[Cite as State v. Staffrey, 2011-Ohio-5760.]




                             STATE OF OHIO, MAHONING COUNTY

                                    IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT


STATE OF OHIO,                                  )
                                                )      CASE NOS. 10 MA 130
        PLAINTIFF-APPELLEE,                     )                10 MA 131
                                                )
        - VS -                                  )      OPINION
                                                )
DANIEL STAFFREY, SR.,                           )
                                                )
        DEFENDANT-APPELLANT.                    )


CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Common Pleas
                                                    Court, Case No. 95CR819.


JUDGMENT:                                           Case No. 10MA130 is Affirmed; Case No.
                                                    10MA131 is Dismissed.


APPEARANCES:
For Plaintiff-Appellee:                             Attorney Paul Gains
                                                    Prosecuting Attorney
                                                    Attorney Ralph Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503


For Defendant-Appellant:                            Attorney John Falgiani, Jr.
                                                    8256 East Market Street
                                                    P.O. Box 8533
                                                    Warren, Ohio 44484


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
                                             Dated: November 3, 2011

VUKOVICH, J.


       ¶{1}   In these consolidated appeals, defendant-appellant Daniel Staffrey, Sr.
appeals from two separate judgment entries issued by the Mahoning County Common
Pleas Court in case number 95CR819. In that case number he pled guilty to rape,
attempted aggravated murder, kidnapping and aggravated burglary. In case number
10MA131, Staffrey appeals from the trial court’s July 2010 nunc pro tunc entry which
corrected the previous December 1996 judgment of conviction and sentence in that
case. The nunc pro tunc entry was issued because the 1996 judgment entry failed to
include the means of conviction.      Although he has previously appealed his 1996
sentence and conviction, Staffrey now asserts that he is entitled to a new appeal
because the 1996 judgment was not a final appealable order when it did not contain
the manner of conviction. In case number 10MA130, he is appealing the trial court’s
July 2010 denial of his motion to withdraw his guilty plea.
       ¶{2}   Based upon the Ohio Supreme Court’s recent pronouncement in State v.
Lester, ___ Ohio St.3d ___, 2011-Ohio-5204, we find that the July 2010 nunc pro tunc
order is not a new final order from which a new appeal may be taken. The nunc pro
tunc order was merely used to correct a clerical omission. Consequently, for those
reasons, the appeal in case number 10MA131 is dismissed.          As to case number
10MA130, the trial court’s decision denying the motion to withdraw the guilty plea is
affirmed.
                             STATEMENT OF THE CASE
       ¶{3}   On November 22, 1995, Staffrey was indicted by the Mahoning County
Grand Jury for: rape in violation of R.C. 2907.02(A)(2); attempted aggravated murder
in violation of R.C. 2923.02(A) and R.C. 2903.01(A); kidnapping in violation of R.C.
2905.01(A)(4); and aggravated burglary in violation of R.C. 2911.11(A)(3). All counts
were first degree felonies and all counts were accompanied by firearm specifications.
       ¶{4}   On June 27, 1996, Staffrey entered into a plea agreement whereby he
pled guilty to the four counts in the indictment and the state recommended that the
firearm specifications be dismissed. The trial court accepted the guilty plea. He was
sentenced on November 26, 1996. Staffrey received an aggregate sentence of fifteen
to fifty years. 12/11/96 J.E. He was sentenced to ten to twenty five years on each of
the rape, kidnapping and aggravated burglary convictions.           12/11/96 J.E.    Those
sentences were ordered to be served concurrent to each other. 12/11/96 J.E. For the
attempted aggravated murder conviction, he received a five to twenty-five year
sentence that was ordered to be served consecutive to the other sentences. 12/11/96
J.E.
         ¶{5}   Staffrey appealed from his conviction and sentence. We affirmed the
trial court’s decision. State v. Staffrey (June 25, 1999), 7th Dist. No. 96CA246. The
arguments asserted in that appeal concerned sentencing.
