[Cite as State v. Steinke, 2014-Ohio-2059.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 100345




                                        STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                KRISTOPHER STEINKE
                                                    DEFENDANT-APPELLANT




                                     JUDGMENT:
                               AFFIRMED AND REMANDED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                         Case Nos. CR-02-418568-A and CR-02-420619-A

        BEFORE: Keough, P.J., Kilbane, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                   May 15, 2014
ATTORNEY FOR APPELLANT

Eric M. Levy
55 Public Square
Suite 1600
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Kristopher Steinke, appeals from the trial court’s

judgment denying his postsentence motion to withdraw his guilty plea. For the reasons

that follow, we affirm the trial court’s judgment, but remand for the trial court to correct,

nunc pro tunc, the journal entry memorializing Steinke’s plea and to issue, nunc pro tunc,

one entry of conviction.

       {¶2} In 2002, Steinke was indicted in two cases. In CR-02-418568 (hereinafter

“CR-418568”), he was charged with possession of drugs, possession of criminal tools,

unlawful possession of a dangerous ordnance, and carrying a concealed weapon. In

CR-02-420619 (hereinafter “CR-420619”), he was charged with murder containing one-

and three-year firearm specifications, having a weapon while under disability, tampering

with evidence, and obstructing justice.

       {¶3} In June 2002, Steinke pleaded guilty to possession of drugs in CR-418568.

All remaining charges were nolled. Steinke also pleaded guilty to an amended charge of

involuntary manslaughter and the attendant three-year firearm specification in CR-420619.

 Prior to sentencing, Steinke withdrew his guilty pleas in both of these cases.

       {¶4} In August 2002, Steinke pleaded guilty in CR-420619 to involuntary

manslaughter, as amended in Count 1, and the attendant three-year firearm specification.

In CR-418568, he pleaded guilty to possession of drugs, unlawful possession of a

dangerous ordnance, and carrying a concealed weapon. The trial court sentenced Steinke

in CR-420619 to 10 years on the involuntary manslaughter charge, plus three-years on the
firearm specification, for a total of 13 years. In CR-418568, Steinke was sentenced to 17

months in prison on each of the drug possession and concealed weapons charges, and 11

months on the dangerous ordnance charge. The court ordered the sentences imposed in

the two cases to run consecutively.

       {¶5} Steinke appealed his convictions in State v. Steinke, 8th Dist. Cuyahoga No.

81785, 2003-Ohio-3527 (“Steinke I”).          This court affirmed his convictions, but

determined that the trial court committed a clerical error in CR-418568. Therefore, this

court remanded CR-418568 for the trial court to indicate that the sentences in CR-418568

were to run concurrently. Steinke I at ¶ 43, 47.

       {¶6} In December 2011, Steinke filed a motion to withdraw guilty plea asserting

that the trial court relied on “untrue information” when imposing sentence. The motion

was denied in March 2012. Steinke appealed this decision; this court dismissed the

appeal for Steinke’s failure to file a timely notice of appeal. State v. Steinke, 8th Dist.

Cuyahoga No. 98270 (May 7, 2012).

       {¶7} In September 2012, Steinke filed a postconviction “motion to set aside

judgment of conviction under Crim.R. 52(B) plain error,” raising similar arguments he

previously made in his unsuccessful motion to withdraw his plea. In October 2012, the

trial court denied this post-conviction motion, and Steinke did not appeal.

       {¶8} In 2013, Steinke moved to withdraw his guilty plea, which was summarily

denied without conducting an evidentiary hearing.          Steinke now appeals from this

decision and further challenges the trial court’s imposition of a void sentence.
                                 I. Firearm Specification

       {¶9} In his first assignment of error, Steinke contends that the trial court erred when

it sentenced him to serve a prison sentence on a firearm specification that it had nolled in

its journal entry from his change of plea hearing. The state contends the omission in the

journal entry was a clerical error that can be corrected nunc pro tunc. We agree.

       {¶10} The record reflects that during the plea hearing, the prosecutor set forth the

plea agreement regarding CR-420619,

       [*] * * it’s my understanding the defendant will withdraw his previously
       entered plea of not guilty to murder and plead guilty to an amended
       indictment. With that in mind, I’d ask the Court to amend the charge of
       murder to reflect a charge of involuntary manslaughter * * * .

       My further understanding is the defendant will plead guilty to the three-year
       firearm specification as charged in the indictment.

       ***

       But then again moving back to the overall agreement that we have then, your
       Honor, the defendant would be pleading guilty to involuntary manslaughter
       as a felony of the first degree, with the three-year firearm specification,
       making the mandatory time six years * * * .

(Tr. 20-21, 23.)

       {¶11} Acknowledging the agreement, defense counsel stated,

       Yes, your Honor, that is an absolutely correct recitation of our agreement on
       this case. At this time my client wants to withdraw his previously entered
       plea of not guilty to the counts as set forth by [the prosecutor] as to 420619.
       He understands he is facing a minimum mandatory six years in prison to
       thirteen years at the judge’s discretion.

