The opinion
[Cite as State v. Ross, 2012-Ohio-2433.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
V. ) CASE NO. 11-MA-32
)
LAWRENCE EDWARD ROSS, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 96CR192
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Lawrence E. Ross, Pro-se
Lake Erie Correctional Institution
P.O. Box 8000
501 Thompson Road
Conneaut, Ohio 44030
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: May 31, 2012
[Cite as State v. Ross, 2012-Ohio-2433.]
DONOFRIO, J.
{¶1} Defendant-appellant, Lawrence Ross, appeals from a Mahoning County
Common Pleas Court judgment overruling his petition for a resentencing hearing,
overruling his objection in opposition for a resentencing hearing, and overruling his a
“motion for hearing on pretrial motion to dismiss speedy trial delay in trial.”
{¶2} The facts of this case as set out in appellant’s direct appeal are as
follows:
This appeal stems from an incident which occurred on February
5, 1996, at approximately 9:00 p.m. Mark Brown was at his northside
home in Youngstown, Ohio, along with his fiancé, Regina Thomas. Also
present in the home were Regina Thomas' two younger brothers, fifteen
year old Frank Teemer and eleven year old Rance Teemer, and
Thomas' son, seven year old William Thomas. Mark Brown's son,
eleven year old Mark Brown, Jr., was also at the home.
Appellant, along with three other men, broke down the front door
to the home and entered yelling “police”. Appellant was brandishing an
assault rifle. Regina Thomas, Frank Teemer, and Mark Brown, Jr. were
forced at gunpoint to lie face down on the floor. William Thomas and
Rance Teemer, fled from the living room up the stairs to the bedrooms
to hide. Appellant and two of his accomplices went after Mark Brown
who also had begun to run upstairs. As the three approached the top of
the stairs, Mark Brown shoved appellant and one of the other
accomplices against the wall and then fled back down the stairs. As
Mark Brown was going back down the stairs, appellant fired two shots,
one striking Brown in the arm. Brown made it out the front door and to
the front lawn. Appellant pursued Brown and shot him in the back as he
tried to run away.
Robert Maravola, a neighbor, saw appellant shoot Brown and
saw Brown stumble and collapse. Maravola called 911, then ran outside
with a gun and appellant and his three accomplices fled the scene.
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Maravola ran up to where Brown was lying. Maravola asked Brown,
“Who did this to you?” Brown responded that it was appellant. Brown
told Maravola, “I'm not going to make it. Go check on my boys. Go
make sure my kids are okay.”
Officer David Ellis of the Youngstown Police Department
responded to the scene and went to Brown. He asked Brown who had
shot him. Again, Brown indicated that it was appellant. Brown also told
Officer Ellis, “I'm not going to make it.” Brown died shortly thereafter.
On March 22, 1996, a Mahoning County Grand Jury indicted
appellant on one count of aggravated murder with a death specification,
one count of aggravated burglary, and one count of having weapons
while under disability. Each count carried a firearm specification. State
v. Brown, 7th Dist. Nos. 96 C.A. 247, 96 C.A. 251, 1999 WL 826223, *1
(Oct. 12, 1999).
{¶3} The case went to a jury trial on the first two counts where the jury found
appellant guilty of aggravated murder and aggravated burglary along with the firearm
specifications. The trial court, on the jury’s recommendation, sentenced appellant to
life in prison with parole eligibility after 30 years. The case went to a bench trial on
the having weapons under disability count where the court found him guilty. The
court sentenced appellant to an indefinite term of three to five years on this count.
{¶4} Following his direct appeal, appellant filed several petitions asking that
we compel the trial court to perform various acts. See State ex rel. Ross v.
Krichbaum, 7th Dist. No. 07-MA-151, 2007-Ohio-7198, affirmed by State ex rel. Ross
v. State, 102 Ohio St.3d 73, 2004-Ohio-1827, 806 N.E.2d 553; State ex rel. Ross v.
Krichbaum, 7th Dist. No. 09-MA-142, 2009-Ohio-5514, dismissed by State ex rel.
Ross v. Krichbaum, 124 Ohio St.3d 1436, 2010-Ohio-187, 920 N.E.2d 368; State ex
rel. Ross v. Krichbaum, 7th Dist. No. 11-MA-89 (dismissed as moot).
{¶5} In the meantime, appellant filed various pro se motions with the trial
court including a “Petition for a Resentencing Hearing pursuant to O.R.C.
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2929.19(B)(3),” an “Objection in Opposition for a Resentencing Hearing,” and a
“Motion for Hearing on Pretrial Motion to Dismiss Speedy Trial Delay in Trial pursuant
to O.R.C. 2945.73.”
{¶6} The trial court held a hearing on appellant’s motions. It made the
following rulings.
