State v. Stewart , 2022 Ohio 1312 ( 2022 )

[Cite as State v. Stewart, 2022-Ohio-1312.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110547
v. :
LARRY STEWART, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 21, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-96-340429
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellee.
Larry Stewart, pro se.
EMANUELLA D. GROVES, J.:
Larry Stewart appeals the issuance of a nunc pro tunc sentencing
entry, in which the trial court altered the phrasing of the 25-year-old sentence on an
aggravated murder count to read: “[d]efendant sentenced to Lorain Correctional
Institution for life imprisonment with parole eligibility after serving 30-full years of
imprisonment.” Stewart claims that the trial court erred by imposing the sentence
as stated, instead of imposing “30-years to life.” For the following reasons, we
affirm.
Stewart was originally sentenced to prison for “30-years to life” for
aggravated murder with capital and firearm specifications in 1997. The conviction
stemmed from a home invasion robbery resulting in the murder of one victim, and
the shooting of another, among other crimes, and sentences to be consecutively
served. State v. Stewart, 8th Dist. Cuyahoga No. 73255, 1998 Ohio App. LEXIS
5462 (Nov. 19, 1998). Since that time, he has filed several postconviction motions
and appeals culminating in State v. Stewart, 8th Dist. Cuyahoga No. 109498, 2020-
Ohio-6743 (“Stewart”), in which Stewart challenged the legal validity of the
sentence imposed by the trial court. Id. at ¶ 2-3. In that appeal, Stewart claimed
that the imposed sentence of “30-years to life” was contrary to law because R.C.
2929.03(D)(2), under which Stewart was sentenced, required the sentence to be “life
imprisonment with parole eligibility after serving thirty full years of imprisonment.”
Id. at ¶ 3.
Under R.C. 2929.03(D)(2), as deemed applicable by the Ohio
Supreme Court in a writ of mandamus Stewart filed challenging the validity of his
sentence in the underlying case, the legislature codified the procedure through
which a jury recommends a sentence in a capital case. State ex rel. Stewart v. Russo,
145 Ohio St.3d 382, 2016-Ohio-421, 49 N.E.3d 1272, ¶ 12 (noting that the language
of R.C. 2929.03(D)(2) had not been changed since the time of Stewart’s original
conviction). R.C. 2929.03(D)(2) provides that if the trial jury recommends that the
offender be sentenced to life imprisonment with parole eligibility after serving 30-
full years of imprisonment, then “‘the court shall impose the sentence recommended
by the jury upon the offender.’” Id.1 The Ohio Supreme Court affirmed this court’s
decision denying Stewart’s writ of mandamus seeking to invalidate the imposed
sentence. Id. at ¶ 20.
Following the denial of relief through the writ of mandamus, Stewart
again challenged his sentence with the trial court and through a subsequent appeal,
claiming the sentence to be void. The Stewart panel overruled the arguments
presented, concluding that the recent decisions in State v. Henderson, 161 Ohio
St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 1, and State v. Harper, 160 Ohio
St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 4, precluded Stewart from
challenging the validity of his sentence decades after the fact of conviction. Id. at
¶ 7. Nonetheless, the panel noted that Stewart had conceded that the proper
sentence had been announced at his sentencing hearing, suggesting that the trial
court possessed continuing jurisdiction to issue a nunc pro tunc sentencing entry to
let the record reflect that which occurred. Id. at ¶ 7, fn. 1, citing State v. Qualls, 131
1 Under R.C. 2929.03(D)(2)(a), if the jury is unable to determine that the
aggravating circumstances outweigh the mitigating factors with respect to the capital
specification, the jury shall, in pertinent part, recommend that the offender be sentenced
to “to life imprisonment without parole, life imprisonment with parole eligibility after
serving twenty-five full years of imprisonment, or life imprisonment with parole eligibility
after serving thirty full years of imprisonment.” Of the three authorized sentences in this
particular case, the jury chose the latter, Russo at ¶ 12.
Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15 and State v. Sandidge, 8th
Dist. Cuyahoga No. 109277, 2020-Ohio-1629.
