state of ohio, plaintiff, vs. bill adam sanders, 32(a), crim.r. 32(c) [formerly crim.r. 32(b) ] and...
TRANSCRIPT
IN THE SUPREME QOORT OF OHIO
State of Ohio,
Appellee,
V.
Bill Adam Sanders,
1 3O4 45
-^^
On Appeal from the PickawayCounty Court of AppealsFourth Appellate District
Court of AppealsAppellant. Case No. 12-CA-004
MElIDLtANDUM IN SUPPORT OF J[)RISDICl'IONOF APPELLANT BILL ADAM SANDERS
Bill Adam SandersPrison Id. No. 308019Chillicothe corr. Inst.P.O. Box 5500Chillicothe, Ohio 45601Pro se Appellant
Judy C. Wolford (0061529)Pickaway County Prosecutor
Jayme Hartley Fountain (00$1415)(COUNSEL OF RECORD)Pickaway County Assistant Prosecutor203 South Scioto St., P.O. Box 910Circleville, Ohio 43113(740)474-6066(740)[email protected],g
Counsel for Appellee,State of Ohio
^^^^ 19 ^^^^
CLERK OF COURT^EKE COURT OF OHIO
MAR 19 2013
CLERK OF COURTSUPREME COURI OF OHIO
TABLE OF CONTENTSPage
EXXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT
GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONALQUESTION .................................................... 1
STATEhIENT OF THE CASE AND FACTS ............................. 3
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .................. 10
Proposition of Law No. 1: The trial court erred to theprejudice of defendant-appellant in overruling his motionto correct the record of the judgment entry of sentence,in violation of the due process of law guaranteed bySections 2 and 16 of the Ohio Constitution and theFourteenth Amendment to the United States Constitution...... 10
Proposition of Law No. 2: Motions to correct mistakes inthe transcription of criminal sentences upon the sentencingjudgment entry are evaluated under Criminal Rule 36.:........ 13
CONCLUSION ................................................... 14
PROOF OF SERVICE ............................................. 14
APPENDIX
TABLE OF CONTENTS
Appendix Page
Decision And Judgment Entry of the Pickaway County
Court of Appeals (February 6, 2013) ..........................
Entry Of Sentencing of the Court of Common Pleas,Pickaway County, Ohio Case No. 94-CR-2-6,State of Ohio, Plaintiff, vs. Bill Adam Sanders,Defendant (March 10, 1995) ................................... 7
i
F•XPLANATICN OF WHY THIS CASE IS A CASE OF PUBLIC
OR Q2EAT 6ENERAL INTEREST AND INfIOLVESS
A StJBSTANTIAL CONSTITtITIf)NAL QiIESTIObi
This cause presents two critical issues for the future of imposing
criminal sentences and correcting criminal sentences in Ohio.
This case presents issue(s) for review regarding: 1) whether a judgment
of conviction must provide the sentence the trial judge imposed upon the
defendant while addressing the defendant in open court pursuant to the
mandates of Ohio Rules of Criminal Procedure, Rule 32(A), or may the judgment
provide a more severe sentence that the trial judge subsequently talked about
with the attorneys for both parties but never imposed upon the defendant; and
2) whether a criminal defendant has a substantive right, protected by the due
process clauses of Section 16, Article I of the Ohio Constitution and the
Fourteenth Amendment to the United States Constitution, to have his judgment
of conviction corrected under Ohio Rules of Criminal Procedure, Rule 36 when a
trial judge imposes concurrent sentences upon the defendant while addressing
the defendant in open court pursuant to the mandates of Criminal Rule 32(A),
subsequently talks to the attorneys for both parties about providing
consecutive sentences but never addresses the defendant to impose consecutive
sentences upon the defendant, and the trial court clerk types onto the
judgment of conviction the consecutive sentences the attorneys and judge
talked about rather than the concurrent sentences iinposed upon the defendant
pursuant to Crim.R. 32(A).
This case involves a substantial constitutional question, gives this
Court its first opportunity to address the parameters of Ohio Rules of
Criminal Procedure, Rule 36, and to clarify the meaning of "sentence shall be
imposed" under Criminal Rule 32(A), and "imposed upon the defendant'° under
State v. Joseph (Ohio 2010), 125 Ohio St.3d 76, 926 N.E.2d 278.
