[Cite as State v. Beal, 2014-Ohio-3834.]




                  IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :        C.A. CASE NO. 2013 CA 95

v.                                                  :        T.C. NO.   06CR1422

DIONDRAY BEAL                                       :         (Criminal appeal from
                                                              Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                             ..........

                                           OPINION

                          Rendered on the 5th day of September, 2014.

                                             ..........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

DIONDRAY BEAL, Inmate #A556-926, London Correctional Institute, 1851 State Route 56, P.
O. Box 69, London, Ohio 43140
      Defendant-Appellant

                                             ..........
FROELICH, P.J.

                 {¶ 1} Diondray Beal appeals, pro se, from a judgment of the Clark County Court

of Common Pleas, which overruled Beal’s motions for relief from judgment and to vacate a void
judgment. For the following reasons, the judgment of the trial court will be affirmed.

         {¶ 2}        In 2007, Beal was convicted by a jury of aggravated robbery with a firearm

specification. The judgment entry sentenced Beal to nine years for the aggravated robbery, with

three additional years on the firearm specification, to be served consecutively. His conviction

was affirmed on direct appeal. State v. Beal, 2d Dist. Clark No. 2007-CA-86, 2008-Ohio-4007

(Beal I).

         {¶ 3}        In March 2010, Beal filed in the trial court a “motion to vacate judgment” in

which he argued that the court’s judgment entry was “invalid/void” because it failed to state the

manner of conviction. When the trial court did not rule on his motion to vacate, Beal filed a

petition for a writ of mandamus in this court, seeking an order compelling the trial court to rule.

In October 2010, we issued an alternative writ, directing the trial court either to provide Beal

with a revised judgment entry or to show cause why it should not be required to do so.

         {¶ 4}        The trial court held a resentencing hearing. At that hearing and in its judgment

entry, the trial court addressed an alleged discrepancy between what it said at the original

sentencing hearing and in its original judgment entry regarding the length of the term for the

firearm specification,1 in addition to the issue raised in Beal’s motion for a revised judgment. It

filed a revised judgment entry on October 28, 2010, which included the manner of conviction

(jury trial) and clarified that the penalty attributable to the firearm specification was three years.

         {¶ 5}        Beal appealed from the trial court’s revised judgment entry. We affirmed the

trial court’s revised judgment, except insofar as it imposed a handling fee in connection with

             1
                According to the trial court, a transcript “which [Beal] had produced for his appeal” stated that he would be sentenced
   to two years for the firearm specification. Noting that this “would be something of an oddity” since there is no provision for a
   two-year firearm specification, the court acknowledged that, if it had said two years, “that would be contrary to statute and would
   not be a valid judgment of conviction.”
                                                                                                   3

Beal’s restitution obligation, which had not been included in the original judgment entry. State

v. Beal, 2d Dist. Clark No. 2010-CA-103, 2011-Ohio-6699 (Beal II).               We modified the

judgment with respect to the handling fee.

       {¶ 6}    In January and February 2013, respectively, Beal filed pro se motions for relief

from judgment and to vacate a void judgment. In October 2013, the trial court denied both

motions, concluding that Beal did not raise any issues that had not previously been addressed by

this appellate court and/or that the issues were barred by res judicata.

       {¶ 7}      Beal appeals from the trial court’s denial of his motions, raising two

assignments of error.

       {¶ 8}    His first assignment of error states:

       The trial court abused its discretion by resentencing defendant after his

       sentence was served for [the] firearm specification.

       {¶ 9}    Beal contends that his sentence was contrary to law and that it violated the Ohio

Supreme Court’s holding in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d

961, ¶ 18, that a defendant cannot be resentenced to correct a sentencing error if his sentence has

already been served. He also argues that the court lacked subject matter jurisdiction and that the

trial court erred in imposing a three-year firearm specification sentence after it had stated in open

court that that portion of the sentence would be two years.

        {¶ 10} Beal’s premise that his sentence had been served when the trial court modified

its judgment entry is incorrect. Beal was convicted of aggravated robbery, for which he was

sentenced to nine years, and that sentence had not been served when the trial court revised its

judgment entry.     Beal’s argument is based on his completion of the three-year firearm
                                                                                                  4

specification, without any acknowledgment of the nine-year sentence for aggravated robbery.

However, a firearm specification is a penalty enhancement and is contingent upon an underlying

felony conviction; it is not a criminal offense in itself. State v. Ford, 128 Ohio St.3d 398,

2011-Ohio-765, 945 N.E.2d 498, ¶ 16-17. Moreover, R.C. 2929.14(C) provides that a firearm

specification must be served “consecutively to and prior to any prison term imposed for the

underlying felony.” Because Beal has not completed his sentence for aggravated robbery, his

completion of that portion of the sentence attributable to the penalty enhancement for the firearm

specification did not preclude the trial court from correcting its judgment entry in his case.

       {¶ 11} Beal also argues that the trial court erred in attempting to correct any discrepancy

in the record about the length of the firearm specification imposed at his original sentencing

hearing; he contends that the two-year specification “imposed in open court * * * controls.”

Beal failed to raise this argument in Beal I or Beal II, and we implicitly rejected this argument in

our Opinion in Beal II.       There, we acknowledged the trial court’s intent to correct any

discrepancy in the length of the firearm specification and the trial court’s observation that, if it

had imposed a two-year firearm specification at the original sentencing hearing, as Beal alleged,

its judgment “would be contrary to law and would not be a valid judgment,” because a two-year

firearm specification is not authorized by law. Beal II at ¶ 6 (quoting the trial court’s judgment).

The trial court’s October 2010 revised judgment entry imposed a three-year firearm specification,

and we affirmed that judgment, as modified for reasons unrelated to this issue.

       {¶ 12}    Res judicata bars relitigation of a matter that was raised or could have been

raised on direct appeal when a final, appealable order was issued in accordance with the law at

the time. State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989, ¶ 3. Beal’s
                                                                                                 5

argument with respect to any discrepancy between the orally-pronounced sentence and the

judgment entry regarding the length of the firearm specification was not raised on direct appeal

(Beal I), in his 2010 motion to vacate judgment, or in his appeal from the trial court’s denial of

the motion to vacate judgment (Beal II). It is now barred by res judicata.

       {¶ 13} Beal’s first assignment of error is overruled.

       {¶ 14} The second assignment of error states:

       The trial court abused its discretion when it failed in its duty to instruct the

       jury as to every essential element of each offense and specification which the

       prosecution is required to prove beyond a reasonable doubt.

       {¶ 15} This assignment of error challenges the jury instructions that were given at

Beal’s trial in 2007. As we stated in Beal II, “[t]he fact that the trial court resentenced Beal to

address other problems does not entitle him to litigate issues that long ago became final.” Id. at

¶ 11. Beal’s argument about the jury instructions is barred by res judicata. Griffin at ¶ 3.

       {¶ 16} The second assignment of error is overruled.

       {¶ 17} The judgment of the trial court will be affirmed.

                                           ..........



FAIN, J. and HALL, J. concur.



Copies mailed to:

Ryan A. Saunders
Diondray Beal
Hon. Richard J. O’Neill