         ¶{6}   In June 2009, Staffrey filed a Motion to Withdraw Guilty Plea (Crim.R.
32.1); Motion for Resentencing. The motion argued that Staffrey would not have pled
guilty if he knew he would receive an indefinite sentence and that shock probation or
judicial release was not available to him. The motion also argued that pursuant to
State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, the trial court’s judgment of
conviction did not constitute a final order because it failed to comply with Crim.R.
32(C).
         ¶{7}   Since the trial court did not immediately rule on the motion, Staffrey filed
a petition for a writ of mandamus and procedendo against the trial judge. State ex rel.
Staffrey v. D’Apolito, 188 Ohio App.3d 56, 2010-Ohio-2529. We granted the writ in
part. Id. at ¶27. We held that the trial court’s judgment of conviction was not a final
appealable order because it did not state the means of conviction and thus, it did not
comply with Crim.R. 32 or Baker. Id. at ¶24. Thus, we stated that Staffrey was
entitled to a revised sentencing entry that complies with Crim.R. 32 and Baker. Id. at
¶26. We also ordered the court to rule on the motion to withdraw the guilty plea. Id. at
¶27.
         ¶{8}   On July 9, 2010, the trial court reissued the December 11, 1996
sentencing order and included the means of conviction. Thus, the new order complies
with the mandates of Crim.R. 32 and Baker. A few days after the revised sentencing
order, the trial court overruled the motion to withdraw the guilty plea. 07/12/10 J.E.
       ¶{9}   Staffrey appealed the July 9, 2010 and July 12, 2010 orders. Following
oral argument, we held the appeals in abeyance pending the Ohio Supreme Court’s
decision in Lester, supra.
                                        10MA131
                            FIRST, SECOND, THIRD AND
                         FOURTH ASSIGNMENTS OF ERROR
       ¶{10} “APPELLANT’S CONVICTION SHOULD BE REVERSED FOR THE
REASON THAT HE HAD INEFFECTIVE ASSISTANCE OF COUNSEL.”
       ¶{11} “DEFENDANT’S CONVICTION SHOULD BE REVERSED AND IS
UNCONSTITUTIONAL FOR THE REASON THAT THE OHIO ADULT PAROLE
AUTHORITY’S USE OF GUIDELINES THAT DID NOT EXIST AT THE TIME OF
DEFENDANT’S PLEA THEREFORE DEFENDANT’S PLEA WAS NOT ENTERED
KNOWINGLY AND VOLUNTARILY.”
       ¶{12} “THE TRIAL COURT ERRED AND ACTED CONTRARY TO LAW IN
IMPOSING CONSECUTIVE SENTENCES WHERE THE COURT DID NOT FULLY
CONSIDER THE STATUTORY FACTORS UNDER O.R.C. §§2929.14(E)(4) WHICH
RESULTED       IN    A   SENTENCE        THAT     IS:   (A)   UNCONSTITUTIONALLY
DISPROPORTIONATE             TO   THE     HARM      COMMITTED;        AND      (B)   IS
DISPROPORTIONATE OR INCONSISTENT WITH OTHER SENTENCES OF
SIMILAR OFFENDERS WHO COMMITTED SIMILAR OFFENSES.”
       ¶{13} “THE TRIAL COURT ACTED CONTRARY TO LAW AND ABUSED ITS
DISCRETION BY FAILING TO FULLY ADVISE APPELLANT OF THE AVAILABILITY
OF PAROLE, PROBATION AND POST-COMMUNITY CONTROL.”
       ¶{14} Although Staffrey raises multiple assignments of error in case number
10MA131, we need not address the merits of those arguments because the 2010 nunc
pro tunc entry does not provide Staffrey with a second chance to appeal his conviction
and sentence. As previously explained, Staffrey was convicted in 1996, appealed that
conviction and we affirmed that conviction in 1999. Staffrey, 7th Dist. No. 96CA246.
Admittedly, the 1996 judgment entry from the Mahoning County Common Pleas Court
did not contain the manner of conviction; it did not state that he pled guilty. In 2008,
the Ohio Supreme Court issued a decision that provided that Crim.R. 32 requires a
trial court “to sign and journalize a document memorializing the sentence and the
manner of conviction; a guilty plea, a no contest plea upon which the court has made a
finding of guilt, finding of guilt based upon a bench trial, or a guilty verdict resulting
from a jury trial.” Baker, supra, at ¶14. Our court and many other appellate courts
read that line of Baker to mean that a judgment of conviction that does not contain the
manner of conviction is not a final appealable order. Lester, supra, at ¶9.
       ¶{15} The Ohio Supreme Court has recently clarified Baker and explained that
the failure to state the manner of conviction does not affect the judgment’s finality.
       ¶{16} “We further observe that Crim.R. 32(C) clearly specifies the substantive
requirements that must be included within a judgment entry of conviction to make it
final for purposes of appeal and that the rule states that those requirements ‘shall’ be
included in the judgment entry of conviction. These requirements are the fact of the
conviction, the sentence, the judge's signature, and the entry on the journal by the
