^^R CLERK OF COURT REME COURT OF OH

Transcription

1 / IN THE SUPREME COURT OF 011I0 On Appeal from the Seventh Appellate District Court for tlahoning County, Ohio Case No. 13 1MA 111 STATE OF OHIO, Plaintiff/Appellee, Supreme Court No. - vs - DU,JUAN L. ADAi 1S, Defendant/Appellant. rfj^ ^it' fi/t: t '3 MEMORANDUM IN SUPPORT OF JURISDICTION Appearances: FOR THE DEFENDANTJAPPELLANT FOR THE PLAINTIFF/APPELLEE DUJUAN L. ADAMS, # (`pro se') M.C.T. P.O. Box 57 Marion, Ohio PAUL J. GAINS, (# ) Mahoning Co?znty Prosecutor 21 West Boardman Street, 6th Fl. Youngstown, Ohio `M771"i ^^R CLERK OF COURT REME COURT OF OH

2 TABLE OF CONTENTS pages: TABLE OF CONTENTS : i TABLE OF AUTHORITIES ii STATEMENT AS TO WHY THIS CASE IS OF GREAT PUBLIC INTEREST... 1 STATEMENT OF CASE AND FACTS LAW AND ARGUMENT : PROPOSITION OF LAW NO. 1. Due process is implicated when defendant is denied adequate opportunity to present his claims and receive adjudication on merits via a subterfuge of: State v. Lester, 1.30 Ohio St. 3d 303 thereby implicating both due process and equal protection provisions of the Sixth and Fourteenth Amendments to the United States Constitution. *compare: State ex rel. Snead v. Ferenc, 2014 Ohio 43, 2014 Ohio LEXIS 24; O.R.C ; O.R.C ; and, Ohio Const. Art. T_V, Section 3(B)(2) PKOPOSITION OF LAW NO. 2 Whether the appellate court erred (thereby violating due process) when it completely failed to address or reach the merits of appellant's Fifth Amendment 'Double Jeopardy' challenge for 'allied offenses' and then compounded that error by igz?oring clear and unambiguous record evidence implicating a final appealable order for want of any compliance with the mandatory f.i-ling requirements of: O.R.C , and a 'specific coajrt order' directing such compliance i -

3 continued: pages: CONCLUSION CLRTIFICATE OF SERVICE [1 TABLE OF AUTHORITIES pages: Brown v. Ohio, 432 U. S. 161, Goodman v. McDonough Power Equip., Inc. (1983), 2 Ohio St. 3d 193, 202, 443 N.E. 2d 978, Grava v. Parkman Twp., 73 Ohio St. 3d 379, 653 N.E. 2d at: North Carolina v. Pearce, 395 U.S < Ohio v. Johnson, 467 U.S. 493, ,, State ex rel. Snead v. Ferenc, 2014 Ohio 43, 2014 Ohio LEXIS ,6 State v. Adams, Mahoning App. No. 11 MA 65, at: ^ ,4 State v. Baker, 117 Ohio St. 3d State v. Beasley ( 1984), 14 Ohio St. 3d 74, * , 10 State v. Carlisle, 8th Dist. No , 2010 Ohi.o State v. Dzelaj lij a, 2012 Ohio State v. Cates, 8th Dist. No , 2004 Ohio State v. Lester, 130 Ohio St. 3d ,3,6 State v. Reese, 2007 Ohio 2267, at: _zi -

4 11 continued: pages: Crim. R. 32(C) , 5, 6 0. R. C O. R. C O.R.C (R)(1)(a)(b) O.R.C (A) Ohio Const. Art. IV, Section 3(B)(2),,,,,,,,,,,,,,,,,, 4 U.S.C.A. Const. Amend U.S.C.A. Const. Amend U.S.C.A. Const. Amend Additional authorities:

