[Cite as State v. Stewart, 2022-Ohio-1312.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 110547

v. :

LARRY STEWART, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 21, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-96-340429

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Tasha L. Forchione, Assistant Prosecuting 

Attorney, for appellee. 

Larry Stewart, pro se.

EMANUELLA D. GROVES, J.:

Larry Stewart appeals the issuance of a nunc pro tunc sentencing 

entry, in which the trial court altered the phrasing of the 25-year-old sentence on an 

aggravated murder count to read: “[d]efendant sentenced to Lorain Correctional 

Institution for life imprisonment with parole eligibility after serving 30-full years of 
imprisonment.” Stewart claims that the trial court erred by imposing the sentence 

as stated, instead of imposing “30-years to life.” For the following reasons, we 

affirm.

Stewart was originally sentenced to prison for “30-years to life” for 

aggravated murder with capital and firearm specifications in 1997. The conviction 

stemmed from a home invasion robbery resulting in the murder of one victim, and 

the shooting of another, among other crimes, and sentences to be consecutively 

served. State v. Stewart, 8th Dist. Cuyahoga No. 73255, 1998 Ohio App. LEXIS 

5462 (Nov. 19, 1998). Since that time, he has filed several postconviction motions 

and appeals culminating in State v. Stewart, 8th Dist. Cuyahoga No. 109498, 2020-

Ohio-6743 (“Stewart”), in which Stewart challenged the legal validity of the 

sentence imposed by the trial court. Id. at ¶ 2-3. In that appeal, Stewart claimed 

that the imposed sentence of “30-years to life” was contrary to law because R.C. 

2929.03(D)(2), under which Stewart was sentenced, required the sentence to be “life 

imprisonment with parole eligibility after serving thirty full years of imprisonment.” 

Id. at ¶ 3.

Under R.C. 2929.03(D)(2), as deemed applicable by the Ohio 

Supreme Court in a writ of mandamus Stewart filed challenging the validity of his 

sentence in the underlying case, the legislature codified the procedure through 

which a jury recommends a sentence in a capital case. State ex rel. Stewart v. Russo, 

145 Ohio St.3d 382, 2016-Ohio-421, 49 N.E.3d 1272, ¶ 12 (noting that the language 

of R.C. 2929.03(D)(2) had not been changed since the time of Stewart’s original 
conviction). R.C. 2929.03(D)(2) provides that if the trial jury recommends that the 

offender be sentenced to life imprisonment with parole eligibility after serving 30-

full years of imprisonment, then “‘the court shall impose the sentence recommended 

by the jury upon the offender.’” Id.1 The Ohio Supreme Court affirmed this court’s 

decision denying Stewart’s writ of mandamus seeking to invalidate the imposed 

sentence. Id. at ¶ 20. 

Following the denial of relief through the writ of mandamus, Stewart 

again challenged his sentence with the trial court and through a subsequent appeal, 

claiming the sentence to be void. The Stewart panel overruled the arguments 

presented, concluding that the recent decisions in State v. Henderson, 161 Ohio 

St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 1, and State v. Harper, 160 Ohio 

St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 4, precluded Stewart from 

challenging the validity of his sentence decades after the fact of conviction. Id. at 

¶ 7. Nonetheless, the panel noted that Stewart had conceded that the proper 

sentence had been announced at his sentencing hearing, suggesting that the trial 

court possessed continuing jurisdiction to issue a nunc pro tunc sentencing entry to 

let the record reflect that which occurred. Id. at ¶ 7, fn. 1, citing State v. Qualls, 131 

1 Under R.C. 2929.03(D)(2)(a), if the jury is unable to determine that the 

aggravating circumstances outweigh the mitigating factors with respect to the capital 

specification, the jury shall, in pertinent part, recommend that the offender be sentenced 

to “to life imprisonment without parole, life imprisonment with parole eligibility after 

serving twenty-five full years of imprisonment, or life imprisonment with parole eligibility 

after serving thirty full years of imprisonment.” Of the three authorized sentences in this 

particular case, the jury chose the latter, Russo at ¶ 12.
Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15 and State v. Sandidge, 8th 

Dist. Cuyahoga No. 109277, 2020-Ohio-1629.

