[Cite as State v. Avery, 2011-Ohio-4182.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 14-10-35

        v.

EDWARD AVERY, SR.,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Union County Common Pleas Court
                           Trial Court No. 1997 CR 0020

                                      Judgment Affirmed

                            Date of Decision: August 22, 2011




APPEARANCES:

        Craig M. Jaquith for Appellant

        David W. Phillips and Terry L. Hord for Appellee
Case No. 14-10-35



WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Edward B. Avery, Sr. (“Avery”), appeals the

judgment entry of the Union County Court of Common Pleas, resentencing Avery

to correct an error in the imposition of postrelease control. On appeal, Avery

raises several issues pertaining to his original 1997 convictions for rape,

kidnapping, aggravated burglary, and robbery. For the reasons set forth below, the

judgment is affirmed.

       {¶2} On August 1, 1997, a jury found Avery guilty of first degree rape,

second degree robbery, first degree aggravated burglary, and first degree

kidnapping.     Avery was sentenced to maximum sentences of ten years

imprisonment for the counts of rape, aggravated burglary and kidnapping, to be

served consecutively to each other, and eight years imprisonment for the count of

robbery, to be served concurrently to the sentences for the other counts, for a total

of thirty years of imprisonment. In addition, the trial court adjudicated Avery a

sexual predator.

       {¶3} Avery appealed his conviction to this Court, asserting four

assignments of error.    This Court affirmed the conviction and sentence in a

decision dated April 14, 1998. See State v. Avery (1998), 126 Ohio App.3d 36,

709 N.E.2d 875 (or, “Avery I”). Avery's motion for leave to file a delayed appeal

to the Ohio Supreme Court was denied at 91 Ohio St.3d 1462, 743 N.E.2d 401.

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       {¶4} On January 12, 2004, Avery filed a request for review and

modification of his sentence. The trial court overruled Avery's motion without

holding an evidentiary hearing and he appealed that decision. On August 9, 2004,

we affirmed the trial court’s decision, finding that the trial court's refusal to hold

an evidentiary hearing on the motion was appropriate as the motion was untimely

and barred by res judicata. See State v. Avery, 3d Dist. No. 14-04-06, 2004-Ohio-

4165 (or, “Avery II”).

       {¶5} Subsequently, Avery filed a motion to correct inaccuracies in his

sentencing entry and a motion for resentencing because of the trial court’s failure

to properly inform him of postrelease control (“PRC”). Counsel was appointed for

Avery and on September 22, 2010, a hearing was held on all of his pending

motions, along with additional issues that were raised at the hearing.            On

November 23, 2010, a de novo sentencing hearing was held. On November 24,

2010, the trial court resentenced Avery to an aggregate sentence of thirty years in

prison (with credit for time served) and correctly informed him as to PRC. The

resentencing entry also included the method of conviction, which was lacking in

the previous judgment entry. See Crim.R. 32(C); State v. Baker, 119 Ohio St.3d

197, 2008-Ohio-3330, 893 N.E.2d 163.

       {¶6} It is from this judgment that Avery now brings his third appeal before

this Court, raising the following three assignments of error.

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                            First Assignment of Error

       The trial court erred by not declaring a mistrial when a
       dismissed alternate juror was present for two hours during jury
       deliberations.

                          Second Assignment of Error

       The trial court erred in its instructions to the jury on
       kidnapping, and thereby deprived Mr. Avery of his right to a
       fair trial before a properly instructed jury, and of his right to
       due process of law, as guaranteed by the Fifth, Sixth, and
       Fourteenth Amendments to the United States Constitution, and
       Sections 10 and 16, Article I of the Ohio Constitution.

                           Third Assignment of Error

       The trial court erred when it did not merge rape and kidnapping
       as allied offenses.

       {¶7} Although the issues that Avery raises in this appeal have either

previously been addressed on appeal, or could have been raised at the time of his

previous appeals, he again seeks to revisit these issues after his new sentencing

hearing. However, a recent decision by the Supreme Court of Ohio has clarified

the extent of review that is applicable after a new sentencing hearing is held due to

a trial court’s failure to properly impose PRC. See State v. Fischer, 128 Ohio

St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332.

       {¶8} The Ohio Supreme Court abrogated portions of State v. Bezak, 114

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, and held that “the new

sentencing hearing to which an offender is entitled under Bezak is limited to

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proper imposition of postrelease control.” Fischer at ¶29, 942 N.E.2d 332. When

postrelease control is not properly included in a sentence for a particular offense,

the sentence for that offense is void, but “only the offending portion of the

sentence is subject to review and correction.” Id. at ¶27, 942 N.E.2d 332. The new

sentencing hearing is limited to the proper imposition of postrelease control. Id. at

¶29, 942 N.E.2d 332.

       {¶9} The scope of relief is limited and does not permit a reexamination of

all the perceived errors at trial or in other proceedings. Id. at ¶25, 942 N.E.2d 332,

citing Hill v. United States (1962), 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d

417. The doctrine of “res judicata still applies to other aspects of the merits of a

conviction, including the determination of guilt and the lawful elements of the

ensuing sentence.” Id. at paragraph three of the syllabus, 942 N.E.2d 332; State v.