5 11 STATEMENT AS TO WHY THIS CASE IS OF GREAT PUBLIC INTEREST ['T]his case is of great public interest because it invokes and involves the public policy that no person shall be deprived of life, liberty or property without due process of law. This case in turn involves a felony, though of even greater constitutional significance, this case lies upon the conflicted and uneqiial. application of fundamental principles of law, namely, 'the mandaotyr filing requirements' of: O.R.C ; and, unconstitutional expansions placed upon the availabzl"ity of appellate review on nunc pro tianc orders. This case involves a troubling constitutional imperative where on the one hand, there was/is no final appealable order for want to any compliance with the mandatory filing procedures of: O.R.C (and a specific court order directing the clerk to render a 'time stamp' on the nunc pro tunc order) which did not occur, and an appellate court's refusal to address the merits of appellant's constitutional challenges (on a prima facie case for relief) under the guise that "nunc pro tunc orders ('erroneous or even constitutionally deficient) cannot be appealed." see: State v. Lester, 130 Ohio St. 3d 303. The lower court has in turn eliminated an ei?tire class of appellate review and has issued upon a slippery slope, thereby opening the door to grave injustice (on the part of the tri.al courts of this state) via the office of nunc pro tunc and 'without the availability or possibility of appellate review.' Foreclosing the 'right of appeal' and 'adjudication on the merits' offends due process, implicates fundamental fairness, and is the very antithesis of well established public policy. We recognize, and in. a due process sense, that once a state grants the right of appeal, it must conform to procedures consistent with due process and. may not issue upon such procedures which serve to defeat the ends of justice or which will serve to wor?.z an iniu,stice. (1)

6 -11 Such then is the case at bar. STATEMENT OF CASE AND FACTS [T]his case originated in the Mahoning County Common Pleas Court as the criminal matter entitled: State of Ohio v. DuJuan Adams, Case No. 0 CR 102, therein charging the offense(s) of: 'attempted murder,' O.R.C (A)(E); w/*firearm specifications on each of the two counts, appellant was sentence to an "aggregate` stated prison term of: (23) twenty-three years. Thereafter, ^^-` appellant filed a pro se motion for sentencing to correct an ailing postrelease control notification to which the trial court denied, and a timely appeal followed. (Mahoning App. No. 11 MA 65) and the court of appeals reversed the judgment of the trial court and found, that: "Adams is entitled to a sentencing entry that comports with Baker and to a resentencing hearing and revised sentencing entry to correct his post-release control statute." id., at: OPINION at: 2. Appellant was then taken back to 'open court' and resentenced to include proper postrelease control notification, however, the trial court did not comply with the court of appeals order directing compliance with Baker, nor the mandatory filing procedures enumerated in: O.R.C , i.e., 'a time stamp.' The trial court issued a new Nunc Pro Tunc Sentencing Entry on: 'January 27, 2012,' and therein specifically ORDERED the Mahoning County Clerk of Court, to: "The Mahoning County Clerk of Courts is Ordered to serve a time-stanmpect copy of this Judgment Entry u:po:n the Sheriff of Mahoning County no later than January 30, Upon receipt thereof, the Sheriff of Mahoning County shall immediately deliver said entry to Defendant, DuJan L. Adams, #A , at the Mahoning County Justice Center prior to Defendant's return to the Trumbull Correctional Institution." id., at: ENTRY page 3, lines (2)

7 The Mahoning County Clerk of Courts however refused or negligently failed to comply with this specific court order directing 'a time stamp' purstiant to: O.R.C , thereby implicating a final appealable order as defined in: State v. Lester, 130 Ohio St. 3d 303; and, State ex rel. Snead v. Ferenc, 2014 Ohio 43, 2014 Ohio LEXIS 24. A 'timely' appeal as of right followed challenging both: (1) the lack of a final appealable order pursuant to Baker, the former mandate of the appellate court, and compliance with both: O.R.C ; and, the trial court's specific order directing that the entry be 'time stamped;' and, (2) the trial court's failure to issue upon an 'allied offense determination' pursuant to: O.R.C and the Fifth Amendment to the United States Constitution. The appellate court however affirmed the judgment of the trial cotirt finding that there "was no final appealable order,' not for the statutory and constitutional reasons asserted by appellant, rather, on the proposition that no appeal could be taken from the underlying 'ailing' nunc pro tunc order under State v. Lester, supra., despite the fact that 'that entry' (being patently devoid of the required and order time stamp) did not and could not constitute a final appealable order 'on its face' under Lester for want to stamp.' ta 'time This action respectfully follows. LAW AND ARGUMENT: PROPOSITION OF LAW NO. 1 Due process is implicated when defendant is denied adequate opportunity to present his claims and receive ad j udication on merits via a subterfuge of: State v. Lester, 130 Ohio St. 3d 303 thereby implicating both due process and equal protection provisions of the Sixth and Fourteenth Amendments to the United States Constitution. "compare: State ex rel. Snead v, Ferenc, 2014 Ohio (3)