1
The public has a great general interest in knowing that a court's
judgment entry truly reflects what transpired in open court pursuant to the
rules that govern the proceeding.
The judgment of the court of appeals involves a substantial
constitutional question and has great general significance also because it
undermines this Honorable Court's rule making authority pursuant to Section 5,
Article IV of the Ohio Constitution, ignores the plain meanings of Crira,:t.
32(A), Crim.R. 32(C) [formerly Crim.R. 32(B) ] and Criffi.R. 36, and creates its
unsupported view that a sentence provided in a judgment of conviction cannot
be corrected under Crim.R. 36 when the trial judge "ordered, adjudged, and
decreed that counts two and three be served concurrent to each other" while
imposing sentence upon the defendant pursuant to the mandates of Criminal Rule
32(A), subsequently the trial judge talked to the attorneys for both parties
about providing consecutive sentences but never addressed the defendant to
impose consecutive sentences upon the defendant as mandated by Crim.Ft.32(A),
and the trial court clerk typed onto the judgment of conviction the
consecutive sentences the attorneys and judge talked about rather than the
concurrent sentences imposed upon the defendant pursuant to Crim.R.32(A).
Such a prospect is contrary to current case law and the purpose of Ohio
Rules of Criminal Procedure, Rules 32(A), 32(C) [former 32(B)] and Rule 36.
In this case, the court of appeals ignored Criminal Rule 36 when it
recast this matter as a denial of a petition for post conviction relief that
would be barred by res judicata.
If allowed to stand, the decision of the court appeals would abolish
Criminal Rule 36, and replace it with R.C. 2953.21, which impedes upon this
Court's rule making authority pursuant to Section 5, Article IV of the Ohio
Constitutian, and would disregard this Court's decisions in State v. Joseph
(Ohio 201d), 125 Ohio St.3d 76, 926 N.E.2d 278, 2010-954, and State v. Myers
2
(Ohio 2002), 97 Ohio St.3d 335, 780 N.E.2d 186, 2002 Ohio 6658.
The decision of the court of appeals is in conflict with the Court of
Appeals of Ohio, Twelfth Appellate District, Warren County's decision in State
v. Garretson (12 App. Dist. 2000), 140 Ohio App.3d 554, 748 N.E.2d 560
Quoting, Dentsply International inc. v. Kostas (1985), 26 Ohio App.3d 116,
118, 498 N.E.2d 1079, on the issue of whether "mistakes in transcription" may
be corrected at any time pursuant to Criminal Rule 36.
To promote the purposes of Criminal Rules 32(A), 32(C) (former 32(B)] and
36, and preserve the integrity of the judicial system, this court should grant
leave to appeal this felony sentencing case, grant jurisdiction to hear this
case and review the erroneous and dangerous decision of the court of appeals.
STATF.MENT OF THE CASE AND FACTS
This case arises from the attempt of appellant Bill Adam Sanders
("Sanders") to have his sentence corrected pursuant to Criminal Rule 36.
In March 1995, a jury found Appellant, Bill Adam Sanders, (herein
Sanders) Guilty of three counts of attempted murder. On March 08, 1995, the
trial court held a Sentencing Hearing. On March 10, 1995, the trial court
filed its Entry of Sentencing (State v. Sanders, The Court of Common Pleas,
Pickaway County, Ohio, Case No. 94-CR-206). Sanders appealed his convictions,
arguing: (1) that he was denied effective assistance of counsel as guaranteed
by the Sixth Amendment to the Constitution of the United States of America;
and (2) that he was denied his right to a speedy trial. The Court of Appeals
affirmed the convictions in State v. Sanders, 4th Dist. No. 95CA6, 1996 WL
734666 (Dec. 10,1996).
On January 25, 2012, Sanders filed a "Motion To Correct The Record Of The
Judgment Entry Of Sentence" to correct a mistake in the transcription of his
sentence pursuant to Crim.R. 36.
The basis of Sanders' Crim.R. 36 motion is that at the March 08, 1995
^
Sentencing hearing, and pursuant to Crim.R. 32(A) while addressing Sanders,
the trial judge imposing sentence pronounced "IT IS ORDERED, ADJUDGED AND
DECREED BY THE COURT..." "courlts two and three are to be served concurrent to
each other," Id., Transcript page 571, lines 2-3 and 572, line 2-3 (T.p.
