[Cite as State v. McIntyre, 2012-Ohio-2480.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.    26195

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LEWIS LEROY MCINTYRE                                  COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 09 03 0647

                                 DECISION AND JOURNAL ENTRY

Dated: June 6, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Appellant, Lewis Leroy McIntyre, appeals from a judgment of the Summit

County Court of Common Pleas, which denied his request to correct a clerical error and to

conduct a resentencing hearing. This Court affirms.

                                                I

        {¶2}     McIntyre was convicted in July 2009 of tampering with evidence, tampering with

records, petty theft, and obstructing justice. McIntyre appealed. His convictions were affirmed

in part and reversed in part. State v. McIntyre, 9th Dist. Nos. 24934 & 24945, 2010-Ohio-2569.

Subsequently, McIntyre filed an App.R. 26(B) application to reopen his appeal claiming

ineffective assistance of appellate counsel, which was granted. After the appeal was reopened,

McIntyre filed a motion in the trial court to correct a clerical error and to conduct a new

sentencing hearing. The trial court denied his motion, finding that it lacked jurisdiction to
                                                2


consider McIntyre’s motion because an appeal was pending. McIntyre now appeals that decision

and raises one assignment of error for our review.

                                                II

                                      Assignment of Error

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
       LEWIS LEROY MCINTYRE, JR BY VIOLATING AND DEPRIVING HIM OF
       BOTH HIS DUE PROCESS RIGHTS THUS GURANTEED (sic) TO HIM BY
       THE FOURTEENTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO
       CONSTITUTION. WHEN THE TRIAL COURT FAILED TO GRANT
       APPELLANT MCINTYRE’S CRIMINAL RULE 36(A) MOTION TO
       CORRECT CLERICAL ERROR AND CONDUCT A DE NOVO
       RESENTENCING HEARING AS THOUGH SENTENCING HAD NEVER
       PREVIOUSLY OCCURRED. BASED UPON THE FACT THAT THE TRIAL
       COURT DURING TRIAL HAD GRANTED APPELLANT MCINTYRE’S
       CRIMINAL RULE 29 MOTION FOR ACQUITTAL AS TO THE OFFENSE
       TO-WIT [OBSTRUCTING JUSTICE AND ITS UNDERLYING OFFENSE,
       PASSING BAD CHECKS-F5], BUT THE TRIAL COURT FAILED TO
       JOURNALIZE SUCH AND MISTAKENLY SENTENCED THE APPELLANT
       MCINTYRE TO A PRISON TERM OF ONE YEAR FOR [OBSTRUCTING
       JUSTICE AND ITS UNDERLYING OFFENSE, PASSING BAD CHECKS-F5]
       TO WHICH THE TRIAL COURT HAD PREVIOUSLY ACQUITTED
       APPELLANT MCINTYRE OF SAID OFFENSE. (Sic.)

       {¶3}    In his sole assignment of error, McIntyre argues that the trial court erred when it

denied his motion to correct a clerical error in the judgment and to conduct a new sentencing

hearing. The trial court held that it lacked jurisdiction to consider McIntyre’s motion because of

a pending appeal.

       {¶4}    When an appeal is pending, a trial court is without authority to take any action

except to aid in the appeal. See State ex rel. Special Prosecutors v. Judges, Court of Common

Pleas, 55 Ohio St.2d 94, 97 (1978). A trial court does retain jurisdiction over “collateral issues

like contempt, appointment of a receiver and injunction.” Id.
                                                 3


        {¶5}    At the time McIntyre filed his motion, this Court had granted his application to

reopen his appeal. While his appeal was pending, the trial court did not have jurisdiction to

modify his sentencing entry because this is not a collateral issue. McIntyre’s assignment of

error, therefore, is overruled.


                                                III

        {¶6}    McIntyre’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.


                                                                               Judgment affirmed.




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

        Costs taxed to Appellant.


                                                      BETH WHITMORE
                                                      FOR THE COURT
                                        4




MOORE, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

LEWIS LEROY MCINTYRE, JR., pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