8 43, 2014 Ohio LEXIS 24; O.R.C ; O.R.C ; and, Ohio Const. Art. IV, Section 3(B)(2). [I]t is well establied that due process is implicated where, as here, a state grants the right of appeal, and then (by subterfuge or otherwise) fails to comport with procedures conforming with due process. see: U.S.C.A. Const. Amend. 14. The Ohio Constitution makes manifest that all courts shall be open for the vindication of protected rights secured to a criminal defendant by the United States Constitution of which, the right to 'due process of law' and that of equal protection under the law' does surely qualify. O.R.C in turn squarely pl.aces an affirmative mandatory statutory duty of the clerk of court to: "Filing in county court is required by R.C The clerk of court is required to "indorse on each pleading or paper in a cause filed in the clerk's office the time of filing "*-. R.C " see: State v. Reese, 2007 Ohio 2267, at: ^9. This mandatory fi.l.ing requirement is all the more hei.ghtened where, as here, both an appellate court and the trial court had issued 'specific orders and directives' for complaince with the mandatory provisions of: State v. Baker, 119 Ohio St. 3d 420. see: State v. Adams, Mahoning App. No. 11 MA 65, at: T1,2; and, Nunc Pro Tunc Order, dated:. 'January 27, 2012,' at: page 3, lines "Adams is entitled to a sentencing entry that comports with Baker and to a resentencing hearing and revised sentencing entry to correct his post-release control statute." id., at: OPINION at: fi2. [a]nd that: "The Mahoning County Clerk of Courts is Ordered to serve (4)

9 a time-stamped copy of this Judgment Entry upon the Sheriff of Mahoning County no later than January 30, Upon receipt thereof, the Sheriff of Mahoning County shall immediately deliver said entry to Defendant, DuJ^mn L. Adams, #A , at the Mahoning County Justice Center prior to Defendant's return to the Trumbull Correctional Institution." id., at: ENTRY page 3, lines that: The ["Mandate Rule"], State v. Dzelajlija, 2012 Ohio 913, makes manifest "In addition, HN6 a trial court must.follow a mandate from a reviewing court. State v. Gates, 8th Dist. No , 2004 Ohio 1453, 2004 WL In State v. Carlisle, 8th Dist. No , 2010 Ohio 3407, 2010 WL , we explained the appellate mandate as follows: "HN7 An appellate mandate works in two ways: it vests the lower court on remand with jurisdiction and it gives the lower court on remand the authority to render judgment consistent with the appellate court's judgment. Under the "mandate rule," a lower court must "carry the mandate of the upper court into execution and not consider the questions which the mandate laid [-*8] at rest." id. The appellate mandate specifically directed the trial court to full comply with the final appealable order and 'mandatory filing requirements of: State v. Baker, 117 Ohi_o St. 3d 197, which simply did not occur, hence, there was no final appealable order as a matter of law and fact. The Baker-Supreme Court expressly held, that: "A judgment of conviction is a final appealable order when it sets forth: (1) the guilty pl.ea, 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) the time stamp showing journalization by the clerk of court. R.C ; Rules Crim. Proc., Rule 32(C)." id. This Court recently reitierated, that: (5)