Stewart accepted the panel’s invitation and filed a motion to correct
the sentencing entry expressly through the nunc pro tunc mechanism. In April 2021,
the trial court issued the disputed nunc pro tunc entry upon Stewart’s request,
amending in pertinent part the sentence imposed on the aggravated murder count
from “a sentence of 30-years to life,” to “life imprisonment with parole eligibility
after serving 30-full years of imprisonment”; the relief Stewart had originally
requested in Stewart and the sentence expressly required under R.C.
2929.03(D)(2)(a).
Stewart now appeals the issuance of the nunc pro tunc entry, claiming
that the entry violated his rights under Crim.R. 43 by modifying his sentence outside
of his presence and that the use of the nunc pro tunc mechanism to substantively
alter his prison sentence was beyond the ambit of a clerical error because the court
imposed a sentence of “30-full years” instead of “30-years to life.”2 Beyond the fact
that Stewart is now requesting the very sentence he sought to vacate in Stewart, we
need not address the merits of Stewart’s latest arguments. At the least, Stewart
2 In State ex rel. Newell v. Cuyahoga Cty. Court of Common Pleas, 165 Ohio St.3d
341, 2021-Ohio-3662, 179 N.E.3d 84, ¶ 16, relying on State ex rel. Davis v. Janas, 160
Ohio St.3d 187, 2020-Ohio-1462, 155 N.E.3d 822, ¶ 8, the Ohio Supreme Court reiterated
the difference between a sentence of life in prison with parole eligibility after 20 years and
life in prison with parole eligibility after 20 full years as being the offender’s ability to
reduce the minimum term through earning certain credits on the former sentence. Since
R.C. 2929.03(D)(2)(a) required the trial court to impose 30 full years in this particular
case, we needed not revisit this distinction.
invited the error upon which his arguments are based by requesting that the trial
court issue a nunc pro tunc entry to reflect the correct sentence under R.C.
2929.03(D)(2). Regardless, and more important, the trial court’s nunc pro tunc
sentencing entry is authorized by law.
The invited-error doctrine provides that a litigant may not “‘take
advantage of an error which he himself invited or induced.’” State v. Grate, 164
Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 197, quoting Hal Artz Lincoln-
Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502
N.E.2d 590 (1986), paragraph one of the syllabus. The Ohio Supreme Court has
long “‘found invited error when a party has asked the court to take some action later
claimed to be erroneous, or affirmatively consented to a procedure the trial judge
proposed.’” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616,
¶ 279, quoting State v. Campbell, 90 Ohio St. 3d 320, 324, 738 N.E.2d 1178 (2000).
In this case, even if we took the extraordinary step of presuming that
the trial court erred by issuing the nunc pro tunc entry and by imposing an incorrect
sentence, Stewart received the specific relief he requested, through the mechanism
of his choosing. No reversible error on either point can arise therefrom.
Moreover, and as already alluded to, the trial court’s imposition of the
“life imprisonment with parole eligibility after serving 30 full years of
imprisonment” sentence upon the aggravated murder count is legally correct,
parroting the legislature’s phrasing from R.C. 2929.03(D)(2)(a) — the sentencing
provision deemed applicable in Russo, 145 Ohio St.3d 382, 2016-Ohio-421, 49
N.E.3d 1272, at ¶ 12. Even if we ignored the fact that the court’s action was at
Stewart’s express request, the modification of the sentence was legally correct since
the trial court orally announced that sentence at the final sentencing hearing back
in 1997. Stewart, citing Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718,
at ¶ 15, and Sandidge, 8th Dist. Cuyahoga No. 109277, 2020-Ohio-1629. Any other
errors under Crim.R. 43 in the process of reaching this correct result, would
therefore, be harmless. State v. Williams, 6 Ohio St.3d 281, 287, 452 N.E.2d 1323(1983), citing Crim.R. 52(A) (defendant’s lack of attendance at the trial proceeding
as required under Crim.R. 43(A) was harmless error as defined under Crim.R. 52(A)
based on the lack of prejudice).
Stewart’s assignments of error are overruled, and the final entry of
conviction as it stands through the nunc pro tunc entry 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 issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
EMANUELLA D. GROVES, JUDGE
MICHELLE J. SHEEHAN, P.J., and
MARY J. BOYLE, J., CONCUR