[Cite as State v. Wolfe, 2023-Ohio-4001.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29857
:
v. : Trial Court Case No. 1993 CR 00556
:
JAVALEN L. WOLFE : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on November 3, 2023
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JAVALEN L. WOLFE, Pro Se Appellant
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
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HUFFMAN, J.
{¶ 1} Defendant-Appellant Javalen L. Wolfe appeals from the trial court’s order
overruling his motion for resentencing and motion to enter a dilatory plea. For the reasons
outlined below, we affirm the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} In October 1993, Wolfe was indicted on one count of aggravated murder, one
count of aggravated robbery, and two firearm specifications. The charges against Wolfe
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stemmed from the February 7, 1993, shooting death of Todd Grills. Wolfe pled not guilty
to the charges, and the matter proceeded to a jury trial. Wolfe’s first trial ended in a hung
jury, but his second trial resulted in his conviction on a lesser-included offense of murder
with a firearm specification. The aggravated robbery charge against Wolfe was
dismissed at the request of the State by an entry of nolle prosequi. The trial court
sentenced Wolfe to a prison term of 15 years to life for murder to be served consecutively
to a three-year prison term for the firearm specification. We affirmed Wolfe’s conviction
on direct appeal in State v. Wolfe, 2d Dist. Montgomery No. 14420, 1995 WL 140717
(Mar. 29, 1995) (“Wolfe I”).
{¶ 3} Since then, this case has had a complicated procedural history. In 2014,
Wolfe filed a “motion to re-hear and correct termination entry,” arguing that his original
judgment entry was defective. The trial court overruled Wolfe’s motion. On appeal, we
reversed and remanded the matter to the trial court, finding that the trial court should have
corrected the judgment entry to reflect that Wolfe had been convicted after a jury trial, by
including the amount of court costs awarded, by including reference to the statutory
numerical section corresponding to Wolfe’s murder conviction, and by including a jail-time
credit of 284 days. State v. Wolfe, 2d Dist. Montgomery No. 26313, 2015-Ohio-1585, ¶ 1
(“Wolfe II”). We also concluded that the judgment entry should have been corrected to
reflect that the count of aggravated robbery had been dismissed by nolle prosequi. Id. at
¶ 9. In so stating, we explained that the judgment on the aggravated robbery charge in
Wolfe’s case became final when the nolle prosequi on the charge was entered on January
31, 1994, and, thus, because only one document can constitute a final appealable order,
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the trial court should have corrected its judgment entry to include a reference to the nolled
aggravated robbery charge. Id.
{¶ 4} While Wolfe II was pending, Wolfe filed a motion to a correct clerical mistake,
arguing that there was no final appealable order with respect to his conviction because
the trial court had failed to journalize the jury’s verdict on the aggravated murder and
aggravated robbery charges. Wolfe also implied that it had been inappropriate for the trial
court to permit the jury to consider the lesser-included offense of murder as opposed to
dismissing or retrying the charges. On April 14, 2015, the trial court overruled the motion,
and, on May 21, 2015, it entered a nunc pro tunc judgment entry that made the corrections
ordered by this court in Wolfe II. In the nunc pro tunc judgment entry, the trial court stated:
“INDICTED CHARGE COUNT 2: AGGRAVATED ROBBERY, 2911.01(A)(1)
(Aggravated Felony 1) DISMISSED BY NOLLE PROSEQUI[.]”
{¶ 5} On September 22, 2015, Wolfe filed a motion to record the verdict, arguing
that the verdict had not been properly journalized, that the trial court had improperly
journalized an acquittal for aggravated murder, that the trial court had erred in permitting
the jury to consider the lesser-included offense of murder, and that the evidence adduced
at trial had not supported his murder conviction. The trial court also overruled that motion.
{¶ 6} Wolfe appealed from those judgments, and we consolidated Wolfe’s appeals,
overruling all of his assignments of error and affirming the judgments of the trial
court. State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, 26983, 2016-Ohio-4897,
¶ 25 (“Wolfe III”). In Wolfe III, we specifically concluded that, because the aggravated
robbery charge had been dismissed nolle prosequi during the lower court proceedings
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and that fact was later properly reflected in the nunc pro tunc entry, Wolfe’s argument
concerning the aggravated robbery charge lacked merit. Id. at ¶ 21. We also concluded
that Wolfe’s claims that the trial court erred in permitting the jury to consider the lesser-
included offense of murder and that the evidence adduced at trial did not support his
murder conviction were barred by res judicata. Id. at ¶ 23.
{¶ 7} In August 2017, Wolfe filed a motion to dismiss on double jeopardy grounds,
arguing that, after his initial indictment for aggravated murder was dismissed, he was
never reindicted but was convicted for the same murder and that the trial court did not
have jurisdiction to convict him on the lesser-included offense of murder. The trial court
overruled Wolfe’s motion on September 26, 2017, finding that his arguments were barred
by res judicata. Wolfe appealed from that decision, and we affirmed, again concluding
that Wolfe’s double jeopardy and lack of jurisdiction arguments were barred by res
judicata. State v. Wolfe, 2d Dist. Montgomery No. 27785, 2018-Ohio-1952, ¶ 10 (“Wolfe
IV”).
