State v. McIntyre , 2012 Ohio 2480 ( 2012 )

[Cite as State v. McIntyre, 2012-Ohio-2480.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26195
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LEWIS LEROY MCINTYRE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 03 0647
DECISION AND JOURNAL ENTRY
Dated: June 6, 2012
WHITMORE, Presiding Judge.
{¶1} Appellant, Lewis Leroy McIntyre, appeals from a judgment of the Summit
County Court of Common Pleas, which denied his request to correct a clerical error and to
conduct a resentencing hearing. This Court affirms.
I
{¶2} McIntyre was convicted in July 2009 of tampering with evidence, tampering with
records, petty theft, and obstructing justice. McIntyre appealed. His convictions were affirmed
in part and reversed in part. State v. McIntyre, 9th Dist. Nos. 24934 & 24945, 2010-Ohio-2569.
Subsequently, McIntyre filed an App.R. 26(B) application to reopen his appeal claiming
ineffective assistance of appellate counsel, which was granted. After the appeal was reopened,
McIntyre filed a motion in the trial court to correct a clerical error and to conduct a new
sentencing hearing. The trial court denied his motion, finding that it lacked jurisdiction to
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consider McIntyre’s motion because an appeal was pending. McIntyre now appeals that decision
and raises one assignment of error for our review.
II
Assignment of Error
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
LEWIS LEROY MCINTYRE, JR BY VIOLATING AND DEPRIVING HIM OF
BOTH HIS DUE PROCESS RIGHTS THUS GURANTEED (sic) TO HIM BY
THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO
CONSTITUTION. WHEN THE TRIAL COURT FAILED TO GRANT
APPELLANT MCINTYRE’S CRIMINAL RULE 36(A) MOTION TO
CORRECT CLERICAL ERROR AND CONDUCT A DE NOVO
RESENTENCING HEARING AS THOUGH SENTENCING HAD NEVER
PREVIOUSLY OCCURRED. BASED UPON THE FACT THAT THE TRIAL
COURT DURING TRIAL HAD GRANTED APPELLANT MCINTYRE’S
CRIMINAL RULE 29 MOTION FOR ACQUITTAL AS TO THE OFFENSE
TO-WIT [OBSTRUCTING JUSTICE AND ITS UNDERLYING OFFENSE,
PASSING BAD CHECKS-F5], BUT THE TRIAL COURT FAILED TO
JOURNALIZE SUCH AND MISTAKENLY SENTENCED THE APPELLANT
MCINTYRE TO A PRISON TERM OF ONE YEAR FOR [OBSTRUCTING
JUSTICE AND ITS UNDERLYING OFFENSE, PASSING BAD CHECKS-F5]
TO WHICH THE TRIAL COURT HAD PREVIOUSLY ACQUITTED
APPELLANT MCINTYRE OF SAID OFFENSE. (Sic.)
{¶3} In his sole assignment of error, McIntyre argues that the trial court erred when it
denied his motion to correct a clerical error in the judgment and to conduct a new sentencing
hearing. The trial court held that it lacked jurisdiction to consider McIntyre’s motion because of
a pending appeal.
{¶4} When an appeal is pending, a trial court is without authority to take any action
except to aid in the appeal. See State ex rel. Special Prosecutors v. Judges, Court of Common
Pleas, 55 Ohio St.2d 94, 97 (1978). A trial court does retain jurisdiction over “collateral issues
like contempt, appointment of a receiver and injunction.” Id.3
{¶5} At the time McIntyre filed his motion, this Court had granted his application to
reopen his appeal. While his appeal was pending, the trial court did not have jurisdiction to
modify his sentencing entry because this is not a collateral issue. McIntyre’s assignment of
error, therefore, is overruled.
III
{¶6} McIntyre’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
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.
BETH WHITMORE
FOR THE COURT
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MOORE, J.
BELFANCE, J.
CONCUR.
APPEARANCES:
LEWIS LEROY MCINTYRE, JR., pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.