[Cite as State v. Payne , 2020-Ohio-161.]

IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2019-L-032 - vs - : WILLIAM A. PAYNE, : Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Cas e No. 2003 CR 000137.

Jud g ment: Affi r med.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, Ohio 44077 ( For Plaintiff-Appellee )

. Stephen P. Hanudel , 124 Middle Avenue, Suite 900, Elyria, Ohio 44035 (For Defenda ntAppellant )

.

MARY JANE TRAPP, J. {¶1} Appellant, William A. Payne (“Mr. Payne”), appeals the judgment of the Lake County Court of Common Pleas, which denied his motion for a resentencing hearing and amended, nunc pro tunc, its August 5, 2008 sentencing entry . Mr. Payne is now before us for the fourth time after being convicted by a Lake C ounty jury in 2004 for conspiracy to commit aggravated robbery, conspiracy to commit a ggravated burglary,2 conspiracy to commit kidnapping, all three of which carry a rep eat violent offender specification (“RVO”); and aggravated theft, with a firearm spe cification. {¶2} Mr. Payne now raises two assignments of error on appeal. He fi rst asserts that the trial court erred by denying his motion for a resenten cing hearing because his sentence is void. More specifically, he argues the trial court did not merge the allied offenses of conspiracy contrary to our decision in his first ap peal, State v. Payne , 11th Dist. Lake No. 2004-L-118, 2005-Ohio-7043 (“ Payne I ”). He further claims the jury was required to make a finding of fact that he attempted or threate ned to cause or actually caused serious physical harm before the trial court could sente nce him to ten years on the RVO specification. Secondly, Mr. Payne asserts the trial c ourt erred by issuing a nunc pro tunc judgment entry to perform a merger of allied offenses that was not actually the sentence imposed at the sentencing hearing. {¶3} We find Mr. Payne’s arguments are without merit since they are barred by the doctrine of res judicata since he could have raised these a rguments on direct appeal after his 2008 resentencing. Moreover, a substantive review of his arguments reveal they are without merit. During the sentencing hearing, the trial co urt properly merged the three counts of conspiracy. Finally, the trial court appropriately c orrected, via a nunc pro tunc entry, the August 5, 2008 sentencing entry to reflect what tran spired at the sentencing hearing, i.e., that the allied offenses of conspiracy were merg ed when Mr. Payne’s sentence was imposed. {¶4} Finding Mr. Payne’s claims barred by res judicata and substanti vely without merit, we affirm the judgment of the Lake County Court of Commo n Pleas. Substantive and Pr ocedural History3 {¶5} As we succinctly summarized in State v. Payne , 11th Dist. Lake No. 2006- L-272, 2007-Ohio-6740 ( “ Payne II ”), Mr. Payne’s convictions stem from an incident that occurred on February 27, 2003, in which he was allegedly the “m astermind” of robbing and kidnapping Ms. Gail Kopp, the owner of a pawn shop in her o wn home. Id. at ¶4. Ultimately, the assailants took valuables that were valued at $ 1,000,000. Id. The victim was found with her wrists and ankles bound and with burns aroun d her neck from being tased with a stun-gun twelve times. Id. {¶6} Mr. Payne was found guilty by a jury on four counts of the indi ctment: conspiracy to aggravated robbery, a felony of the second degree , in violation of R.C. 2923.01(A)(1); conspiracy to aggravated burglary, a felony of t he second degree, in violation of R.C. 2923.01(A)(1); conspiracy to kidnapping, a fe lony of the second degree, in violation of R.C. 2923.01(A)(1), with an RVO on all three co nspiracy convictions as set forth in R.C. 2941.149; and one count of aggravated theft, a fe lony of the third degree, in violation in of R.C. 2913.02(A)(1), with a firearm specificatio n as set forth in R.C.