(Tr. 24.)

       {¶12} Thereafter, the court engaged in a colloquy with Steinke, specifically asking:
       THE COURT: Mr. Steinke, do you wish to take this plea agreement.

       THE DEFENDANT: Yes, your Honor.

       ***

       THE COURT: Additionally, the State of Ohio has indicated that you will be
       pleading guilty to a three-year firearm specification, which means that you
       must serve your three years consecutive and before you serve any of your
       other sentences. Do you understand that?

       THE DEFENDANT: Yes.

       THE COURT: That means, sir, that that would make your mandatory
       minimum that you are being sent to prison for from six years to a total of
       thirteen years. That means that your — three years first for your firearm
       specification. And then if you received the minimum sentence on the first
       degree felony, that mean that your minimum term of imprisonment would be
       at the start of six years. Do you understand that?

       THE DEFENDANT: Yes.

(Tr. 27-28.)
      {¶13} It appears what was indicated in open court at the plea hearing is not

accurately reflected in the plea journal entry. Based on the transcript of the plea hearing,

Steinke acknowledged he was pleading guilty to the firearm specification. The court’s

journal entry memorializing the plea inadvertently did not include that Steinke pled guilty

to the three-year firearm specification attendant to the involuntary manslaughter count in

CR-420619. While a court speaks through its journal entries, clerical errors may be

corrected at any time. Steinke, 8th Dist. Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 47,

citing Crim.R. 36.

       {¶14} Accordingly, Steinke’s assignment of error is overruled.        However, we

remand the case for the trial court to correct the plea entry, nunc pro tunc, to accurately
reflect that Steinke pleaded guilty to the three-year firearm specification attendant to

amended Count 1, involuntary manslaughter, in CR-420619.

                                   II. Remand Compliance

       {¶15} In his second assignment of error, Steinke contends the trial court erred when

it failed to comply with the terms of the remand in Steinke I.

       {¶16} This assignment of error is moot because the trial court corrected the

sentencing journal entry by order of a second remand from this court. While we note that

the court complied with this court’s order, the entry of conviction needs to include both the

finding of guilt and sentence. See Crim.R. 32(C).

       {¶17} Accordingly, we overrule Steinke’s second assignment of error as moot, but

remand for the trial court to enter one entry of conviction, incorporating the entry finding

guilt and the entire corrected sentence.

                       III. Postsentence Motion to Withdraw Guilty Plea

       {¶18} In his third assignment of error, Steinke contends the trial court erred in

denying his postsentence motion to withdraw his guilty plea and for not conducting an

evidentiary hearing.

       {¶19} A Crim.R. 32.1 postsentence motion to withdraw a guilty plea is subject to a

manifest injustice standard. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992).

 An appellate court will not reverse a trial court’s denial of a motion to withdraw a plea

absent an abuse of discretion. State v. Caver, 8th Dist. Cuyahoga Nos. 90945 and 90946,

2008-Ohio-6155, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977). An
abuse of discretion implies that the court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶20} “Res judicata prevents repeated attacks on a final judgment and applies to all

issues that were or might have been litigated.” State v. Sneed, 8th Dist. Cuyahoga No.

84964, 2005-Ohio-1865, ¶ 16, citing State v. Brown, 8th Dist. Cuyahoga No. 84322,

2004-Ohio-6421.     “‘The doctrine of res judicata is applicable to successive motions to

withdraw a guilty plea under Crim.R. 32.1.’” State v. Muhumed, 10th Dist. Franklin No.

11AP-1001, 2012-Ohio-6155, ¶ 13, quoting State v. Tinney, 5th Dist. Richland No. 2011

CA 41, 2012-Ohio-72, ¶ 27.

       {¶21} In this case, Steinke moved to withdraw his plea postsentence on the basis

that (1) he received pressure from his family and attorney to enter into the plea, and (2) the

court failed to specifically go through each count and specification because “he had no

desire to enter a plea of guilty to charges in excess of the plea which he had previously

been permitted to withdraw.” These issues are barred by res judicata because they could

have been raised in his direct appeal or in his prior postconviction motions.

Accordingly, his third assignment of error is overruled.

       {¶22} Judgment affirmed; case remanded for the trial court to (1) correct, nunc pro

tunc, its August 7, 2002 journal entry of the plea hearing to accurately reflect that Steinke

pleaded guilty to the three-year firearm specification attendant to amended Count 1,

involuntary manslaughter, in Case No. CR-420619; and (2) enter, nunc pro tunc, one entry
of conviction in both cases — Case Nos. CR-420619 and CR-418568, which includes and

incorporates the correct plea, finding of guilt, and the complete corrected sentence.

       It is ordered that the parties share equally in 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.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
