[Cite as State v. McCabe, 2018-Ohio-3176.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :   Hon. William B. Hoffman, J.
                                               :   Hon. Patricia A. Delaney, J.
 -vs-                                          :
                                               :   Case No. 17-CA-00010
                                               :
 DONALD E. MCCABE                              :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Perry County Court of
                                                   Common Pleas, Case No. 93-CR-6366



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            August 8, 2018




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 JOSEPH A. FLAUTT                                  DONALD E. MCCABE, PRO SE
 PERRY COUNTY PROSECUTOR                           Inmate #277-786
 111 North High St., P.O. Box 569                  P.O. Box 57
 New Lexington, OH 43764-0569                      Marion, OH 43301
Perry County, Case No. 17-CA-00010                                                          2

Delaney, J.

       {¶1} Defendant-Appellant Donald E. McCabe appeals the December 4, 2017

judgment entry of the Perry County Court of Common Pleas.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On February 17, 1993, the Perry County Grand Jury indicted Defendant-

Appellant Donald E. McCabe on three charges: Count 1, aggravated burglary with a

firearm specification, a first-degree felony in violation of R.C. 2911.11(A)(1)(2)(3); Count

2, aggravated robbery with a firearm specification, a first-degree felony in violation of R.C.

2911.01(A)(1)(2); and Count 3, aggravated murder with a firearm specification, in violation

of R.C. 2903.01(B). The underlying facts giving rise to McCabe’s indictment are

unnecessary for the disposition of McCabe’s appeal.

       {¶3} McCabe originally entered pleas of not guilty and not guilty by reason of

insanity. On May 26, 1993, McCabe entered a plea of guilty to each count contained

within the indictment. The State dismissed the firearm specifications. The trial court

issued a judgment entry on May 27, 1993, memorializing McCabe’s guilty pleas.

       {¶4} On July 23, 1993, the trial court held a sentencing hearing and issued its

sentencing entry. The termination judgment entry referred to the May 27, 1993 judgment

entry but did not explicitly state the manner of conviction. The trial court sentenced

McCabe to life in prison with eligibility of parole after 20 years on Count 3. On Count 1,

the trial court sentenced McCabe to a prison term of 10 to 25 years. The trial court also

sentenced McCabe to a prison term of 10 to 25 years on Count 2. McCabe was ordered

to serve his sentences concurrently.

       {¶5} McCabe did not appeal his sentence.
Perry County, Case No. 17-CA-00010                                                     3


      {¶6} On August 28, 2017, McCabe filed a pro se motion to correct void judgment.

He first argued that because he was charged with and pleaded guilty to aggravated

murder in violation of R.C. 2903.01(B), R.C. 2946.06 required that he be sentenced by a

three judge panel. He next argued his sentence was void because the trial court failed to

include mandatory sentencing provisions. The State responded to the motion.

      {¶7} On December 4, 2017, the trial court denied McCabe’s motion to correct

void judgment.

      {¶8} The trial court also issued a nunc pro tunc termination judgment entry on

December 4, 2017. The nunc pro tunc judgment entry combined the language of the May

27, 1993 and July 23, 1993 judgment entries into one entry and made no substantive

changes.

      {¶9} McCabe filed a notice of appeal on December 18, 2017.

                             ASSIGNMENTS OF ERROR

      {¶10} McCabe raises five Assignments of Error:

      {¶11} “I. THE DEFENDANT-APPELLANT’S SENTENCE DOES NOT CONFORM

TO THE PROVISIONS OF OHIO CRIMINAL RULE 11(C)3.

      {¶12} “II. THE SENTENCE IN CR-6366 IS DECLARED A ‘VOID JUDGMENT’.

      {¶13} “III. DEFENDANT-APPELLANT’S SENTENCE DOESN’T COMPOST

WITH THE ‘MANDATORY PROVISIONS’ OF CRIM.R. 32(C) JUDGMENT (FORMERLY

KNOWN AS 32(B).)

      {¶14} “IV.    THE    DEFENDANT-APPELLANT’S           JOURNAL       ENTRY     WAS

ILLEGALLY CHALLENGED BY THE TRIAL COURT ON 7/28/17.
Perry County, Case No. 17-CA-00010                                                       4


       {¶15} “V. THE DEFENDANT-APPELLANT’S SENTENCE VIOLATES THE U.S.

