[Cite as State v. Walter, 2017-Ohio-466.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104443

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

TERRANCE J. WALTER

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-06-485250-A 

BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: February 9, 2017 

-i- 
ATTORNEY FOR APPELLANT 

Terrance J. Walter, pro se 

Inmate No. A531346 

Richland Correctional Institution 

P.O. Box 8107 

Mansfield, Ohio 44901 

ATTORNEYS FOR APPELLEE 

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Brett Hammond 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
ANITA LASTER MAYS, J.: 

{¶1} Defendant-appellant, Terrance J. Walter (“Walter”), appeals his sentence and 

convictions, and asks this court to grant him a new sentencing hearing and new trial. 

We affirm. 

I. Facts 

{¶2} In 2006, Walter was convicted of one count of aggravated murder, a 

first-degree felony, in violation of R.C. 2903.01(A); two counts of aggravated burglary, a 

first-degree felony, in violation of R.C. 2911.11(A)(1) and (2); and one count of felonious 

assault, a first-degree felony, in violation of R.C. 2903.11(A)(1). Firearm specifications 

were charged on all counts. At sentencing, the trial court imposed a prison term of 34 

years to life. 

{¶3} Walter appealed his convictions in State v. Walter, 8th Dist. Cuyahoga No. 

90196, 2008-Ohio-3457 (“Walter I”). This court affirmed his convictions for 

aggravated murder and felonious assault, but reversed his convictions for aggravated 

burglary. The trial court entered an order stating that pursuant to this court’s decision in 

Walter I, Walter’s aggravated burglary convictions and sentence on those counts were 

vacated. 

{¶4} In 2016, Walter filed a motion to issue a final appealable order. He argued 

that the trial court was required to state his final sentence in one journal entry instead of 
two. On April 15, 2016, the trial court granted Walter’s motion, and issued an order that 

complied with his request. The trial court issued a nunc pro tunc entry that corrected the 

2009 journal entry and vacated Walter’s aggravated burglary convictions. Walter 

appeals the trial court’s order from April 2016 that granted his motion. Walter assigns 

two errors for our review: 

I. Appellant was denied due process of law in violation of the 

Fourteenth Amendment to the United States Constitution when the 

trial court issued a nunc pro tunc entry after the appellate court 

significantly altered the judgment of conviction. 

II. Appellant is entitled to a new trial under the due process protections 

afforded by the Fourteenth Amendment as a result of the prejudicial 

spillover of evidence admitted in support of Counts 2 and 3. 

II. Sentencing Correction 

A. Standard of Review 

{¶5} As it relates to nunc pro tunc entries: 

Courts possess inherent authority to correct errors in judgment entries in 

order for the record to speak the truth. State ex rel. Fogle v. Steiner, 74 

Ohio St.3d 158, 163-164, 656 N.E.2d 1288 (1995). Thus, the purpose of 

a nunc pro tunc entry is to make the record reflect the truth. Reinbolt v. 

Reinbolt, 112 Ohio St. 526, 532, 147 N.E. 808 (1925). The function of a 

nunc pro tunc entry is not to correct or modify an existing judgment, but 

rather to make the record conform to that which has already occurred. 

State ex rel. Phillips v. Indus. Comm. of Ohio, 116 Ohio St. 261, 264, 155 

N.E. 798 (1927). Therefore, “nunc pro tunc entries are limited in proper 

use to reflecting what the court actually decided, not what the court might 

or should have decided or what the court intended to decide.” Fogle, 74 

Ohio St.3d at 163-164. See also Ferraro v. B.F. Goodrich Co., 149 Ohio 

App.3d 301, 777 N.E.2d 282, ¶ 9 (9th Dist.2002). Moreover, a nunc pro 

tunc entry is inappropriate when it reflects a substantive change in the 

judgment. Id., quoting State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 

97, 100, 671 N.E.2d 236 (1996). When a court exceeds its power in entering 

a nunc pro tunc order, the resulting nunc pro tunc order is invalid. 
National Life Ins. Co. v. Kohn, 133 Ohio St. 111, 113-114, 11 N.E.2d 1020 

(1937). 

State v. Senz, 9th Dist. Wayne No. 02CA0016, 2002-Ohio-6464, ¶ 12. 

B. Law and Analysis 

{¶6} In Walter’s first assignment of error, he argues that he was denied due 

process of law in violation of the Fourteenth Amendment to the United States 

Constitution when the trial court issued a nunc pro tunc entry after the appellate court 

significantly altered the judgment of conviction. Specifically, Walter contends that he 

was entitled to a de novo resentencing when his aggravated burglary convictions were 

vacated. We disagree. This court’s decision in Walter I vacated two of his 

convictions, and affirmed the sentences on Walter’s remaining convictions. The trial 

court then properly prepared a nunc pro tunc entry to reflect this court’s decision. 

III. Res Judicata 

A. Law and Analysis 

{¶7} In Walter’s second assignment of error, he contends that he is entitled to a 

new trial on the aggravated murder and felonious assault counts under the due process 

protections afforded by the Fourteenth Amendment as a result of the prejudicial spillover 

of evidence admitted in support of Counts 2 and 3. 

Under the doctrine of res judicata, a valid, final judgment rendered upon the 

merits bars all subsequent actions based upon any claim arising out of the 

same transaction or occurrence that was the subject matter of a previous 

action. The Ohio Supreme Court has identified four elements necessary to 

bar a claim under the doctrine of res judicata: (1) there is a final, valid 

decision on the merits by a court of competent jurisdiction; (2) the second 

action involves the same parties or their privies as the first; (3) the second 
action raises claims that were or could have been litigated in the first action; 

and (4) the second action arises out of the transaction or occurrence that 

was the subject matter of the previous action. 

State v. Shearer, 8th Dist. Cuyahoga No. 103848, 2016-Ohio-7302, ¶ 5, quoting Lenard v. 

Miller, 8th Dist. Cuyahoga No. 99460, 2013-Ohio-4703, ¶ 27. 

{¶8} Walter is barred from bringing this claim because he could have raised this 

issue in his 2008 appeal. 

Under the doctrine of res judicata, a final judgment of conviction bars a 

convicted defendant from raising and litigating in any proceeding, except an 

appeal from that judgment, any defense or any claimed lack of due process 

that was raised or could have been raised by the defendant at the trial which 

resulted in that judgment of conviction or on an appeal from that judgment. 

State v. Santiago, 8th Dist. Cuyahoga No. 95564, 2011-Ohio-3059, ¶ 14. 

{¶9} This court rendered a final, valid decision in Walter I on these issues. 

Walter’s assignments of error could have been litigated in the 2008 action because it 

concerns the same subject matter. In that appeal, Walter argued that there was 

insufficient evidence to convict him of aggravated burglary. Walter I, 8th Dist. 

Cuyahoga No. 90196, 2008-Ohio-3457, ¶ 47-48. Walter argued that because the garage 

was open when he shot and killed the victim, he did not trespass in the garage. Because 

trespass is an element of aggravated burglary, Walter contends that the evidence was 

insufficient to convict him of aggravated burglary. This court agreed and vacated his 

convictions for aggravated burglary. 

{¶10} In this same appeal, Walter could have argued that the evidence was 

insufficient to convict him of aggravated murder or felonious assault. He did not. 
Therefore, Walter’s claims are barred by res judicata. The second assignment of error is 

overruled. 

{¶11} Judgment is affirmed. 

It is ordered that the appellee recover from appellant 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. 

____________________________________________ 

ANITA LASTER MAYS, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR