[Cite as State v. Bonnell, 2011-Ohio-5837.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 96368

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

MELVIN BONNELL

DEFENDANT-APPELLANT

JUDGMENT: 

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-223820 

BEFORE: S. Gallagher, J., Stewart, P.J., and Rocco, J. 

RELEASED AND JOURNALIZED: November 10, 2011 
ATTORNEYS FOR APPELLANT 

Timothy Young 

Ohio Public Defender 

BY: Kimberly S. Rigby 

 Andrew J. King 

Assistant Ohio Public Defenders 

250 East Broad Street, Suite 1400 

Columbus, OH 43215 

Laurence E. Komp 

P.O. Box 1785 

Manchester, MO 63011 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Matthew E. Meyer 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 

SEAN C. GALLAGHER, J.: 

{¶ 1} Appellant Melvin Bonnell appeals the decision of the Cuyahoga County 

Court of Common Pleas that denied his motion for resentencing and to issue a final, 

appealable order. For the reasons stated herein, we reverse the decision and remand the 
matter to the trial court for the issuance of a nunc pro tunc entry consistent with this 

opinion. 

{¶ 2} In 1988, Bonnell was convicted by a jury on two counts of aggravated 

murder and one count of aggravated burglary. He was sentenced to death for the 

aggravated murders, and the court imposed a sentence of 10 to 25 years in prison for the 

aggravated burglary. Appellant pursued his appeal avenues in state and federal courts, 

largely to no avail. Of relevance to this matter, in State v. Bonnell (Oct. 5, 1989), 

Cuyahoga App. No. 55927, this court merged the two separate murder counts and found 

that because the sentence for aggravated burglary was imposed outside of Bonnell’s 

presence, he was to be resentenced on said count. Bonnell was resentenced to the same 

prison term on the aggravated burglary count on October 25, 1989. On May 21, 2010, 22 

years after his conviction and sentence were initially imposed, Bonnell filed a “motion for 

resentencing and to issue a final appealable order.” The trial court denied the motion, 

and this appeal followed. 

{¶ 3} Bonnell’s sole assignment of error is as follows: “The trial court erred by 

not granting Bonnell’s motion to vacate because the purported judgment of conviction 

does not comply with Crim.R. 32(C) and State v. Baker [119 Ohio St.3d 197, 

2008-Ohio-3330, 893 N.E.2d 163].” 

{¶ 4} Bonnell argues that the sentencing opinion and judgment entries fail to set 

forth the conviction on the aggravated burglary count. Therefore, he claims that there is 
no final, appealable order and that the matter should be remanded to the trial court for 

resentencing and the issuance of a judgment in compliance with Crim.R. 32(C). 

{¶ 5} 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 expounded on the language of Crim.R. 32(C) and set 

forth the elements required for a judgment of conviction to constitute a final appealable 

order. Id. at ¶ 18. The court concluded that a judgment of conviction “must include the 

sentence and the means of conviction, whether by plea, verdict, or finding by the court, to 

be a final appealable order under R.C. 2505.02.” Id. at ¶ 19. The Ohio Supreme 

Court’s decision created confusion and spawned numerous appeals. 

{¶ 6} In State v. Lester, __ Ohio St.3d __, 2011-Ohio-5204, __ N.E.2d __, ¶ 9, the 

Ohio Supreme Court recognized that its decision in Baker “created confusion and 

generated litigation regarding whether a trial court’s inadvertent omission of a 

defendant’s ‘manner of conviction’ affects the finality of a judgment entry of conviction.” 

 The court found that “the finality of a judgment entry of conviction is not affected by a 

trial court’s failure to include a provision that indicates the manner by which the 

conviction was effected, because that language is required by Crim.R. 32(C) only as a 

matter of form, provided the entry includes all the substantive provisions of Crim.R. 

