State of Ohio v. Michael Jividen

On October 26, 1990, appellant pleaded guilty to charges of aggravated

murder, aggravated robbery, aggravated burglary, grand theft of a motor vehicle, and

escape. The charges were contained in three separate case numbers. In case No. CR

199005104B, appellant pleaded guilty to aggravated murder and grand theft of a motor

vehicle. A nolle prosequi was entered at sentencing as to the additional charges of two

counts of aggravated murder and one count of intimidation. In case No. CR 199005894,

appellant pleaded guilty to aggravated robbery and aggravated burglary. In case No. CR

199006102, appellant pleaded guilty to escape. On the same day, appellant was

sentenced to life imprisonment on the count of aggravated murder, 10 to 25 years in

prison on both the count of aggravated robbery and the count of aggravated burglary, two

years in prison on the count of grand theft of a motor vehicle, and one and one-half years

in prison on the count of escape. All of the sentences were ordered to be served

consecutively.

{¶ 3} On December 10, 1990, appellant filed a pro se notice of appeal. On

January 24, 1991, we sua sponte dismissed his appeal as untimely.

{¶ 4} Thereafter, in 1994, appellant filed a pro se petition for postconviction relief,

in which he argued that his convictions were void or voidable because his pleas were

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involuntary and because he suffered ineffective assistance of counsel. Counsel was

appointed for appellant for his postconviction petition, and three evidentiary hearings

were held. Ultimately, the trial court denied appellant’s petition, and we affirmed in

State v. Jividen, 6th Dist. Lucas No. L-95-213, 1996 Ohio App. LEXIS 3443 (Aug. 16,

1996), appeal not accepted, 77 Ohio St.3d 1514, 674 N.E.2d 370 (1997).

{¶ 5} On September 10, 1996, appellant filed a second petition for postconviction

relief, again arguing that he received ineffective assistance of counsel. The trial court

denied appellant’s petition on April 7, 1997. On May 13, 1997, appellant requested an

extension of time to file his notice of appeal from the April 7, 1997 judgment, which we

denied. Appellant then filed a notice of appeal and a motion to reinstate his appeal on

June 2, 1997. We treated appellant’s filings as a motion to reconsider our decision

denying his request for an extension of time. On June 16, 1997, we denied appellant’s

motion and dismissed the appeal.

{¶ 6} Nineteen years later, on August 9, 2016, appellant filed his “Motion to Enter

Final Appealable Judgment of Conviction and Sentence.”1 In his motion, appellant

argued that the October 26, 1990 “Judgment Entry of Sentence” was not a final

appealable order because (1) it failed to recite “the fact of conviction” as required by

Crim.R. 32(C), (2) it did not dispose of all of the charges against him, and (3) it violated

1 Appellant filed the same motion in all three of his case numbers. For ease of discussion, we will refer to these actions collectively in the singular.

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the one document rule of State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893

N.E.2d 163.

{¶ 7} On January 13, 2017, the trial court entered its judgment denying appellant’s

motion. The trial court reasoned that under the law in effect in 1990, the entries met the

requirements of Crim.R. 32, and thus were final appealable orders. Further, the court

found that the entries disposed of all of the charges against appellant. Finally, the court

found that the one document rule in Baker did not apply to the judgments entered 18

years earlier, and noted that appellant was sentenced in three separate cases.

{¶ 8} Appellant has timely appealed the trial court’s January 13, 2017 judgment,

and now asserts one assignment of error for our review:

I. The trial court erred in denying appellant’s motion to enter a final,

appealable Crim.R. 32 compliant judgment in the underlying cases.

II. Law and Analysis

{¶ 9} As a threshold matter, appellant questions whether a direct appeal from the

trial court’s January 13, 2017 judgment denying his motion to enter a final appealable

judgment of conviction is appropriate, or whether his relief lies in the form of a petition

for a writ of mandamus or procedendo.

{¶ 10} In State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, 21

N.E.3d 303, the petitioner sought a writ of mandamus or procedendo to compel the trial

court to issue a final, appealable judgment of conviction in compliance with Crim.R.

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32(C). The Ohio Supreme Court dismissed the petition, reasoning that the petitioner

could have appealed the trial court’s order granting in part, and denying in part, his

motion to correct his sentence. Thus, the Ohio Supreme Court held that the petitioner

had an adequate remedy in the ordinary course of law, which precluded an action for

mandamus or procendo. Id. at ¶ 12. See also State ex rel. Bevins v. Cooper, 150 Ohio

St.3d 22, 2016-Ohio-5578, 78 N.E.3d 828, ¶ 5 (dismissal of mandamus action is correct

where the petitioner could have appealed the trial court’s denial of the petitioner’s motion

for a final, appealable order). Therefore, we hold that a direct appeal is proper in this

instance.

{¶ 11} Turning to the merits of appellant’s appeal, appellant argues that his

judgment entry of sentence is not a final appealable order in compliance with Crim.R.

32(C) and Baker because it fails to recite the fact of his conviction, in contrast to the

manner of his conviction.

{¶ 12} Crim.R. 32(B) in effect at the time of appellant’s conviction provided, “A

judgment of conviction shall set forth the plea, the verdict or findings and sentence. If

the defendant is found not guilty or for any other reason is entitled to be discharged,

judgment shall be entered accordingly. The judgment shall be signed by the judge and

entered by the clerk.” Crim.R. 32(B) was later amended, and renumbered Crim.R. 32(C).

