[Cite as State v. Picard, 2017-Ohio-7600.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellee : Hon. W. Scott Gwin, J. 

 : Hon. William B. Hoffman, J. 

-vs- : 

 : Case No. 17 CA 28 

 : 

JOHN S. PICARD : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Richland County Court 

of Common Pleas, Case Nos. 2008-CR0545, 2009-CR-0111 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: September 11, 2017 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

GARY BISHOP JOHN S. PICARD, Pro Se 

RICHLAND COUNTY PROSECUTOR Inmate No. A572767 

 Belmont Correctional Institution 

JOSEPH C. SNYDER 68518 Bannok Uniontown Rd. 

38 South Park Street St. Clairsville, OH 43950 

Mansfield, OH 44902 
Richland County, Case No. 17CA28 2 

Delaney, P.J. 

{¶1} Defendant-Appellant John S. Picard appeals the February 28, 2017 nunc 

pro tunc sentencing entry of the Richland County Court of Common Pleas. 

FACTS AND PROCEDURAL HISTORY 

{¶2} The facts as set forth in appellant's previous appeals are as follows: 

{¶3} In 1990, appellant was hired as the youth pastor at the Marion Avenue 

Grace Brethren Church in Mansfield, Ohio. In his position at the church, appellant and his 

wife Sherry had regular contact with teenage girls and young adult females in the church. 

{¶4} Appellant formed close relationships with several of the girls in the youth 

group, distancing these girls from their family and friends. He referred to this smaller group 

as “the family,” which was made up of appellant and his wife, several of the girls in the 

youth group, and eventually the girls' husbands as the girls grew older and married. As 

the leader, appellant controlled nearly every aspect of their lives. Appellant influenced 

where the girls lived, who they dated or married, and what cars they purchased. Appellant 

spoke of having a large piece of land where the “family” could live in a large house with 

separate wings, sharing a common kitchen and dining area. 

{¶5} H.G. began attending the Marion Avenue Church when she was twelve 

years old and moved in with her great aunt and uncle after her parents died. She began 

babysitting appellant's children when she was sixteen. When she was sixteen, she and 

appellant began kissing and fondling. One night, after eating dinner with appellant's 

family, H.G. went to the basement with appellant to spot him while he was working out. 

Appellant had H.G. perform oral sex on him. Appellant explained to H.G. that it wasn't 

sinful because it wasn't sex. On another occasion, appellant and H.G. were naked in the 
Richland County, Case No. 17CA28 3 

bedroom of appellant's home. Appellant digitally penetrated H.G.'s vagina, but appellant's 

son walked in before the encounter could go any further. H.G. left the area when she 

turned eighteen, but saw appellant one last time thereafter. Appellant drove her out into 

the country where they kissed and fondled each other, and H.G. performed oral sex on 

appellant. 

{¶6} S.S. began attending Marion Avenue Church in her sophomore year of high 

school. Her mother had divorced for a second time, and she had to move in with her 

father. While involved with the youth group, S.S. would run errands with appellant. On 

one occasion they went for a motorcycle ride. Appellant reached between S.S.'s legs, 

claiming he was switching to an alternate gas tank. Like H.G., S.S. babysat appellant's 

children. On one occasion, appellant asked S.S. to stop at his house after a New Year's 

Eve party. When she arrived, the house was dark. Appellant took her into the bedroom, 

kissed her, pulled down her pants and touched her genital area. He asked her to say, 

“Fuck me.” Tr. 215. She became afraid because she had never seen appellant behave in 

such a harsh manner. She ultimately said what he asked her to say, although no 

penetration occurred. On Sundays after church appellant began taking S.S. by the hand 

and leading her to his office, where they would kiss and stroke each other. Appellant told 

her that being a youth pastor was difficult and he was frequently under attack, and this 

was a form of comfort his wife could not give him. 

{¶7} During the summer of 2004, S.S. accompanied the youth group on a 

mission trip. While taking the garbage to the dumpster with appellant, he unzipped his 

pants and guided her head to his penis, asking her to put his penis in her mouth. He 
Richland County, Case No. 17CA28 4 

instructed her to perform oral sex on him in the back of a truck at a later time on the same 

mission trip. He told S.S. that this was something his wife could not do for him. 