571:2-3 and T.p. 572: 2-3) [Supplenent to Record in Court of Appeals). On
March 10, 1995, the trial court, pursuant to forxner Crim.R. 32(B)[currently
Crim.R. 32(C)] filed its Entry of Sentencing which states "counts two and
three run consecutive."
The following is a true and accurate reproduction of the March 08, 1995
Sentencing Hearing Transcript establishing what transpired at the Sentencing
Hearing:
T. p. 569
4 THE COURT: THE COURT WIL NOW PROCEED
5 WITH SENTENCING. THIS IS A VERY SERIOUS CASE, THREE
6 PEOPLE, INNOCENT PEOPLE, WHO THE DEFENDANT DID NOT KNOW,
7 LIVES WERE IN JEOPARDY, AND THANK GOODNESS, THE THREE
8 WERE NOT FATALLY IP3JURED, BUT ONE CAME CLOSE TO IT.
9 FIREARMS AND A SITUATION SUCH AS THIS IS VERY
10 DANGEROUS, ESPECIALLY WHEN IN THE HANDS OF ONE, WHO IN
11 THE WAY HE HANDLED THE FIREARM, WHAT HE DID ON THAT
12 MORNING, MAKES IT EXTREMELY DANGEROUS TO THE GENERAL
13 PUBLIC.
14 MR. SANDERS IS YOUNG, ONE OF THE MATTERS 'I'O
15 BE CONSIDERED, ALONG WITH ALL THE OTHER CIRCUMSTANCES AND
16 THE FACT THAT A GUN WAS USED, AND THE FACT THAT HE
17_/
'APPARENTLY HAD A BRUSH WITH THE LAW PREVIOUSLY, WHICI^3 I
18 HAVE HEARD EVIDENCE ABOUT THIS MORNING.
19 HE TOOK AIM AT MR. HERDT, TOOK AIM AT
4
MR. HERDT, HIT THE SEAT IIJ THE CAR, AND ONE OF THE SHOTS
WENT ALL THE WAY THROUGH, SOME SEVERAL MILES AWAY FROM
THE OHIO WILLOW WOOD. THAT DIDiti7' T SATISFY MR. SANDERS.
HE SAW THESE TWO LADIES, AND HE STARTED FOLL(XqING THEM,
AND MADE EVERY EFFORT HE WAS GOING TO GET THEM, EVEN
AFTER THE TWO LADIES WENT IN THE DOOR OF THE BUILDING,
T. p. 570
AND WERE INSIDE THE BTJILDIIIG, HE FIRED AT THEM TEiROIIGH
THE DOOR, CHOSE THE PLACE WHERE HE COULD HIT THE DOOR.
LUCKILY ONE WAS NOT HIT, BUT THE OTHER WAS HIT AND
FORTUNATELY IT WAS NOT AS SERIOUS AS IT COt)LD HAVE
BEEN.
I'M SURE THOSE PERSONS, ESPECIALLY THOSE TWO
LADIES IN PARTICULAR, IF NOT ALL THREE PERSONS IN1fOLVED,
THAT WILL LIVE WITH THEM THE REST OF THEIR LIVES, WHICH
YOU CAN SEE FROM THE THINGS THEY MENTIONED HERE. FROM
THE VICTIMS' IMPACT STATEMENTS, IT IS CERTAINLY TRUE THAT
THIS IS SOMETHING THEY CAN'T FORGET, SOMETHING THAT IS
GOING TO BE WITH THEM.
SO, THESE ARE VERY SERIOUS MATTERS, AND SO,
THE COURT WILL THEN PROCEED TO PASS SENTENCE.
CONSIDERING ALL TEiESE FACTORSa AND THE FACTORS SET
FORTH IN SECTION 2929.13 AND 2951.02 OF THE REVISED CODE,
THE COURT DETERMINES THERE IS NO BASIS FOR PROBATION. AND
IN ADDITION, THE USE OF A FIREARM WHICH IS PROHIBITED,
THAT THE COURT WILL THEN PROCEED TO PASS SENTENCE, WHICH
THE COURT FEELS IS APPROPRIATE UNDER ALL THE
CIRCUMSTANCES.
5
22
23
24
25
SO, WOULD YOU STAND, MR. SANDERS. DO YOU
HAVE ANYTHING TO SAY, WHY JUDGMENT OF THE COURT SHOULD
NOT BE PRONOUNCED AGAIII.ST YOFJ, OR IN MITIGATION OF
SENTENCE?