clerk. All of these requirements relate to the essence of the act of entering a judgment
of conviction and are a matter of substance, and their inclusion in the judgment entry
of conviction is therefore required. Without these substantive provisions, the judgment
entry of conviction cannot be a final order subject to appeal under R.C. 2505.02. A
judgment entry of conviction that includes the substantive provisions places a
defendant on notice that a final judgment has been entered and the time for the filing
of any appeal has begun. Tripodo, 50 Ohio St.2d at 127; App.R. 4(A).
       ¶{17} “In contrast, when the substantive provisions of Crim.R. 32(C) are
contained in the judgment of conviction, the trial court's omission of how the
defendant's conviction was effected, i.e., the ‘manner of conviction,’ does not prevent
the judgment of conviction from being an order that is final and subject to appeal.
Crim.R. 32(C) does not require a judgment entry of conviction to recite the manner of
conviction as a matter of substance, but it does require the judgment entry of
conviction to recite the manner of conviction as a matter of form. In this regard, the
identification of the particular method by which a defendant was convicted is merely a
matter of orderly procedure rather than of substance. 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 explains how the fact of a conviction
was effected.    Consequently, the finality of a judgment entry of conviction is not
affected by a trial court's failure to include a provision that indicates the manner by
which the conviction was effected, because that language is required by Crim.R. 32(C)
only as a matter of form, provided the entry includes all the substantive provisions of
Crim.R. 32(C).
       ¶{18} “* * *
       ¶{19} “Nevertheless, to the extent that Baker implies, or has been interpreted
to require, that more than the fact of conviction and the substantive provisions of
Crim.R. 32(C) must be set out in the judgment entry of conviction before it becomes a
final order, we modify the holding in Baker. We hold that a judgment of conviction is a
final order subject to appeal under R.C. 2505.02 when the judgment entry sets forth
(1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) the
time stamp indicating the entry upon the journal by the clerk.” Lester, supra, at ¶11-
12, 14.
       ¶{20} The Court went on to explain that while a judgment of conviction that fails
to state the manner of conviction is a final order, a defendant is still entitled to an order
that conforms to Crim.R. 32(C). Id. at ¶15. Meaning even though it is a final order, the
defendant is entitled to an order that contains the manner of conviction.
       ¶{21} Thus, the 1996 judgment of conviction which stated the fact of conviction
was a final appealable order. However, Staffrey, upon his request, was entitled to a
judgment of conviction that stated the manner of conviction. After direction from this
court, the trial court issued a corrected judgment of conviction that stated the manner
of conviction – that is the July 2010 order.
       ¶{22} Despite Staffrey’s insistence to the contrary, he does not have the right
to appeal from the July 2010 order that solely added the manner of conviction. In
Lester, the Court explained that when the sole purpose of the nunc pro tunc entry is to
add the manner of conviction, the entry was merely correcting a clerical mistake. Id. at
¶20. “Thus, the trial court’s addition indicating how appellant’s conviction was effected
affected only the form of the entry and made no substantive changes.” Id. The nunc
pro tunc entry is not a new final order from which a new appeal may be taken. Id.
       ¶{23} Consequently, given the facts, the July 9, 2010 order is not a final order
subject to appeal. Staffrey already exhausted the appellate process concerning his
judgment of conviction; the nunc pro tunc entry does not give him the proverbial
“second bite at the apple”. The appeal is dismissed.
                                       10MA130
                              ASSIGNMENT OF ERROR
       ¶{24} “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED
CONTRARY TO LAW IN: 1. DENYING APPELLANT A HEARING ON HIS PRE-
SENTENCE MOTION TO WITHDRAW GUILTY PLEA WHICH WAS FILED
PURSUANT TO CRIMINAL RULE 32.1; AND, (2) FAILING TO APPLY THE
APPLICABLE BALANCING TEST TO DETERMINE THE MOTION.”
       ¶{25} In arguing their respective positions, both parties contend that the motion
to withdraw a guilty plea must be considered a presentence motion. Their contention
is based upon the Ohio Supreme Court’s decision in Boswell. In that case, the Court
