State v. Bonnell

• Decision Date: 05 November 2015
• Docket Number: No. 102630,102630
• Citation: 2015 Ohio 4590
• Parties: STATE OF OHIO PLAINTIFF-APPELLEE v. MELVIN BONNELL DEFENDANT-APPELLANT
• Court: Ohio Court of Appeals

2015 Ohio 4590

STATE OF OHIO PLAINTIFF-APPELLEE v. MELVIN BONNELL DEFENDANT-APPELLANT

No. 102630

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

November 5, 2015

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-87-223820-A

BEFORE: Laster Mays, J., Jones, P.J., and E.A. Gallagher, J.

ATTORNEYS FOR APPELLANT

Timothy Young

State Public Defender

By: Kimberly S. Rigby

Assistant State Public Defender

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

Laurence E. Komp

P.O. Box 1785

Manchester, Missouri 63011

ATTORNEYS FOR APPELLEE

Timothy J. McGinty

Cuyahoga County Prosecutor

By: Anthony Thomas Miranda

Matthew E. Meyer

T. Allan Regas

Assistant County Prosecutors

Justice Center, 9th

1200 Ontario Street

Cleveland, Ohio 44113

ANITA LASTER MAYS, J.:

{¶1} Defendant-appellant Melvin Bonnell ("Bonnell") appeals the trial court's entry of a "nunc pro tunc" judgment entered for the purpose of curing noncompliance with Crim.R. 32, subsequent to this court's remand to effect correction in State v. Bonnell, 8th Dist. Cuyahoga No. 96368, 2011-Ohio-5837 ("Bonnell 2011"). Bonnell asserts that, as a result, no final appealable order has ever been entered in this case. We disagree.

I. BACKGROUND AND HISTORY

{¶2} Bonnell was convicted in 1988 of two counts of aggravated murder (R.C. 2903.01) of Eugene Bunner with felony murder and firearms specifications and one count of aggravated burglary with firearm and aggravated felony specifications (R.C. 2911.11). The trial court imposed a death sentence pursuant to R.C. 2929.03(F) as well as a 10-to-25 year sentence for the aggravated burglary.

{¶3} A series of state and federal appellate filings followed. Extracting the procedural history pertinent to this appeal:

[I]n State v. Bonnell, 8th Dist. Cuyahoga No. 55927, 1989 Ohio App. LEXIS 4982 (Oct. 5, 1989), this court merged the two separate murder counts and found that because the sentence for aggravated burglary was imposed outside of Bonnell's presence, he was to be resentenced on said count. Bonnell was resentenced to the same prison term on the aggravated burglary count on October 25, 1989. On May 21, 2010, 22 years after his conviction and sentence were initially imposed, Bonnell filed a "motion for resentencing and to issue a final appealable order."

Bonnell at ¶ 2.

{¶4} Bonnell 2011 posed the following single assignment of error: "The trial court erred by not granting Bonnell's motion to vacate because the purported judgment of conviction [for aggravated burglary] does not comply with Crim.R. 32(C) and State v. Baker [119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163]." Id. at ¶ 3. This court held that the omission of the aggravated burglary conviction from the entry and opinion constituted a lack of "technical compliance" with Crim.R. 32(C). Bonnell 2011 at ¶ 10-11.

{¶5} This court further determined that the issuance of a nunc pro tunc entry that included the fact and manner of conviction was the proper remedy and also held that the final corrected entry is not an appealable order:

The Ohio Supreme Court has found that the technical failure to conform to Crim.R. 32(C) does not render the judgment a nullity. State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶ 19. * * *

"[T]he purpose of Crim.R. 32(C) is to ensure that a defendant is on notice concerning when a final judgment has been entered and the time for filing an appeal has begun to run." [State v.] Lester, [130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142], ¶ 20, citing State v. Tripodo, 50 Ohio St.2d 124, 127, 363 N.E.2d 719 (May 25, 1977); App.R. 4(A). Like the defendant in Lester, Bonnell had notice of his conviction, which was evident throughout the record, and was apparent to the defendant who had exhausted the appellate process. See id. at ¶13.

Similarly, in State v. Fischer, [128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332], the Ohio Supreme Court rejected the notion that a defendant could raise any and all errors relating to his conviction when his original sentence was deemed void for the failure to include postrelease control and he had already appealed his conviction. Instead, the court limited the scope of relief to correcting only the illegal sentence and found res judicata still applied to other aspects of the merits of the conviction. Id. See, also, State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381 (applying law of the case and res judicata to convictions and unaffected sentences upon remand for an allied offenses sentencing error).