In interpreting Crim.R. 32(C), the Supreme Court of Ohio has clarified that “A judgment

of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1)

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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.” State v. Lester, 130 Ohio St.3d

303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus.

{¶ 13} Assuming for purposes of this analysis that Lester applies with equal force

to convictions entered under a prior version of Crim.R. 32(C), we find that the record in

this case contains a fully compliant judgment entry of conviction. Although appellant

points to the “Judgment Entry of Sentence” as the relevant document, the “Trial Docket

Orders and Motion Docket Entries” contains a more thorough entry. The October 26,

1990 entry in case No. CR 199005104B states,

Defendant present in court with counsel * * *. Defendant being

fully informed of the nature of the charges against him, the penalties

provided for by law, and of his constitutional rights, withdrew his former

pleas of not guilty and entered a plea of guilty to count 1 charging

aggravated murder, an unclassified felony, in violation of Sec. 2903.01(B)

ORC, and entered a plea of guilty to count 4 charging grand theft, motor

vehicle, a third degree felony, in violation of Sec. 2913.02(B) ORC. Pleas

of guilty accepted. Thereafter, matter came on for sentencing. Counsel for

defendant and defendant were permitted to make any statements before

sentence was imposed. Thereupon, the Court having taken into

consideration the matters set forth in Sec. 2929.12 ORC and other matters

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pertinent to the sentence which should be imposed, for violation of Sec.

2903.01(B), aggravated murder, defendant ordered committed to the Ohio

Department of Rehabilitation and Correction, specifically Correctional

Reception Center, for a period of life imprisonment; and for violation of

Sec. 2913.02 ORC defendant ordered committed to Ohio Department of

Rehabilitation and Correction, specifically Correctional Reception Center,

for a period of two years; pay costs of prosecution. Sentences in counts 1

and 4 are ordered served consecutively to each other and to each sentence

imposed in CR90-6102 and CR90-5894. At the request of the State of Ohio

and for good cause shown, a nolle prosequi is ordered entered herein as to

all remaining counts and all attached specifications.

This entry was signed on the docket by the trial court judge and file stamped as a

judgment entry by the clerk of courts, thereby complying with the requirements of

Crim.R. 32(C) and Lester.2

{¶ 14} Appellant argues that the entry on the trial court’s docket is insufficient,

noting that the docket and the journal are two separate documents required to be kept by

the clerk. See R.C. 2303.12 (“The clerk of the court of common pleas shall keep at least

four books. They shall be called the appearance docket, trial docket and printed

duplicates of the trial docket for the use of the court and the officers thereof, journal, and

2 Similar entries were entered in case Nos. CR199006102 and CR 199005894.

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execution docket.”). Appellant relies on State ex rel. White v. Junkin, 80 Ohio St.3d 335,

686 N.E.2d 267 (1997), to illustrate that an entry on a docket is not sufficient.

{¶ 15} In Junkin, the trial court orally pronounced a sentence upon the defendant,

and recorded the sentence on the case file jacket and initialed the decision. The trial

court’s case notations were then entered into the computerized court docket by an official

in the clerk’s office. The Ohio Supreme Court held that this procedure did not result in a

final judgment of conviction. The court reasoned that “[a] court of record speaks only

through its journal and not by oral pronouncement or mere written minute or

memorandum.” Id. at 337, quoting State ex rel. Hanley v. Roberts, 17 Ohio St.3d 1, 4,

476 N.E.2d 1019 (1985). Further, the court recognized that “handwritten ‘notations’ by a

municipal judge on a case file-envelope or case jacket do not rise to the dignity and

finality of a ‘judgment’ from which an appeal will lie, in the absence of evidence that it

has been filed with the clerk of the trial court.” (Emphasis sic.) Id., quoting William

Cherry Trust v. Hofmann, 22 Ohio App.3d 100, 105, 489 N.E.2d 832 (6th Dist.1985).

Likewise, “regardless of the trial court’s intention * * * the [docket] form is still

insufficient under Crim.R. 32[B] because it bears no time stamp or other indication that it

was entered on the trial court’s journal by the clerk.” Id., quoting State v. Ginocchio, 38

Ohio App.3d 105, 106, 526 N.E.2d 1366 (12th Dist.1987).

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{¶ 16} Here, unlike Junkin, the entry on the docket was separately signed by the

trial court judge, and filed stamped as a “judgment entry” by the clerk of courts, thus

indicating that it had been filed with the clerk for journalization.3 Moreover, the

October 26, 1990 entry disposed of all the charges pending against appellant in one

document by sentencing him on the counts for which he was found guilty, and dismissing

the remaining counts and specifications. Therefore, we hold that the October 26, 1990

entry was a final appealable order, and the trial court did not err in denying appellant’s

motion for a final judgment of conviction.

{¶ 17} Accordingly, appellant’s assignment of error is not well-taken.

III. Conclusion

{¶ 18} We find that the October 26, 1990 entry on the trial court’s docket, which

found that appellant pleaded guilty to the charges, sentenced appellant, and dismissed any

remaining pending charges, and which was separately signed by the trial court judge and

file stamped as a judgment entry by the clerk, was a final appealable order. Therefore,

appellant is not entitled to a new final judgment of conviction, and we find his first

assignment of error not well-taken.

We affirm the January 13, 2017 judgment of the Lucas County Court of

Common Pleas. The costs of this appeal are assessed to appellant under App.R. 24.



Judgment affirmed.