{¶7} As to appellant’s petition for a resentencing hearing, the court found
that because appellant committed his crimes prior to the effective date of Senate Bill
2, he was not entitled to be advised of mandatory postrelease control as requested in
his motion. Instead, the court found that appellant was subject to pre-Senate Bill 2
law, which required the imposition of an indeterminate prison term and rendered
appellant subject to release from prison on parole as set forth by law and within the
defined discretion of the parole board. Thus, the court overruled appellant’s petition
for a resentencing hearing.
{¶8} As to appellant’s objection in opposition for a resentencing hearing, the
court found that appellant’s original sentencing entry complied with State v. Baker,
119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163 (holding that a judgment of
conviction is a final, appealable order and complies with Crim.R. 32(C) when it
contains the plea, jury verdict, or finding by the court upon which the conviction is
based; the sentence; the judge’s signature; and entry on the journal by the clerk of
courts). This was because the judgment entry clearly set forth the court’s verdict of
conviction on count three after a bench trial and referred to the other convictions
being imposed upon the recommendation of the jury. Nonetheless, the court stated
that pursuant to State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235,
943 N.E.2d 535 (stating that the remedy for a failure to comply with Crim.R. 32(C) is
a revised sentencing entry rather than a new hearing), it filed a nunc pro tunc
judgment entry of sentence to clarify what actually occurred at appellant’s
sentencing.
{¶9} Finally, as to appellant’s motion for hearing on pretrial motion to dismiss
speedy trial delay in trial, the court found that appellant raised the issue during trial
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and the court overruled it. And the court noted that appellant failed to raise any
speedy trial issues in his direct appeal. For these reasons, the court overruled
appellant’s motion for hearing on pretrial motion to dismiss speedy trial delay in trial.
{¶10} Appellant filed a timely notice of appeal on February 28, 2011.
{¶11} Appellant, still acting pro se, raises five assignments of error, the first of
which states:
THE TRIAL COURT ABUSED ITS DISCRETION FOR FAILURE
TO REPLACE AND APPOINT LEAD COUNSEL WHO WITHDREW
FROM THE CASE THAT VIOLATED APPELLANT LAWRENCE E.
ROSS’ SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE
OF LEAD COUNSEL UNDER SUP.R. 20 OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, §10 OF THE OHIO CONSTITUTION
TO ASSIST CO-COUNSEL ON VARIOUS MOTIONS DURING A
POST RELEASE CONTROL RE SENTENCING[sic.] HEARING
REVIEW AS THE RE SENTENCING [sic.] HEARING WAS A
CRITICAL STAGE OF THE PROCEEDINGS WHERE THE RIGHT TO
LEAD COUNSEL AND CO COUNSEL ATTACHED AS THE CASE
WAS FORMERLY TRIED UNDER A CAPITAL OFFENSE WHERE
THE DEATH SPECIFICATION ATTACHED.
{¶12} After appellant was indicted on a capital charge and found by the court
to be indigent, the court appointed him two attorneys in compliance with Sup.R.
20(I)(C), which provides that in capital cases, “[i]f the defendant is entitled to the
appointment of counsel, the court shall appoint two attorneys certified pursuant to
Sup. R. 20 through 20.05.” The court appointed Attorney James Gentile as lead
counsel and Attorney James Wise as co-counsel. They represented appellant during
his trial.
{¶13} After appellant filed his pro se motion requesting resentencing for an
alleged failure to impose a mandatory postrelease control term, the trial court set the
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matter for a hearing. Two days before the motion hearing, Atty. Gentile filed a motion
to withdraw although it is not clear that Atty. Gentile was still representing appellant at
that time. Appellant appeared at the hearing with Atty. Wise where Atty. Wise
informed the court that he had just been contacted and was not prepared to go
forward with appellant’s pro se motion. Consequently, the court appointed Atty. Wise
to represent appellant on this motion and continued the matter for several days so
that Atty. Wise could prepare.
{¶14} Appellant argues in this assignment of error that the trial court erred in
not appointing him two attorneys on his motion because this was a capital case.
{¶15} Sup.R. 20(II)(B) governs the appointment of appellate counsel for
indigent defendants in capital cases. It provides, in pertinent part: “At least two
attorneys shall be appointed by the court to appeal cases where the trial court has
imposed the death penalty on an indigent defendant.” (Emphasis added.) Sup.R.
20(II)(B). The way the Rule is worded leads to the conclusion that if the trial court
has not imposed the death penalty, two attorneys need not be appointed for the
appeal. In other words, if the indigent defendant is sentenced to a prison term
instead of to the death penalty, the court need only appoint one attorney to handle
the defendant’s appeal.
{¶16} Furthermore, this current appeal is not even appellant’s direct appeal
from his conviction. Instead, it is an appeal from the judgment on several of his
miscellaneous motions.