Hall, 3d Dist. No. 12-10-11, 2011-Ohio-659, ¶12.

       {¶10} The three assignments of error raised by Avery do not pertain to the

imposition of PRC. Therefore, they are barred by the doctrine of res judicata and

are not subject to another appellate review.

       {¶11} However, Avery also argues that res judicata is not applicable

because he contends that the 1997 sentencing entry was not a proper final

appealable order pursuant to State v. Baker. See 119 Ohio St.3d 197, supra.

Therefore, Avery asserts that the opinion issued by this court in his 1998 direct

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appeal is void because this Court did not have jurisdiction. He maintains that

Avery I and Avery II cannot serve as preclusive judgments under the doctrine of

res judicata.

       {¶12} Crim.R. 32(C) 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 Baker, the Ohio Supreme Court explained this requirement by

holding that a “judgment of 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.” 119 Ohio St.3d 197, at

the syllabus.

       {¶13} Although Avery’s original sentencing entry may not have technically

complied with Baker and Crim.R. 32(C), that does not mean that it was necessary

to conduct a resentencing hearing on this matter nor does it mean that the original

sentence was a nullity. The Ohio Supreme Court has stated that “the technical

failure to comply with Crim. R. 32(C) by not including the manner of conviction

in [a defendant’s] sentence is not a violation of a statutorily mandated term, so it

does not render the judgment a nullity.” (Emphasis sic.) State ex rel. DeWine v.

Burge, 128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶19. The Ohio

Supreme Court observed that the appropriate remedy for a violation of Crim.R.

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32(C) is “resentencing,” however, it “did not suggest that this term encompassed

anything more than issuing a corrected sentencing entry that complies with

Crim.R. 32(C).” Id at ¶20. The Supreme Court distinguished an error in failing to

state the method of conviction “from egregious defects, such as an entry that is not

journalized, that permit a court to vacate its previous orders.” Id. at ¶19. It

explained its reasoning as follows:

       Pursuant to Crim.R. 36, “[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.” “[C]ourts possess inherent authority to
       correct clerical errors in judgment entries so that the record
       speaks the truth.” State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d
       353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19. “[N]unc pro tunc
       entries ‘are limited in proper use to reflecting what the court
       actually decided, not what the court might or should have
       decided.’” State ex rel. Mayer v. Henson, 97 Ohio St.3d 276,
       2002-Ohio-6323, 779 N.E.2d 223, ¶ 14, quoting State ex rel. Fogle
       v. Steiner (1995), 74 Ohio St.3d 158, 164, 656 N.E.2d 1288. A
       nunc pro tunc entry is often used to correct a sentencing entry
       that, because of a mere oversight or omission, does not comply
       with Crim.R. 32(C). [Citations omitted.]

       Consistent with the treatment of Crim.R. 32(C) errors as clerical
       mistakes that can be remedied by a nunc pro tunc entry, we
       have expressly held that “the remedy for a failure to comply
       with Crim.R. 32(C) is a revised sentencing entry rather than a
       new hearing.” State ex rel. Alicea v. Krichbaum, 126 Ohio St.3d
       194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶ 2; see also State ex rel.
       Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d
       535, 2008-Ohio-4609, 895 N.E.2d 805, ¶ 10–11 (a defendant is
       entitled to a sentencing entry that complies with Crim.R. 32(C));
       Dunn v. Smith, 119 Ohio St.3d 364, 2008-Ohio-4565, 894 N.E.2d


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       312, ¶ 10 (when a trial court fails to comply with Crim.R. 32(C),
       “the appropriate remedy is correcting the journal entry”).

Id. at ¶¶17-18.

       {¶14} In this case, as in Burge, the trial court and all the parties proceeded

under the presumption that the sentencing entry for Avery was a final appealable

order. “Any failure to comply with Crim.R. 32(C) was a mere oversight that

vested the trial court with specific, limited jurisdiction to issue a new sentencing

entry to reflect what the court had previously ruled * * *.” (Emphasis sic) Id. at

¶19. The trial court’s November 24, 2010 sentencing entry corrected the “mere

oversight” of the previous failure to state the method of conviction. All of the

parties were aware of the fact that Avery was found guilty after a jury trial and the

record reflected this fact in numerous places. The trial court’s correction of the

sentencing entry to reflect what had actually occurred was merely a nunc pro tunc

correction that did not render the previous judgment a nullity. Avery, having

already had the benefit of a direct appeal, cannot raise any and all claims of error

in successive appeals. See Fischer at ¶33; State v. Harris, 5th Dist. No. 10-CA-49,

2011-Ohio-1626, ¶30. Avery is not entitled to “another bite at the apple” as a

result of this corrected judgment entry.

       {¶15} Avery's new judgment entry of sentencing, which corrected the

portion of the sentence pertaining to PRC and specified the method of conviction,


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cannot be used as a vehicle to reopen all of the other aspects of his case. Avery's

appeal from that judgment is limited to the subject of postrelease control. Res

judicata is still applicable to the issues Avery has raised today. Based on the

above, Avery's three assignments are overruled.

       {¶16} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

/jlr




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