14TH AMENDMENT-DUE PROCESS CLAUSE.”

                                        ANALYSIS

                                        I., II., and III.

       {¶16} McCabe argues in his first, second, and third Assignments of Error that his

sentence should be declared a void judgment because his indictment for aggravated

murder contained a “death specification.” He claims the death specification was never

dismissed when he entered his guilty plea and therefore, the trial court was required to

meet certain sentencing guidelines pertaining to a death specification pursuant to Crim.R.

11(C)(3), Crim.R. 32(C), and R.C. 2929.03(F). He contends the trial court’s failure to meet

the guidelines rendered his sentence void.

       {¶17} Crim.R. 11(C)(3) states:

       (3) With respect to aggravated murder committed on and after January 1,

       1974, the defendant shall plead separately to the charge and to each

       specification, if any. A plea of guilty or no contest to the charge waives the

       defendant's right to a jury trial, and before accepting a plea of guilty or no

       contest the court shall so advise the defendant and determine that the

       defendant understands the consequences of the plea.

       If the indictment contains no specification, and a plea of guilty or no contest

       to the charge is accepted, the court shall impose the sentence provided by

       law.
Perry County, Case No. 17-CA-00010                                                      5


       If the indictment contains one or more specifications, and a plea of guilty or

       no contest to the charge is accepted, the court may dismiss the

       specifications and impose sentence accordingly, in the interests of justice.

       If the indictment contains one or more specifications that are not dismissed

       upon acceptance of a plea of guilty or no contest to the charge, or if pleas

       of guilty or no contest to both the charge and one or more specifications are

       accepted, a court composed of three judges shall: (a) determine whether

       the offense was aggravated murder or a lesser offense; and (b) if the

       offense is determined to have been a lesser offense, impose sentence

       accordingly; or (c) if the offense is determined to have been aggravated

       murder, proceed as provided by law to determine the presence or absence

       of the specified aggravating circumstances and of mitigating circumstances,

       and impose sentence accordingly.

       {¶18} McCabe contends because the indictment contained a death specification

that was not dismissed upon the acceptance of McCabe’s guilty plea to the charge of

aggravated murder, a panel of three judges should have considered the charge and

sentencing. The failure to have his case heard by a panel of three judges also rendered

his sentence void pursuant to Crim.R. 32(C) because the termination judgment entry did

not contain a separate finding of fact pursuant to R.C. 2929.03(F).

       {¶19} McCabe was indicted on one count of aggravated robbery, one count of

aggravated burglary, and one count of aggravated murder. The indictment states that

McCabe was charged with aggravated murder in violation of R.C. 2903.01(B), which

reads in pertinent part: “No person shall purposely cause the death of another * * * while
Perry County, Case No. 17-CA-00010                                                        6


committing or attempting to commit, or while fleeing immediately after committing or

attempting to commit, * * * aggravated robbery, * * * aggravated burglary, * * *.”

       {¶20} McCabe contends the charge of aggravated murder contained a death

penalty specification. R.C. 2929.04(A)(7) states:

       Imposition of the death penalty for aggravated murder is precluded unless

       one or more of the following is specified in the indictment or count in the

       indictment pursuant to section 2941.14 of the Revised Code and proved

       beyond a reasonable doubt:

       ***

       (7) The offense was committed while the offender was committing,

       attempting to commit, or fleeing immediately after committing or attempting

       to commit kidnapping, rape, aggravated arson, aggravated robbery, or

       aggravated burglary, and either the offender was the principal offender in

       the commission of the aggravated murder or, if not the principal offender,

       committed the aggravated murder with prior calculation and design.

       {¶21} Under R.C. 2941.14(B), the imposition of the death penalty for aggravated

murder is precluded unless the “count in the indictment charging the offense specifies

one or more of the aggravating circumstances listed in division (A) of section 2929.04 of

the Revised Code. If more than one aggravating circumstance is specified to an

indictment or count, each shall be in a separately numbered specification, and if an

aggravating circumstance is specified to a count in an indictment containing more than

one count, such specification shall be identified as to the count to which it applies.”
Perry County, Case No. 17-CA-00010                                                     7


       {¶22} A review of the 1993 indictment shows it does not state a separate

specification of an aggravating circumstance to the count charging McCabe with

aggravated murder. McCabe was not charged with aggravated murder with a death

penalty specification. McCabe was charged with aggravated murder with a firearm

specification and the firearm specification was dismissed by the State upon McCabe’s

guilty plea.

