[Cite as State v. Everett, 2020-Ohio-2733.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. William B. Hoffman, P.J.
                                                :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. 2019CA00147
CORTES EVERETT                                  :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Stark County
                                                    Court of Common Pleas, Case No.
                                                    2010CR1855A

JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             April 29, 2020




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant
JOHN D. FERRERO                                     MICHAEL A. PARTLOW
Stark County Prosecutor                             112 South Water Street
BY: KRISTINE BEARD                                  Ste. C
Assistant Prosecutor                                Kent, OH 44240
110 Central Plaza South
5th Floor
Canton, OH 44702
[Cite as State v. Everett, 2020-Ohio-2733.]


Gwin, J.,

        {¶1}      Defendant-appellant         Cortes   Everett     [“Everett”]   appeals      from    the

September 9, 2019 Judgment Entry of the Stark County Court of Common Pleas that

denied his Motion to Correct Sentence.

                                          Facts and Procedural History

        {¶2}      A jury found Everett guilty of one count of murder with a firearm

specification, one count of felonious assault with a firearm specification, one count of

aggravated robbery with a firearm specification, one count of tampering with evidence,

and one count of having a weapon under disability1. The parties agreed that the counts

of murder and felonious assault merge for sentencing purposes, as do the three

separate firearm specifications.               See, State v. Everett, 5th Dist. Stark No.

2100CA00115, 2012-Ohio-2740, ¶53. [“Everett I”]. Everett was therefore sentenced to

a prison term of 15 years to life on the count of murder, plus three years for the firearm

specification, consecutive to 10 years on the count of aggravated robbery, consecutive

to 5 years on the count of tampering with evidence, and consecutive to 5 years on the

count of having a weapon under disability. Id. This Court affirmed Everett’s convictions

and sentences. Everett, I.

        {¶3}      On February 15, 2019, Everett filed a Motion to Correct Sentence. [Docket

No. 54]. In the motion to correct sentence, Everett argued that, because the state did

not specifically say on the record that it elected to proceed on the murder conviction for

sentencing, the murder conviction is void. Everett further argued that the sentence is

void because the court improperly imposed a three-year period of post-release control


        1   The Weapons under Disability count was heard by the trial court, not the jury. See, Everett I,
¶52.
Stark County, Case No. 2019CA00147                                                           3


on the merged, un-sentenced conviction for felonious assault, which amounts to be

sentenced twice for allied offenses. Finally, Everett argued that the trial court issued an

inconsistent sentence when it merged all of the firearm specifications but failed to

merge, sua sponte, the murder, felonious assault, and aggravated robbery convictions

as allied offenses.

       {¶4}    By Judgment Entry filed September 9, 2019, the trial court denied

Everett’s motion. The trial court denied Everett's motion for lack of jurisdiction stating

that Everett's motion was the functional equivalent of an untimely petition for post-

conviction relief. The trial court further held that based on the transcript of proceedings, it

was never the trial court's intention to impose three years of post-release control for the

felonious assault, and, that the addition of this information in the judgment entry of

conviction and sentence was merely clerical error. As such, the trial court ordered that

the language be stricken from the judgment entry and further ordered the state to file a

nunc pro tunc entry within thirty days. Prior to the expiration of the thirty-day period,

Everett filed a Notice of Appeal from the trial court's decision.

                                       Assignments of Error

       {¶5}   Everett raises two Assignments of Error,

       {¶6}   “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY

CORRECTING ITS SENTENCING ENTRY WITH A JUDGMENT ENTRY, NUNC PRO

TUNC.

       {¶7}   “II.    THE TRIAL COURT ERRED, AS A MATTER OF LAW BY

DETERMINING THAT THE APPELLANT'S MOTION AS IT PERTAINED TO THE

MERGER ARGUMENT WAS THE EQUIVALENT OF AN UNTIMELY PETITION FOR
Stark County, Case No. 2019CA00147                                                        4


POST-CONVICTION RELIEF AND BARRED BY THE DOCTRINE OF RES

JUDICATA.”

                                                I.

      {¶8}   In the first assignment of error Everett argues that the trial court erred as a

matter of law in finding that the judgment entry of conviction and sentence which

improperly included post-conviction control language for the merged offense of

felonious assault could not be corrected with a nunc pro tunc entry. He further argues

that the firearm specification for the aggravated robbery conviction was merged with the

other firearm convictions; however, the aggravated robbery conviction was not itself

merged. [Appellant’s Brief at 3].

      STANDARD OF APPELLATE REVIEW.

      {¶9}   “‘When a court’s judgment is based on an erroneous interpretation of the

law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville

Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6;

Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL

2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,

909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883

N.E.2d 440, ¶6. Because this assignment of error involves an issue of law, we review

the issue de novo.

      ISSUE FOR APPEAL.

      1).Whether the trial court could properly corrected Everett’s sentence to delete

the post release control requirement imposed in the original sentencing entry upon the
Stark County, Case No. 2019CA00147                                                              5


Felonious Assault conviction by striking the language from the original sentencing entry

and ordering the state to file a nunc pro tunc judgment entry.

