State v. Viceroy

[Cite as State v. Viceroy, 2012-Ohio-2494.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 97031

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

PETER VICEROY
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-315048

BEFORE: E. Gallagher, J., Stewart, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: June 7, 2012
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, Ohio 44119

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

{¶1} Peter Viceroy appeals from the journal entry of the trial court, modifying

his sentence in conjunction with a writ of procedendo granted by this court of appeals.

On appeal, Viceroy argues that his trial counsel rendered ineffective assistance, that the

trial court violated Crim.R. 32 by failing to allow him to be present and speak at the

modification of his sentence, and that the cumulative errors deprived him of his right to

due process. Finding no merit to the instant appeal, we affirm the judgment of the trial

court.

{¶2} On October 11, 1994, the Cuyahoga County Grand Jury indicted Viceroy

on one count of felonious assault with a three-year firearm specification and a violence

specification. On March 22, 1995, a jury found Viceroy guilty of felonious assault and

the firearm specification; it was not clear how or whether the judge or jury rendered a

verdict on the violence specification.1 The trial court sentenced Viceroy to three years

on the firearm specification and three to 15 years for felonious assault. The sentencing

entry read in pertinent part as follows:

Now comes the jury * * * and returned the following verdict in writing.
To wit: “We, the jury being duly impaneled and sworn, find the defendant,
Peter Viceroy, guilty of felonious assault, R. C. 2903.11 with violent

It is of concern to this court that the verdict forms were not made part of the
1

record by the trial court and the jury was not polled as to its verdict.
 specifications as charged in the indictment.” * * * It is ordered by the
court that defendant, Peter Viceroy, is sentenced to the Lorain Correctional
Institution for a term of three (3) years (mandatory) on the firearm
specification after sentence of three (3) years to (15) years on the
“felonious assault” charge, to run consecutive.

{¶3} This court affirmed Viceroy’s conviction. See State v. Viceroy, 8th Dist.

No. 68890, 1996 WL 239870 (May 9, 1996).

{¶4} In 2010, Viceroy filed an original action in procedendo in this court to

compel the trial court to issue a final order in Case No. CR-315048. This court noted

that Viceroy’s sentencing entry had at least two fatal defects: “The jury did not return a

verdict on the violence specification, and the entry did not state that the jury found

Viceroy guilty of the firearm specification. Without a proper resolution of these

specifications, there is no final appealable order.” State ex rel. Viceroy v.

Strickland-Saffold, 8th Dist. No. 95623, 2011-Ohio-5563.

{¶5} Based on these errors, the court granted the writ and stated:

Accordingly, this court grants the writ of procedendo and orders the
respondents to issue a final, appealable order in the underlying case which
complies with Crim.R. 32(C) and which corrects the various defects and
errors in the original sentencing journal entry, including a clear statement
that the jury found Peter Viceroy guilty of the firearm specification and a
resolution of the violence specification, which could be a dismissal or a
nolle. Id. at ¶ 7.

{¶6} In conjunction with this court’s order, the trial court issued a new

sentencing entry, which stated, in part:

On a former day a jury found defendant Peter Viceroy guilty of felonious
 assault in violation of R.C. 2903.11 with a firearm specification

(specification one) as charged in the indictment. The violence

specification (specification two) has been dismissed. Defendant Peter

Viceroy is sentenced * * * for a term of (3) three years (mandatory) on the

firearm specification to be served prior to and consective [sic] with the

sentence of (3) years to (15) fifteen years on the felonious assault charge.

Case No. CR-315048, December 7, 2010 Entry.

{¶7} Thereafter, Viceroy brought a second procedendo action, contending that

the resentencing entry was not a final appealable order. He requested the court to

compel the trial court to issue a final order. This court denied Viceroy’s writ, finding

that he did not have a clear legal right to proceed in the underlying case to require the

trial court to issue a new sentencing entry, and that Viceroy had an adequate remedy in

the ordinary course of the law by way of appeal. See State ex rel. Viceroy v.

Strickland-Saffold, 8th Dist. No. 96594, 2011-Ohio-3077.

{¶8} Viceroy’s delayed appeal followed.

{¶9} In his first assignment of error, Viceroy argues that his trial counsel

rendered ineffective assistance. Specifically, Viceroy argues that counsel was

ineffective for failing to object to the victim’s testimony and in failing to challenge the

operability of the firearm. Viceroy’s arguments lack merit.

{¶10} Crim.R. 32(C) provides that a “judgment of conviction shall set forth the
plea, the verdict, or findings upon which each conviction is based, and the sentence.” In

State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, the Ohio Supreme

Court expounded on the language of Crim.R. 32(C) and set forth the elements required

for a judgment of conviction to constitute a final appealable order. Id. at ¶ 18. The

court concluded that a judgment of conviction “must include the sentence and the means

of conviction, whether by plea, verdict, or finding by the court, to be a final appealable

order under R.C. 2505.02.” Id. at ¶ 19. “The Ohio Supreme Court’s decision created

confusion and spawned numerous appeals.” State v. Bonnell, 8th Dist. No. 96368,

2011-Ohio-5837.

{¶11} In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,

¶ 9, the Ohio Supreme Court recognized that its decision in Baker “created confusion

and generated litigation regarding whether a trial court’s inadvertent omission of a

defendant’s ‘manner of conviction’ affects the finality of a judgment entry of

conviction.” The court found that

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). Id. at ¶ 12.

Nevertheless, the court held that when the manner of conviction is not included, the

defendant remains entitled to a correction to the judgment. Id. at ¶ 16. As to the

substantive requirements of Crim.R. 32(C), the court held as follows:
 [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. Id. at ¶ 14.

{¶12} In the present case, this court, in granting Viceroy’s writ of procedendo,

found that “despite the passage of time and appellate review, a defendant is still entitled

to a sentencing entry that complies with Crim.R. 32(C).” Viceroy, at ¶ 6. This court

granted the writ and remanded the matter to the trial court to issue a final appealable

order that complied with Crim.R. 32(C) and that corrected the various defects and errors

in the original sentencing journal entry. The trial court complied with this order and on

December 7, 2010, issued a corrected resentencing journal entry. On appeal, Viceroy

now claims that the journal entry invokes this court’s jurisdiction to appeal his judgment

of conviction for a second time. We are not persuaded by this argument.

{¶13} The Ohio Supreme Court has found that the technical failure to conform

to Crim.R. 32(C) does not render the judgment a nullity. State ex rel. DeWine v. Burge,

128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535; Bonnell. In State ex rel. DeWine,

the court held that the remedy for correcting a sentencing entry that does not comply with

Crim.R. 32(C) is to issue a corrected sentencing entry.

{¶14} In a similar case, this court held that the remedy for the trial court’s failure

to include an aggravated burglary conviction and sentence in a journal entry was to issue

a nunc pro tunc entry that included the fact and manner of conviction on that charge.

See Bonnell. This court rejected Bonnell’s argument that he was entitled to a new, final
appealable order to appeal from his judgment of conviction. Rather, relying on Lester,

the Court found that Bonnell had been given a full opportunity to litigate all the issues

relating to his conviction and sentence. Id. This court further stated:

Additionally, Ohio appellate courts have found that where a trial court
issues a corrected judgment entry to comply with Crim.R. 32(C), a
defendant who has already had the benefit of a direct appeal cannot raise
any and all claims of error in successive appeals. State v. Triplett, 4th
Dist. No. L-10-1158, 2011-Ohio-1713; State v. Avery, 3d Dist. No.
14-10-35, 2011-Ohio-4182, ¶ 14; State v. Harris, Richland App. No.
10-CA-49, 2011-Ohio-1626, ¶ 30. In such circumstances, res judicata
remains applicable and the defendant is not entitled to a “second bite at the
apple.” Avery, at ¶ 14. Aptly stated, “[n]either the Constitution nor
common sense commands anything more.” [State v.] Fischer, 128 Ohio
St.3d 92, [2010-Ohio-6238, 942 N.E.2d 332] at ¶ 26. As argued by the
state herein, to hold otherwise would open the floodgates and “enable
validly convicted and sentenced prisoners throughout the state to
circumvent res judicata by arguing, after all direct and collateral appeals
are exhausted, that their sentencing documents are improperly worded[.]”

{¶15} Based on the above, we conclude that the trial court properly remedied the

errors in Viceroy’s original sentencing journal entry on December 7, 2010. As no new

or substantive rights were affected under R.C. 2505.02(A)(1) by the correction and

Viceroy had already exhausted the appellate process, the corrected judgment entry is not

a new final order from which a new appeal may be taken. Thus, we overrule Viceroy’s

first assignment of error.

{¶16} In his second assignment of error, Viceroy argues the trial court violated

his rights under Crim.R. 32 by failing to allow him to be present with counsel and to

speak in mitigation of sentence. We disagree.
 {¶17} Primarily, as noted by this court in Viceroy, 8th Dist. No. 96594,

2011-Ohio-3077, the trial court was not instructed to hold a hearing but to issue a final

appealable order. Further, as stated in our analysis of Viceroy’s first assignment of

error, those corrections did not affect Viceroy’s sentence or any other substantive right.

Additionally, in State v. Walker, 8th Dist. No. 96486, 2012-Ohio-697, this court, citing

the Ohio Supreme Court decision in State ex rel. DeWine, held that “[c]onsistent with the

treatment of Crim.R. 32(C) errors as clerical mistakes that can be remedied by a nunc pro

tunc entry, we have expressly held that ‘the remedy for a failure to comply with Crim.R.

32(C) is a revised sentencing entry rather than a new hearing.’”

{¶18} Thus, the trial court did not err when it corrected Viceroy’s sentencing

entry without holding a hearing.

{¶19} Viceroy’s second assignment of error is overruled.

{¶20} In his third and final assignment of error, Viceroy argues that the

cumulative errors deprived him of his right to due process. This assignment of error

lacks merit.

{¶21} It is true that separately harmless errors may violate a defendant’s
right to a fair trial when the errors are considered together. In order to
find ‘cumulative error’ present, we first must find that multiple errors
were committed at trial. We then must find a reasonable probability that
the outcome of the trial would have been different but for the combination
of the separately harmless errors. State v. Clark, 8th Dist. No. 89371,
2008-Ohio-1404, 2008 WL 803034, ¶ 62, quoting State v. Djuric, 8th
Dist. No. 87745, 2007-Ohio-413.

{¶22} In the present case, Viceroy argues that the multiple errors raised in his
previously discussed assignments of error form the basis of his cumulative-errors

argument. Based on our discussion in the previous assigned errors, we found no error

with which the trial court corrected Viceroy’s original sentencing entry. Consequently,

having found no errors regarding appellant’s pivotal complaints in this case, we find that

the doctrine of cumulative errors is inapplicable.

{¶23} Viceroy’s third and final assignment of error is overruled.

{¶24} The judgment of the trial court is 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 be sent to said lower 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.

EILEEN A. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
 Appendix

Assignments of Error:

“I. Trial counsel was ineffective under the Sixth and Fourteenth Amendments of
the federal Constitution.

II. The trial court denied the appellant his rights under Crim.R. 32 by failing to
allow him to be present, with counsel and to speak in mitigation of sentence.

III. The cumulative errors denied the appellant Due Process under the Fourteenth
Amendment.”