[Cite as State v. Allen , 2019-Ohio-4594.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. PAUL EUGENE ALLEN Defendant-Appellant : : : : : : : : : : Appellate Case No. 28266

Trial Court Case No. 1994-CR-1193 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 8th day of November, 2019.

. . . . . . . . . . . MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 009590 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee PAUL EUGENE ALLEN, Inmate No. 308-052, P.O. Box 209, Orient, Oh io 43146 Defendant-Appellant, Pro Se

. . . . . . . . . . . . .

TUCKER, J.-2-

{¶ 1} Appellant, Paul Allen, pro se, filed a motion in the Montgomery County Court of Common Pleas seeking to correct a purportedly void sentence. The trial court overruled the motion, and Allen appeals. Allen’s sentence was not void; thus, the trial

court’s order will be affirmed.

Facts and Procedural History {¶ 2} In 1995, following a jury trial, Allen was found guilty of murd er and felonious assault. Allen was sentenced accordingly, but the judgment ent ry of conviction did not include the manner of conviction (in this case, a jury trial), as then required by Crim.R. 32(C). Allen’s conviction was affirmed on direct appeal, but t he manner of conviction

issue was neither raised nor discussed. State v. Allen , 2d Dist. Montgomery No. 15162, 1996 WL 338679 (June 21, 1996). {¶ 3} In August 2010, Allen filed a pro se motion seeking “ * * * De Novo Resentencing To Achieve A ‘Final Appealable Order’ Under [R.C. 2505.02] & Crim.R. 32(C).” This motion was prompted by State v. Baker, 119 Ohio St.3d 197, 2008-Ohio3330, 893 N.E.2d 163, wherein the court, at least arguably, rul ed that a judgment entry

of conviction which did not include the manner of conviction wa s not a final appealable order. In response, the trial court filed a nunc pro tunc judg ment entry on September 3, 2010, which specified that Allen was found guilty by a jury. A llen did not appeal from the filing of the nunc pro tunc judgment entry. {¶ 4} Eight years later, Allen, again acting pro se, filed another mo tion, styled as a “Motion For Re Sentencing Pursuant To Crim.R. 43(A) A Void Sent ence Not A Final-3- Appealable Order.” This motion sought resentencing and, more sp ecifically, the reopening of the appellate process regarding the 1995 jury verd ict. The trial court overruled this motion, and Allen filed this appeal.

Analysis {¶ 5} Allen asserts the following assignments of error: 1. Did the trial court err by failing to have Defendant presen t at Re Sentencing hearing held on the September 3rd 2010 Nunc Pro Tunc hearing pursuant to Crim.R. 43(A). 2. Trial court committed Plain Error at trial in 1994 [sic] wh en it denied appellant a Mistrial in violation of appellant’s Due Process an d Right to a fair and impartial trial when the court allowed comments in the presence of the jury that defendant was incarcerated. 3. Appellant Paul Allen contends that his trial counsel render ed ineffective assistance of counsel’s duties at trial by failing to object to Witness testimony that defendant was incarcerated, in violation of Defendant’s Right to a fair trial and due process equal protect ion. 4. Appellant Paul Allen contends that his trial counsel Render ed

ineffective assistance of counsel with the choices made to not request dismissal of the entire case after the trial court granted defe ndant’s suppression of Miranda Rights not being applied in defendant Pa ul Allen’s case that resulted in Fruits of the poisonous tree. {¶ 6} In order to understand Allen’s argument, it is necessary to dis cuss State v.-4- Baker and the Supreme Court’s clarification of Baker set forth in State v. Lester , 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. Baker held as follows: A judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or th e 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 cour t. (Crim.R. 32(C), explained.)