      {¶10} The state concedes that the trial court’s Found Guilty by Jury and

Sentence Imposed Judgment Entry, filed Apr 21, 2011 [Docket No. 41] incorrectly

imposed a term of post-release control for the count of Felonious Assault that the trial

court had merged with the conviction for murder. [Appellee’s Brief at 5; Judgement

Entry Denying Defendants’ Motion to Correct Sentence with De Novo Sentencing

Hearing and Defendant’s Motion to Strike / Judgement Entry Requiring State to File

Nunc Pro Tunc Judgement Entry, filed Sept 9, 2019 at 3 [Docket Entry 58]. To correct

this error, the trial court ordered the language stricken from Everett’s sentencing

judgment entry and ordered the state to file a nunc pro tunc judgment entry to omit the

reference to post-release control.2

      {¶11} The Supreme Court of Ohio has recently addressed this issue. In State ex

rel. Roberts v. Marsh, 156 Ohio St.3d 440, 128 N.E.3d 222 2019-Ohio-1569, ¶ 7, the

relator was convicted and sentenced for murder.                      The sentencing entry included

language imposing post-release control. The relator argued that the improper post-

release control language rendered his sentence void. He requested that the Supreme

Court issue a writ of mandamus requiring the trial court to vacate its original sentencing

entry and conduct a resentencing hearing in his presence. The Supreme Court denied

the writ. The court expressly distinguished the line of cases in which trial courts have

sought to add post-release control to a criminal defendant’s sentence through a nunc

pro tunc entry.       In those instances, “a nunc pro tunc entry cannot be used to add

information that was omitted from the sentencing entry.” Id. at ¶ 9. (Emphasis added).

      2   Everett filed his Notice of Appeal before the state filed the Nunc Pro Tunc entry.
Stark County, Case No. 2019CA00147                                                      6


However, where the court mistakenly includes language about post-release control in its

entry on an unclassified felony, the sentence is not void and “no resentencing hearing

[is] required.” Id. at ¶ 11, citing State ex rel. Allen v. Goulding, 156 Ohio St.3d 337,

2019-Ohio-858, ¶ 8-9. The Supreme Court found no legal error in the nunc pro tunc

entry whereby “the trial court simply deleted a post-release control provision that should

not have been included in the initial sentencing entry.” State ex rel. Roberts at ¶ 11;

See also, State v. Richardson, 10th Dist. Franklin No. 18AP-310, 2019-Ohio-3490.

      {¶12} We find the Ohio Supreme Court’s decision in State ex rel. Roberts to be

controlling. In the case at bar, the trial court was not adding a post-release control

requirement; rather, the trial court deleted a post-release control provision that should

not have been included in the initial sentencing entry. Under the facts before us, the

trial court did not err in removing the erroneous post-release control requirement.

Further as the Supreme Court noted,

             But no resentencing hearing was required in the situation here,

      because the trial court simply deleted a post-release control provision that

      should not have been included in the initial sentence entry. See State v.

      Ortiz, 2016-Ohio-4813, 68 N.E.3d 188, ¶ 13 (7th Dist.) (trial court could

      properly delete an erroneous reference to post release control by a nunc

      pro tunc entry); State v. Brister, 5th Dist. Guernsey No. 13 CA 21, 2013-

      Ohio-5874, 2013 WL 6918861, ¶ 19 (same).

State ex rel. Roberts v. Marsh, 156 Ohio St.3d 440, 128 N.E.3d 222 2019-Ohio-1569, ¶

11.
Stark County, Case No. 2019CA00147                                                        7


       2). Whether the trial court issued an inconsistent sentence when it merged all

firearm specifications but failed to merge the Aggravated Robbery, Felonious Assault

and Murder convictions.

       {¶13} In the case at bar, the trial court did merge the Murder and the Felonious

Assault convictions; therefore, Everett’s argument centers upon the trial court’s failure to

also merge his conviction for Aggravated Robbery.

       {¶14} Pursuant to R.C. 2929.14(B)(1)(b), the court may not impose more than

one sentence for multiple firearm specifications if the underlying felonies (to which the

attendant specifications apply) arose from the same act or transaction.

       {¶15} R.C. 2941.25, Ohio’s allied offense statute, provides:

               (A) Where the same conduct by defendant can be construed to

       constitute two or more allied offenses of similar import, the indictment or

       information may contain counts for all such offenses, but the defendant

       may be convicted of only one.

               (B) Where the defendant’s conduct constitutes two or more

       offenses of dissimilar import, or where his conduct results in two or more

       offenses of the same or similar kind committed separately or with a

       separate animus to each, the indictment or information may contain

       counts for all such offenses, and the defendant may be convicted of all of

       them.

       {¶16} In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,

the Court held,
Stark County, Case No. 2019CA00147                                                           8


             An accused’s failure to raise the issue of allied offenses of similar

      import in the trial court forfeits all but plain error, and a forfeited error is not

      reversible error unless it affected the outcome of the proceeding and

      reversal is necessary to correct a manifest miscarriage of justice.