{¶17} As such, appellant was not entitled to have two attorneys appointed for
this appeal. Accordingly, appellant’s first assignment of error is without merit.
{¶18} Appellant’s second assignment of error states:
APPELLANT LAWRENCE E. ROSS HAS A DUE PROCESS
AND EQUAL PROTECTION OF THE LAW UNDER THE
FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION TO HAVE THE IMPOSITION OF A MANDATORY 5
YEAR PERIOD OF POST RELEASE CONTROL ADVISEMENT AS
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MAY BE IMPOSED TO HIS AGGRAVATED BURGLARY COUNT
DESPITE HIS OFFENSE BEING COMMITTED PRIOR TO SENATE
BILL 2 BUT SENTENCE THEREAFTER AS NOT DETAILED IN STATE
V. FISCHER.
{¶19} Appellant’s crimes were committed on February 5, 1996. Senate Bill 2,
the “truth in sentencing” bill became effective on July 1, 1996. Senate Bill 2
amended Ohio’s felony sentencing scheme. Appellant was sentenced on November
15, 1996.
{¶20} Appellant asserts here that he was subject to the post-Senate Bill 2
sentencing laws. Therefore, he contends that the trial court erred in failing to notify
him of a mandatory term of postrelease control on his aggravated burglary sentence.
Consequently, he contends that we should remand his case to the trial court for a de
novo sentencing hearing.
{¶21} R.C. 2967.021 provides:
(A) Chapter 2967. of the Revised Code [dealing with parole], as
it existed prior to July 1, 1996, applies to a person upon whom a court
imposed a term of imprisonment prior to July 1, 1996, and a person
upon whom a court, on or after July 1, 1996, and in accordance with
law existing prior to July 1, 1996, imposed a term of imprisonment for
an offense that was committed prior to July 1, 1996.
(B) Chapter 2967. of the Revised Code, as it exists on and after
July 1, 1996, applies to a person upon whom a court imposed a stated
prison term for an offense committed on or after July 1, 1996.
(Emphasis added.)
{¶22} Furthermore, “[p]ostrelease control was enacted as part of Senate Bill 2
and applies to crimes committed after July 1, 1996.” State v. Staffrey, 7th Dist. Nos.
10-MA-130, 10-MA-131, 2011-Ohio-5760, ¶26 citing State v. Rush, 83 Ohio St.3d 83,
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53, 54, 697 N.E.2d 634 (1998). “[P]ost-release control does not apply to pre-
Am.Sub.S.B. No. 2 sentences for crimes committed on or before July 1, 1996 as
post-release control did not exist prior to July 1, 1996.” State v. Gavin, 8th Dist. No.
90017, 2008-Ohio-2042, ¶11.
{¶23} Because postrelease control does not apply to appellant’s February
1996 crimes, he was not entitled to a notification of postrelease control. Accordingly,
appellant’s second assignment of error is without merit.
{¶24} Appellant’s third assignment of error states:
APPELLANT LAWRENCE E. ROSS’ SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
UNITED STATES AND UNDER ARTICLE I, §10 OF THE OHIO
CONSTITUTION WAS VIOLATED DURING HIS RE SENTENCING
[sic.] HEARING FOR COUNSEL’S FAILURE TO CHALLENGE THE
INSUFFICIENCY OF THE JOURNAL ENTRY THAT DID NOT
COMPLY WITH CRIM.R. 32(A) AND THE DICTATES OF STATE V.
BAKER FOR FAILURE TO STATE THE JURY’S VERDICT AND OR
FINDINGS TO BECOME A FINAL APPEALABLE ORDER.
{¶25} Appellant argues that his original sentencing entry did not comply with
Baker, 119 Ohio St.3d 197, because it did not contain the jury’s finding of guilty. He
acknowledges that the court issued a nunc pro tunc entry following the January 26,
2011 hearing. However, he argues that he should have been provided with an
opportunity to be heard before the court issued the nunc pro tunc entry.
{¶26} Appellant further asserts that his counsel was ineffective at the January
26, 2011 hearing because he did not argue that the original sentencing judgment
entry did not comply with Baker. Had counsel made such an argument, appellant
contends, his sentence would have been otherwise.
{¶27} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
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performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
Second, appellant must demonstrate that he was prejudiced by counsel's
performance. Id. To show that he has been prejudiced by counsel's deficient
performance, appellant must prove that, but for counsel's errors, the result of the trial
would have been different. Bradley, paragraph three of the syllabus.
{¶28} Appellant bears the burden of proof on the issue of counsel's
effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent Id.
{¶29} Baker held that a judgment of conviction is not a final, appealable order
unless it sets forth “(1) the guilty plea, the jury verdict, or the finding of the court upon
which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4)
entry on the journal by the clerk of court.” Id. at the syllabus; Crim.R. 32(C). State v.