Baker at syllabus. The ruling was an attempt to resolve a certified conflict between appellate districts concerning “what a judgment of conviction m ust include pursuant to Crim.R. 32(C) to become a final appealable order.” Id. at ¶ 1. But, the attempted resolution caused confusion regarding whether a sentencing entr y’s omission of the manner of conviction affected the finality of the sentencing en try. {¶ 7} In State v. Lester , the Supreme Court resolved this confusion. Lester sanctioned a trial court’s use of a nunc pro tunc entry to corr ect a Crim.R. 32(C) manner

of conviction omission. It held: * * * The sole purpose of the nunc pro tunc entry was to correc tly state that appellant’s original conviction was based on a jury verdict, a fact that was obvious to the court and all the parties. It is apparent, then , that the nunc pro tunc entry merely corrected a clerical omission in the rese ntencing order and made the entry reflect what had already happened, which was appellant’s conviction by jury verdict. The trial court’s addi tion indicating how appellant’s conviction was effected affected only the form of the entry and made no substantive changes. Accordingly, we hold that a n unc pro-5- tunc judgment entry issued for the sole purpose of complying wi th Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new final order from which a new appeal may be taken.

Lester at ¶ 20. Thus, the nunc pro tunc judgment entry of conviction filed in this case complied with the procedure Lester outlines, and the original 1995 judgment entry was, all along, a final appealable order. {¶ 8} Allen acknowledges the 2010 nunc pro tunc entry, but asserts th at the inclusion of “3-16-95” (the date the original judgment entry wa s filed) in the nunc pro tunc entry’s caption makes it appear that the later entry was filed in March 1995, not September 2010. From this, Allen suggests that the nunc pro tu nc entry did not correct the manner of conviction omission, and, as a result, a final ap pealable judgment entry has yet to be filed. Allen also asserts that since he was not present for a hearing regarding the nunc pro tunc entry, the filing of the entry viol ated Crim.R. 43(A), which requires that a defendant must be present for all stages of a c riminal proceeding against

him. Each contention is incorrect. {¶ 9} The inclusion of the date the original judgment entry was filed in the caption of the nunc pro tunc judgment entry accurately reflects the pur pose of a nunc pro tunc entry. “ ‘Nunc pro tunc’ means ‘now for then’ and is commonly defined as ‘[h]aving retroactive effect through a court’s inherent power.’ ” Lester at ¶ 19, quoting Black’s Law Dictionary 1174 (9th Ed.2009). Thus, a nunc pro tunc entry has retroacti ve application to the judgment entry that it corrects, in this case the March 16, 1995 judgment entry. The inclusion of this date in the caption of the nunc pro tunc judgment entry simply, and accurately, reflected that the September 2010 nunc pro tunc ent ry had the discussed-6- retroactive application. Further, as Lester verified, the March 16, 1995 judgment entry, despite the omission of the manner of conviction, was the final appealable order resulting

from Allen’s conviction. {¶ 10} Since the September 2010 nunc pro tunc entry was filed to refle ct that which had already occurred – the 1995 conviction – Allen’s argument t hat he was not present for any hearing associated with the nunc pro tunc judgment entr y, in violation of Crim.R. 43(A), is without merit. The record reflects the trial court d id not conduct such a hearing, and, since the nunc pro tunc termination entry was filed to ret roactively reflect that which had already occurred, there was no need to conduct a hearing. Allen’s first assignment

of error is overruled. {¶ 11} Allen’s remaining assignments of error relate to issues not rai sed in the motion prompting this appeal. “It is fundamental that an appel late court will not entertain

an issue not raised in the trial court.” State v. White , 2d Dist. Miami No. 82 CA 6, 1982 WL 3773, *2 (August 12, 1982). Even if this were not so, Allen ’s remaining assignments of error could have been raised in his initial appeal. Thus, t hese assignments of error are barred by res judicata. State v. Flanigan , 2d Dist. Montgomery No. 22356, 2008- Ohio-4135. Assignments of error 2-4 are overruled.

Conclusion {¶ 12} Finding no merit in Allen’s assignments of error, the judgment of the Montgomery County Common Pleas Court is affirmed.

. . . . . . . . . . . . . DONOVAN, J. and HALL, J., concur.-7-

Copies sent to: Mathias H. Heck, Jr. Sarah E. Hutnik Paul Eugene Allen Hon. Mary Katherine Huffman