      Accordingly, an accused has the burden to demonstrate a reasonable

      probability that the convictions are for allied offenses of similar import

      committed with the same conduct and without a separate animus; absent

      that showing, the accused cannot demonstrate that the trial court’s failure

      to inquire whether the convictions merge for purposes of sentencing was

      plain error.

143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.

      {¶17} However, the plain error standard in Crim.R. 52(B) is available only on

direct appeal and “does not create a free-standing procedure to obtain review

otherwise.” State v. Ayala, 10th Dist. No. 12AP–1071, 2013–Ohio–1875, ¶ 14, citing

United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

      {¶18} A claim of error and failing to merge counts for sentencing purposes is not

a void sentencing issue. State v. Greenburg, 10th Dist. Franklin No. 12AP-11, 2012-

Ohio-11, 2012-Ohio-3975, ¶12. “Merger claims are non-jurisdictional and barred by res

judicata.” State v. Monroe, 10th Dist. Franklin No. 113AP-598, 2015-Ohio-844, ¶38

(citing Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479). See also, State v.

Strickland, 10th Dist. Franklin No. 14AP-307, 2014-Ohio-5105, ¶15.

      {¶19} Because Everett’s claim that all of his convictions should have been

merged is not a void sentence issue, the issues raised in Everett’s assignment of error
Stark County, Case No. 2019CA00147                                                       9


could have been raised on direct appeal, and therefore, are barred by res judicata,

regardless of whether they might be characterized as plain error. State v. Lusane, 11th

Dist. Portage No. 2019-P-0056, 2019-Ohio-5058, ¶4; State v. Haynes, 2nd Dist. Clark

No. 2013 CA 90, 2014-Ohio-2675, ¶14. See, also, United States v. Frady, 456 U.S. 152,

164-165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); State v. Strickland, 10th Dist. Franklin

No. 14AP-307, 2014-Ohio-5105, ¶15, quoting State v. Ayala, 10th Dist. Franklin No.

12AP-1071, 2013-Ohio-1875, ¶13 (“the plain-error standard in Crim.R. 52(B) is

available only on direct appeal and ‘does not create a free-standing procedure to obtain

review otherwise.’”); State v. Abdul, 8th Dist. Cuyahoga No. 103510, 2016-Ohio-3063 ¶

10. The plain error doctrine does not suspend the application of res judicata. State v.

Amos, 7th Dist. Belmont No. 19 BE 0003, 2019-Ohio-3651, ¶18; State v. Dominguez,

2nd Dist. Montgomery No. 26853, 2016-Ohio-5051, ¶10 (res judicata precludes

consideration of an allied-offense argument, even in the context of plain error, because

it could have been raised on direct appeal).

       {¶20} In the case at bar, Everett could have, but did not raise the merger issue

in the trial court during the sentencing hearing. Everett could have, but did not, assign

as error the trial court’s failure to merge the Aggravated Robbery conviction in his direct

appeal. Everett could have, but did not, raise his claim that the trial court issued

inconsistent sentences by merging the firearm specifications but not the Aggravated

Robbery conviction on direct appeal. Accordingly, the issue of whether the trial court

issued an inconsistent sentence when it merged all firearm specifications but failed to

merge the Aggravated Robbery, Felonious Assault and Murder convictions is barred by

res judicata.
Stark County, Case No. 2019CA00147                                                    10


       {¶21} Everett’s First Assignment of Error is overruled.

                                               II.

       {¶22} In his Second Assignment of Error, Everett argues that the trial court erred

as a matter of law in finding that his Motion to Correct a Void Sentence was an untimely

petition for post-conviction relief and/or that the claims were barred by the doctrine of

res judicata.

       {¶23} “[A] reviewing court is not authorized to reverse a correct judgment merely

because erroneous reasons were assigned as a basis thereof.” State ex rel. Peeples v.

Anderson, 73 Ohio St.3d 559, 560, 653 N.E.2d 371, 373(1995); State ex rel. Cassels v.

Dayton City School Dist. Bd. Of Edn., 69 Ohio St.3d 217, 222, 631 N.E.2d 150(1998).

Accord, State ex rel. v. McGinty v. Cleveland City School Dist. Bd. Of Edn., 81 Ohio

283, 290, 1998-Ohio-471, 690 N.E.2d 1273(1998).

       {¶24} We have held in our disposition of Everett’s First Assignment of Error that

the trial court could remove the erroneous imposition of post-release control on the

Felonious Assault charge by filing a nunc pro tunc sentencing entry. We further held

that Everett’s merger claims are properly barred by res judicata. Therefore, the trial

court’s judgment entry overruling Everett’s motion was correct.

       {¶25} Accordingly, regardless of the trial court’s characterization of Everett’s

motion as a Petition for Post-Conviction Relief, Everett cannot demonstrate prejudice

from the trial court’s ruling.

       {¶26} Everett’s Second Assignment of Error is overruled.
Stark County, Case No. 2019CA00147                                                11


      {¶27} The judgment of the Stark County Court of Common Pleas is affirmed.



By Gwin, J.,

Hoffman, P.J., and

Delaney, J., concur
