[Cite as State v. Smith, 2012-Ohio-192.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :            C.A. CASE NO.       24592

v.                                                      :            T.C. NO.     04CR3554

RONALD A. SMITH                              :              (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                  :

                                                        :

                                            ..........

                                            OPINION

                          Rendered on the        20th       day of      January      , 2012.

                                            ..........

TIMOTHY J. COLE, Atty. Reg. No. 0084117, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

RONALD A. SMITH, Atty. Reg. No. #516-443, Lebanon Correctional Institution, P. O. Box
56, Lebanon, Ohio 45036
       Defendant-Appellant

                                            ..........

DONOVAN, J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Ronald A. Smith,

filed April 25, 2011. Smith was convicted by a jury of aggravated robbery and aggravated
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burglary, and he was sentenced in January, 2006, to ten years on each count to be served

consecutively to each other and concurrent to a sentence in another case that was

subsequently reversed.      This Court affirmed Smith’s convictions.          State v. Smith,

Montgomery App. Nos. 21463, 22334, 2008-Ohio-6330.

        {¶ 2} On February 25, 2011, Smith filed “Defendant’s Motion for Final Appealable

Order and Discharge,” arguing that the omission from his January 30, 2008 Termination

Entry of the means of his conviction renders his conviction and sentence void and requires

his immediate discharge from prison.       The trial court overruled Smith’s motion.         In

addition to his brief, we note that Smith filed, on September 28, 2011, a Motion for

Summary Judgment, which this Court overruled on October 25, 2011. Therein, Smith

repeated the argument made in his motion for a final appealable order, and this Court

determined as follows: “The Supreme Court of Ohio has held 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, so it does not render the [judgment of conviction] a

nullity.’   (Emphasis sic).     State ex rel. DeWine v. Burge, 128 Ohio St.3d 236,

2011-Ohio-235, at ¶ 19. This type of omission is clerical in nature, and the trial court is

permitted to correct it through a nunc pro tunc entry. Id. at ¶ 18. Moreover, the [S]upreme

[C]ourt has recently held that the finality of a judgment entry of conviction is not affected by

a trial court’s failure to include the manner of conviction. State v. Lester, Slip Opinion No.

2011-Ohio-5204, at ¶ 12. However, a defendant is entitled to an order that conforms to

Crim.R. 32(C). Id. at ¶ 15.” This court further noted that the trial court issued a nunc pro

tunc judgment entry on October 21, 2011 that complies with Crim.R. 32(C) by stating that a
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jury found Smith guilty of the convicted offenses. Finally, this Court ordered Smith to show

cause within 20 days from the journalization of that order why the above captioned appeal

should not be dismissed. Smith did not respond as ordered.

       {¶ 3} In his brief, without setting forth specific assigned errors, Smith again argues

that his sentence is void and that he is entitled to immediate discharge due to the defect in

his original termination entry.    For the reasons set forth in our Decision and Entry

overruling his motion for summary judgment, Smith’s argument lacks merit and is

overruled. The judgment of the trial court is affirmed.

                                        ..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Timothy J. Cole
Ronald A. Smith
Hon. Dennis J. Langer