T.p. 571
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
THE DEFENDANT: NO, SIR.
THE COURT: IT IS ORDEREDa MUDGE)o AMD
DZCREM BY T8B COURT• THAT IN COUNT ONE FOR ATTEMPTED
MURDER, A FELONY OF THE FIRST DEGREE, THAT YOU BE
SENTENCED TO THE CORRECTIONAL RECEPTION CENTER FOR NOT
LESS THAN EIGHT NOR MORE THAN 25 YEARS.
AS TO COUNT ONE, IS THAT MR. HERDT?
MR. SEDLAK: YES, IT IS.
THE COURT: THAT WILL BE A THREE YEAR
ACTUAL INCARCERATION, FOR THE FIREARM SPECIFICATION.
COUNT TWO, WHO WAS THAT?
MR. SEDLAR: MS. KIM SPANGLER.
THE COURT: IT IS FURTHER ORDERED, FOR
THAT COUNT, NUMBER TWO, FOR THE OFFENSE OF ATTEMPTED
MURDER, THAT YOU BE SENTENCED TO THE CORRECTIONAL
RECEPTION CENTER, FOR A PERIOD OF NOT LESS THAN EIGHT,
NOR MORE THAN 25 YEARS.
NOW, IT IS FFJRTHER ORDERED, THERE BE A`1'HREE
YEAR INCARCERATION FOR THE FIREARM SPECIFICATION.
NOW, AS TO THE THIRD COUNT, IT IS FURTHER
ORDERED, ADJUDGED AND DECREED BY THE COURT, THAT YOU BE
SEtMNCED TO THE CORRECTIf3,.^A3L RECEPTION CENTER FOR A
PERIOD OF NOT LESS THAN EIGHT, NOR MORE THAN 25 YEARS.
6
24 NOW, IT IS FCIRTHER ORDERED THAT THERE WILL BE
25 A THREE YEAR ACTUAL INCARCERATION FOR THE FIREARM
T. p. 572
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
SPECIFICATION.
COUNTS TNC'? AND TMM TD BE SF.FtYED COLNMRENT
TO EMH OTM.
MR. SPIRES: YOUR HONOR, IF I MAY NOTE,
THE FIREARM COUNT THREE, AS I UNDERSTAND, THERE CAN ONLY
BE ONE WITH SPECIFICATION.
M. SEDLAK: THERE WAS A FINDING BY THE
JURY, ON ALL THREE.
MR. SPIRES: THAT IS TRUE, BUT I DON'T
THINK THE COiJRT CAN IMPOSE THAT, AS PART OF THE SAME.
MR. SEDLAK: THEY MERGE, FOR THE PURPOSE
OF SENTENCING.
THE COLIRT: THAT IS WHAT I' MDOING.
MR. SPIRES: NOT BE IMPf)SED, THAT THEY
MERGE. THE TWO OF THEM TOGETHER, WITH ONE GUN
SPECIFICATION.
THE COt1RT. WE WILL NOT IMPC)SE IT ON
COUNT THREE. COUNT TNO, WHICH WILL TAKE CARE OF COUNT
THREE OF THE FIREARM SPECIFICATION.