Additionally, Ohio appellate courts have found that where a trial court issues a corrected judgment entry to comply with Crim.R. 32(C), a defendant who has already had the benefit of a direct appeal cannot raise any and all claims of error in successive appeals. State v. Triplett, 6th Dist. Lucas No. L-10-1158, 2011-Ohio-1713; State v. Avery, 3d Dist. Union No. 14-10-35, 2011-Ohio-4182, ¶ 14; State v. Harris, 5th Dist. Richland No. 10-CA-49, 2011-Ohio- 1626, ¶ 30. In such circumstances, res judicata remains applicable and the defendant is not entitled to a "second bite at the apple." Avery at ¶ 14. Aptly stated, "[n]either the Constitution nor common sense commands anything more." Fischer at ¶ 26. As argued by the state herein, to hold otherwise would open the floodgates and "enable validly convicted and sentenced prisoners throughout the state to circumvent res judicata by arguing, after all direct and collateral appeals are exhausted, that their sentencing documents are improperly worded[.]"

Bonnell 2011 at ¶ 13-17.

II. ASSIGNMENT OF ERROR

{¶6} In this appeal, Bonnell challenges the propriety of the nunc pro tunc entry, offering a single assignment of error:

I. The trial court erred when it filed an illegal nunc pro tunc judgment entry, when a Crim.R. 32 final appealable order has never been filed in this case.

{¶7} Bonnell argues that the trial court's revised entry as a result of the nunc pro tunc is legally inadequate and does not constitute a final appealable order. Bonnellstates that this court's reliance on Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, and Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, is incorrect. Those cases are distinguishable, Bonnell argues, because a final appealable order in a death penalty case consists of the judgment entry as well as the sentencing opinion. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, syllabus and ¶ 17-18 (in capital cases, a "final, appealable order consists of both the sentencing opinion filed pursuant to R.C. 2929.03(F) and the judgment of conviction filed pursuant to Crim.R. 32(C)").

{¶8} The Ohio Supreme Court considered the capital case dichotomy in State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096. Thompson was sentenced to death for the aggravated murder of Twinsburg Police Officer Joshua Miktarian. A jury convicted Thompson of two counts of aggravated murder with each count carrying three death specifications: (1) purposely killing a law enforcement officer, R.C. 2929.04(A)(6); (2) killing to escape detection, R.C. 2929.04(A)(3); and (3) killing while under detention, R.C. 2929.04(A)(4). Id. at ¶ 2.

{¶9} The jury also convicted Thompson of escape, resisting arrest, tampering with evidence, and carrying a concealed weapon. Pursuant to Crim.R. 29, the court dismissed one escape count and merged the two aggravated murder convictions and two of the three death specifications for the mitigation hearing and sentencing. Id. at ¶ 32-34.

{¶10} After the mitigation hearing and the jury's unanimous recommendation of the death penalty, the court sentenced Thompson to death for one count of aggravatedmurder, R.C. 2903.01(E), with two death specifications — purposely killing a police officer, R.C. 2929.04(A)(6), and killing to escape detection, R.C. 2929.04(A)(3). The three counts of tampering with evidence were also merged and the court imposed various sentences for the remaining charges. Id.

{¶11} Thompson raised 18 propositions of law in his appeal of the aggravated murder conviction and death sentence. Of import here is his first proposition of law: "Thompson challenges this court's jurisdiction to hear his appeal because, he claims, the trial court failed to issue a final, appealable order in compliance with Crim.R. 32(C)." Id. at ¶ 36.

{¶12} The Thompson court explained that, in capital cases:

R.C. 2929.03(F) requires the court or panel to file a sentencing opinion. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, syllabus and ¶ 17-18. In those cases, "a final, appealable order consists of both the sentencing opinion filed pursuant to R.C. 2929.03(F) and the judgment of conviction filed pursuant to Crim.R. 32(C)." Id. at syllabus.

(Emphasis added.) Thompson at ¶ 39.

{¶13} The Thompson trial court issued a sentencing opinion on June 23, 2010, that was signed by the judge and journalized, listing the capital death sentence and the sentences for the noncapital counts. Id. at ¶ 40. On June 24, 2010, the court filed a separate entry recording the jury verdict of guilt on all 26 counts and specifications that was also signed by the judge and journalized. Id. "Together, those two documents comply with the requirements of Crim.R. 32(C) and thus constitute a final, appealable order. See Ketterer at ¶ 17." Id. {¶14} Thompson argued that the two documents in his case did not satisfy Crim.R. 32(C) because, (1) the June 24 entry was subsequently replaced by a nunc pro tunc entry and (2) the sentencing opinion contained an error. The Supreme Court first addressed the nunc pro tunc issue:

First, Thompson argues that when a nunc pro tunc entry corrects an earlier entry, it entirely replaces the original entry. In this case, the trial court's June 24 entry mistakenly stated that Thompson's "sentencing hearing commenced on June 10, 2006." The sentencing hearing actually began on June 10, 2010.

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