{¶ 8} In April 2021, Wolfe filed a motion to order the prosecution to retry or dismiss
the indicted aggravated murder and aggravated robbery charges against him pursuant to
Crim.R. 52(B). Wolfe again argued that the State had been required to retry him on the
aggravated murder and aggravated robbery charges or dismiss the charges because the
jury had not been able to find him guilty of aggravated murder. Wolfe also insisted that
there was no final appealable order, even though the jury had found him guilty of murder
and even though the aggravated robbery charge had been dismissed. The trial court
again found that res judicata applied and overruled Wolfe’s motion. Wolfe appealed. We
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affirmed, reiterating that Wolfe's conviction for murder was an implicit acquittal on the
aggravated murder charge and that there was no need to either dismiss the aggravated
murder charge or retry it, because it had already been resolved. State v. Wolfe, 2d Dist.
Montgomery No. 29189, 2022-Ohio-215, ¶ 16 (“Wolfe V”). We also concluded that Wolfe
had had many opportunities to be heard and that the claims in Wolfe's motion were barred
by res judicata. Id. at ¶ 24.
{¶ 9} Most recently, Wolfe filed a motion for resentencing in August 2022 and a
motion to enter a dilatory plea in April 2023. According to Wolfe, a resentencing hearing
was necessary because the nolle prosequi entry on the aggravated robbery charge was
not valid and he should be permitted to enter a “dilatory plea” to a charge of involuntary
manslaughter and be sentenced to time served. In June 2023, the trial court consolidated
and overruled Wolfe’s motions, finding that all the issues raised in the motions had
previously been considered, ruled upon by the trial court, and reviewed by us. The trial
court also noted that Wolfe had failed to present any new evidence that would have
altered the court’s previous rulings.
{¶ 10} Wolfe appeals.
II. Assignments of Error
{¶ 11} Wolfe asserts the following three assignments of error:
NOLLE PROSEQUI VOID AB INITIO.
STATE DID NOT HAVE JURISDICTION OVER THE SUBJECT
MATTER.
PROSECUTION DID NOT HAVE JURISDICTION TO ENTER
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NOLLE PROSEQUI.
{¶ 12} The crux of Wolfe’s argument is that the previous filing of the nolle prosequi,
dismissing the aggravated robbery count in his indictment, was not valid. Wolfe cites
numerous reasons for this alleged invalidity, including that he was not present when the
nolle prosequi was entered, that he was not afforded an opportunity to object to the nolle
prosequi, that the State did not have good cause to nolle the aggravated robbery count,
and that the State lacked jurisdiction to enter the nolle prosequi. Because of this purported
invalidity, Wolfe contends that a final appealable order has never been entered in this
case. We disagree.
{¶ 13} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment.” Wolfe V, 2d
Dist. Montgomery No. 29189, 2022-Ohio-215, ¶ 23, quoting State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. “Thus, the doctrine serves
to preclude a defendant who has had his day in court from seeking a second on that same
issue. In so doing, res judicata promotes the principles of finality and judicial economy by
preventing endless relitigation of an issue on which a defendant has already received a
full and fair opportunity to be heard.” Id., quoting State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, ¶ 18, citing State ex rel. Willys-Overland Co. v. Clark,
112 Ohio St. 263, 268, 147 N.E. 33 (1925).
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{¶ 14} As set forth above, in Wolfe II, 2d Dist. Montgomery No. 26313, 2015-Ohio-
1585, we explained that the judgment entry in this case should be corrected to reflect that
Wolfe’s aggravated robbery charge was dismissed by nolle prosequi. Id. at ¶ 9, We
explained that the judgment in Wolfe’s case on the aggravated robbery charge became
final when the nolle prosequi on the charge was entered on January 31, 1994, and, thus,
because only one document can constitute a final appealable order, the trial court should
correct its judgment entry to include a reference to the nolled aggravated robbery charge.
Id. Thereafter, the trial court entered a nunc pro tunc judgment entry that made the
corrections ordered by this court in Wolfe II and noted in the nunc pro tunc judgment entry
that Wolfe had been indicted on an aggravated robbery charge but that the charge had
been dismissed by nolle prosequi. Additionally, in Wolfe III, 2d Dist. Montgomery Nos.
26681, 26729, 26983, 2016-Ohio-4897, we specifically stated that, because the
aggravated robbery charge against Wolfe was dismissed nolle prosequi in the trial court
and that fact was later properly reflected in the nunc pro tunc entry, Wolfe’s argument
concerning the aggravated robbery charge lacked merit. Id. at ¶ 21. Finally, in Wolfe V,
despite Wolfe’s insistence that there was no final appealable order after the jury found
him guilty of murder and after the aggravated robbery charge had been dismissed, we
again affirmed the judgment of the trial court and reiterated that Wolfe's conviction for
murder had been an implicit acquittal on the aggravated murder charge and that there
was no need to either dismiss the aggravated murder charge or retry it, noting that the
aggravated robbery charge had also already been resolved. Wolfe V at ¶ 16.
{¶ 15} Wolfe has had his day in court and has already received a full and fair
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opportunity to be heard on these issues, and we have heard and overruled the arguments
Wolfe now raises in earlier appeals. Wolfe specifically raised the issues of the validity of
the nolle prosequi entry and of the finality of his case in previous motions and appeals. In
turn, we already addressed whether the nolle prosequi entry was properly denoted in the
judgment entry in Wolfe II and whether Wolfe’s case was still pending absent a final
appealable order in both Wolfe II and Wolfe V. Accordingly, we conclude that the trial
court did not err in overruling Wolfe’s motion for resentencing and motion to enter a
dilatory plea, as all the arguments raised in his motions were barred by res judicata.
{¶ 16} Wolfe’s assignments of error are overruled.
III. Conclusion
{¶ 17} The judgment of the trial court is affirmed.
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EPLEY, J. and LEWIS, J., concur.