FURTHER, THAT THE COURT WILL PROVIDE THE
MINIMt7M SENTENCE BE SERVED IN EACH OF THEM,
CONSECUTIVELY, EACH OF THESE EIGHT TO 25 YEARS BE
SERVED CORiSEC[3'!'I'VELY, THAT THE EIGHT YEARS IS ORDERED TO
BE ACTUAL INCARCERATION. OF COURSE THE FIREARM, HAS TO
7
25 BE SERVED PRIOR TO THE STARTING OF THE OTHER TERMS.
T. p. 573
1 MR. SEDLAK: YES. IT iiOMD BE BASICALLY
2 SIX YEARS ACTUAL INCARCERATION FOR THE FIREARM
3 SPECIFICATION, AND MR. SANDERS Ti01ULD BE SERvING
4 CONSECU'PI1IL SEHTENCES FOR THE THREE UNDERLYING
5 FELONIES.
6 THE COURT: THIRTY YEARS. OF COURSE, YOU
7 WILL BE GIVEN CREDIT FOR ANY TIME SPENT IN THE COUNTY
8 JAIL. YOU HAVE BEEN IN JAIL FOR QUITE SOME TIMEt AND
9 THAT YOU PAY THE COST OF THIS MATTER, FOR WHICH EXECUTION
10 IS HEREBY AWARDED.
11 ANYTHING ELSE?
12 MR. SPIRES: ARE YOU GOING TO APPRISE HIM
13 OF HIS RIGHT TO APPEAL?
14 THE COURT: FOR APPSAL, TWO THINGS ARE
15 NECESSARY. FIRST YOU HAVE TO HAVE AN ATTORNEY, THAT WILL
16 HANDLE THE APPEAL FOR YOU. WHETHER THAT WILL BE
17 MR. SPIRES OR NOT, THAT WILL HAVE TO BE DETERMINED
18 LATER.
19
20
21
22
23
24
25
SECONDLY, YOU NEED A TRANSCRIPT OF THE TRIAL
HERE. NOW, YOU'RE BEING HELD IN JAIL, THERE IS NO
QUESTION ABOUT THE FACT YOU'RE INDIGENT. SO THE COURT
WILL AT THIS TIME MAKE A FINDING THAT YOU ARE INDIGENT,
TFiAT YOU HAVE. THE RIGHT TO AN ATTORNEY, AND ALSO A COPY
OF THE TRANSCRIPT, PAID FOR AT PUBLIC EXPENSE.
ANYTHING rJ°i THER?
8
T. p. 574
1 MR. SEDLAK: NO.
2 MR. SPIRES: NO.
3 THE COURT: THE COURT STANDS IN RECESS.
4
5 AND THE ABOi/E AND FOREGOING WAS AyL OF THE TESTIt?iON:Y AND
6 EVIDENCE THAT WAS OFFERED IN THIS CASE.
7
The trial court denied Sanders' "Motion To Correct The Record Of The
,7udginent Entry Of Sentence". The court of appeals affirmed the judgment of the
court comon pleas and fount that; (1) Sanders' Criminal Rule 36 motion may be
recast and evaluated as a R.C. 2953.21 petition for post conviction relief
that is filed untimely and bared by res judicata; and, (2) the portion of the
transcript upon which Sanders relied in his motion does not bear out his
claim. In other words, the sentencing entry did not contradict the oral
pronouncement at the sentencing hearing and the motion to correct sentence is
without merit.
The Court of appeals erred in ruling that Sanders' Criminal Rule 36
motion may be recast and evaluated as a R.C. 2953.21 petition for post
conviction relief filed untimely and barred by res judicata. The court of
appeals also erred in ruling that: "the portion of the transcript upon which
appellant relied in his motion does not bear out his claim. In other words,
the sentencing entry did not contradict the oral pronouncement at the
sentencing hearing and the motion to correct sentence is without merit."
In support of its position on these issues, the appellant presents the
following argument.
9
AR.GUMI'P IN SUPPORT OF PROPOSITIE7NS OF LAW
Prapasitian of Law No. 1: 'The trial court erred to the prejudice of
Aefendaat-Appeliaat in overruling his motion to correct the record of the
judgnent entry of seAtencoo in violation of the due process of lav guaranteed
by Seotions 2 and 16 of the Ohio Constitution and the Fourteenth Amendment to
the United States <bnstitution.
The court of appeals' decision is in obvious conflict with the Sentencing
Transcript and this Court's decisions in State v. Josepb (Ohio 2010), 125 Ohio
St.3d 76, 926 N.E.2d 278 (holding that a trial court can only sentence a
defendant in a judgment entry to that same sentence imposed upon the defendant
in open court), and State v. Myers (Ohio 2002), 97 Ohio St.3d 335, 780 N.E.2d
186 (holding that the provisions of Criminal Rule 32(A) are mandatory in both
capital and noncapital cases, absent invited error or harmless error).
The trial judge did not impose consecutive sentences upon the
Defendant-Appellant Bill Adam Sanders while addressing Sanders and imposing
sentence upon Sanders pursuant to Crim.R. 32(A). See Transcript page 570, line
22 to page 572, line 3 (T.p. 570:22 to 572:3) [Supplement to Record in Court
of Appeals]; and, Statement Of The Case And Facts at pages 6-7 above.
While imposing sentence upon Sanders, the trial judge "ordered, adjudged,
and decreed" "that Counts two and three to be served concurrent to each
other." Id. T.p. 570:22 to 572:3.