Lester, 130 Ohio St.3d 303, 2011-Ohio5204, 958 N.E.2d 142, later modified Baker by
holding that a judgment of conviction need not state the manner of conviction, a plea
or a verdict, in order to be a final, appealable order. Instead, the judgment need only
set forth (1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and
(4) the time stamp by the clerk. Id.
{¶30} Appellant’s original sentencing entry failed to set forth the fact of
appellant’s conviction on the aggravated murder and aggravated burglary counts and
the accompanying firearm specifications. It simply stated that the jury recommended
a sentence of life in prison with parole eligibility after 30 years. Thus, the original
entry did not comply with Baker/Lester or Crim.R. 32(C).
{¶31} But the trial court’s nunc pro tunc entry corrected the sentencing entry.
The remedy for a sentencing entry that does not comply with Crim.R. 32(C) is a
revised sentencing entry, not a new sentencing hearing. State ex rel. DeWine v.
Burge, 128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶18, citing State ex rel.
Alicea v. Krichbaum, 126 Ohio St.3d 194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶2.
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{¶32} In this case, the trial court issued a nunc pro tunc sentencing entry that
complied with Crim.R. 32(C) by setting out the fact and manner of the conviction
along with the other requirements. A defendant is entitled to a sentencing entry that
complies with Crim.R. 32(C). DeWine, at ¶18, citing, State ex rel. Culgan v. Medina
Cty. Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, 895 N.E.2d 805,
¶10-11. Appellant now has such an entry.
{¶33} For these reasons, appellant’s counsel was not ineffective for failing to
make an argument regarding his sentence. Furthermore, appellant was not entitled
to make an argument on his own behalf as to his sentence.
{¶34} Accordingly, appellant’s third assignment of error is without merit.
{¶35} Appellant’s fourth and fifth assignments of error share a common legal
basis. Therefore, we will address them together. They state:
APPELLANT MR. LAWRENCE E. ROSS RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL PROTECTED UNDER THE
SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION
AND ARTICLE I, §10 OF THE OHIO COUNSEL’S FAILURE TO
PREPARE A DEFENSE THAT THE TRIAL COURT RETAINED
LIMITED JURISDICTION TO RECONSIDER ITS FINDINGS DENYING
APPELLANT’S TIMELY ORAL SPEEDY TRIAL MOTION FOR
DISCHARGE FOR FAILURE TO BRING HIM TO TRIAL UNDER AN
AGREED CONDITIONAL WAIVER ENTERED ON MAY 7TH 1996
UNTIL OCTOBER 7TH 1996 THAT WAS NEVER JOURNALIZED IN A
JUDGMENT ENTRY TO BECOME A FINAL APPEALABLE ORDER.
APPELLANT LAWRENCE E. ROSS RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL PROTECTED UNDER THE
SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION
AND ARTICLE I, §10 OF THE OHIO CONSTITUTION WAS VIOLATED
DURING A DISCRETIONARY HEARING FOR COUNSEL’S FAILURE
TO CHALLENGE THAT APPELLANT WAS NOT BROUGHT TO TRIAL
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UNDER A WRITTEN AGREEMENT OF A CONDITIONAL WAIVER OF
HIS SPEEDY TRIAL RIGHTS THAT HE WAIVED ON MAY 7TH 1996
UNTIL OCTOBER 7TH 1996 THAT WAS NOT MADE KNOWINGLY,
INTELLIGENTLY, OR VOLUNTARILY WHERE THE COURT
CIRCUMVENTED THE SPIRIT OF THE STATUTE BY CONDUCTING
VOIR DIRE WITHIN THE STATUTORY TIME LIMITS.
{¶36} Appellant argues that his counsel was ineffective at the January 26,
2011 hearing because counsel failed to argue that appellant’s speedy trial rights
were violated. He contends that because the trial court addressed this issue in its
judgment entry, it “revived” the issue and made it ripe for appeal.
{¶37} In its judgment entry overruling appellant’s motions, the trial court
addressed appellant’s speedy trial argument. However, the court concluded that
appellant’s motion for hearing on pretrial motion to dismiss speedy trial delay in trial
was a nullity since appellant had waived any right to further contest speedy trial
issues.
{¶38} Contrary to appellant’s argument, his speedy trial claims are barred by
the doctrine of res judicata.
“Under the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant 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.”
State v. Green, 7th Dist. No. 10-MA-43, 2010-Ohio-6271, ¶26, quoting State v. Perry,
10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The speedy trial issues appellant
presents could have and should have been raised in his direct appeal.
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{¶39} Accordingly, appellant’s fourth and fifth assignments of error are without
merit.
{¶40} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
Waite, P.J., concurs.