[Cite as State v. Pettyjohn, 2011-Ohio-4461.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO

        Appellee

        v.

DAVID LLOYD PETTYJOHN

      Appellant
C.A. Nos.    10CA009777
             10CA009894



APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No.   98-CR-052622

                                  DECISION AND JOURNAL ENTRY

Dated: September 6, 2011



        Per Curiam.

        {¶1}     Defendant-Appellant David Pettyjohn appeals the judgments of the Lorain

County Court of Common Pleas. For the reasons set forth below, we affirm in part, vacate in

part, and remand the matter for proceedings consistent with this opinion.

                                                I.

        {¶2}     In October 2000, a jury convicted Mr. Pettyjohn of five counts of gross sexual

imposition and two counts of intimidation of a witness. That same month, the trial court

sentenced him to 19 years in prison. This Court upheld his convictions on appeal. State v.
                                                 2


Pettyjohn (July 1, 2001), 9th Dist. Nos. 00CA007714, 00CA007719. In August 2009, Mr.

Pettyjohn filed a motion for resentencing, arguing that the court’s sentencing entry did not

properly impose post-release control under Section 2967.28 of the Ohio Revised Code or comply

with Crim.R. 32(C). In January 2010, the trial court “vacated” its sentencing entry because it did

not correctly impose post-release control or include Mr. Pettyjohn’s manner of conviction under

Crim.R. 32(C). The court held another sentencing hearing and entered a new sentencing entry,

this time sentencing Mr. Pettyjohn to only 15 years in prison. Mr. Pettyjohn has appealed,

assigning three errors regarding the merits of his convictions. The case number for that appeal is

10CA009777.

       {¶3}    In March 2010, Mr. Pettyjohn moved the trial court for a nunc pro tunc order,

noting that its most recent sentencing entry did not dispose of any specifications. In April 2010,

the trial court issued a “corrected” sentencing entry, which explained that all of the specifications

had been dismissed. In August 2010, Mr. Pettyjohn moved for another nunc pro tunc entry,

arguing that the jury’s verdict forms were deficient. The trial court denied that motion. Mr.

Pettyjohn has appealed the denial of his second motion for a nunc pro tunc entry, assigning

additional errors. The case number for that appeal is 10CA009894. We are consolidating the

appeals.

                                                 II.

Case Number 10CA009777

                                  ASSIGNMENT OF ERROR I

       “APPELLANT’S CONVICTION FOR OBSTRUCTING OFFICIAL BUSINESS
       WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN
       VIOLATION OF ARTICLE IV, SECTION 3, OF THE OHIO
       CONSTITUTION.”

                                  ASSIGNMENT OF ERROR II
                                                 3


        “APPELLANT’S CONVICTION SHOULD BE REVERSED AS THE TRIAL
        COURT ALLOWED UNQUALIFIED EXPERTS TO TESTIFY WITHOUT AN
        EXPERT REPORT IN VIOLATION OF LOCAL RULE 11(1)(A).”

                                  ASSIGNMENT OF ERROR III

        “APPELLANT’S CONVICTION SHOULD BE REVERSED AS THE STATE’S
        WITNESSES WERE ALLOWED TO TESTIFY OUTSIDE THEIR
        PROFESSED AREA OF EXPERTISE AND TO TESTIFY TO MATTERS
        THAT SHOULD HAVE BEEN LEFT FOR THE JURY TO DECIDE.”

        {¶4}    Mr. Pettyjohn’s assignments of error related to case number 10CA009777 all

challenge the merits of his conviction. The State has argued that we should not consider his

arguments because this appeal is limited to issues regarding his resentencing. However, as the

trial court exceeded its jurisdiction in resentencing Mr. Pettyjohn and we are required to remand

the matter to the trial court for the issuance of a nunc pro tunc entry, we do not reach the merits

of Mr. Pettyjohn’s assignments of error.

        {¶5}    The trial court resentenced Mr. Pettyjohn because the judgment entry contained

improper post-release control notification and was not final and appealable as it failed to include

the manner of conviction as required by State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, at

syllabus; see, also, State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235 at ¶13.

