State v. McIntyre , 2013 Ohio 2077 ( 2013 )

[Cite as State v. McIntyre, 2013-Ohio-2077.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26677
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LEROY L. MCINTYRE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 1991-01-0135
DECISION AND JOURNAL ENTRY
Dated: May 22, 2013
WHITMORE, Judge.
{¶1} Appellant, Leroy McIntyre, appeals from the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I
{¶2} In 1991, McIntyre was convicted by jury of felonious assault and aggravated
burglary, both of which carried firearm specifications. The trial court journalized the jury’s
verdicts and a separate sentencing entry. This Court affirmed his convictions on appeal. State v.
McIntyre, 9th Dist. No. 15348, 1992 WL 125251 (May 27, 1992). Subsequently, the trial court
denied McIntyre’s petition for post-conviction relief, and we affirmed. State v. McIntyre, 9th
Dist. No. 17095, 1995 WL 622895 (Oct. 25, 1995).
{¶3} Since then, McIntyre has filed countless motions with the trial court and
numerous appeals. Relevant to this appeal is the trial court’s September 25, 2012 denial of nine
motions. These motions covered a broad range of things, including:
2
Motion for De Novo Retrial in Order to Dispose of R.C. 2941.142 Prior
Aggravated Felony Specification
Motion Invoking Trial Court’s Inherent Power to Vacate and Void Its Void
Sentence Rendered with Demand for Immediate Discharge from Further
Confinement
Motion to Correct Clerical Error in Judgment Pursuant to Crim.R. 36(A) with
Relief Sought
Motion Requesting Trial Court to Dismiss with Prejudice Indictment Type:
Supplement Two Aggravated Burglary with Accompanied Specification One to
Count One of Supplement One and Specification One to Count One of
Supplement Two
Motion for Leave to File Motion for New Trial Pursuant to Crim.R. 33(B)
{¶4} McIntyre appeals the trial court’s denial of his various motions and raises three
assignments of error for our review.
II
Assignment of Error Number One
THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
PREJUDICE OF THE APPELLANT MCINTYRE AND VIOLATED HIS DUE
COURSE AND DUE PROCESS OF RIGHTS CLAUSES THUS
GUARANTEED TO HIM BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION
SIXTEEN OF THE OHIO CONSTITUTION. WHEN THE TRIAL COURT
HAD SUMMARILY DENIED APPELLANT’S MOTION FOR LEAVE TO
FILE MOTION FOR NEW TRIAL WITHOUT RENDERING ANY FINDINGS
OF FACTS AND CONCLUSIONS OF LAW AS WAS REQUIRED BY LAW.
(Sic.)
{¶5} In his first assignment of error, McIntyre argues that the trial court erred by
failing to issue findings of fact and conclusions of law when denying his request to file a motion
for a new trial. We disagree.
{¶6} A trial court has no duty to issue findings of fact or conclusions of law when it
denies a Crim.R. 33 motion for a new trial. State ex rel. Collins v. Pokorny, 86 Ohio St.3d 70, 70
3
(1999), citing State v. Girts, 121 Ohio App.3d 539, 565 (8th Dist.1997). Accordingly,
McIntyre’s first assignment of error is without merit and overruled.
Assignment of Error Number Two
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
MCINTYRE AND VIOLATED HIS DUE COURSE AND DUE PROCESS OF
LAW RIGHTS GURANTEED TO HIM BY THE FOURTEENTH AMENMENT
TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION
SIXTEEN OF THE OHIO CONSTITUTION, WHEN THE TRIAL COURT
HAD USURPED ITS AUTHORITY AND JURISDICTION TO HAVE
AMENDED THE SEPTEMBER NINTH NINETEEN NINETY-ONE VERDICT
ENTRY BY REMOVING FROM SAID ENTRY THAT THE JURY BEING
UNABLE TO REACH A DECISION ON A VERDICT AS TO THE R.C.
2941.141 FIREARM SPECIFICATION AS FOUND IN INDICTMENT TYPE:
SUPPLEMENT TWO TO WHICH THE TRIAL COURT HAD DISCHARGED
THE JURY WITHOUT PREJUDICE IN REFERENCE TO THE
PROSECUTION OF SAID SPECIFICATION IN ORDER FOR THE TRIAL
COURT TO COMPORT WITH THE SENTENCING ENTRY THUS
IMPOSING AN ACTUAL MANDATORY THREE (3) YEAR TERM FOR THE
R.C. 2941.141 FIREARM SPECIFICATION FOR THE SPECIFIC
UNDERLYING OFFENSE TO-WIT AGGRAVATED BURGLARY THAT THE
JURY WAS UNABLE TO REACH A DECISION ON A VERDICT AS TO
SAID SPECIFICATION FOR THE OFFENSE OF AGGRAVATED
BURGLARY INDICTMENT TYPE: SUPPLEMENT TWO. (Sic.)
