d 490.

       {¶6} Six years later, in 2010, Day filed with this court an application for reopening

pursuant to App.R. 26(B), claiming his appellate counsel provided                 ineffective

assistance of counsel. This court denied the motion in State v. Day, 8th Dist. Cuyahoga

No. 83138, 2010-Ohio-3862.

       {¶7} Two years later, in 2012, Day filed with the trial court the instant motion,

styled as “Motion to Revise Sentencing Entry and Issue a Final Judgment.” The court

denied the motion, and Day appealed. His sole assignment of error in this appeal states:

       Because the sentence pronounced by a trial court regarding a defendant’s

       sentence does not constitute a final order until journalized, the trial court’s

       failure to journalize the sentence actually pronounced in open court has

       effectively deprived the appellant of the final judgment necessary to effect a

       valid appeal of right as to that sentence in violation of appellant’s right to
       due process and equal protection of the law as guaranteed by the 14th

       Amendment to the United Constitution.

       {¶8}   Day claims that, although the trial court sentenced him to 15 years to life on

the merged Count 2 (felony murder) at the sentencing hearing, in its sentencing entry, it

imposed 15 years to life on Count 1 instead.       He claims that, as such, the trial court

“never journalized the sentence actually pronounced from the bench in open court on June

2, 2013 for Count 2:     Murder.” He argues that, as a result, his sentence was not a final

order “capable of properly invoking this court’s jurisdiction.”   Day claims the trial court

is obligated to issue a revised sentencing entry reflecting the sentence it pronounced from

the bench — 15 years to life on Count 2.

       {¶9} We construe Day’s “Motion to Revise Sentencing Entry” as a petition for

postconviction relief.      State v. Bankston, 10th Dist. Franklin. No. 13AP-250,

2013-Ohio-4346, ¶ 7, citing State v. Reynolds, 79 Ohio St.3d 158, 160, 1997-Ohio-304,

679 N.E.2d 1131 (“where a criminal defendant, subsequent to his or her direct appeal,

files a motion seeking vacation or correction of his or her sentence on the basis that his or

her constitutional rights have been violated, such a motion is a petition for postconviction

relief as defined in R.C. 2953.21”). We review the trial court’s decision regarding

postconviction proceedings for an abuse of discretion. State v. Gondor, 112 Ohio St.3d

377, 2006-Ohio-6679, 860 N.E.2d 77. Finally, we note that res judicata is applicable in

all postconviction relief proceedings.   State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d

233 (1996).
       {¶10} First, pursuant to R.C. 2953.21(A)(2), a petition for postconviction relief is

to be filed within the 180-day time limitation. A trial court may consider an untimely

petition only if (1) the petitioner is “unavoidably prevented” from discovering the facts

upon which the petition is based, or (2) the petitioner “shows by clear and convincing

evidence     that a reasonable factfinder would not have found him guilty but for

constitutional error at trial.” State v. Sharif, 8th Dist. Cuyahoga No. 79325, 2001 Ohio

App. LEXIS 4354 (Sept. 27, 2001), *9-10. Day filed his “Motion to Revise Sentencing

Entry” nine years after his conviction, without demonstrating why he was delayed.

       {¶11}   Second, Day’s allegation of a defect in the sentencing entry is barred by

res judicata, because he could have raised the issue on his direct appeal. State v. Byrd,

145 Ohio App.3d 318, 332, 762 N.E.2d 1043 (1st Dist.2001) (appellant’s claim relating to

an alleged sentencing defect was barred by res judicata because he could have raised this

claim on direct appeal and he presented no evidence outside the record demonstrating

why he failed to do so).

       {¶12} Even if we were to consider the allegation, we do not perceive a defect in

the sentencing entry claimed by Day. The sentencing entry stated, in pertinent part:

       The jury returns a verdict of not guilty of murder * * * as charged in count
       one, but guilty of reckless homicide * * *, the lesser included offense under
       count one of the indictment; guilty of murder * * * as charged in count two.

       ***

       The court imposes a prison term at Lorain Correctional Institution, Count 1
       to merge with Count 2 for sentencing purposes[,] for a term of 15 years to
       life.”
         {¶13} Although an added punctuation may have made the statement clearer, there

is no doubt in the sentencing entry the trial court merged Count 1 (reckless homicide) into

Count 2 (felony murder), and imposed a term of 15 years to year to life on Count 2,

reflecting exactly the sentence it had pronounced at the sentencing hearing.            Any

“revision” of the judgment entry requested by Day is unnecessary.

         {¶14} Finally, it is unclear how a “revised” judgment reflecting his 15-year-to-life

term on Count 2 would benefit Day. His assignment of error states the trial court’s

“failure to journalize the sentence actually pronounced in open court has effectively

deprived the appellant of the final judgment necessary to effect a valid appeal of right as

to that sentence.”     This claim is perplexing because Day did successfully exercise his

right to appeal, raising a multitude of claims regarding his conviction of murder on Count

2 as well as his sentence for the conviction, which this court fully considered in Day,

supra.

         {¶15} For the foregoing reasons, the assignment of error is without merit and the

trial court’s denial of Day’s “Motion to Revise Sentencing Entry and Issue Final

Judgment” is affirmed.

         {¶16} Judgment 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. 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.


______________________________________________
TIM McCORMACK, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