We begin with a discussion of the appropriate way in which the trial court should have remedied

the defects at issue.

        {¶6}    With respect to the improper post-release control notification, pursuant to State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at ¶29, the new sentencing hearing that Mr.

Pettyjohn was entitled to was “limited to [the] proper imposition of postrelease control.” With

respect to the correction of the Crim.R. 32(C) defect as issue in the instant matter, the Supreme

Court has likewise provided a specific mechanism to remedy the problem. See Burge at ¶¶16-

23. The Supreme Court has concluded that the jurisdiction of the trial court in correcting a
                                                  4


sentencing entry that fails to include the manner of conviction is limited to the issuance of a nunc

pro tunc entry. Id.

       {¶7}    In the instant matter, the trial court did not employ the remedies prescribed by the

Ohio Supreme Court. Rather, the trial court resentenced Mr. Pettyjohn and altered his original

sentence, actions that exceeded its jurisdiction. See Fischer at ¶29; Burge at ¶21. However,

even when a trial court has exceeded its jurisdiction in post-release control cases by issuing a de

novo sentence, this Court has simply vacated the remainder of the court’s sentencing entry and

left the corrected post-release control portion intact. See, e.g., State v. Cool, 9th Dist. Nos.

25135 & 25214, 2011-Ohio-1560, at ¶4-6.          Accordingly, we vacate the resentencing entry to

the extent it does anything except properly impose post-release control. Thus, Mr. Pettyjohn’s

original sentence remains intact. Further, as the trial court failed to issue a nunc pro tunc entry to

correct the original sentencing entry’s omission of the manner of conviction we remand the

matter to the trial court to issue a nunc pro tunc entry as contemplated in Baker and Burge.

Baker at ¶19; Burge at ¶¶16-23.

Case Number 10CA009894

                                   ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
       PLAIN ERROR, CRIM. R. 52(B), IN VIOLATION OF THE OHIO AND
       UNITED STATES CONSTITUTIONS STATE V. PELFREY, 112 OHIO ST.3D
       422 R.C. [] 2945.75(A)(2) BY SENTENCING THE APPELLANT FOR 5
       COUNTS OF GROSS SEXUAL IMPOSITION, R.C. [] 29705.05 (A)(4) AT F3
       WHEN THE VERDICT FORMS DID NOT STATE THE LEVEL OF THE
       OFFENSE, NOR A STATEMENT THAT AN AGGRAVATING ELEMENT
       HAS BEEN FOUND TO JUSTIFY CONVICTING A DEFENDANT OF A
       GREATER DEGREE OF A CRIMINAL OFFENSE AND AS A RESULT, THE
       GROSS SEXUAL IMPOSITION CHARGES AUTOMATICALLY REDUCE
       TO THE LESSER OFFENSE OF ‘SEXUAL IMPOSITION’ R.C. [] 2907.06 AT
       M3.”

                                  ASSIGNMENT OF ERROR II
                                                  5


       “THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
       PLAIN ERROR, CRIM. R. 52 (B) IN VIOLATION OF THE OHIO AND
       UNITED STATES CONSTIUTIONS BY SENTENCING THE APPLELLANT
       FOR 2 COUNTS OF INTIMIDATION OF A WITNESS R.C. [] 2921.04 (B) AT
       F3, AS NEITHER ONE OF THE VERDICT FORMS STATED THE LEVEL OF
       THE OFFENSE, NOR A STATEMENT THAT AN AGGRAVATING
       ELEMENT HAS BEEN FOUND TO JUSTIFY CONVICTING A DEFENDANT
       OF A GREATER DEGREE OF A CRIMINAL OFFENSE, IN VIOLATION OF
       THE OHIO AND UNITED STATES CONSTITUTIONS R.C. [] 2945.75 (A)(2),
       PURSUANT TO STATE V. PELFREY, 112 OHIO ST.3D 422, STATE V.
       SESSLER, 119 OHIO ST.3D 9, THEREFORE, INTIMIDATION OF A
       WITNESS CHARGES AUTOMATICALLY REDUCE TO THE LESSER
       DEGREE OF THE OFFENSE R.C. [] 2921.04 (D) AT M1.”