2941.145. Id. at ¶5. {¶7} On the same day as the jury verdict, after holding an RVO heari ng, the trial court sentenced Mr. Payne to three eight-year terms for the cou nts of conspiracy, five years for the count of aggravated theft, three years for the fi rearm specification, and ten years on the RVO specification, all to be served consecutively, for an aggregate term of imprisonment of 42 years. Id. at ¶6. Payne I {¶8} In Payne I , supra , we remanded for resentencing after determining that the three conspiracy charges resulted from one crime, and, therefor e, should be merged into4 one sentence not to exceed eight years. Id. at 120. We also found that the statutory framework in Ohio for determining whether an offender is an RVO and for enhancing penalties on that determination violates the rule in Apprendi v. New Jersey , 530 U.S. 466 (2000), Blakely v. Washington , 542 U.S. 296 (2004), and United States v. Booker , 543 U.S. 220 (2005), since the statute improperly requires judicial fact finding. Id. at ¶113. Thus, we remanded and instructed the court to correct Mr. Payne ’s sentence accordingly, stating that the aggregate sentence should not exceed 16 years. Id. at ¶20. {¶9} In the interim between the remand and resentencing, the Supreme Court of Ohio decided Foster, 109 Ohio St.3d 1, 2006-Ohio-856 , which addressed constitutional challenges to Ohio’s sentencing scheme pursuant to Apprendi, Blakely, and Booker. {¶10} The trial court resentenced Mr. Payne to serve one eight-year t erm of imprisonment for the three counts of conspiracy, five years for the count of aggravated theft, three years for the firearm specification, and ten years for the RVO specification, for an aggregate term of imprisonment of 26 years. Payne II at ¶10. Payne II {¶11} In Payne II , supra, Mr. Payne challenged his new sentence. We affirmed in part, reversed in part, and remanded for a new sentencing hear ing in order for Mr. Payne to be resentenced within the one to ten-year range on the RVO s pecification because the trial court engaged in impermissible judicial fact-finding as t o Mr. Payne’s previous offense of violence conviction. Id. at ¶37, 42. On remand, the trial court resentenced Mr. Payne to an aggregate 26-year term of imprisonment. Mr. Payne did not appeal his resentencing. Payne III5 {¶12} Mr. Payne then filed a motion to set aside judgment and sentenc e pursuant to R.C. 2945.75(A)(2), which the trial court denied. In State v. Payne , 11th Dist. Lake No. 2010-L-128, 2011-Ohio-4698 (“ Payne III ”), we found no merit to Mr. Payne’s delayed appeal, which challenged the jury’s verdict as being against th e manifest weight of the evidence because he should have raised this argument on direct appeal. Id. at ¶12. Thus, we affirmed the trial court, finding his assignment of er ror barred by the doctrine of res judicata. Id. at ¶13. Motion for Resentencing {¶13} On December 21, 2018, Mr. Payne filed a motion for a resentenci ng hearing, arguing the trial court failed to merge the counts of conspiracy for robbery, burglary, and kidnapping, respectively, since we had ruled thos e counts were allied offenses in Payne I . Mr. Payne also argued the trial court incorrectly sentenced him as an RVO with impermissible judici al fact-finding. Thus, he argu ed his sentence was void, which entitled him to resentencing. {¶14} The trial court denied his motion for a resentencing hearing an d amended nunc pro tunc, its August 5, 2008 sentencing entry. First, the trial court found Mr. Payne’s arguments barred by res judicata, since they could and should h ave been raised on direct appeal. Second, the trial court noted that, in any event, Mr. Payne’s sentence was not void. The counts of conspiracy were merged during the July 31, 2008 resentencing hearing which was incorrectly memorialized in the August 5, 200 8 sentencing entry. Third, the trial court issued a nunc pro tunc sentencing entry to accurately reflect that the three counts of conspiracy were merged for sentencing purposes. {¶15} Mr. Payne now appeals, raising two assignments of error:6 {¶16} “[1.] The trial court erred by denying appellant’s motion for resentencing hearing. {¶17} “[2.] The trial court erred by issuing a nunc pro tunc to perf orm a merger of allied offenses that was not actually performed in the sentenci ng hearing.” Standard of Review {¶18} Mr. Payne challenges his sentence as void. “[A]n appellate cou rt may vacate or modify a felony sentence on appeal only if it determi nes by clear and convincing evidence that the record does not support the trial court’s fin dings under relevant statutes or that the sentence is otherwise contrary to law.” State v. Armstrong , 11th Dist. Trumbull No. 2015-T-0131, 2017-Ohio-8801, ¶24, citing State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶1, citing R.C. 2953.08(G)(2). {¶19} As the Supreme Court of Ohio recently reviewed in State v. Straley , Slip. Opinion No. 2019-Ohio-5206, “[i]n general, a void judgment is o ne that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act.” Id. at ¶25, quoting State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, ¶27. “Unlike a void judgment, a voidable judgment is one rendered by a court that h as both jurisdiction and authority to act, but the court’s judgment is invalid, irregula r, or erroneous.” Id. , quoting State v. Simpkins , 117 Ohio St.3d 420, 2008-Ohio-1197, ¶12.

Res Judicata {¶20} At the outset, we find Mr. Payne’s challenge to his 2008 senten ce is barred by the doctrine of res judicata since his arguments should have been raised on direct appeal. As we stated in Payne III , “a convicted defendant is precluded under the doctrine of res judicata from raising and litigating in any proceeding, except an appeal from that7 judgment, any defense or any claimed lack of due process that w as raised or could have been raised by the defendant at the trial which resulted in tha t judgment of conviction or on appeal from that judgment.” Id. at ¶11, quoting State v. Szefcyk , 77 Ohio St.3d 93, 96 (1996). {¶21} As the Supreme Court of Ohio explained in Straley, supra , albeit in the context of a postsentence motion to withdraw a guilty plea wher e the appellant argued the trial court erred by imposing mandatory sentences without f irst telling him they were mandatory, “[w]hether res judicata should apply under our void- versus-voidable-sentence precedent does not matter in this context. [Res judicata] appl ies because [the appellant] failed to attack his guilty pleas on direct appeal.” Id . at ¶27, citing State v. Ketterer , 126 Ohio St.3d 448, 2010-Ohio-3831, ¶59. Allied Offenses {¶22} In Payne I , we remanded to the trial court to merge the three counts of conspiracy, since we determined they were allied offenses of si milar import. Accordingly, during the July 31, 2008 sentencing hearing, the trial court st ated: “You’re sentenced on counts six, seven and eight, the conspiracy counts, to eight ye ars; that would be

concurrent with one another as a merged sentence , pursuant to the first appeal.” (Emphasis added.) {¶23} It is apparent Mr. Payne was properly sentenced during the rese ntencing hearing to a merged count of conspiracy due to our previous det ermination these counts were allied offenses of similar import. {¶24} The trial court, however, incorrectly noted in the August 5, 20 08, sentencing entry that “the Defendant [shall] serve a stated prison term of eight (8) years in prison on8 Count 6; eight (8) years in prison on Count 7; eight (8) in pri son on Count 8; and five (5) years in prison on Count 9. The sentences imposed on Counts 6, 7, and 8, are to be served concurrent with each other, but consecutive to the sente nce imposed on Count

9.”

Nunc Pro Tunc {¶25} Accordingly, on March 13, 2019, in the same judgment entry deny ing Mr. Payne’s motion for a resentencing hearing, the trial court issu ed a nunc pro tunc sentencing entry to reflect the sentence Mr. Payne received at his sentencing hearing. The corrected entry now reads that “the Defendant [shall] serve a stated prison term of eight (8) years in prison on Count 6, Counts 7 and 8 merged int o Count 6 for purposes of sentencing, and five (5) years in prison on Count 9.” {¶26} Crim.R. 36 permits the trial court to correct “[c]lerical mista kes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission * * * at any time.” The purpose of a nunc pro tunc or der is to have the judgment of the court reflect its true action. (Citation omitted.) Armstrong at ¶19, citing State v.

Hundzsa , 11th Dist. Portage No. 2008-P-0012, 2008-Ohio-4985, ¶27. The power of the trial court to enter a judgment nunc pro tunc “does not extend beyond the power to make the journal entry speak the truth” and can only be implemented to correct clerical errors.

Id . “It is not made to show what the court might or should have decided, or intended to decide, but what it actually did decide.” Id. {¶27} The nunc pro tunc entry clarifies that the trial court sentence d Mr. Payne on three counts of conspiracy that were merged as allied offenses of similar import per our9 remand instruction in Payne I . Thus, the sentencing entry now accurately reflects what transpired at his sentencing hearing. {¶28} Mr. Payne’s second assignment of error asserting that the trial court improperly corrected his sentence beyond clerical error by a nu nc pro tunc entry is without

merit. RVO Specification {¶29} Lastly, as part of his first assignment of error, Mr. Payne als o argues the trial court improperly sentenced him to an RVO specification be cause the issue of whether he attempted or threatened to cause or actually caused “serious physical harm” was never tried before the jury. {¶30} Mr. Payne was resentenced on the RVO specification after Payne II. He did not appeal his 2008 resentencing. Mr. Payne did later file a motion to set aside judgment and sentence pursuant to R.C. 2945.75(A)(2); however, he did not raise any arguments challenging his resentencing. Instead, Mr. Payne mad e a manifest weight of the evidence argument, which, in Payne III , we found to be barred by the doctrine of res judicata and without merit. {¶31} Mr. Payne’s argument challenging the finding of guilt on his RV O specification is beyond the limited scope of this appeal and ba rred by the doctrine of res judicata. {¶32} In State v. Andrews , 9th Dist. Summit No. 28779, 2018-Ohio-2539, the Ninth District found appellant’s challenge of the trial court’s initial finding of guilt as to the RVO specification was barred by res judicata and outside the li mited scope of his resentencing hearing. Id. at ¶10. In State v. Wilson , 9th Dist. Summit No. 29375, 2019-10 Ohio-4337, the appellant argued that his RVO sentence was void because the trial court failed to impose a maximum sentence in an underlying offense. The Ninth District determined the appellant’s argument was barred by the doctrine of res judicata since he failed to raise it as an issue on direct appeal. Id. at ¶8-9. {¶33} Likewise, in State v. Shepard, 8th Dist. Cuyahoga No. 98709, 2013-Ohio271, the Eighth District affirmed the trial court’s denial of a ppellant’s motion to vacate his RVO sentence as void because it was barred by the doctrine of r es judicata. Similar to Mr. Payne, at no time either on direct appeal or in postconvict ion proceedings, did the appellant raise the issue. Id. at ¶5. In State v. Sowell , 8th Dist. Cuyahoga No. 102752, 2015-Ohio-4770, the Eighth District found the appellant’s const itutional argument that RVO sentencing conflicts with the Sixth Amendment right to a tr ial by jury was barred by the doctrine of res judicata because he failed to raise the iss ue on direct appeal. Id. at ¶9. And, in State v. Wilson , 9th Dist. Summit No. 27361, 2015-Ohio-2023, the Ninth District determined that the appellant could not challenge the trial court’s finding of guilt on his particular RVO specification because his argument should have been raised in his prior appeal; thus, it was precluded by res judicata and/or the law of the case doctrine.

Id. at ¶9. {¶34} Finding Mr. Payne’s appeal barred by the doctrine of res judica ta, we affirm the judgment of the Lake County Court of Common Pleas.

THOMAS R. WRIGHT, J., MATT LYNCH, J.,

concur.