32(C).” Id. at ¶ 12. Nevertheless, the court held that when the manner of conviction is 

not included, the defendant remains entitled to a correction to the judgment. Id. at ¶ 16.1

 1 As recognized by Justice O’Donnell, the court has once again added 
 As to the substantive requirements of Crim.R. 32(C), the court held as follows: “[A] 

judgment of conviction is a final order subject to appeal under R.C. 2505.02 when the 

judgment entry sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s 

signature, and (4) the time stamp indicating the entry upon the journal by the clerk.” Id. 

at ¶ 14.2

{¶ 7} This was a death penalty case in which the trial court issued a separate 

sentencing opinion as required by R.C. 2929.03(F). In State v. Ketterer, the Ohio 

Supreme Court held that in cases in which the death penalty is imposed, the final, 

appealable order consists of both the sentencing opinion filed pursuant to R.C. 2929.03(F) 

and the judgment of conviction filed pursuant to Crim.R. 32(C). 126 Ohio St.3d 448, 

2010-Ohio-3831, 935 N.E.2d 9. So long as the requisite elements are in those two 

orders, a final, appealable order is present. 

{¶ 8} The sentencing opinion filed May 27, 1988, states that Bonnell was indicted 

on December 30, 1987, with charges on “numerous felony counts and two counts of 

aggravated murder with specifications.” The opinion proceeds to state as follows: “On 

March 3, 1988 the jury found the defendant guilty in the guilt phase of this capital murder 

case, and on March 22, 1988 the jury found proof beyond a reasonable doubt that the 

 

confusing and unnecessary language and complicated the problem. Id. at ¶ 32, 

O’Donnell, J., concurring in part and dissenting in part. Nonetheless, we are 

bound to follow the decision.

2

 Insofar as the Ohio Supreme Court held in Lester that a defendant who has 

exhausted his appeals remains entitled to a correction of the judgment entry where 

Crim.R. 32(C) is not complied with, we reject the state’s argument that Bonnell’s 
aggravating circumstances which defendant was found guilty of committing did outweigh 

the mitigating factors in the case. Subsequently the Court accepted and followed the 

recommendation of the jury in making a similar finding and sentenced the defendant to 

death in the electric chair.” After setting forth various findings, the sentencing opinion 

pronounces “[o]n both counts of aggravated murder with specification, the defendant is 

sentenced to death in the electric chair.” 

{¶ 9} In the nunc pro tunc sentencing entry filed May 27, 1988, the court 

indicated “[t]he court concurs with the jury finding of the death penalty.” The court 

proceeded to order his execution. The court also sentenced Bonnell to a term of 10 to 25 

years on Count 1, aggravated burglary. Subsequent to an appeal, the trial court issued a 

sentencing entry filed October 20, 1989, which resentenced Bonnell to the same term on 

the aggravated burglary count. The judge signed and the clerk of court certified each of 

the three documents. 

{¶ 10} Bonnell argues that the sentencing opinion and entries fail to properly 

journalize the aggravated burglary conviction and the related finding of guilt on that 

count. He states the sentencing opinion only addresses the conviction for aggravated 

murder and only references that he was indicted on “numerous felony counts,” with no 

specification as to the nature of those charges. We agree. 

{¶ 11} Our review reflects that the fact of conviction was only discussed in relation 

to the aggravated murder counts. The aggravated burglary count is not specifically 

 

motion amounts to an untimely petition for postconviction relief. 
mentioned in the sentencing opinion, and neither the fact nor the manner of conviction 

was indicated on that count. As a result, the trial court failed to technically comply with 

Crim.R. 32(C). 

{¶ 12} However, we do not agree with the remedy requested by Bonnell. Bonnell 

claims he is entitled to have the trial court issue a final, appealable order, so as to enable 

him to again invoke jurisdiction to appeal his judgment of conviction. We are not 

persuaded by his argument. 

{¶ 13} The Ohio Supreme Court has found that the technical failure to conform to 

Crim.R. 32(C) does not render the judgment a nullity. State ex rel. DeWine v. Burge, 

128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, at ¶ 19. In State ex rel. DeWine, 

the court held that the remedy for correcting a sentencing entry that does not comply with 

Crim.R. 32(C) is to issue a corrected sentencing entry. Id. at ¶ 23. As expressed by the 

court: 

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

32(C), ‘the appropriate remedy is correcting the journal entry’). 

“This result is logical. The trial court and the parties all proceeded 

under the presumption that the sentencing entry for Smith constituted 

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 and not to issue a new sentencing order reflecting 

what, in a successive judge’s opinion, the court should have ruled. 