                                  ASSIGNMENT OF ERROR III

       “THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
       PLAIN ERROR, CRIM. R. 52 (B) IN VIOLATION OF THE OHIO AND
       UNITED STATES CONSTITUTIONS BY FAILING TO DISMISS THE ONE
       COUNT OF INTIMIDATION OF A WITNESS R.C. [] 2921.04 (B) BASED ON
       THE VERDICT FORMS FINDING THE APPELLANT GUILTY FOR THE
       CHARGES THE DAY BEFORE THE JURY ACTUALLY DELIBERATED
       FOR IT RENDERING THE CONVICTIONS VOID.”

       {¶8}    Mr. Pettyjohn asserts with respect to case number 10CA009894 that the trial court

erred in denying his motion for nunc pro tunc and/or dismissal. Based upon his arguments on

appeal, we disagree.

       {¶9}    In his motion, Mr. Pettyjohn stated that he “hereby brings this serious clerical

error to the courts attention for immediate correction after an evidentiary hearing with Mr.

Pettyjohn present in open court for the nunc pro tunc correction to the judgment entry.” The

clerical error he refers to is an incorrect date on the jury verdict form which erroneously stated

that the jury found Mr. Pettyjohn guilty on September 28, 2000 rather than September 29, 2000,

the date the jury actually deliberated and found him guilty. In addition to identifying the

existence of a clerical error, Mr. Pettyjohn also sought dismissal of certain convictions,

suggesting that the trial court should effectuate the dismissals via nunc pro tunc entries.

       {¶10} This Court has stated that:
                                                 6


       “[a] nunc pro tunc order may be issued by a trial court, as an exercise of its
       inherent power, to make its record speak the truth. It is used to record that which
       the trial court did, but which has not been recorded. It is an order issued now,
       which has the same legal force and effect as if it had been issued at an earlier
       time, when it ought to have been issued. Thus, the office of a nunc pro tunc order
       is limited to memorializing what the trial court actually did at an earlier point in
       time. It can be used to supply information which existed but was not recorded, to
       correct mathematical calculations, and to correct typographical or clerical errors.”
       (Internal citation omitted.) State v. Greulich (1988), 61 Ohio App.3d 22, 24.

Further, Crim.R. 36 provides that “[c]lerical mistakes in judgments, orders, or other parts of the

record, and errors in the record arising from oversight or omission, may be corrected by the court

at any time.” (Emphasis added.)

       {¶11} With respect to Mr. Pettyjohn’s first two assignments of error, the alleged error he

seeks to remedy is not correctable via a nunc pro tunc entry. Mr. Pettyjohn seeks to have the

trial court change the charges he was convicted of; Mr. Pettyjohn does not seek to correct the

record to reflect what actually happened. See Greulich, 61 Ohio App.3d at 24. Further, from his

brief on appeal, it is not clear that he is actually seeking a nunc pro tunc correction, instead it

appears he is seeking other substantive relief than that he requested in the trial court.

Accordingly, Mr. Pettyjohn’s first two assignments of error are properly overruled.

       {¶12} With respect to Mr. Pettyjohn’s third assignment of error, he asserts that two of

the jury verdict forms inaccurately reflected the date the jury reached its verdict. While if this

were true, such an error would be in the nature of a clerical error correctable via nunc pro tunc,

see id., on appeal Mr. Pettyjohn does not appear to seek a nunc pro tunc correction. Mr.

Pettyjohn instead seeks dismissal of the convictions, which would not be warranted to correct a

clerical error. Thus, Mr. Pettyjohn’s third assignment of error is overruled.

                                                III.

       {¶13} In light of the foregoing, with respect to case number 10CA009777, we affirm the

judgment of the trial court to the extent it properly imposed post-release control and vacate the
                                                 7


remainder of the resentencing entry. Further, we remand the matter to the Lorain County Court

of Common Pleas for the issuance of an appropriate nunc pro tunc entry. With respect to case

number 10CA009894, we affirm the judgment of the Lorain County Court of Common Pleas.