{¶8} S.W. was an only child from what she considered a normal family. However, 

as she became more involved with appellant and Sherry through the youth group, her 

relationship with her parents deteriorated. In the fall of 1995, appellant asked S.W. to kiss 

him. By 1996, S.W. considered appellant to be her best friend. Appellant told her that best 

friends engage in sexual acts with each other, claiming that the Bible states that Jonathan 

and David were best friends who engaged in sexual behavior together. He also told S .W. 

that when the Bible says a pastor should be a one-woman man, that just means he can't 

be with two women at the same time. He explained to her that his job was very taxing, 

and he needed her to fill him back up. Around 1996 or 1997, he asked S.W. to perform 

oral sex on him in the kitchen of his home. For the next ten years, she regularly engaged 

in oral sex and sexual intercourse with appellant. He told her it would be a worse sin for 

her not to have sex with him than it would be to have sex with him, because God was 

protecting their relationship. Sometimes when S.W. did not want to have sex with 

appellant she cried, and appellant told her he liked it when she cried. 

{¶9} G.R. attended the youth group at the Marion Avenue Church. She had been 

sexually abused by her father. G.R. also babysat for appellant and Sherry. When G.R. 

was 13 and appellant was driving her home after babysitting, he pulled into a wooded 

area and asked her to perform oral sex on him. Appellant told her that he believed God 

put her in his life for this special relationship because there were things Sherry could not 

do for him. Appellant and G.R. began engaging in oral sex and sexual intercourse on a 

weekly basis when she babysat for his children. Sometimes in his office in the church he 
Richland County, Case No. 17CA28 5 

would place her on his lap, rub her breasts and her genital area, and have her rub his 

genitals. During a game of hide and seek at a youth group overnighter at the church, 

appellant found G.R. hiding in the baptismal. He had G.R. perform oral sex on him in the 

baptismal. He told G.R. that he had consulted the Holy Spirit and had received peace that 

his relationship with G.R. was right. He told her that giving him oral sex was her Godgiven role as his comforter. 

{¶10} J.F. is G.R.'s step-sister. Between the ages of 18 and 20, she began giving 

appellant oral sex in his office and in a storage room at the church. In April of 1999, when 

J.F. was 20 years old, she began engaging in sexual intercourse with appellant. After she 

moved into her own apartment in October, 2001, she and appellant engaged in sex once 

or twice a week. Appellant told her if she didn't have sex with him, he would terminate 

their friendship and she would be shunned by the church. Appellant hit J.F. at times, and 

threatened to tie her up if she did not comply with his request for sex. Appellant told her 

that she was a special friend who had been chosen for him. He explained to her that their 

relationship was not different from those in the Bible, including Jonathan and David. He 

told her that in the Biblical account of the Last Supper where John leans on Jesus, it is 

possible that John had contact with Jesus' genitals. He also recounted the story, where 

Abraham places his hand on another man's thigh to make an oath, to support his claims 

that his relationship with J.F. was Biblically sanctioned. 

{¶11} L.R. was 14 years old when she began attending the church with a friend. 

She admired and trusted appellant and thought of him more highly as a spiritual leader 

than anyone she had ever met. She longed to be a part of the group that was close to 

appellant and his wife. On one occasion when she was on the church bus alone with 
Richland County, Case No. 17CA28 6 

appellant, he told her that he thought she was very godly, and if anything happened to 

Sherry, L.R. is the kind of woman he would want for his wife. In 2004, L.R. asked to meet 

with appellant to learn how to memorize Scripture. When she went to appellant's office, 

he told her that things were hard and he needed comfort. He then placed L.R.'s hands on 

his genitals, telling her that his wife is not a comfort to him, and L.R. is the only one he 

could trust. When decorating for a wedding shower at the church, appellant pulled L.R. 

into his office and asked her for oral sex. She refused. However, in September of 2004 

appellant convinced L.R. to perform oral sex on him. Eventually the oral sex progressed 

into sexual intercourse, and the sexual behavior continued regularly through December 

of 2007. He explained that this was not adultery, telling L.R., “You were given to me by 

God. You were made just for me.” Tr. 635. 

{¶12} In 2005, H.G. disclosed her involvement with appellant to a pastor at her 

new church. This pastor in turn relayed the allegations to the Marion Avenue church, and 

H.G. was called before a council of pastors. H.G.'s claims were discounted by the church, 

but the church held a series of meetings about whether to retain appellant as youth pastor. 

His other victims attended these meetings, either standing in full support of appellant or 

remaining silent. Many members of the church had become concerned about appellant's 

close relationships with young women in the congregation, with one member referring to 

the group as appellant's “harem.” Tr. 229. 