10 "A final, appealable order in a criminal case under Crim. R. 32(C) must contain four elements: (1) the fact of the conviction; (2) the sentence; (3) the judge's signature; and (4) a time stamp from the clerk of courts." see: State ex rel. Snead v. Ferenc, 2014 Ohio 43; 2014 Ohio LEXIS 24, at: NN1. see also: State v. Lester, 130 Ohio St. 3d 303, at: HN7, Syllabus, at: [***144] [ -,304 ]. The court of appeal' however found that no appeal could be taken under Lester where the trial court had issued a nunc pro tunc order correcting 'clerical errors.' "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: Lester, at: Syllabus [*304], at: 2; and, Mahon:i.ng Opinion, No. 13 MA 111, at: ^13. Despite the clear and unainbiguos language of Lester requiring a'ti.me stamp' for the purpose of a final appealable order, the lower court (after conceding that there was no time stamp) urged that a mere 'file stamp' is sufficient enough compliance under Lester; Crim. R. 32(C); and, O.R.C r`J,S and O.R.C to constitute a pr.ohibition implicating the protected right of appeal. The logic simply doesn't follow. The court of appeals (and in an equal. protection and due process sense) did rely on Lester for the purpose of affirming the trial court's judgment and a lack of a final appealable order:'in that a nunc pro tunc order which was used to correct clerical errors could not be appealed, however, the court of appeals ignored or otherwise rejected the established law requirement under Lester that such a nunc pro tunc order must possess a'tame stamp' to constitute a final appealable order. (6)

11 Due Process is implicated when defendants are treated differently in such way so as to either defeat the ends of justice or to work a fundamental miscarriage of justice. see: U.S.C.A. Const. Amend. 6 and 1.4. Based on the appellate court's assessment, the right of appeal' is wholly suspended when a trial court issues a niznc pro tunc resentenci.ng order, regardless of any statutory or const-itutional deficiencies made evident even on the face of such entry. Under, the above analysis, *%HN' a-trial cour-t can too ea:si.ly misuse the Office of Nunc Pro Tunc (under the guise of correcting clerical errors) and by its very nature, the right of appeal, the right of statutory or constitutional challenge is forever foreclosed... a slippery slope indeed. This proposition is all the more buttressed when considered in a federal habeas corpus, 2254 context. There has been no adjudication on the merits in the intermediate state appellate court, the state supreme routinely denies jurisdiction in pro se litigation, and there then exists 'no state court fact-finding' upon which a federal court may defer a 'presumption of correctness.' The court of appeals reliance on this ailing line of cases inherently creates a situation where an entire class of offenders have no right to appellate review in any state appellate court so long as the 'resentencing order' be dubbed a nunc pro tunc proceeding to 'correct a clerical. omission.' Such deviation from established rules of law implicate due process, nullity even the notion of equal protection under the law, and make inoperative even minimal standards of fundamental fairness and the availability of `simple justice.' Under the above analysis, a criminal defendant (once remanded for resentencing) is made wholy exempt from all state appellate court re[viewliof " (7)

12 even correlative 'plain error' flowing from such resentencing so long as the procedure can be dubbed 'a nunc pro tunc exercise' to correct a'clerical error.t The logic simply doesn't follow, --, and this is especially true where the alternative is to compel a criminal defendant to many years of subsequent incarceration until such time as the offender may seek federal habeas corpus relief and intervention. Once the state has granted the right of appeal, it is constitutional error of the first magnitude to later implement substantive hurdles and obstacles designed to undermine, frustrate or impair the right to both: (1) meaningful access to the courts; and, (2) the right to a meaningful adversarial appellate procedure in which to obtain adjudication of [his] claims on. their respective merits. see: U.S.C.A. Const. Amends. 6 and 14. We recognized that even the doctrine of res judicata must yield tc concepts of fairness, substantial justice and public policy and private peace, to wit: "The doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time, but rather a rule of fundamental and substantial justice, or public policy and of private peace. The doctrine may may be said to adhere in legal systems as a rule of justice. Hence, the position has been taken that the doctrine of res judicata is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an iniustice." see: Grava v. Parkman Twp., 73 Ohio St. 3d 379, 653 N.E. 2d at: 232. [a]nd that: "Underlying all discussion of the problem must be the principle of fundamental fairness in the due process sense. The public policy underlying the principle of res judicata must be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which to present his case. (Emphasis added and footnotes (8)