                                                                          Judgments affirmed in part,
                                                                                     vacated in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR
                                                8




DICKINSON, J.
CONCURS IN PART, AND DISSENTS IN PART, SAYING:

                                       INTRODUCTION

       {¶14} A jury convicted David Pettyjohn of five counts of gross sexual imposition and

two counts of intimidation of a witness, and the trial court sentenced him to 19 years in prison.

This Court upheld his convictions on appeal. State v. Pettyjohn, 9th Dist. Nos. 00CA007714,

00CA007719, 2001 WL 773232 (July 1, 2001). Several years later, the trial court resentenced

Mr. Pettyjohn because it had not correctly imposed post-release control and had not specified

Mr. Pettyjohn’s manner of conviction in its sentencing entry. Mr. Pettyjohn has appealed the

court’s resentencing entry. He later moved the trial court for a nunc pro tunc order, arguing that

the jury’s verdict forms were deficient. The trial court denied his motion, and Mr. Pettyjohn has

appealed that decision as well. We should affirm the judgments in part because Mr. Pettyjohn’s

arguments are barred by the doctrine of res judicata and should reverse in part because the trial

court did not have authority to reduce Mr. Pettyjohn’s prison term when it resentenced him.

                               PROCEDURAL BACKGROUND

       {¶15} In October 2000, a jury convicted Mr. Pettyjohn of five counts of gross sexual

imposition and two counts of intimidation of a witness. That same month, the trial court

sentenced him to 19 years in prison.       In August 2009, Mr. Pettyjohn filed a motion for

resentencing, arguing that the court’s sentencing entry did not properly impose post-release

control under Section 2967.28 of the Ohio Revised Code or comply with Rule 32(C) of the Ohio

Rules of Criminal Procedure. In January 2010, the trial court “vacated” its sentencing entry

because it did not correctly impose post-release control or include Mr. Pettyjohn’s manner of

conviction under Rule 32(C). The court held another sentencing hearing and entered a new
                                                  9


sentencing entry, this time sentencing Mr. Pettyjohn to only 15 years in prison. Mr. Pettyjohn

has appealed, assigning three errors regarding the merits of his convictions. The case number for

that appeal is 10CA009777.

       {¶16} In March 2010, Mr. Pettyjohn moved the trial court for a nunc pro tunc order,

noting that its most recent sentencing entry did not dispose of any specifications. In April 2010,

the trial court issued a “corrected” sentencing entry, which explained that all of the specifications

had been dismissed. In August 2010, Mr. Pettyjohn moved for another nunc pro tunc entry,

arguing that the jury’s verdict forms were deficient. The trial court denied that motion. Mr.

Pettyjohn has appealed the denial of his second motion for a nunc pro tunc entry, assigning

additional errors regarding the merits of his convictions. The case number for that appeal is

10CA009894.

                                         RES JUDICATA

       {¶17} Mr. Pettyjohn’s assignments of error are that his convictions are against the

manifest weight of the evidence, that the trial court incorrectly allowed an unqualified witness to

testify as an expert, that the trial court incorrectly allowed the State’s expert witnesses to testify

outside the areas of their expertise, and that the jury’s verdict forms were deficient. The State

has argued that we should not consider his arguments because this appeal is limited to issues

regarding his resentencing. According to the State, the trial court’s post-release control and

Criminal Rule 32(C) errors only made its original sentencing entry partially void. See State v.

Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, at ¶59-60 (concluding res judicata barred the

assertion of claims that could have been raised in defendant’s first appeal).

                                   POST-RELEASE CONTROL
                                                10


       {¶18} Regarding the trial court’s failure to properly impose post-release control, in State

v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, the Ohio Supreme Court held that, “[w]hen a

defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not

properly included in a sentence for a particular offense, the sentence for that offense is void. The

offender is entitled to a new sentencing hearing for that particular offense.” Id. at syllabus. In

State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, however, the Court modified Bezak,

clarifying that, “[if] a judge fails to impose statutorily mandated postrelease control as part of a

defendant’s sentence, [only] that part of the sentence is void and must be set aside.” Id. at ¶26.