{¶13} Although the congregation voted to retain appellant, he resigned from the 

church and made plans to form his own church with members of his “family.” These plans 

fell apart in January of 2005 when S.S. confessed her relationship with appellant to her 

husband. 
Richland County, Case No. 17CA28 7 

{¶14} Initially, police were not concerned with relationships between appellant and 

the girls after they turned 18, believing them to be consensual relationships between 

adults. Appellant was initially indicted in Case No. 08–CR–545 for sexual battery against 

H.G. and G.R. when they were juveniles. After the nature of the control and mental and 

spiritual coercion appellant exerted over the girls became apparent to police, the State 

moved to amend the indictment to include offenses against H.G. and G.R. after they 

turned 18, and to amend the statutory subsection in counts nine through sixteen, which 

related to H.G., to allege a violation of R.C. 2907.03(A)(1) rather than a violation of R.C. 

2907.03(A)(9) because subsection (A)(9) was not in effect during the time period alleged 

in these counts. 

{¶15} Appellant was later indicted in Case No. 09–CR–111 for sexual battery 

against S.W., L.R., J.F. and S.S. The cases were consolidated for trial. 

{¶16} The case proceeded to a jury trial in the Richland County Common Pleas 

Court. Following trial, appellant was convicted of all charges and sentenced to an 

aggregate term of 40 years in prison, with 5 years mandatory post-release control. This 

Court affirmed the judgment on appeal. State v. Picard, 5th Dist. Richland No. 

2009CA0108, 2010–Ohio–6358 (“Picard I”). 

{¶17} Appellant filed a motion to reopen his appeal, arguing that counsel was 

ineffective for failing to raise a claim of insufficient evidence as to six of the eight counts 

of sexual battery against H.G. We granted the motion to reopen, and upon reopening 

found the evidence sufficient to support three of the eight counts of sexual battery against 

H.G. We reversed the convictions on the remaining five counts and remanded to the trial 
Richland County, Case No. 17CA28 8 

court for resentencing. State v. Picard, 5th Dist. Richland No. 2009CA0108, 2011–Ohio–

6781 (“Picard II”). 

{¶18} On remand, the trial court dismissed counts twelve through sixteen of the 

indictment, and resentenced appellant on counts nine through eleven. Appellant was 

sentenced to five years incarceration on Count 9, to run consecutive to counts 1, 5, and 

10 and to counts 1, 9, 17 and 19 of Case No. 09–CR–111. He was sentenced to five 

years incarceration on Count 10, to run consecutive to counts 1, 5 and 9, and to counts 

1, 9, 17 and 19 of Case No. 09–CR–111. On Count 11 he was sentenced to one year, to 

run concurrent to all other charges. 

{¶19} Appellant again appealed to this Court. By Opinion and Entry dated June 

27, 2014, this Court affirmed the trial court's sentencing decision. State v. Picard, 5th Dist. 

Richland No. 13CA95, 2014-Ohio-2924 (“Picard III”). 

{¶20} On September 2, 2014, appellant filed a motion for a delayed appeal in the 

Ohio Supreme Court. The Ohio Supreme Court denied his motion on October 22, 2014. 

{¶21} On June 4, 2014, appellant filed a motion entitled Ex Parte Motion to 

Proceed to Judgment and Order, thereafter, to Vacate the Void Judgment With Prejudice. 

In said motion, appellant moved the trial court to rule on the August, 2009, speedy trial 

motion. The State responded, arguing that the motion was barred by res judicata. On July 

16, 2014, the trial court overruled the motion, finding it to be an untimely motion for post 

conviction relief (by almost five years) and barred by res judicata. 

{¶22} Appellant appealed the trial court’s judgment entry. In State v. Picard, 5th 

Dist. Richland No. 14 CA 65, 2015-Ohio-431 (“Picard IV”), we affirmed the trial court’s 

decision that appellant’s claims were barred by res judicata. 
Richland County, Case No. 17CA28 9 

{¶23} On April 29, 2015, appellant filed Complaint for Writ of Mandamus and/or 

Procedendo requesting an order to require the trial court issue a new sentencing entry so 

it would be contained in one document. The trial court originally issued separate 

sentencing entries for Case No. 08-CR-545 and 09-CR-111. The sentencing entry in 

Case No. 09-CR-111 ordered appellant to pay restitution to the victims for counseling as 

submitted to the Richland County Clerk of Courts. The trial court issued two separate 

restitution orders to represent restitution owed to separate victims in Case No. 09-CR111. The restitution orders, however, contained both case numbers. 

{¶24} On May 18, 2015, the State filed a motion for a corrective nunc pro tunc 

entry to remove the restitution from Case No. 08-CR-545 and docket restitution in only 

Case No. 09-CR-111. The State requested the trial court issue nunc pro tunc judgment 

entries to correct the restitution orders to reflect only Case No. 09-CR-111. On May 18, 

2015, the trial court granted the State’s motion for corrective order. 

{¶25} On March 14, 2016, this Court granted the writ of mandamus. Pursuant to 

State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, and Crim.R. 32(C), 

we found the trial court did not issue a final, appealable order because it had not issued 

one single judgment entry containing the entire sentencing along with the other 

requirements of Crim.R. 32. State ex rel. Picard v. Robinson, 5th Dist. Richland No. 

15CA38, 2016-Ohio-1044 (“Picard V”). We remanded the matter to the trial court to 

correct the sentencing entry. Id. at ¶ 12. 

{¶26} On May 16, 2016, appellant filed a motion to invoke speedy sentencing and 

direct appeal rights. 
Richland County, Case No. 17CA28 10 

{¶27} On February 28, 2017, the trial court issued a nunc pro tunc sentencing 

entry in Case No. 09-CR-111. 

{¶28} On March 13, 2017, appellant filed a motion for reconsideration of 

sentencing revision. Appellant argued the trial court should have been present in court 

for resentencing. Appellant also argued the sentences for Case Nos. 08-CR-545 and 09-

CR-111 should have been in one sentencing entry. 

{¶29} On March 27, 2017, appellant filed a notice of appeal of the February 28, 

2017 nunc pro tunc sentencing entry. 

{¶30} On March 30, 2017, the trial court overruled appellant’s motion for 

reconsideration of sentencing revision. 

ASSIGNMENTS OF ERROR 

{¶31} Picard raises ten Assignments of Error: 

{¶32} I. THE TRIAL COURT ERRED IN SENTENCING DEFENDANTAPPELLANT OUTSIDE OF HIS PRESENCE VIOLATING CRIM.R. 43(A) AND HIS 14TH 

AMENDMENT OF THE U.S. CONSTITUTION AS WELL AS ARTICLE I SECTION 10 OF 

OHIO’S CONSTITUTION RIGHTS. 

{¶33} “II. THE TRIAL COURT ERRED WHEN DEFENDANT-APPELLANT WAS 

NOT BROUGHT TO TRIAL WITHIN THE SPEEDY TRIAL TIME FRAME CAUSING 

PREJUDICE AND VIOLATING R.C. 2945.71 AND HIS 6TH AND 14TH AMENDMENTS 

OF THE U.S. CONSTITUTION AS WELL AS ARTICLE I, SECTIONS 10 AND 16 OF 

OHIO’S CONSTITUTION RIGHTS. 

{¶34} “III. THE TRIAL COURT ERRED IN PROSECUTING, CONVICTING AND 

SENTENCING WITHOUT SUBJECT-MATTER JURISDICTION, INDICTMENT COUNTS 
Richland County, Case No. 17CA28 11 

17 AND 19 (09 CR 111); VIOLATING DEFENDANT-APPELLANT’S 6TH AND 14TH 

AMENDMENTS OF THE U.S. CONSTITUTION AS WELL AS ARTICLE I, SECTIONS 10 

AND 16 OF OHIO’S CONSTITUTION RIGHTS. 

{¶35} “IV. THE TRIAL COURT ERRED IN PROSECUTING, CONVICTING AND 

SENTENCING FOR 5 COUNTS (08 CR 545) WITH INSUFFICIENT EVIDENCE; 

VIOLATING DEFENDANT-APPELLANT’S 5TH AND 14TH AMENDMENTS OF THE 

U.S. CONSTITUTION AS WELL ARE ARTICLE I, SECTIONS 10 AND 16 OF OHIO’S 

CONSTITUTION RIGHTS. 

{¶36} “V. THE TRIAL COURT ERRED BY PROSECUTING, CONVICTING, AND 

SENTENCING FOR 17 COUNTS (09 CR 111) WITH INSUFFICIENT EVIDENCE; 

VIOLATING DEFENDANT-APPELLANT’S 5TH AND 14TH AMENDMENTS OF THE 

U.S. CONSTITUTION AS WELL AS ARTICLE I, SECTIONS 10 AND 16 OF OHIO’S 

CONSTITUTION RIGHTS. 