       {¶23} Accordingly, McCabe’s arguments that the trial court’s sentencing did not

comply with Crim.R. 11(C)(3) and Crim.R. 32(C) because of a death specification are not

supported by the record.

       {¶24} McCabe’s first, second, and third Assignments of Error are overruled.

                                           IV.

       {¶25} McCabe contends in his fourth Assignment of Error that the trial court

illegally changed the July 23, 1993 termination judgment entry when it issued the nunc

pro tunc termination judgment entry on December 4, 2017.

       {¶26} On May 27, 1993, the trial court issued its judgment entry memorializing

McCabe’s guilty pleas. The July 23, 1993 termination judgment entry rendered McCabe’s

sentence. The nunc pro tunc termination judgment entry combined the May 27, 1993

judgment entry and July 23, 1993 termination judgment entry into one termination

judgment entry.

       {¶27} A final, appealable order in a criminal case under Crim.R. 32(C) must

contain four elements: (1) the fact of the conviction, (2) the sentence, (3) the judge’s

signature, and (4) a time stamp from the clerk of courts. State v. Lester, 130 Ohio St.3d

303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus.
Perry County, Case No. 17-CA-00010                                                        8


       {¶28} As a general matter, “[o]nly one document can constitute a final appealable

order,” meaning that a single entry must satisfy the requirements of Crim.R. 32(C). State

v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 17.

       {¶29} Although former Crim.R. 32(C) indicated that the judgment entry should

include the manner of conviction, Lester held that its absence from the judgment entry

did not affect the finality of the order. Lester at ¶ 12. The omission of the “manner of the

conviction” in the sentencing entry does not prevent the judgment from being a final,

appealable order. State ex rel. Davis v. Ewers, 130 Ohio St.3d 354, 2011-Ohio-5790, 958

N.E.2d 566, ¶ 1, citing State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d

142, paragraph one of the syllabus; Accord, State ex rel. McGuire v. Abruzzo, 133 Ohio

St.3d 121, 2012-Ohio-4217, 976 N.E.2d 861, ¶ 1. The July 23, 1993 termination judgment

entry referred to the May 27, 1993 judgment entry memorializing McCabe’s guilty pleas,

but the termination judgment entry did not explicitly state the manner of conviction.

Pursuant to Lester, the July 23, 1993 termination judgment entry was a final appealable

order although it did not contain the manner of conviction. McCabe did not appeal the

July 23, 1993 termination judgment entry.

       {¶30} “Courts possess inherent authority to correct clerical errors in judgment

entries so that the record speaks the truth[.]” State v. Lee, 9th Dist. Summit No. 28713,

2018-Ohio-2497¶ 8 quoting State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-

Ohio-235, ¶ 17, quoting State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-

5795, ¶ 19. “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).” Burge at

¶ 17. Furthermore, a nunc pro tunc order relates back to the date of the original
Perry County, Case No. 17-CA-00010                                                     9

entry. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, ¶ 15. Where

the manner of conviction was missing, the trial court could correct the omission by means

of a nunc pro tunc entry. Lester at paragraph two of the syllabus; State ex rel. Snead v.

Ferenc, 138 Ohio St.3d 136, 2014-Ohio-43, 4 N.E.3d 1013, ¶ 9.

      {¶31} The December 4, 2017 nunc pro tunc termination judgment entry combined

the previous judgment entries into a single judgment entry to comply with Baker, Lester,

and Crim.R. 32(C). The trial court acted within its authority to issue a nunc pro tunc

termination judgment entry to comply with Crim.R. 32(C).

      {¶32} McCabe’s fourth Assignment of Error is overruled.

                                           V.

      {¶33} McCabe argues in his fifth Assignment of Error that his due process rights

under the 14th Amendment were violated.

      {¶34} Based on our findings above, we conclude McCabe has failed to

demonstrate a violation of his due process rights.

      {¶35} McCabe’s fifth Assignment of Error is overruled.
Perry County, Case No. 17-CA-00010                                                10


                                  CONCLUSION

      {¶36} The judgment of the Perry County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.