“[R]es judicata still applies to other aspects of the merits of [the] conviction, including the

determination of guilt and the lawful elements of the ensuing sentence.” Id. at paragraph three of

the syllabus. The only issues a defendant can raise on appeal after the resentencing hearing to

correctly impose post-release control are “issues arising at the resentencing hearing.” Id. at

paragraph four of the syllabus. Accordingly, the State is correct that the trial court’s failure to

properly impose post-release control does not allow Mr. Pettyjohn to contest the merits of his

underlying convictions in these appeals.

                                    CRIMINAL RULE 32(C)

       {¶19} Regarding the trial court’s failure to properly follow Rule 32(C) of the Ohio Rules

of Criminal Procedure, that rule provides that “[a] judgment of conviction shall set forth the plea,

the verdict, or findings, upon which each conviction is based, and the sentence.” In State v.

Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, the Ohio Supreme Court considered whether the

rule’s language requires the judgment of conviction of a defendant who has been found guilty by

a jury to contain the plea that the defendant entered at arraignment for it to be appealable. Id. at

¶1. The Supreme Court concluded that it does not, holding, instead, that “[a] judgment of
                                                 11


conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea,

the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence;

(3) the signature of the judge; and (4) entry on the journal by the clerk of court.” Id. at syllabus

(explaining Crim. R. 32(C)).

       {¶20} In Baker, the Supreme Court noted that the court of appeals had required

judgments of conviction to contain five things: “(1) the plea; (2) the verdict or findings; (3) the

sentence; (4) the signature of the judge; and (5) the time stamp of the clerk to indicate

journalization.” State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, at ¶13. The Court

disagreed with that interpretation of the rule, explaining that a “more logical interpretation” of

the “phrase ‘the plea, the verdict or findings, and the sentence’ is that a trial court is required to

sign and journalize a document memorializing the sentence and the manner of the conviction: a

guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt

based upon a bench trial, or a guilty verdict resulting from a jury trial.” Id. at ¶14. It, therefore,

held that the court of appeals had incorrectly concluded that Mr. Baker’s judgment of conviction

was not appealable. Id. at ¶19 (explaining that a judgment of conviction “need not necessarily

include the plea entered at arraignment, but . . . must include the sentence and the means of

conviction, whether by plea, verdict, or finding by the court, to be a final appealable order under

R.C. 2505.02.”).

       {¶21} In his motion for resentencing, Mr. Pettyjohn argued that his sentence was invalid

because it did not contain the means or manner of conviction, as those terms are used throughout

Baker. He noted that, instead of explaining whether the court made a finding of guilt after a no

contest plea or bench trial or whether he was found guilty by a jury, his sentencing entry merely

stated that he had “appeared . . . for sentencing after having been found guilty to the following
                                                 12


charge(s)[.]” According to Mr. Pettyjohn, because the sentencing entry did not explain the

means or manner of his conviction, it was deficient under Baker. The trial court agreed, and

vacated his sentence.

       {¶22} Although the trial court’s original sentencing entry did not include Mr.

Pettyjohn’s manner of conviction, the court exceeded its authority when it “vacated” Mr.

Pettyjohn’s entire sentence. In State ex rel. DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-

235, Nancy Smith moved for resentencing fourteen years after her convictions, arguing that the

trial court’s sentencing entry did not comply with Criminal Rule 32(C). The trial court granted

her motion, vacated her convictions and sentence, and entered a judgment of acquittal under

Criminal Rule 29(C). The State sought a writ of prohibition, arguing that the trial court did not

have jurisdiction to enter a judgment of acquittal. Id. at ¶4.

       {¶23} The Supreme Court agreed that Ms. Smith’s sentencing entry was defective under

Criminal Rule 32(C) because it did not contain “the manner of the conviction.” State ex rel.

DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-235, at ¶13 (quoting State v. Baker, 119 Ohio

St. 3d 197, 2008-Ohio-3330, at ¶14). It reached that conclusion, in part, because the State had

conceded error in the court of appeals and had, itself, asked the trial court to correct Ms. Smith’s

sentence under Baker. Id. at ¶12. Accordingly, the Supreme Court concluded that the State had

invited any error. Id. Quoting Baker, it also reaffirmed that “a trial court is required to sign and

journalize a document memorializing the sentence and the manner of the conviction: a guilty

plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based

upon a bench trial, or a guilty verdict resulting from a jury trial.” Id. at ¶13 (quoting Baker,

2008-Ohio-3330, at ¶14). Because the trial court’s sentencing entry “did not disclose that [Ms.]