These circumstances are thus distinguishable from egregious defects, 

such as an entry that is not journalized, that permit a court to vacate its 

previous orders. Cf. State ex rel. White v. Junkin (1997), 80 Ohio St.3d 

335, 337–338, 686 N.E.2d 267. Moreover, the technical failure to 

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

in Smith’s sentence is not a violation of a statutorily mandated term, so 

it does not render the judgment a nullity. Cf. State v. Bezak, 114 Ohio 

St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 10–12, quoting Romito v. 

Maxwell (1967), 10 Ohio St.2d 266, 267–268, 39 O.O.2d 414, 227 N.E.2d 

223; see also State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 

N.E.2d 332, ¶ 39 (‘fact that the sentence was illegal does not deprive the 

appellate court of jurisdiction to consider and correct the error’).” 

Id. at ¶ 18-19. 

{¶ 14} Likewise, in Lester, the court determined that “a nunc pro tunc judgment 

entry issued for the sole purpose of complying with 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.” Id. at ¶ 20. While in Lester the court found that the “fact of conviction” must 

be included in the judgment entry of conviction, the court set forth this requirement with 

the understanding that “the purpose of Crim.R. 32(C) is to ensure that a defendant is on 

notice concerning when a final judgment has been entered and the time for filing an 

appeal has begun to run.” Lester, at ¶ 20, citing State v. Tripodo (1977), 50 Ohio St.2d 

124, 127, 363 N.E.2d 719; App.R. 4(A). Like the defendant in Lester, Bonnell had 

notice of his conviction, which was evident throughout the record, and was apparent to 

the defendant who had exhausted the appellate process. See id. at ¶13. 
{¶ 15} Similarly, in State v. Fischer, the Ohio Supreme Court rejected the notion 

that a defendant could raise any and all errors relating to his conviction when his original 

sentence was deemed void for the failure to include postrelease control and he had 

already appealed his conviction. 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. 

Instead, the court limited the scope of relief to correcting only the illegal sentence and 

found res judicata still applied to other aspects of the merits of the conviction. Id. See, 

also, State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381 (applying 

law of the case and res judicata to convictions and unaffected sentences upon remand for 

an allied- offenses sentencing error). 

{¶ 16} Additionally, Ohio appellate courts have found that where a trial court 

issues a corrected judgment entry to comply with Crim.R. 32(C), 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. Triplett, Lucas App. No. L-10-1158, 2011-Ohio-1713; 

State v. Avery, Union App. No. 14-10-35, 2011-Ohio-4182, ¶ 14; State v. Harris, 

Richland App. No. 10-CA-49, 2011-Ohio-1626, ¶ 30. In such circumstances, res 

judicata remains applicable and the defendant is not entitled to a “second bite at the 

apple.” Avery, at ¶ 14. Aptly stated, “[n]either the Constitution nor common sense 

commands anything more.” Fischer, 128 Ohio St.3d 92, at ¶ 26. As argued by the state 

herein, to hold otherwise would open the floodgates and “enable validly convicted and 

sentenced prisoners throughout the state to circumvent res judicata by arguing, after all 
direct and collateral appeals are exhausted, that their sentencing documents are 

improperly worded[.]” 

{¶ 17} In this case, all parties were aware that Bonnell was convicted by a jury on 

the aggravated burglary charge for which he was sentenced, as evidenced by his appeal of 

that charge. Further, the reviewing courts exercised jurisdiction over his appeals, and 

heard and decided his case. Thus, unlike the defendant in Baker, Bonnell was not 

deprived the opportunity to appeal his conviction. Rather, Bonnell was given full 

opportunity to litigate all of the issues relating to his conviction and sentence, and his 

substantive rights were not prejudiced in any way. 

{¶ 18} Accordingly, we conclude that the proper remedy is for the trial court to 

issue a nunc pro tunc entry that includes the fact and manner of conviction on the 

aggravated burglary charge. As no new or substantial right is affected under R.C. 

2505.02(A)(1) by the correction, and appellant has already exhausted the appellate 

process, the corrected judgment entry is not a new final order from which a new appeal 

may be taken. 

Judgment reversed; case remanded with instructions. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

SEAN C. GALLAGHER, JUDGE 

MELODY J. STEWART, P.J., and 

KENNETH A. ROCCO, J., CONCUR