held that a motion to withdraw a guilty plea made by a defendant whose sentence is
void because the sentencing court failed to advise him/her of postrelease control is
considered a presentence motion to withdraw a guilty plea. State v. Boswell, 121 Ohio
St.3d 575, 2009-Ohio-1577, ¶9-10.
       ¶{26} The analysis that the parties use to conclude that the motion is a
presentence motion is flawed. The Boswell line of cases indicate that a sentence can
be void when there is no advisement of postrelease control or an incorrect sentence is
rendered on postrelease control.      The crimes committed in this case occurred in
September 1995.      Postrelease control was enacted as part of Senate Bill 2 and
applies to crimes committed after July 1, 1996. State v. Rush (1998), 83 Ohio St.3d
53, 58; R.C. 2967.28. Thus, the case sub judice does not involve postrelease control
and therefore postrelease control cannot provide a basis for concluding that the
sentence was void.
       ¶{27} Furthermore, the fact that the 1996 judgment of conviction did not
contain the manner of conviction, by itself, also does not provide a basis for finding the
sentence void. In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Court
specifically rejected the argument that the failure to comply with Baker rendered the
sentence void. It explained:
       ¶{28} “Nothing in Baker discusses void or voidable sentences. Rather, the
syllabus speaks only to the requirement that the judgment of conviction set forth ‘the
sentence’ in addition to other necessary aspects of the judgment. The judgment in this
case did set forth the sentence.     The fact that the sentence was illegal does not
deprive the appellate court of jurisdiction to consider and correct the error. In fact,
R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court to modify or vacate any
sentence that is ‘contrary to law.’ Clearly, no such authority could exist if an unlawful
sentence rendered a judgment nonfinal and unappealable.” Id. at ¶39.
       ¶{29} Likewise, it stated that a void judgment is one that has been imposed by
a court that lacks subject matter jurisdiction over the case. Id. at ¶6. There is no basis
to find that the sentence rendered in this case was imposed by a court that lacked
subject matter jurisdiction. Although the 1996 judgment of conviction may not have
contained the manner of conviction, there is no legal support for the argument that
such a deficiency results in a void judgment. In fact, the Ohio Supreme Court has
stated that the technical failure to comply with Crim.R. 32(C) by not including the
manner of conviction is not a violation of a statutorily mandated term and thus, does
not render the judgment a nullity. State ex rel. DeWine v. Burge, 128 Ohio St.3d 236,
2011-Ohio-235, ¶19. See, also, Lester, supra.
       ¶{30} Consequently, as there is no basis to find the 1996 judgment void, the
2009 motion to withdraw the guilty plea must be treated as a post-sentence motion to
withdraw a guilty plea. A post-sentence motion to withdraw a guilty plea can only be
granted to correct a manifest injustice.        Crim.R. 32.1.     “A manifest injustice
comprehends a fundamental flaw in the path of justice so extraordinary that the
defendant could not have sought redress from the resulting prejudice through any form
of application reasonably available to him.” State v. McQueen, 7th Dist. No. 08MA24,
2008-Ohio-6589, at ¶7. Therefore, a post-sentence withdrawal motion is allowable
only in extraordinary cases. State v. Smith (1977), 49 Ohio St.2d 261, 264. We will not
disturb a trial court's decision to deny a motion to withdraw a guilty plea absent an
abuse of discretion.   State v. Xie (1992), 62 Ohio St.3d 521, 526.         An abuse of
discretion is more than error of law or judgment; “it implies that the court's attitude is
unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d
151, 157.    An evidentiary hearing is not warranted on a post-sentence motion to
withdraw a guilty plea if the record indicates that the movant is not entitled to relief and
the movant has failed to submit evidentiary documents sufficient to demonstrate a
manifest injustice. State v. McFarland, 7th Dist. No. 08JE25, 2009-Ohio-4391, ¶22,
citing State v. Bari, 8th Dist. No. 90370, 2008-Ohio-3663, ¶9.
       ¶{31} Rather than attacking the motion on the merits, the state asserts that the
trial court did not have jurisdiction to rule on the motion to withdraw the guilty plea
pursuant to State ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St.2d 94. It is
of the opinion that since the conviction was appealed and affirmed on appeal, the trial