Smith had been found guilty by a jury[,]” it did not comply with Criminal Rule 32(C). Id.
                                                 13


       {¶24} The Supreme Court next discussed the appropriate way to correct a sentencing

entry that does not comply with Criminal Rule 32(C). It characterized the trial court’s error in

that case as a “clerical mistake” and concluded that it was correctable through a nunc pro tunc

order under Criminal Rule 36. State ex rel. DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-

235, at ¶18. Noting that a nunc pro tunc entry is “limited in proper use to reflect[ ] what the

court actually decided, not what the court might or should have decided,” it held that the trial

court’s Criminal Rule 32(C) error “vested the . . . court with specific, limited jurisdiction to issue

a new sentencing entry to reflect what the court had previously ruled and not to issue a new

sentencing order reflecting what . . . the court should have ruled.” Id. at ¶17, 19 (quoting State

ex rel. Mayer v. Henson, 97 Ohio St. 3d 276, 2002-Ohio-6323, at ¶14). It, therefore, concluded

that the trial court had exceeded its jurisdiction when it vacated Ms. Smith’s convictions and

sentence. Id. at ¶21.

       {¶25} Consistent with Burge, I agree with the lead opinion that the trial court did not

have authority to vacate Mr. Pettyjohn’s entire sentencing entry, even though the entry did not

comply with Criminal Rule 32(C). Rather, the court was limited to entering a nunc pro tunc

order to correct its clerical mistake. State ex rel. DeWine v. Burge, 128 Ohio St. 3d 236, 2011-

Ohio-235, at ¶18, 21. The trial court, however, did correct its clerical mistake in its “Corrected

Judgment Entry of Conviction and Sentence,” explaining that Mr. Pettyjohn had been “found

guilty of [the offenses] by a jury[.]” We, therefore, should reinstate the trial court’s original

October 2000 sentencing entry, as corrected by the court’s “[c]orrected” entry. Because the trial

court did not have authority to change Mr. Pettyjohn’s sentence, we should vacate the

“[c]orrected” entry to the extent that it attempted to do anything beyond correcting the court’s

Rule 32(C) and post-release control mistakes.
                                               14


       {¶26} A nunc pro tunc order relates back to the date of the original entry. State ex rel.

Womack v. Marsh, 128 Ohio St. 3d 303, 2011-Ohio-229, at ¶15. Because of the trial court’s

corrective entry, we should consider the court’s original sentencing compliant with Criminal

Rule 32(C) and conclude that the doctrine of res judicata bars Mr. Pettyjohn from rearguing the

merits of his convictions in these appeals. See State v. Ketterer, 126 Ohio St. 3d 448, 2010-

Ohio-3831, at ¶59 (“Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal.”); State v. Triplett, 6th

Dist. No. L-10-1158, 2011-Ohio-1713, at ¶21 (concluding that defendant could not reargue the

merits of his conviction on appeal from judgment correcting a sentencing entry that did not

comply with Criminal Rule 32(C)). Mr. Pettyjohn’s assignments of error should be overruled.

                                        CONCLUSION

       {¶27} Mr. Pettyjohn may not reargue the merits of his convictions on appeal from an

order that corrected the trial court’s improper imposition of post-release control and a clerical

error under Rule 32(C) of the Ohio Rules of Criminal Procedure or on appeal from the denial of

his motion for a nunc pro tunc order. The judgment of the Lorain County Common Pleas Court

in case number 10CA009777 should be affirmed to the extent that it corrected the post-release

control and Criminal Rule 32(C) errors, but should otherwise be vacated, and Mr. Pettyjohn’s

original sentence should be reinstated. I agree that the judgment in case number 10CA009894

should be affirmed.


APPEARANCES:

DAVID PETTYJOHN, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and, BILLIE JO BELCHER, Assistant Prosecuting
Attorney, for Appellee.