Stewart accepted the panel’s invitation and filed a motion to correct 

the sentencing entry expressly through the nunc pro tunc mechanism. In April 2021, 

the trial court issued the disputed nunc pro tunc entry upon Stewart’s request, 

amending in pertinent part the sentence imposed on the aggravated murder count 

from “a sentence of 30-years to life,” to “life imprisonment with parole eligibility 

after serving 30-full years of imprisonment”; the relief Stewart had originally 

requested in Stewart and the sentence expressly required under R.C. 

2929.03(D)(2)(a).

Stewart now appeals the issuance of the nunc pro tunc entry, claiming 

that the entry violated his rights under Crim.R. 43 by modifying his sentence outside 

of his presence and that the use of the nunc pro tunc mechanism to substantively 

alter his prison sentence was beyond the ambit of a clerical error because the court 

imposed a sentence of “30-full years” instead of “30-years to life.”2 Beyond the fact 

that Stewart is now requesting the very sentence he sought to vacate in Stewart, we 

need not address the merits of Stewart’s latest arguments. At the least, Stewart 

2 In State ex rel. Newell v. Cuyahoga Cty. Court of Common Pleas, 165 Ohio St.3d 

341, 2021-Ohio-3662, 179 N.E.3d 84, ¶ 16, relying on State ex rel. Davis v. Janas, 160 

Ohio St.3d 187, 2020-Ohio-1462, 155 N.E.3d 822, ¶ 8, the Ohio Supreme Court reiterated 

the difference between a sentence of life in prison with parole eligibility after 20 years and 

life in prison with parole eligibility after 20 full years as being the offender’s ability to 

reduce the minimum term through earning certain credits on the former sentence. Since 

R.C. 2929.03(D)(2)(a) required the trial court to impose 30 full years in this particular 

case, we needed not revisit this distinction.
invited the error upon which his arguments are based by requesting that the trial 

court issue a nunc pro tunc entry to reflect the correct sentence under R.C. 

2929.03(D)(2). Regardless, and more important, the trial court’s nunc pro tunc 

sentencing entry is authorized by law.

The invited-error doctrine provides that a litigant may not “‘take 

advantage of an error which he himself invited or induced.’” State v. Grate, 164 

Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 197, quoting Hal Artz LincolnMercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 

N.E.2d 590 (1986), paragraph one of the syllabus. The Ohio Supreme Court has 

long “‘found invited error when a party has asked the court to take some action later 

claimed to be erroneous, or affirmatively consented to a procedure the trial judge 

proposed.’” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, 

¶ 279, quoting State v. Campbell, 90 Ohio St. 3d 320, 324, 738 N.E.2d 1178 (2000).

In this case, even if we took the extraordinary step of presuming that 

the trial court erred by issuing the nunc pro tunc entry and by imposing an incorrect 

sentence, Stewart received the specific relief he requested, through the mechanism 

of his choosing. No reversible error on either point can arise therefrom.

Moreover, and as already alluded to, the trial court’s imposition of the 

“life imprisonment with parole eligibility after serving 30 full years of 

imprisonment” sentence upon the aggravated murder count is legally correct, 

parroting the legislature’s phrasing from R.C. 2929.03(D)(2)(a) — the sentencing 

provision deemed applicable in Russo, 145 Ohio St.3d 382, 2016-Ohio-421, 49 
N.E.3d 1272, at ¶ 12. Even if we ignored the fact that the court’s action was at 

Stewart’s express request, the modification of the sentence was legally correct since 

the trial court orally announced that sentence at the final sentencing hearing back 

in 1997. Stewart, citing Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718,

at ¶ 15, and Sandidge, 8th Dist. Cuyahoga No. 109277, 2020-Ohio-1629. Any other 

errors under Crim.R. 43 in the process of reaching this correct result, would 

therefore, be harmless. State v. Williams, 6 Ohio St.3d 281, 287, 452 N.E.2d 1323 

(1983), citing Crim.R. 52(A) (defendant’s lack of attendance at the trial proceeding 

as required under Crim.R. 43(A) was harmless error as defined under Crim.R. 52(A) 

based on the lack of prejudice).

Stewart’s assignments of error are overruled, and the final entry of 

conviction as it stands through the nunc pro tunc entry is affirmed. 

It is ordered that 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.

_________________________

EMANUELLA D. GROVES, JUDGE

MICHELLE J. SHEEHAN, P.J., and

MARY J. BOYLE, J., CONCUR