{¶37} “VI. THE TRIAL COURT ERRED IN SENTENCING FOR CRIMES 

ARISING OUT OF THE SAME CONDUCT AND ARE ALLIED OFFENSES (09 CR 111), 

VIOLATING R.C. 2941.25(A) AND DEFENDANT-APPELLANT’S DOUBLE JEOPARDY, 

5TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION AS WELL AS ARTICLE 

I, SECTION 10 OF OHIO’S CONSTITUTION RIGHTS. 

{¶38} “VII. THE TRIAL COURT ERRED IN PROSECUTING, CONVICTING AND 

SENTENCING FOR CRIMES IN WHICH WRONGFULLY AMENDED INDICTMENTS 

INCLUDED DATES OUTSIDE OF THE DATES FILED IN THE ORIGINAL TRUE BILL 

INDICTMENTS RETURNED BY THE GRAND JURY, COUNTS 1-5 AND 9-16 (08 CR 

545) AS WELL AS COUNTS 17 AND 18 (09 CR 111), VIOLATING CRIM.R. 7(D), AND 
Richland County, Case No. 17CA28 12 

DEFENDANT-APPELLANT’S 14TH AMENDMENT OF THE U.S. CONSTITUTION AS 

WELL AS ARTICLE I, SECTION 10 OF OHIO’S CONSTITUTION RIGHTS. 

{¶39} “VIII. THE DEFENDANT-APPELLANT WAS DENIED A 

FUNDAMENTALLY FAIR TRIAL, WHEN DEFENSE COUNSEL’S REPRESENTATION 

FELL BELOW AN OBJECTIVE STANDARD OF REASONABLENESS VIOLATING HIS 

6TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION AS WELL AS ARTICLE 

I, SECTION 10 OF OHIO’S CONSTITUTION RIGHTS. 

{¶40} “IX. THE TRIAL COURT ERRED BY DENYING DEFENDANTAPPELLANT A FAIR TRIAL, WHEN ENOUGH PREJUDICE, IN CUMULATIVE EFFECT, 

DENIED HIM FUNDAMENTAL FAIRNESS; VIOLATING HIS 14TH AMENDMENT OF 

THE U.S. CONSTITUTION AS WELL AS ARTICLE I, SECTION 10 OF OHIO’S 

CONSTITUTION RIGHTS. 

{¶41} “X. THE TRIAL COURT ERRED BY THE IMPOSITION OF COURT COSTS 

WITHOUT THE OPPORTUNITY TO CHALLENGE THE BILLING. THE DUPLICATIVE 

AND ERRONEOUS CHARGES VIOLATE DEFENDANT-APPELLANT’S 14TH 

AMENDMENT OF THE U.S. CONSTITUTION AS WELL AS ARTICLE I, SECTION 10 

OF OHIO’S CONSTITUTION RIGHTS.” 

ANALYSIS 

I. Baker and Resentencing 

{¶42} Appellant argues in his first Assignment of Error that the trial court erred 

when it issued a nunc pro tunc sentencing entry outside his presence. Appellant contends 

the trial court was required to hold a resentencing hearing with appellant present because 

the issue of restitution was never determined in open court. 
Richland County, Case No. 17CA28 13 

{¶43} The Ohio Supreme Court “has consistently regarded Crim.R. 32(C) errors 

as clerical mistakes subject to nunc pro tunc corrections.” State ex rel. Snead v. Ferenc, 

138 Ohio St.3d 136, 2014-Ohio-43, 4 N.E.3d 1013. In State ex rel. DeWine v. Burge, 128 

Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶ 18, the Supreme Court held the 

remedy for correcting a sentencing entry that does not comply with Crim.R. 32(C) is to 

issue a corrected sentencing entry rather than conduct a new sentencing hearing. In 

Burge, the Court explained the remedy was logical because the trial court and the parties 

all proceeded under the presumption that the sentencing entry for the defendant 

constituted a final appealable order and any failure to comply with Crim.R. 32(C) was a 

mere oversight vesting the trial court with specific and limited jurisdiction to issue a new 

sentencing entry to reflect what the court had previously ruled. The trial court was not to 

issue a new sentencing entry reflecting what, in a judge’s successive opinion, the trial 

court should have ruled. Id. at ¶ 19; see also State v. Bonnell, 8th Dist. Cuyahoga No. 

96368, 2011-Ohio-5837 (finding the remedy for a technical violation of Crim.R. 32(C) is 

not to have the trial court issue a final appealable order so the defendant can again appeal 

his conviction, but is a corrected sentencing entry). 

