[Cite as State v. Walter, 2017-Ohio-466.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104443




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                TERRANCE J. WALTER
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-06-485250-A

        BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: February 9, 2017
                               -i-
ATTORNEY FOR APPELLANT

Terrance J. Walter, pro se
Inmate No. A531346
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Brett Hammond
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Terrance J. Walter (“Walter”), appeals his sentence and

convictions, and asks this court to grant him a new sentencing hearing and new trial.

We affirm.

I.     Facts

       {¶2} In 2006, Walter was convicted of one count of aggravated murder, a

first-degree felony, in violation of R.C. 2903.01(A); two counts of aggravated burglary, a

first-degree felony, in violation of R.C. 2911.11(A)(1) and (2); and one count of felonious

assault, a first-degree felony, in violation of R.C. 2903.11(A)(1). Firearm specifications

were charged on all counts.      At sentencing, the trial court imposed a prison term of 34

years to life.

       {¶3} Walter appealed his convictions in State v. Walter, 8th Dist. Cuyahoga No.

90196, 2008-Ohio-3457 (“Walter I”).             This court affirmed his convictions for

aggravated murder and felonious assault, but reversed his convictions for aggravated

burglary.    The trial court entered an order stating that pursuant to this court’s decision in

Walter I, Walter’s aggravated burglary convictions and sentence on those counts were

vacated.

       {¶4} In 2016, Walter filed a motion to issue a final appealable order.       He argued

that the trial court was required to state his final sentence in one journal entry instead of
two. On April 15, 2016, the trial court granted Walter’s motion, and issued an order that

complied with his request.   The trial court issued a nunc pro tunc entry that corrected the

2009 journal entry and vacated Walter’s aggravated burglary convictions.              Walter

appeals the trial court’s order from April 2016 that granted his motion. Walter assigns

two errors for our review:

      I.     Appellant was denied due process of law in violation of the
             Fourteenth Amendment to the United States Constitution when the
             trial court issued a nunc pro tunc entry after the appellate court
             significantly altered the judgment of conviction.

      II.    Appellant is entitled to a new trial under the due process protections
             afforded by the Fourteenth Amendment as a result of the prejudicial
             spillover of evidence admitted in support of Counts 2 and 3.

II.   Sentencing Correction

      A.     Standard of Review

      {¶5} As it relates to nunc pro tunc entries:

      Courts possess inherent authority to correct errors in judgment entries in
      order for the record to speak the truth. State ex rel. Fogle v. Steiner, 74
      Ohio St.3d 158, 163-164, 656 N.E.2d 1288 (1995). Thus, the purpose of
      a nunc pro tunc entry is to make the record reflect the truth. Reinbolt v.
      Reinbolt, 112 Ohio St. 526, 532, 147 N.E. 808 (1925). The function of a
      nunc pro tunc entry is not to correct or modify an existing judgment, but
      rather to make the record conform to that which has already occurred.
      State ex rel. Phillips v. Indus. Comm. of Ohio, 116 Ohio St. 261, 264, 155
      N.E. 798 (1927). Therefore, “nunc pro tunc entries are limited in proper
      use to reflecting what the court actually decided, not what the court might
      or should have decided or what the court intended to decide.” Fogle, 74
      Ohio St.3d at 163-164. See also Ferraro v. B.F. Goodrich Co., 149 Ohio
      App.3d 301, 777 N.E.2d 282, ¶ 9 (9th Dist.2002). Moreover, a nunc pro
      tunc entry is inappropriate when it reflects a substantive change in the
      judgment. Id., quoting State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d
      97, 100, 671 N.E.2d 236 (1996). When a court exceeds its power in entering
      a nunc pro tunc order, the resulting nunc pro tunc order is invalid.
       National Life Ins. Co. v. Kohn, 133 Ohio St. 111, 113-114, 11 N.E.2d 1020
       (1937).

State v. Senz, 9th Dist. Wayne No. 02CA0016, 2002-Ohio-6464, ¶ 12.

       B.     Law and Analysis

       {¶6} In Walter’s first assignment of error, he argues that he was denied due

process of law in violation of the Fourteenth Amendment to the United States

Constitution when the trial court issued a nunc pro tunc entry after the appellate court

significantly altered the judgment of conviction. Specifically, Walter contends that he

was entitled to a de novo resentencing when his aggravated burglary convictions were

vacated.    We disagree.      This court’s decision in Walter I vacated two of his

convictions, and affirmed the sentences on Walter’s remaining convictions.             The trial

court then properly prepared a nunc pro tunc entry to reflect this court’s decision.

III.   Res Judicata

       A.     Law and Analysis

       {¶7} In Walter’s second assignment of error, he contends that he is entitled to a

new trial on the aggravated murder and felonious assault counts under the due process

protections afforded by the Fourteenth Amendment as a result of the prejudicial spillover

of evidence admitted in support of Counts 2 and 3.

       Under the doctrine of res judicata, a valid, final judgment rendered upon the
       merits bars all subsequent actions based upon any claim arising out of the
       same transaction or occurrence that was the subject matter of a previous
       action. The Ohio Supreme Court has identified four elements necessary to
       bar a claim under the doctrine of res judicata: (1) there is a final, valid
       decision on the merits by a court of competent jurisdiction; (2) the second
       action involves the same parties or their privies as the first; (3) the second
       action raises claims that were or could have been litigated in the first action;
       and (4) the second action arises out of the transaction or occurrence that
       was the subject matter of the previous action.

State v. Shearer, 8th Dist. Cuyahoga No. 103848, 2016-Ohio-7302, ¶ 5, quoting Lenard v.

Miller, 8th Dist. Cuyahoga No. 99460, 2013-Ohio-4703, ¶ 27.

       {¶8} Walter is barred from bringing this claim because he could have raised this

issue in his 2008 appeal.

       Under the doctrine of res judicata, a final judgment of conviction bars a
       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 which
       resulted in that judgment of conviction or on an appeal from that judgment.

State v. Santiago, 8th Dist. Cuyahoga No. 95564, 2011-Ohio-3059, ¶ 14.

       {¶9} This court rendered a final, valid decision in Walter I on these issues.

Walter’s assignments of error could have been litigated in the 2008 action because it

concerns the same subject matter.         In that appeal, Walter argued that there was

insufficient evidence to convict him of aggravated burglary.            Walter I, 8th Dist.

Cuyahoga No. 90196, 2008-Ohio-3457, ¶ 47-48.         Walter argued that because the garage

was open when he shot and killed the victim, he did not trespass in the garage.      Because

trespass is an element of aggravated burglary, Walter contends that the evidence was

insufficient to convict him of aggravated burglary.      This court agreed and vacated his

convictions for aggravated burglary.

       {¶10} In this same appeal, Walter could have argued that the evidence was

insufficient to convict him of aggravated murder or felonious assault.           He did not.
Therefore, Walter’s claims are barred by res judicata.   The second assignment of error is

overruled.

       {¶11} Judgment is affirmed.

       It is ordered that the 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.



____________________________________________
ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