{¶7} In his second assignment of error, McIntyre argues that the trial court had no
authority to amend the sentencing entry and the amendment was inconsistent with the jury’s
verdicts.
{¶8} To the extent that McIntyre argues the court acted outside of its authority in
correcting the clerical error in the judgment entry, we disagree. Pursuant to Crim.R. 36,
“[c]lerical mistakes in judgment, orders, or other parts of the record, and errors in the record
arising from oversight or omission, may be corrected by the court at any time.”
{¶9} On August 4, 2011, McIntyre filed a motion with the trial court requesting the
court correct a clerical error in the entry journalizing the jury’s verdicts pursuant to Crim.R. 36.
McIntyre informed the trial court that the journal entry contained inconsistent language with
4
respect to the firearm specification attached to the aggravated burglary conviction. In one
sentence the entry stated that the jury found him guilty of the specification, while later the entry
stated that the jury was unable to reach a verdict. The trial court issued a nunc pro tunc order,
removing the language indicating that the jury did not reach a verdict on that firearm
specification. This made the language of the journal entry consistent with that of the sentencing
entry.
{¶10} To the extent that McIntyre argues that his sentence does not comport with the
jury’s verdicts, his argument is barred by the doctrine of res judicata. It is well-established law
in Ohio that res judicata prohibits the consideration of issues that could have been raised on
direct appeal. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 16-17, citing State v.
Hutton, 100 Ohio St.3d 176, 2003-Ohio-5607, ¶ 37; State v. D’Ambrosio, 73 Ohio St.3d 141, 143
(1995).
{¶11} McIntyre could have raised this argument on direct appeal. Moreover, McIntyre
has been before this Court more than a dozen times in appeals and original actions related to his
1991 conviction. See, e.g., State v. McIntyre, 9th Dist. No. 15348, 1992 WL 125251 (May 27,
1992) (direct appeal); State v. McIntyre, 9th Dist. No. 17095, 1995 WL 622895 (Oct. 25, 1995)
(post-conviction relief appeal); State ex rel. McIntyre v. Alexander, 9th Dist. No. 22234, 2005-
Ohio-160 (habeas appeal); State v. McIntyre, 9th Dist. No. 25292, 2010-Ohio-4658; State v.
McIntyre, 9th Dist. No. 25666, 2011-Ohio-3668; State v. McIntyre, 9th Dist. No. 25898, 2011-
Ohio-6593; State v. McIntyre, 9th Dist. No. 25800 (Dec. 30, 2011). He has had ample
opportunity to raise any alleged error in his sentence, but has failed to do so.
{¶12} McIntyre’s second assignment of error is overruled.
5
Assignment of Error Number Three
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
MCINTYRE AND VIOLATED HIS DUE COURSE AND DUE PROCESS OF
LAW RIGHTS GURANTEED TO HIM BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE
ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION. WHEN THE
TRIAL COURT JUDGE MARY F. SPICER HAD JOURNALIZED IN THE
VERDICT ENTRY THAT THE JURY HAD RETURNED THEIR VERDICT IN
WRITING THUS FINDING THE APPELLANT MCINTYRE (NOT GUILTY)
OF THE R.C. 2941.142 PRIOR AGGRAVATED FELONY SPECIFICATION
AS TO THE OFFENSES CHARGED IN THE INDICTMENT TYPE: OPEN
FELONIOUS ASSAULT. WHEN IN FACT THE JURY (DID NOT) RENDER
ANY VERDICT OF (NOT GUILTY), OR OTHER IN WRITING. (Sic.)
{¶13} In his third assignment of error, McIntyre argues that the trial court’s 1991 entry
does not reflect the findings of the jury.
{¶14} McIntyre’s argument focuses on an alleged error of the trial court in 1991. He
does not articulate any error by the trial court in its September 25, 2012 entry denying his
numerous motions. Accordingly, his third assignment of error is an untimely appeal. Further,
his argument is barred by the doctrine of res judicata because it could have been raised in his
direct appeal.
{¶15} McIntyre’s third assignment of error is overruled.
III
{¶16} McIntyre’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
6
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
CARR, J.
CONCURS.
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
LEROY L. MCINTYRE, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.