{¶44} This is consistent with our ruling in Picard V. In Picard V, we granted a writ 

of mandamus to order the trial court to correct appellant’s sentencing entry pursuant to 

Crim.R. 32(C). In its appellate brief, the State expressed concern that appellant already 

obtained appellate review of his conviction and sentence. Picard V, supra at ¶ 13. We 

responded, “[t]he Ohio Supreme Court concluded that [a] defendant [is] entitled to a new 

sentencing entry irrespective of prior appellate review, because the original sentencing 

entry did not constitute a final appealable order. Id. at ¶ 10-11, 895 N.E.2d 805.” 
Richland County, Case No. 17CA28 14 

(Emphasis added.) Id. at ¶ 13 citing State ex rel. Moore v. Krichbaum, 7th Dist. Mahoning 

No. 09 MA 201, 2010-Ohio-1541, ¶ 13. 

{¶45} Appellant contends the issue of restitution was not discussed in open court. 

Appellant was originally sentenced on September 3, 2009. The trial court ordered 

appellant to pay restitution as part of his sentence. The trial court stated, “You will be 

required to pay court costs or the court costs will be your responsibility, including the 

victims [sic] expenses, some of which have been set out in a statement of fact and 

restitution and have been signed by you and by the court today.” (Tr. VI, 989). Appellant 

signed both restitution statements at the time of his sentencing. 

{¶46} The trial court properly corrected the Baker violation found in Picard V with 

a nunc pro tunc sentencing entry. We find appellant’s argument that he was entitled to a 

new sentencing hearing is unsupported by the law and the record. 

{¶47} Appellant’s first Assignment of Error is overruled. 

II. – X. 

{¶48} In appellant’s second through tenth Assignments of Errors, appellant raises 

arguments made in Picard I, Picard II, Picard III, and Picard IV. He also raises new 

arguments.

{¶49} This court has held where a trial court issues a corrected judgment entry to 

comply with Crim.R. 32, a defendant who has already had the benefit of a direct appeal 

cannot raise any and all claims of error in successive appeals. State v. Horn, 5th Dist. 

Delaware No. 13 CAA 12 0087, 2014-Ohio-1814. We stated in State v. Harris, 5th Dist. 

Richland No. 10-CA-49, 2011-Ohio-1626, that where an appellant attempts to re-litigate 

multiple claims from his original conviction and raise new claims, “we do not find this to 
Richland County, Case No. 17CA28 15 

be the intent of the Supreme Court in Baker.” In such circumstances, res judicata remains 

applicable and the defendant is not entitled to a second bite at the apple. Horn, supra at 

¶ 11 citing State v. Bonnell, supra. A nunc pro tunc entry issued solely for the purpose of 

complying with Crim.R. 32 applies retrospectively to the judgment it corrects and is not a 

new final appealable order. State v. Miley, 5th Dist. Richland No. 2011 CA 0005, 2011-

Ohio-5647; State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989, ¶ 49 

(holding res judicata precludes a litigant from using a resentencing entry issued pursuant 

to Baker to litigate an issue when that defendant has already litigated or could have 

litigated the issue on direct appeal). 

{¶50} The trial court originally sentenced appellant in 2009. Appellant filed a direct 

appeal of his conviction and raised seven assignments of error. As to appellant’s 

sentence, appellant only argued the trial court erred in convicting and sentencing him on 

duplicative counts. The court exercised jurisdiction over his appeal and affirmed his 

conviction and sentence. Appellant successfully reopened his appeal based on ineffective 

assistance of counsel. He raised two assignments of error arguing there was insufficient 

evidence to convict appellant of multiple counts of sexual battery. We found the record 

supported convictions on only three counts of sexual battery and remanded the matter to 

the trial court for resentencing. Appellant appealed the resentencing. We affirmed. 

Appellant appealed and raised six assignments of error arguing the trial court’s denial of 

appellant’s petition for post-conviction relief was in error. We affirmed. Appellant filed a 

writ of mandamus regarding the sentencing entries, which we granted. 

{¶51} The record in this case shows appellant has had a full opportunity to litigate 

all issues relating to his conviction and sentence, and his substantive rights were not 
Richland County, Case No. 17CA28 16 

prejudiced in any way. We find appellant’s arguments are barred by the doctrine of res 

judicata. 

{¶52} Appellant’s second through tenth Assignments of Errors are overruled. 

CONCLUSION 

{¶53} The judgment of the Richland County Court of Common Pleas is affirmed. 

By: Delaney, P.J., 

Gwin, J. and 

Hoffman, J., concur.