[Cite as State v. Reynolds, 2012-Ohio-4067.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 98146




                                        STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                      KEITH REYNOLDS

                                               DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED; REMANDED FOR CORRECTION
                              OF THE RECORD


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-207306
BEFORE: Kilbane, J., Boyle, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: September 6, 2012
[Cite as State v. Reynolds, 2012-Ohio-4067.]
APPELLANT

Keith Reynolds, pro se
Inmate #514-531
Ross Correctional Institution
P.O. Box 7010
Chillicothe, Ohio 45601

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Katherine Mullin
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Reynolds, 2012-Ohio-4067.]
MARY EILEEN KILBANE, J.:

        {¶1} In this pro se appeal, defendant-appellant, Keith Reynolds,

appeals from the order of the trial court that denied his petition to vacate his

sentence.       For the reasons set forth below, we affirm.   However, because

portions of this record, including the journal entry from which defendant

appeals, erroneously state, “indictment: aggravated murder with violence

specification,” we remand for correction of the record to delete all such

provisions and to reflect that defendant has been convicted of one count of

aggravated murder without any specifications.

        {¶2} On February 27, 1986, defendant was charged with delinquency

in connection with the aggravated murder of Willie Moore. Defendant was

subsequently bound over to the general division, and on May 5, 1986, he was

indicted on one count of aggravated murder with a gun specification. On

July 9, 1986, defendant pled guilty to the charge of aggravated murder and

the gun specification was dismissed. Defendant was sentenced to a term of

20 years to life and was ordered to serve his sentence at the Ohio State

Reformatory.

        {¶3} By August 12, 1986, defendant was transferred to the Ohio

Penitentiary in Chillicothe. Two months later, he filed a petition to vacate

his conviction, complaining that prior to the plea proceedings, he was

promised that he would serve his sentence at the Ohio State Reformatory.
The trial court denied the petition on November 25, 1986. Defendant also

appealed to this court, raising the same assertion.     This court found the

claim unsupported in the record and affirmed. See State v. Reynolds, 8th

Dist. No. 52461, 1987 LEXIS 8175 (Aug. 6, 1987).

      {¶4} On July 11, 1991, defendant filed a motion to set aside his

conviction, complaining that his trial counsel failed to conduct any

investigation in this matter and was ineffective. On March 18, 1992, the

trial court denied this motion.

      {¶5} On October 3, 2011, defendant filed a motion to withdraw his

guilty plea, alleging that R.C. 2945.06 was applicable to this matter and that

a three-judge panel should have been assigned to the plea proceedings. On

October 21, 2011, the trial court denied the motion. The entry for this order

indicates in the caption, “INDICT: 2903.01 AGGRAVATED MURDER WITH

VIOLENCE SPECIFICATION.”

      {¶6} On November 21, 2011, defendant filed a motion to vacate a void

sentence, again asserting that his guilty plea was void because the matter

should have been assigned to a three-judge panel, rather than a single trial

court judge. The state noted that defendant was a minor at the time of the

offense, and was not charged with a capital offense, and therefore,      R.C.

2945.06 is inapplicable. The trial court denied this successive motion. The
entry for this order again indicates in the caption, “INDICT: 2903.01

AGGRAVATED MURDER WITH VIOLENCE SPECIFICATION.”

      {¶7} Defendant now appeals, assigning one error for our review.

      {¶8} For his sole assignment of error, defendant complains that the

journal entry of his sentence erroneously states “INDICTMENT AGG

MUDER W/ SPECIFICATION” but the actual indictment charged him with

one count of aggravated murder with a gun specification, and during the plea

proceedings, he pled guilty to aggravated murder, and the gun specification

was dismissed.      Defendant maintains that in light of this language, his

conviction and sentence are void because a three-judge panel was required to

conduct the plea proceedings pursuant to R.C. 2945.06 and Crim.R. 11(C)(3).

      {¶9}      The three-judge panel requirement of R.C. 2945.06 and Crim.R.

11(C)(3) are jurisdictional matters that cannot be waived. State v. Parker, 95

Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846, ¶ 12; Pratts v. Hurley, 102

Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992.

      {¶10} In this matter, in the direct appeal from defendant’s plea, this

court stated:

      On May 5, 1986, appellant was indicted for one count of
      aggravated murder, R.C. 2903.01, with a gun specification, R.C.
      2929.71. On May 8, 1986, appellant entered a plea of not guilty.

      Thereafter, on July 9, 1986, pursuant to a plea bargain
      agreement, appellant withdrew his former plea of “not guilty” and
      entered a plea of “guilty” to aggravated murder. The gun
      specification was deleted. In his colloquy with the trial judge in
      accordance with Criminal Rule 11, appellant acknowledged that
      no promises or threats were made to induce appellant to plead
      guilty to the charged offense. Accordingly, the trial court
      accepted appellant’s plea. Appellant was sentenced to a term of
      twenty years to life[.]

      {¶11} Therefore, defendant correctly notes that he was never charged

with a violence specification; he was charged with aggravated murder with a

gun specification; and he pled guilty to aggravated murder, and the gun

specification was dismissed.    This matter was never charged as a capital

offense.   R.C. 2945.06 and Crim.R. 11(C)(3) are therefore not applicable

herein, and there was no need for a three-judge panel.

      {¶12} Moreover, under R.C. 2929.03(D)(1), the death penalty may not

be imposed if an offender is under 18 years of age at the time of the offense.

Defendant was clearly a juvenile at the time of this offense.

      {¶13} It is clear, however, that portions of the record erroneously

indicate that the indictment contained a violence specification. We therefore

remand the matter to the trial court for correction of the record in order to

accurately reflect the May 5, 1986 charges and the July 9, 1986 guilty plea and

conviction for aggravated murder.

      {¶14} Affirmed, but remanded for correction of the record.

      It is ordered that appellee and appellant share the 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.




MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., CONCURS
COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY
