[Cite as State v. Rye, 2013-Ohio-1774.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26576
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SCOTT E. RYE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 10 02 0498 (A)
DECISION AND JOURNAL ENTRY
Dated: May 1, 2013
HENSAL, Judge.
{¶1} Defendant-Appellant, Scott Rye, appeals from the trial court’s decision that
denied his motion to alter, amend, or vacate a void judgment. For the reasons set forth below,
this Court affirms.
I.
{¶2} In 2010, Scott Rye pled guilty to one count each of illegal manufacture of drugs,
aggravated possession of drugs, possessing criminal tools and two counts of attempted
endangering of children. He was sentenced to six years in prison pursuant to a plea agreement,
but was permitted to remain free until a restitution hearing. He failed to appear at that hearing,
and was later apprehended. On August 2, 2010, Judge Paul J. Gallagher vacated the previous
sentence, and resentenced him to ten years in prison. The journal entry of the resentencing
hearing was filed on August 20, 2010, and signed by a judge other than Judge Gallagher. Rye
filed a direct appeal of his sentence to this Court on the basis that the new sentence constituted
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double jeopardy. In State v. Rye, 9th Dist. No. 25572, 2011-Ohio-4224, this Court affirmed the
trial court’s sentencing order.
{¶3} Rye subsequently filed a “Motion [to] Alter, Amend, or Vacate a Void Judgment
Pursuant to Rule 11(C), Ohio Rules of Criminal Procedure” in the trial court. He argued that
because the August 20, 2011 journal entry is not signed by the sentencing judge, it does not meet
the requirements set forth in Criminal Rule 32 for a final, appealable order. Rye further argued
that the trial court should vacate his sentence and hold a new hearing as his sentence is
unenforceable and void. The trial court denied Rye’s motion without a hearing.
{¶4} Rye filed a timely appeal of the trial court’s decision, and raises one assignment
of error for review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
REQUESTING THE COURT ALTER, AMEND OR VACATE A VOID
JUDGMENT AS THE TRIAL COURT RETAINS JURISDICTION OVER A
VOID JUDGMENT EVEN AFTER THE APPELLANT’S CONVICTION HAS
BEEN AFFIRMED BY THE APPELLATE COURT.
{¶5} Rye appears to challenge this Court’s jurisdiction over his direct appeal by
arguing that the August 20, 2010 sentencing entry is not a final, appealable order as defined by
Criminal Rule 32(C). He argues that this Court should reverse his sentence, and remand the
matter back to the trial court with an order to issue a sentencing entry that is in compliance with
Rule 32(C).
{¶6} To the extent that Rye’s motion could be construed as a motion for post-
conviction relief pursuant to Revised Code Section 2953.21, this Court reviews the trial court’s
decision for an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58.
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An abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An appellate court
may not substitute its judgment for that of the trial court when reviewing a matter pursuant to
this standard. Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990).
{¶7} This Court notes that Rye’s motion was not filed within the statutory time frame
of 180 days after the date on which the trial transcript was filed in the court of appeals in his
direct appeal. In Rye’s direct appeal, the record was filed on October 13, 2010, and
supplemented on November 5, 2010. He did not file his motion to alter, amend or vacate his
sentence until June 27, 2012, and has not alleged any facts to establish that his motion falls under
one of the exceptions set forth in Revised Code Section 2953.23 to the 180 day time limit. To
the extent that Rye’s claim may be construed as a post-conviction relief motion, it is untimely,
and, therefore, this Court finds that the trial court did not abuse its discretion in denying the
motion.
{¶8} Rye argues that the sentencing order does not comply with Criminal Rule 32(C),
thus, suggesting his prior appeal was a nullity. Because the validity of Rye’s sentencing order
presents a question of law, this Court applies a de novo standard of review. State v. Abuhilwa,
9th Dist. No. 26183, 2012-Ohio-3441, ¶ 5. Criminal Rule 32(C) provides in pertinent part that
“[a] judgment of conviction shall set forth the plea, the verdict, or findings, upon which each
conviction is based, and the sentence. * * * The judge shall sign the judgment and the clerk shall
enter it on the journal.” The Ohio Supreme Court held in State v. Lester, 130 Ohio St.3d 303,
2011-Ohio-5204, ¶ 11 that in order to qualify as a final, appealable order, the judgment of
conviction must contain these substantive provisions.
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{¶9} On its face, the August 20, 2010 sentencing entry meets all the requirements of
Criminal Rule 32(C), including a judge’s signature, and is a final, appealable order. Rye
maintains that the signature is not that of Judge Paul J. Gallagher, who sentenced him. Without
advancing any additional evidence, he argues the signature is that of a magistrate. While the
signature on the sentencing entry does not appear to be Judge Gallagher’s, it does purport to be
that of a judge signing for Judge Gallagher as it contains a signature (which is illegible) with the
number “4” prior to Judge Gallagher’s name.
{¶10} In an analogous case, this Court previously found that when the “[sentencing
judge] had already imposed sentence, and the * * * entry reflects both [the] sentence and [the
judge’s] name, [the judge] signing on the [sentencing judge’s] behalf was a ministerial act”
permitted by Criminal Rule 25(B). State v. Banks, 9th Dist. No. 25279, 2011-Ohio-1039, ¶ 52.
Criminal Rule 25(B) states that, “[i]f for any reason the judge * * * is unable to perform the
duties of the court after a verdict or finding of guilt, another judge * * * may perform those
duties.” It is unclear from the record why Judge Gallagher did not sign the sentencing entry, but
Rye has failed to “contradict[] the presumption of regularity accorded all judicial proceedings.”
Banks at ¶52, quoting State v. Robb, 88 Ohio St.3d 59, 87 (2000). Based on the foregoing, this
Court concludes that the trial court was correct when it denied Rye’s motion to alter, amend or
vacate his sentence as the sentencing entry complied with all Criminal Rule 32(C) requirements.
Accordingly, Rye’s assignment of error is overruled.
III.
{¶11} Rye’s only assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas denying Appellant’s motion to alter, amend or vacate a void judgment is
affirmed.
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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.
JENNIFER HENSAL
FOR THE COURT
BELFANCE, P. J.
CONCURS.
CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶12} I would affirm the trial court’s judgment solely on the basis of res judicata as the
issues Rye raises were apparent on the face of the record and could have been raised on direct
appeal. See State ex rel. Newell v. Gaul, Slip Opinion No. 2013-Ohio-68.
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APPEARANCES:
SCOTT RYE, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.