[Cite as State v. Tarver, 2013-Ohio-32.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98768


                                       STATE OF OHIO
                                            PLAINTIFF-APPELLEE

                                              vs.


                                       ROY V. TARVER
                                            DEFENDANT-APPELLANT




                                      JUDGMENT:
                                 AFFIRMED; REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-289278

        BEFORE: Kilbane, J., Stewart, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                   January 10, 2013
ATTORNEY FOR APPELLANT

James R. Willis
323 West Lakeside Avenue
Lakeside Place, Suite 420
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Mary H. McGrath
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

         {¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

         {¶2} Defendant-appellant, Roy Tarver (“Tarver”), appeals from the trial court

judgment denying his “motion to correct illegal sentence.” For the reasons that follow,

we affirm the trial court’s judgment and remand for correction of the sentencing journal

entry.

         {¶3} In November 1992, Tarver and codefendant, Terrence Woods, were charged

with drug trafficking, with a violence specification applying only to Woods.            In

November 1995, the record reflects that Tarver pled guilty to an amended charge of

“attempted drug trafficking with violence specifications,” a fourth degree felony. The

trial court sentenced Tarver to six months in prison. In August 2010, Tarver appealed to

this court. We dismissed the appeal as untimely. See State v. Tarver, 8th Dist. No.

95504 (Aug. 18, 2010).

         {¶4} Then in June 2012, Tarver filed a “motion to correct illegal sentence,”

arguing that he should have been convicted of a first degree misdemeanor and not a

fourth degree felony because the violence specification applied only to Woods. Tarver

attached an affidavit in support of his motion, stating that he was classified as a “career

offender” in federal court as a result of this error. Plaintiff-appellee, the state of Ohio

(“State”), opposed, arguing primarily that Tarver’s claim is barred by res judicata.
Tarver filed a response to the State’s brief, including an order from federal court

classifying him as a career offender. However, the order did not include his violence

specification in its summary of Tarver’s criminal history. In July 2012, the trial court

denied Tarver’s motion.

       {¶5} Tarver appeals, raising the following two assignments of error for review.

                            ASSIGNMENT OF ERROR ONE

       The court erred and due process was denied, when the court summarily
       denied [Tarver’s] “motion to correct an illegal sentence” without collecting
       any evidence to resolve the parties[’] factual dispute.

                                 ASSIGNMENT OF TWO

       The court erred and due process is denied when a court resolves
       constitutional issues, especially when they involve mixed questions of law
       and fact, without making any of the factual findings required for a fair
       resolution of genuine issues.

       {¶6} In both assigned errors, Tarver argues the trial court erred when it denied

his motion to correct an illegal sentence without conducting a hearing. Tarver claims

that he should have been convicted of a first degree misdemeanor and not a fourth degree

felony because the violence specification applied only to Woods.1

       {¶7} Tarver’s June 2012 motion was his first challenge to his 1995 conviction

and sentence. Tarver could have raised this issue on direct appeal from his sentence or

on delayed appeal, but failed to do so. As a result, his claim is barred by res judicata.



       1We note that Tarver pled to an amended charge, and he failed to include a
transcript of the guilty plea proceedings.
       {¶8} Under this doctrine, a final judgment of conviction bars the convicted

defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that was raised or could have

been raised by the defendant at the trial that resulted in that judgment of conviction or on

an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104

(1967). It is well established that “any issue that could have been raised on direct appeal

and was not is res judicata and not subject to review in subsequent proceedings.” State v.

Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16. Thus, the first and

second assignments of error are overruled.

       {¶9} However, at appellate oral argument, the State conceded that Tarver’s

conviction should not have included the violence specification. Notwithstanding the

doctrine of res judicata, Crim.R. 36(A) allows for the correction of clerical mistakes in

orders due to oversight or omission at any time. Furthermore, App.R. 9(E) allows this

court to direct that the misstatement be corrected. See State v. Sneed, 8th Dist. No.

91414, 2008-Ohio-5247, ¶ 12; State v. Simmons, 1st Dist. No. C-050817,

2006-Ohio-5760, discretionary appeal not allowed by 113 Ohio St.3d 1416,

2007-Ohio-1036.

       {¶10} In the instant case, the sentencing journal entry does not reflect that Tarver

was convicted of attempted drug trafficking only.   Therefore, we must remand the matter

to the trial court to issue a nunc pro tunc entry removing the violence specification in the

sentencing journal entry.
       {¶11} Judgment is affirmed; however, we remand this case to the trial court for

further proceedings consistent with this opinion.

       It is ordered that appellee recover from 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

MELODY J. STEWART, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