13 omitted) 46 American Jurisprudence 2d (1994), , Judgments, Section 522, See also, Goodman v. McDonough Power Equip., Inc. (1983), 2 Ohio St. 3d 193, 202, 443 N.E. 2d 978, " id..f.ollow. The same effect occurs here to which this action does thus respectfully PROPOSITION OF LAW NO. 2 Whether the appellate court erred (thereby violating due process) when it completely failed to address or reach the merits of appellant's Fifth Amendment 'Double Jeopardy' challenge for 'allied offenses' and then compounded that error by ignoring clear and unambiguous record evidence implicating a final appealable order for want of any compliance with the mandatory filing requirements of: O.R.C , and a 'specific court order' directing such compliance [A]s threshold matter, and as was asserted by appellant in the proceedings below, the Fifth Amendment Double Jeopardy protections cannot be waived, and especially so by omission by a trial court. see: Brown v. Ohio, 432 U.S. 161, 165; Ohio v. Johnson, 467 U.S. 493, 498; and, North Carolina v. Pearce, 395 U.S In 1974, the Ohio Zegislature codified those Fifth. Amendment protections in: O.R.C (A), which provides, that: "Where the same conduct by defendant can be construed to constitute two or more allied offenses of silimar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." id. (emphasis added). Clearly, *** the prohibition is against the [conviction itself] on an allied offense which constitutional proposi.tion is in direct conflict with [] O.R.C (B)(1)(a) and (b) which allows for the 4','unconstitutional (9)

14 conviction on an allied offense, and 'merger' of the sentences at the sentencing hearing. This conflict is constitutionally irreconcilable. In the instant case, appellant was charged with multiple counts (flowing from the same transaction) alleging attempted murder with multiple firearm specification. Thus 'duty bound' to inquire (prior to the guilt phase of the proceedings as to whether those multiple counts could be reasonably construed to constitute two or more allied offenses of similar import), the trial court completely ignore its statutory duty and constitutional obligation to 'inquire and determine,' rather, the trial court (and in disregarding statutory requirements) imposed maximum 'consecutive' sentences on each of the counts to which the prejudice did systemically attach. O.R.C (A) is a well settled statutory requirements which was in full effect at the time of appellant's arrest and conviction. The trial court's disregard for that mandatorv statutory requirement (on a facial record showing a prima facie case for allied offense consideration), the result of which rendered the resulting judgment a nullity and void as defined in: State v. Beasley (1984), 14 Ohio St. 3d "Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity and void." id. The same effect occurs here. On remand from the court of appeal for issuance of a final appealable order, the trial court again accorded no allied offense inquiry and determination, rather, it issued yet another 'void judgment for want of any comp1.iance *wi.th the mandatory filing prctdedures enumerated in: O.R.C ; (10)

15 U.R.C ; and, Crim. R. 32(C). Appellant then fi1ed a pro se motion for ISSUANGE; OF " REVISED 49 JUBGMENT ENTRY OF CUNVICTI N AND SENTf,fi1CE, State v. Baker, *119 Ohio St. 3d 197; and, Q:im. R. 32(C), w1-tich the trial court denied. On appeal ( i. e., the underlying appeal) appellant raised those Fifth Arraencnent and due process claims articulated above to which the appellate c;ourt completely ignored and refused to reach the merits of those clearly establisher1 federal co-nstitutional claims. The court of appeal rather affirrned the judgment of the trial court on the proposition that there existed no final appealable order whereas the nunc pro tunc entry under challenge could not be appealed. Hence, J'Mc there simply exists no state court fact finding or adjudication on the merits of a.ppellant`s constitutional claims to which to defer. In each instance, appellant has been deprived of due process of law and equal protection under the law to which this action d es thus respectfully follow. Conclusion: [W;herefore, *** and for each of those substantive constitutional propositions asserted above, appellant hereby asks this Court to'accept jurisdiction' in and over this matter and to permit appellant the right to both meaningful access to the courts and a full and fair adjudication of his claims on their respective merits. [R,Jelief is accordingly sought. (11)

