[Cite as State v. Orr, 2014-Ohio-501.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100166
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MAXIE ORR, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-541628
BEFORE: S. Gallagher, J., Boyle, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: February 13, 2014
FOR APPELLANT
Maxie Orr, Jr., pro se
Inmate #600-040
Grafton Correctional Institution
2500 S. Avon-Beldon Road
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Maxie Orr, Jr., appeals from the order of the Cuyahoga County
Court of Common Pleas that denied his motion to merge illegal firearm specifications.
For the reasons stated herein, we affirm.
{¶2} In January 2011, Orr was convicted of attempted murder, aggravated robbery,
theft, carrying a concealed weapon, discharge of a firearm on or near prohibited premises,
and firearm specifications. He was sentenced to nine years in prison. His convictions
and sentence were affirmed on direct appeal in State v. Orr, 8th Dist. Cuyahoga No.
96377, 2011-Ohio-6269 (“Orr I”).
{¶3} In Orr I, the court addressed an allied offenses of similar import challenge
and ruled as follows:
The trial court did merge the felonious assault conviction into the
attempted murder conviction and also merged the kidnapping conviction
into the aggravated robbery conviction. Therefore, the issue now is
whether the attempted murder and the aggravated robbery convictions, and
their separate firearm specifications, should merge as well. Applying the
merger analysis to the facts, they should not. The record evidence reflects
that the aggravated robbery was completed before defendant shot at [the
victim]. Accordingly, the offenses were not committed with the same
conduct and should not be merged.
Id. at ¶ 38.
{¶4} In June 2013, Orr filed a motion to merge illegal firearm specifications,
claiming that the trial court erred in imposing consecutive sentences on the three-year
firearm specifications in Counts 1 and 2. The trial court denied the motion, finding res
judicata barred the claim.
{¶5} Orr filed this appeal, raising two assignments of error for our review. His
first assignment of error asserts that the case lacks a final order because the trial court’s
entry denying his motion does not include “a time stamp showing journalization by the
clerk of court” as required by Crim.R. 32(C). This argument is misguided. Crim.R.
32(C) pertains to the judgment of conviction. In this case, Orr already filed a direct
appeal from the judgment of conviction, and his convictions and sentence were affirmed
in Orr I. Further, insofar as a judgment of conviction is required to bear a time stamp
showing journalization, we have previously found that a time stamp reflecting the
judgment entry had been received for filing is sufficient to provide notice of
journalization by the clerk and complies with the requirement of Crim.R. 32(C). State v.
Smith, 8th Dist. Cuyahoga No. 99428, 2013-Ohio-3154; see also State v. Caulton, 7th
Dist. Mahoning No. 12 MA 150, 2013-Ohio-2953, ¶ 22 (finding a date stamp showing the
date the judgment entry filed with the clerk for journalization complies with the purpose
of Crim.R. 32(C) by placing the defendant on notice that the 30-day time for filing an
appeal has begun pursuant to App.R. 4(A)).
{¶6} Orr’s motion to merge illegal firearm specifications was effectively an
untimely postconviction motion. Under R.C. 2953.21(A)(2), Orr was required to file a
petition for postconviction relief “no later than one hundred eighty days after the date on
which the trial transcript is filed in the court of appeals in the direct appeal of the
judgment of conviction.” Orr’s first assignment of error is overruled.
{¶7} Orr’s second assignment of error claims the trial court erred in denying his
motion to merge the firearm specifications, which he asserts were part of the same
transaction. However, not only was Orr’s motion untimely, the issue he raises is barred
by res judicata. Orr maintains he did not raise the issue of merging the two firearm
specifications in Orr I. However, our review reflects that merger of the offenses and
their firearm specifications was raised and addressed in Orr I, 8th Dist. Cuyahoga No.
96377, 2011-Ohio-6269, at ¶ 37-38. To the extent Orr argues the issue of merger as it
relates to the two firearm specifications was not raised in his first appeal, we nonetheless
find that the issue is barred by res judicata because it could have been raised, or was not
successfully challenged, on direct appeal in Orr I. Therefore, we overrule the second
assignment of error.
{¶8} Judgment affirmed.
It is ordered that 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR