[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, Case No. 2003 CR 

000137. 

Judgment: Affirmed. 

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 DefendantAppellant). 

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 County jury in 2004 for 

conspiracy to commit aggravated robbery, conspiracy to commit aggravated burglary, 
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conspiracy to commit kidnapping, all three of which carry a repeat violent offender 

specification (“RVO”); and aggravated theft, with a firearm specification. 

{¶2} Mr. Payne now raises two assignments of error on appeal. He first asserts 

that the trial court erred by denying his motion for a resentencing 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 appeal, 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 threatened to cause or actually 

caused serious physical harm before the trial court could sentence him to ten years on 

the RVO specification. Secondly, Mr. Payne asserts the trial court 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 arguments 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 court properly merged the three 

counts of conspiracy. Finally, the trial court appropriately corrected, via a nunc pro tunc 

entry, the August 5, 2008 sentencing entry to reflect what transpired at the sentencing 

hearing, i.e., that the allied offenses of conspiracy were merged when Mr. Payne’s 

sentence was imposed. 

{¶4} Finding Mr. Payne’s claims barred by res judicata and substantively without 

merit, we affirm the judgment of the Lake County Court of Common Pleas. 

Substantive and Procedural History 
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{¶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 “mastermind” of robbing 

and kidnapping Ms. Gail Kopp, the owner of a pawn shop in her own 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 around 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 indictment: 

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 the second degree, in 

violation of R.C. 2923.01(A)(1); conspiracy to kidnapping, a felony of the second degree, 

in violation of R.C. 2923.01(A)(1), with an RVO on all three conspiracy convictions as set 

forth in R.C. 2941.149; and one count of aggravated theft, a felony of the third degree, in 

violation in of R.C. 2913.02(A)(1), with a firearm specification as set forth in R.C. 

2941.145. Id. at ¶5. 

{¶7} On the same day as the jury verdict, after holding an RVO hearing, the trial 

court sentenced Mr. Payne to three eight-year terms for the counts of conspiracy, five 

years for the count of aggravated theft, three years for the firearm 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, therefore, should be merged into 
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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 term 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 hearing in order for Mr. Payne 

to be resentenced within the one to ten-year range on the RVO specification because the 

trial court engaged in impermissible judicial fact-finding as to 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 III 
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{¶12} Mr. Payne then filed a motion to set aside judgment and sentence 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 the 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 error 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 resentencing 

hearing, arguing the trial court failed to merge the counts of conspiracy for robbery, 

burglary, and kidnapping, respectively, since we had ruled those counts were allied 

offenses in Payne I. Mr. Payne also argued the trial court incorrectly sentenced him as 

an RVO with impermissible judicial fact-finding. Thus, he argued his sentence was void, 

which entitled him to resentencing. 

{¶14} The trial court denied his motion for a resentencing hearing and 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 have 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, 2008 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: 
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{¶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 perform a merger of 

allied offenses that was not actually performed in the sentencing hearing.” 

Standard of Review 

{¶18} Mr. Payne challenges his sentence as void. “[A]n appellate court may 

vacate or modify a felony sentence on appeal only if it determines by clear and convincing 

evidence that the record does not support the trial court’s findings 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 one 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 has both jurisdiction and 

authority to act, but the court’s judgment is invalid, irregular, 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 sentence 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 that 
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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 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 where the appellant argued 

the trial court erred by imposing mandatory sentences without first 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] applies 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 similar import. Accordingly, 

during the July 31, 2008 sentencing hearing, the trial court stated: “You’re sentenced on 

counts six, seven and eight, the conspiracy counts, to eight years; 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 resentencing 

hearing to a merged count of conspiracy due to our previous determination these counts 

were allied offenses of similar import. 

{¶24} The trial court, however, incorrectly noted in the August 5, 2008, sentencing 

entry that “the Defendant [shall] serve a stated prison term of eight (8) years in prison on 
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Count 6; eight (8) years in prison on Count 7; eight (8) in prison 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 sentence imposed on Count 

9.” 

Nunc Pro Tunc 

{¶25} Accordingly, on March 13, 2019, in the same judgment entry denying Mr. 

Payne’s motion for a resentencing hearing, the trial court issued 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 into 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 mistakes 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 order 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 sentenced Mr. Payne on 

three counts of conspiracy that were merged as allied offenses of similar import per our 
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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 nunc pro tunc entry is without 

merit. 

RVO Specification 

{¶29} Lastly, as part of his first assignment of error, Mr. Payne also argues the 

trial court improperly sentenced him to an RVO specification because 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 made 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 RVO 

specification is beyond the limited scope of this appeal and barred 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 limited scope of his 

resentencing hearing. Id. at ¶10. In State v. Wilson, 9th Dist. Summit No. 29375, 2019-
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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 appellant’s motion to vacate his 

RVO sentence as void because it was barred by the doctrine of res judicata. Similar to 

Mr. Payne, at no time either on direct appeal or in postconviction 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 constitutional argument that 

RVO sentencing conflicts with the Sixth Amendment right to a trial by jury was barred by 

the doctrine of res judicata because he failed to raise the issue 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 judicata, we affirm 

the judgment of the Lake County Court of Common Pleas. 

THOMAS R. WRIGHT, J., 

MATT LYNCH, J., 

concur.