16 [Elxecuted this ^5 day of March, ^^. '^=---- DuJuan L. Adams, # M.C.I. P.O. Box 57 Marion, Ohio CERTIFICATE OF SERVICE: This is to certify that the foregoing was duly served by United States Mail on: 'PAUL C-AINS' Mahoning County Prosecutor, at 21 West Boardman Street, Youngstown, Ohio, 44503, on this._;t day of March, DuJuan L. Adams, # M.C.Z. P.O. Box 57 Marion, Ohio [I (12)

17 STATE OF OHIO, MAHONING COUN.._...^., IN THE COURT OF APPEALS SEVENTH DISTRICT f z...-_.,...^..^.^^...w..._ STATE OF OHIO PLAfNTIFF-APPELLEE VS. DuJUAN L. ADAMS DEFENDANT-APPELLANT CHARACTER OF PROCEEDINGS: JUDGMENT: ) ) ) ) ) ) ) ) ) CASE NO: 13 MA 111 OPINION Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 00 CR 102 Affirmed. APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6t"' Floor Youngstown, Ohio DuJuan L. Adams, Pro se, # Marion Correctional Institution P. O. Box Marion-Wiiiiamsport Road Marion, Ohio JUDGES: Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: February 21, 2014 II^II^lI11I1II4II1^I^l1lIIIlI^1141^1l111I1^lII^1IIII^llI^11I1 a^^ o7672$ e^v^011m

18 -1- WAITE, J. { 't} This matter involves Appellant DuJuan Adam's sixth appeal from the Mahoning County Common Pleas Court's decision denying his pro se "Motion for Issuance of `Revised' Judgment Entry of Conviction and Sentence; and Motion for Assessment of Subject Matter Jurisdiction." Appellant alleges that there are defects in the nunc pro tunc entry correcting omissions in his 2006 resentencing entry. The nunc pro tunc entry was not a final appealable order, but is not defective for that reason, as it relates back to the 2006 re-entry of sentence which was a final appealable order. The validity of those entries, and the fact that they were properly filed, journalized, and appear in the record have already been decided. Appellant's appeal is moot. His assignments of error are overruled, and the judgment of the trial court is affirmed. Factual and Procedural History { 2} The factual history of this case with regard to Appellant's original August of 2000 conviction for the assault and shooting of two men was fully set forth in our prior decision, State v. Adams, 2006-Ohio-1761 (7th Dist.), and is not directly relevant here. {13} Appellant initially filed a timely appeal of his 2000 conviction, which was subsequently dismissed for lack of prosecution. We granted Appellant's 2005 motion to file a delayed appeal. Appellant raised four assignments of error -in that appeal,- which were overruled in part and sustained in part. Although we affirmed Appellant's convictions, we agreed with his challenge of the imposition of multiple prison terms

19 -2- and the apparent judicial fact-finding underlying his sentence.. We vacated the sentence and remanded the matter for resentencing in compliance with State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856. Appellant appealed this decision to the Ohio Supreme Court, which declined jurisdiction. { 4} On remand from our decision, the trial court resentenced Appellant to maximum consecutive terms with a single firearms specification. Appellant filed a timely appeal of this new sentence, again citing Foster. State v. Adams, 2007-Ohio We overruled Appellant's single assignment of error. { 5} In 2011, the trial court denied Appellant's pro se motion seeking a new sentencing hearing. Appellant appealed that decision. On review, we found that Appellant was entitled only to a nunc pro tunc entry containing his method of conviction and a hearing pursuant to R.G on the limited issue of the imposition of postrelease control and remanded. State v. Adams, 7th Dist. No, 11 MA 65, 2011-Ohio-612$. { 6} Appellant had his limited resentencing hearing on January 26, During this hearing Appellant raised several issues, including the allegation that his sentencing entries were invalid because they were not time-stamped. The trial court declined to address any issue other than the postrelease control sanctions as directed on remand. After hearing, the trial court issued a nunc pro tunc entry in conformance with our instructions on remand. Appellant filed an appeal from this nunc pro tunc entry.

20 -3- f 7} In March of 2013 we addressed his appeal in State v. Adams, 7th Dist. No. 12 MA 26, 2013-Ohio Appellant had raised four assignments of error. In Appellant's fourth assignment of error, he claimed: "[t]he trial court was without subject matter jurisdiction over Appellant because the indictment and subsequent pleadings, including the sentencing entries, were not properiy filed." This assignment addressed the exact same subject matter as he raises in the instant appeal. 28. Id, at ASSIGNMENT OF ERROR NO. 1 Whether compliance with the filing procedures of: O.R.C ; and, O.R.C is discretionary, and a clerk of courts' failure to do so implicates a final appealable order as defined in: Crim, R. 32(C); and, State v. Baker, 119 Ohio St.3d 197. see also: State v. Miller, 9th Dist. No. 06CA0046-M, 2007 Ohio 1353 [all errors sic] ASSIGNMENT OF ERROR NO. 2 Whether a [date] and [time] received stamp of the Mahoning County Sheriffs Department will suffice in lieu of any compliance (by the clerk of courts) to the mandatory filing procedures of: O.R.C, ; and O.R.C , and constitute 'clerical adherence' to a specific order of the court to endorse a[`time stamp'] on such judgment entry. *accord: O.R.C. 2303"-17: [af1`errors sic] { 8} In State v. Adams, 2013-Ohio-1433, supra, Appellant's fifth appeal, we specifically addressed the filing of the pleadings and sentencing entries in this matter,

21 and found under Zanesvllle v. Rouse, 126 Ohio St.3d 1, 2010-Ohio-2218, 929 N.E.2d 1044: -4- A review of the record reveals that the indictment, sentencing entries, and other pleadings were date-stamped by the Mahoning County Clerk of Courts, but these pleadings do not indicate the time of filing: Two statutes [designate] the information the common pleas court clerk indorses on filings with that office; R.C provides that the time of filing shall be noted, whereas the date of filing shall be noted pursuant to R.C The Ohio Supreme Court has explained that the filing of the complaint invokes the jurisdiction of the trial court, but that a pleading is 'fifed' when it is properly deposited with the clerk of courts. Once a pleading is filed, then the clerk's duty is to certify the act of filing. A clerk's failure to [timej-stamp a document does not create a jurisdictional defect, and when a pleadings lacks an [i]ndorsement from the clerk, filing may be proven by other means. (Citations omitted.) id. at Ultimately, we concluded that: "the indictment, sentencing entries, and other pleadings contain a date-stamp by the Mahoning County Clerk of Courts * * * it appears that this certification demonstrates that these documents were filed with the clerk, regardless of the fact that they do not contain a time-stamp. Thus, the trial court had subject matter jurisdiction over the case* **." Id. at 32. Once we

22 -5- determined that the entries were properly filed, despite the clerk's omission of the time-stamp, we overruled Appellant's assignment of error and affirmed the trial court's judgment. { 9} Appellant now argues that because the 2012 nunc pro tunc entry in this matter, correcting the earlier entry that omitted mention of the method of conviction and postrelease control information, does not have a time-stamp, it is not a final appealable order and he is being held unlawfully in the absence of a final order. { 10} "To journalize a decision means that certain formal requirements have been met, i.e., the decision is reduced to writing, it is signed by a judge, and it is filed witli the clerk so that it may become a part of the permanent record of the court." State v. Ellington, 36 Ohio App.3d 76, 78 (1987). While we have previously indicated that certain of Appellant's prior sentencing entries were not time-stamped by the clerk of courts, it is abundantly apparent that they were date stamped and journalized upon receipt. Each entry appears in the docket and file of the trial court. Appellant does not dispute that his sentencing entries, including the nunc pro tunc entry at issue, appear in the record, are signed by the judge, and set forth in writing the decision of the court. It is equally clear that the clerk of courts' dated stamp appears on each entry, reflecting that all entries were filed with the clerk. Because the original sentencing entry in this matter was journalized and appears in the record, it cannot be void. { 11} Appellant is correct that the nunc pro tunc entry is not a final appealable order. In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, the

23 -6- Ohio Supreme Court held 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."!d, at paragraph two of the syliabus. The fact that the nunc pro tunc entry is not itseif a final appealable order does not in any way effect the validity of Appellant's sentence and the legality of his incarceration. As stated in R.C : The court's placement upon the journal of the entry nunc pro tunc before the offender is released from imprisonment under the term shall be considered, and shall have the same effect, as if the court at the time of original sentencing had included the statement in the judgment of conviction entered on the journal and had notified the offender* * * R.C , sections (A)(2) and (B)(2). { 12} Both elements of Appellant's 2012 nunc pro tunc entry correcting omissions in his sentence relate back to the 2006 sentencing entry. The 2012 nunc pro tunc entry was not a new final order from which a new appeal could be taken. Appellant offers no authority to show that a trial court's decision to deny the type of motion he filed is a final appealable order, nor does the decision appear to be a final order as defined by R.C (B). Not only does Appellant attempt to appeal the wrong order, we have afready. resolved all of the issues Appellant now raises in an earlier appeal when we held that Appellant's convictions and sentence are vaiid=-and--- issued by a court with jurisdiction.

24 -7- { 13} Where there is no genuine dispute as to the validity of Appellant's. sentence because the entry was filed and journalized, the omission of a time-stamp is, at most, a technical defect that does not serve to alter the substance of the order or the jurisdictional basis of Appellant's detention. An omission by a clerk may be remedied by the clerk without affecting the validity, effect, or jurisdictional basis of Appellant's 2006 sentence. Appellant is mistaken in both the significance of the alleged defect and the nature of his remedy. No right of appeal arises from Appellant's 2012 nunc pro tunc entry, but the fact that it is not a final appealable order does not make it defective because the relevant final order in this matter, on this issue, was the 2006 entry of sentence. We have already found this entry valid. {114} The principle of "(rjes judicata may be applied to bar further litigation of issues that were raised previously or could have been raised previously in an appeal." State v. Houston, 73 Ohio St.3d 346, 347, 652 N.E.2d 1018 (1995), citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). We have already determined in an earlier appeal filed by Appellant that there is no jurisdictional defect in the underlying sentencing entry, the entry is not void and is not voidable due to some alleged defect arising from the possible omission of a time-stamp on the nunc pro tunc entry. Res judicata applies to bar further appeal on the issues surrounding the validity of Appellant's sentencing entry and the jurisdiction of the trial court. Conclusion { 9 5} Appellant's appeal from the trial court's decision denving his motion for the issuance of a final appealable order is without merit. The validity of Appellant's

25 sentencing and 2012 nunc pro tunc entry was resolved by us in State v. Adams, 7th Dist. No. 12 MA 26, 2013-Ohio Appellant does not raise any new issues that were not or could not have been addressed in a prior appeal. For this reason Appellant's assignments of error are overruled and the judgment of the trial court is affirmed. Vukovich, J., concurs. DeGenaro, P.J., concurs. APPROVED: CHERYY.WAI Tff JUDGE

26 STATE OF OHIO ) ) MAHONING COUNTY ) IN THE COURT OF APPEALS OF OHIO SS: SEVENTH DISTRICT STATE OF OHIO CASE NO. 13 MA 111 PLAiNTfFF-APPELLEE VS. DuJUAN L. ADAMS DEFENDANT-APPELLANT JUDGMENT tv f -i- '-^^'2 1 ^ ^...^... x.._ For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against Appellant. JUDGES a11y^ N} ti ^`i^^ ^ ^- :.^ ^_,^78