[Cite as State v. Avery, 2011-Ohio-4182.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 14-10-35 

 v. 

EDWARD AVERY, SR., O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Union County Common Pleas Court 

Trial Court No. 1997 CR 0020 

Judgment Affirmed 

Date of Decision: August 22, 2011 

 

APPEARANCES: 

Craig M. Jaquith for Appellant 

David W. Phillips and Terry L. Hord for Appellee 
Case No. 14-10-35 

-2- 

WILLAMOWSKI, J. 

{¶1} Defendant-Appellant, Edward B. Avery, Sr. (“Avery”), appeals the 

judgment entry of the Union County Court of Common Pleas, resentencing Avery 

to correct an error in the imposition of postrelease control. On appeal, Avery 

raises several issues pertaining to his original 1997 convictions for rape, 

kidnapping, aggravated burglary, and robbery. For the reasons set forth below, the 

judgment is affirmed. 

{¶2} On August 1, 1997, a jury found Avery guilty of first degree rape, 

second degree robbery, first degree aggravated burglary, and first degree 

kidnapping. Avery was sentenced to maximum sentences of ten years 

imprisonment for the counts of rape, aggravated burglary and kidnapping, to be 

served consecutively to each other, and eight years imprisonment for the count of 

robbery, to be served concurrently to the sentences for the other counts, for a total 

of thirty years of imprisonment. In addition, the trial court adjudicated Avery a 

sexual predator. 

{¶3} Avery appealed his conviction to this Court, asserting four 

assignments of error. This Court affirmed the conviction and sentence in a 

decision dated April 14, 1998. See State v. Avery (1998), 126 Ohio App.3d 36, 

709 N.E.2d 875 (or, “Avery I”). Avery's motion for leave to file a delayed appeal 

to the Ohio Supreme Court was denied at 91 Ohio St.3d 1462, 743 N.E.2d 401. 
Case No. 14-10-35 

-3- 

{¶4} On January 12, 2004, Avery filed a request for review and 

modification of his sentence. The trial court overruled Avery's motion without 

holding an evidentiary hearing and he appealed that decision. On August 9, 2004, 

we affirmed the trial court’s decision, finding that the trial court's refusal to hold 

an evidentiary hearing on the motion was appropriate as the motion was untimely 

and barred by res judicata. See State v. Avery, 3d Dist. No. 14-04-06, 2004-Ohio4165 (or, “Avery II”). 

{¶5} Subsequently, Avery filed a motion to correct inaccuracies in his 

sentencing entry and a motion for resentencing because of the trial court’s failure 

to properly inform him of postrelease control (“PRC”). Counsel was appointed for 

Avery and on September 22, 2010, a hearing was held on all of his pending 

motions, along with additional issues that were raised at the hearing. On 

November 23, 2010, a de novo sentencing hearing was held. On November 24, 

2010, the trial court resentenced Avery to an aggregate sentence of thirty years in 

prison (with credit for time served) and correctly informed him as to PRC. The 

resentencing entry also included the method of conviction, which was lacking in 

the previous judgment entry. See Crim.R. 32(C); State v. Baker, 119 Ohio St.3d 

197, 2008-Ohio-3330, 893 N.E.2d 163. 

{¶6} It is from this judgment that Avery now brings his third appeal before 

this Court, raising the following three assignments of error. 
Case No. 14-10-35 

-4- 

First Assignment of Error 

The trial court erred by not declaring a mistrial when a 

dismissed alternate juror was present for two hours during jury 

deliberations. 

Second Assignment of Error 

The trial court erred in its instructions to the jury on 

kidnapping, and thereby deprived Mr. Avery of his right to a 

fair trial before a properly instructed jury, and of his right to 

due process of law, as guaranteed by the Fifth, Sixth, and 

Fourteenth Amendments to the United States Constitution, and 

Sections 10 and 16, Article I of the Ohio Constitution. 

Third Assignment of Error 

The trial court erred when it did not merge rape and kidnapping 

as allied offenses. 

{¶7} Although the issues that Avery raises in this appeal have either 

previously been addressed on appeal, or could have been raised at the time of his 

previous appeals, he again seeks to revisit these issues after his new sentencing 

hearing. However, a recent decision by the Supreme Court of Ohio has clarified 

the extent of review that is applicable after a new sentencing hearing is held due to 

a trial court’s failure to properly impose PRC. See State v. Fischer, 128 Ohio 

St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332. 

{¶8} The Ohio Supreme Court abrogated portions of State v. Bezak, 114 

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, and held that “the new 

sentencing hearing to which an offender is entitled under Bezak is limited to 
Case No. 14-10-35 

-5- 

proper imposition of postrelease control.” Fischer at ¶29, 942 N.E.2d 332. When 

postrelease control is not properly included in a sentence for a particular offense, 

the sentence for that offense is void, but “only the offending portion of the 

sentence is subject to review and correction.” Id. at ¶27, 942 N.E.2d 332. The new 

sentencing hearing is limited to the proper imposition of postrelease control. Id. at 

¶29, 942 N.E.2d 332. 

{¶9} The scope of relief is limited and does not permit a reexamination of 

all the perceived errors at trial or in other proceedings. Id. at ¶25, 942 N.E.2d 332, 

citing Hill v. United States (1962), 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 

417. The doctrine of “res judicata still applies to other aspects of the merits of a 

conviction, including the determination of guilt and the lawful elements of the 

ensuing sentence.” Id. at paragraph three of the syllabus, 942 N.E.2d 332; State v. 

