[Cite as State v. McIntyre, 2012-Ohio-2480.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

LEWIS LEROY MCINTYRE 

 Appellant 

C.A. No. 26195 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 09 03 0647 

DECISION AND JOURNAL ENTRY

Dated: June 6, 2012 

 

WHITMORE, Presiding Judge. 

{¶1} Appellant, Lewis Leroy McIntyre, appeals from a judgment of the Summit 

County Court of Common Pleas, which denied his request to correct a clerical error and to 

conduct a resentencing hearing. This Court affirms. 

I 

{¶2} McIntyre was convicted in July 2009 of tampering with evidence, tampering with 

records, petty theft, and obstructing justice. McIntyre appealed. His convictions were affirmed 

in part and reversed in part. State v. McIntyre, 9th Dist. Nos. 24934 & 24945, 2010-Ohio-2569. 

Subsequently, McIntyre filed an App.R. 26(B) application to reopen his appeal claiming 

ineffective assistance of appellate counsel, which was granted. After the appeal was reopened, 

McIntyre filed a motion in the trial court to correct a clerical error and to conduct a new 

sentencing hearing. The trial court denied his motion, finding that it lacked jurisdiction to 
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consider McIntyre’s motion because an appeal was pending. McIntyre now appeals that decision 

and raises one assignment of error for our review. 

II 

Assignment of Error

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT 

LEWIS LEROY MCINTYRE, JR BY VIOLATING AND DEPRIVING HIM OF 

BOTH HIS DUE PROCESS RIGHTS THUS GURANTEED (sic) TO HIM BY 

THE FOURTEENTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO 

CONSTITUTION. WHEN THE TRIAL COURT FAILED TO GRANT 

APPELLANT MCINTYRE’S CRIMINAL RULE 36(A) MOTION TO 

CORRECT CLERICAL ERROR AND CONDUCT A DE NOVO 

RESENTENCING HEARING AS THOUGH SENTENCING HAD NEVER 

PREVIOUSLY OCCURRED. BASED UPON THE FACT THAT THE TRIAL 

COURT DURING TRIAL HAD GRANTED APPELLANT MCINTYRE’S 

CRIMINAL RULE 29 MOTION FOR ACQUITTAL AS TO THE OFFENSE 

TO-WIT [OBSTRUCTING JUSTICE AND ITS UNDERLYING OFFENSE, 

PASSING BAD CHECKS-F5], BUT THE TRIAL COURT FAILED TO 

JOURNALIZE SUCH AND MISTAKENLY SENTENCED THE APPELLANT 

MCINTYRE TO A PRISON TERM OF ONE YEAR FOR [OBSTRUCTING 

JUSTICE AND ITS UNDERLYING OFFENSE, PASSING BAD CHECKS-F5] 

TO WHICH THE TRIAL COURT HAD PREVIOUSLY ACQUITTED 

APPELLANT MCINTYRE OF SAID OFFENSE. (Sic.) 

{¶3} In his sole assignment of error, McIntyre argues that the trial court erred when it 

denied his motion to correct a clerical error in the judgment and to conduct a new sentencing 

hearing. The trial court held that it lacked jurisdiction to consider McIntyre’s motion because of 

a pending appeal. 

{¶4} When an appeal is pending, a trial court is without authority to take any action 

except to aid in the appeal. See State ex rel. Special Prosecutors v. Judges, Court of Common 

Pleas, 55 Ohio St.2d 94, 97 (1978). A trial court does retain jurisdiction over “collateral issues 

like contempt, appointment of a receiver and injunction.” Id. 
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{¶5} At the time McIntyre filed his motion, this Court had granted his application to 

reopen his appeal. While his appeal was pending, the trial court did not have jurisdiction to 

modify his sentencing entry because this is not a collateral issue. McIntyre’s assignment of 

error, therefore, is overruled.

III 

{¶6} McIntyre’s sole assignment of error is overruled. The judgment of the Summit 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 BETH WHITMORE 

 FOR THE COURT 
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MOORE, J. 

BELFANCE, J. 

CONCUR.

APPEARANCES:

LEWIS LEROY MCINTYRE, JR., pro se, Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant 

Prosecuting Attorney, for Appellee.