court is divested of jurisdiction to consider the matter any further.
       ¶{32} In Special Prosecutors, the trial court granted a defendant’s motion to
withdraw a guilty plea after a conviction and sentence based on the plea had been
affirmed on appeal. The Ohio Supreme Court granted a writ of prohibition holding that:
       ¶{33} “[T]he trial court’s granting of the motion to withdraw the guilty plea and
the order to proceed with a new trial were inconsistent with the judgment of the Court
of Appeals affirming the trial court’s conviction premised upon the guilty plea. The
judgment of the reviewing court is controlling upon the lower court as to all matter
within the compass of the judgment. Accordingly, we find that the trial court lost its
jurisdiction when the appeal was taken, and, absent a remand, it did not regain
jurisdiction subsequent to the Court of Appeals’ decision.” Id. at 97.
       ¶{34} Recently, the Ohio Supreme Court has further explained the holding in
Special Prosecutors:
       ¶{35} “We did not decide Special Prosecutors based on the law-of-the-case
doctrine. However, that doctrine would not prevent the trial court from considering the
effect of previous decisions on Davis’s newly-discovered-evidence claim. We take this
opportunity to specify that the holding in Special Prosecutors does not bar the trial
court’s jurisdiction over posttrial motions permitted by the Ohio Rules of Criminal
Procedure. These motions provide a safety net for defendants who have reasonable
grounds to challenge their convictions and sentences. The trial court acts as the
gatekeeper for these motions, and, using its discretion, can limit the litigation to viable
claims only. In light of the foregoing, we hold that a trial court retains jurisdiction to
decide a motion for a new trial based on newly discovered evidence when the specific
issue has not been decided upon direct appeal.” State v. Davis, ___ Ohio St.3d ___,
2011-Ohio-5028, ¶37.
       ¶{36} Therefore, merely because the defendant appealed the conviction and
the cause was affirmed on appeal, does not mean that the trial court is necessarily
deprived of jurisdiction over the Crim.R. 32.1 post-sentence motion to withdraw a guilty
plea. That said, the argument in this case is that the motion to withdraw should be
granted because the plea form contained the wrong penalties for attempted
aggravated murder and that counsel was defective when he waived this defect in open
court. Both of these arguments could have been raised in the 1999 appeal, however,
they were not. The only issues raised in the appeal were sentencing issues. Multiple
appellate courts have found that res judicata bars claims raised in a Crim.R. 32.1 post-
trial motion to withdraw guilty plea that were raised or could have been raised in a prior
proceeding. State v. Driskill, 3d Dist. No. 10-08-10, 2009-Ohio-2100, ¶35; State v.
Combs, 11th Dist. No. 2007-P-0075, 2008-Ohio-4158, ¶26; State v. Tracy, 5th Dist.
No. 04-CA-25, 2005-Ohio-1613, ¶14; State v. Young, 4th Dist. No. 03CA782, 2004-
Ohio-2711. Consequently, res judicata bars Staffrey from raising these arguments
now.
       ¶{37} However, assuming arguendo that the arguments could be raised, the
trial court’s decision must still be affirmed.    A review of the motion to withdraw
indicates that the arguments made in the appellate brief are not the same as those
argued to the trial court. While both contain an ineffective assistance of counsel claim,
the arguments supporting that claim are different. The brief asserts that manifest
injustice resulted when Staffrey was told in the plea form that the minimum term for
attempted aggravated murder was four years and then at the sentencing hearing it
was stated that that statement was incorrect and that the minimum term was five
years. As a result, appellant maintains he was not advised of his potential sentence.
However, in the motion, this argument did not appear. The motion discussed parole
guidelines, sex offender classification, and shock parole. Consequently, as the
arguments raised in the brief were not raised to the trial court, we will not consider
them for the first time on appeal. State v. Robinson, 7th Dist. No. 09MO6, 2010-Ohio-
2698, ¶21. This assignment of error has no merit.
                                     CONCLUSION
       ¶{38} In conclusion, case number 10MA131 is dismissed. The Ohio Supreme
Court’s decision in Lester is controlling; the July 2010 nunc pro tunc entry is not a new
final order from which a new appeal may be taken. As to case number 10MA130, the
trial court’s decision denying the motion to withdraw the guilty plea is affirmed.

Waite, P.J., concurs.
DeGenaro, J., concurs.