Hall, 3d Dist. No. 12-10-11, 2011-Ohio-659, ¶12. 

{¶10} The three assignments of error raised by Avery do not pertain to the 

imposition of PRC. Therefore, they are barred by the doctrine of res judicata and 

are not subject to another appellate review. 

{¶11} However, Avery also argues that res judicata is not applicable 

because he contends that the 1997 sentencing entry was not a proper final 

appealable order pursuant to State v. Baker. See 119 Ohio St.3d 197, supra. 

Therefore, Avery asserts that the opinion issued by this court in his 1998 direct 
Case No. 14-10-35 

-6- 

appeal is void because this Court did not have jurisdiction. He maintains that 

Avery I and Avery II cannot serve as preclusive judgments under the doctrine of 

res judicata. 

{¶12} Crim.R. 32(C) provides that a “judgment of conviction shall set forth 

the plea, the verdict, or findings upon which each conviction is based, and the 

sentence.” In Baker, the Ohio Supreme Court explained this requirement by 

holding that 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 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.” 119 Ohio St.3d 197, at 

the syllabus. 

{¶13} Although Avery’s original sentencing entry may not have technically 

complied with Baker and Crim.R. 32(C), that does not mean that it was necessary 

to conduct a resentencing hearing on this matter nor does it mean that the original 

sentence was a nullity. The Ohio Supreme Court has stated that “the technical 

failure to comply with Crim. R. 32(C) by not including the manner of conviction 

in [a defendant’s] sentence is not a violation of a statutorily mandated term, so it 

does not render the judgment a nullity.” (Emphasis sic.) State ex rel. DeWine v. 

Burge, 128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶19. The Ohio 

Supreme Court observed that the appropriate remedy for a violation of Crim.R. 
Case No. 14-10-35 

-7- 

32(C) is “resentencing,” however, it “did not suggest that this term encompassed 

anything more than issuing a corrected sentencing entry that complies with 

Crim.R. 32(C).” Id at ¶20. The Supreme Court distinguished an error in failing to 

state the method of conviction “from egregious defects, such as an entry that is not 

journalized, that permit a court to vacate its previous orders.” Id. at ¶19. It 

explained its reasoning as follows: 

Pursuant to Crim.R. 36, “[c]lerical mistakes in judgments, 

orders, or other parts of the record, and errors in the record 

arising from oversight or omission, may be corrected by the 

court at any time.” “[C]ourts possess inherent authority to 

correct clerical errors in judgment entries so that the record 

speaks the truth.” State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 

353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19. “[N]unc pro tunc 

entries ‘are limited in proper use to reflecting what the court 

actually decided, not what the court might or should have 

decided.’” State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 

2002-Ohio-6323, 779 N.E.2d 223, ¶ 14, quoting State ex rel. Fogle 

v. Steiner (1995), 74 Ohio St.3d 158, 164, 656 N.E.2d 1288. A 

nunc pro tunc entry is often used to correct a sentencing entry 

that, because of a mere oversight or omission, does not comply 

with Crim.R. 32(C). [Citations omitted.] 

Consistent with the treatment of Crim.R. 32(C) errors as clerical 

mistakes that can be remedied by a nunc pro tunc entry, we 

have expressly held that “the remedy for a failure to comply 

with Crim.R. 32(C) is a revised sentencing entry rather than a 

new hearing.” State ex rel. Alicea v. Krichbaum, 126 Ohio St.3d 

194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶ 2; see also 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 (a defendant is 

entitled to a sentencing entry that complies with Crim.R. 32(C)); 

Dunn v. Smith, 119 Ohio St.3d 364, 2008-Ohio-4565, 894 N.E.2d 
Case No. 14-10-35 

-8- 

312, ¶ 10 (when a trial court fails to comply with Crim.R. 32(C), 

“the appropriate remedy is correcting the journal entry”). 

Id. at ¶¶17-18. 

{¶14} In this case, as in Burge, the trial court and all the parties proceeded 

under the presumption that the sentencing entry for Avery was a final appealable 

order. “Any failure to comply with Crim.R. 32(C) was a mere oversight that 

vested the trial court with specific, limited jurisdiction to issue a new sentencing 

entry to reflect what the court had previously ruled * * *.” (Emphasis sic) Id. at 

¶19. The trial court’s November 24, 2010 sentencing entry corrected the “mere 

oversight” of the previous failure to state the method of conviction. All of the 

parties were aware of the fact that Avery was found guilty after a jury trial and the 

record reflected this fact in numerous places. The trial court’s correction of the 

sentencing entry to reflect what had actually occurred was merely a nunc pro tunc 

correction that did not render the previous judgment a nullity. Avery, having 

already had the benefit of a direct appeal, cannot raise any and all claims of error 

in successive appeals. See Fischer at ¶33; State v. Harris, 5th Dist. No. 10-CA-49, 

2011-Ohio-1626, ¶30. Avery is not entitled to “another bite at the apple” as a 

result of this corrected judgment entry. 

{¶15} Avery's new judgment entry of sentencing, which corrected the 

portion of the sentence pertaining to PRC and specified the method of conviction, 
Case No. 14-10-35 

-9- 

cannot be used as a vehicle to reopen all of the other aspects of his case. Avery's 

appeal from that judgment is limited to the subject of postrelease control. Res 

judicata is still applicable to the issues Avery has raised today. Based on the 

above, Avery's three assignments are overruled. 

{¶16} Having found no error prejudicial to the Appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ROGERS, P.J. and SHAW, J., concur. 

/jlr