Thereafter, at T.p. 572:4 to 573:5, appellant Sanders' attorney Mr.
Spires, appellee State of Ohio's attorney Mr. Sedlak and the trial judge began
a conversation about the firearm specification on count three merging with the
firearm specification on count two, and during this conversation between the
attorneys and the court, the trial judge did state to the attorneys "that the
court will provide the minimum sentence be served in each of them,
consecutively, each of these eight to 25 years be served consecutively..." Id.
10
T.p. 572:20-25.
Although the trial judge did state to the attorneys that the trial court
"will ^--ro^^^p vide the minimum sentence be served in each of them,
consecutively"[T.p. 572:20-25j, the trial court never addressed the
defendant-appellant Sanders to impose consecutive sentences upon Sanders, and
the trial court had already imposed "concurrent" sentences upon Sanders. Id.,
T.p. 570:22 to 572:3. The fact that consecutive sentences had not yet been
provided and imposed upon Sanders is indicated by the prosecutor Mr. Sedlak's
response to what the trial judge said he "will provide"[T.p. 572:20-25] when
Mr. Sedlak states: "[y]es. it would be basically six years actual
incarceration for the firearm specification, and Mr. Sanders would be serving
consecutive sentences for the three underlying felonies." T.p. 573:1-5. The
trial judge responded to Mr. Sedlak "Thirty years." T.p. 573:6. Thereafter,
the trial judge turned to defendant-appellant Sanders and stated, "of course,
you will be given credit for any time spent in the county jail." T.p. 573:6-8.
Thus, the conversation between the attorneys and the trial judge talks
about what the court "will provide" and what "Mr. Sanders would be serving",
but the trial court never addressed Mr. Sanders and never imposed, nor
ordered, adjudged or decreed consecutive sentences upon Sanders at sentencing
pursuant to Crim.R. 32(A). See T.p. 572:4 to 573:5; however, the trial court
had already "ordered, adjudged, and decreed," and imposed "concurrent"
sentences upon Sanders. Id., T.p. 571:2-3 and 572:2-3.
State v. Joseph, supra, requires the trial court's former Crim.R. 32(B)
[presently Crim.R. 32(C)I judgment entry to sentence the defendant to the same
sentence im sed upon the defendant in open court pursuant to Crim.R. 32(A),
i.e. "that counts two and three to be served concurrent to each other." T.p.
570:22 to 572:3, specifically at T.p. 572:2-3. State v. Joseph does not allow
the trial court's judgment entry to sentence the defendant to a sentence the
11
trial court subsequently told the attorneys the court "will provide", but the
court never imposed, ordered, adjudged or decreed upon the defendant at
sentencing pursuant to Crim.R. 32(A).
Crim.R.32(A) provides in pertinent part: "Sentence shall be imposed
without unnecessary delay."
Crim.R.32(C) [former Crim.R.32(B)] provides in pertinent part: "A
judgment of conviction shall set forth the plea, the verdict or findings, and
the sentence."
The court of appeals held that the sentencing entry did not contradict
the oral pronouncement at the sentencing hearing. This holding ignores the
evident meaning of Ohio Rules of Criminal Procedure, Rule 32(A), that the
sentence shall be imposed upon the defendant.
The court of appeals erroneously interpreted Crim. R. 32(A)'s phrase
"shall be imposed" to mean "talk to the attorneys for both parties about the
sentence the court will provide."
The trial court violated Sanders' rights to due process protected by
Section 16, Article I of t.he Ohio Constitution and the Fourteenth Amendment to
the United States Constitution when its judgment entry sentenced Sanders to a
more severe sentence than the trial court imposed upon Sanders in open court
while addressing Sanders at the sentencing hearing pursuant to Crim.R. 32(A).
See, e.g. North Carolina v. Pearce (1969), 395 U.S. 711, 89 S. Ct. 2072,
followed in State v. Dellinger (Ohio App. 2004), 2004 Ohio 889, 2004 Ohio App.
LEXIS 809; and, see, Alabaa+a v. Smith (1989), 490 U.S. 794, 109 S. Ct. 2201.
Crim.R. 36 provides:
Clerical mistakes in judgments, orders, or other parts of the
record, and errors in the record arising from oversight or omission,
may be corrected by the court at any time.
The phrase "clerical mistake" describes "the type of error identified
12
with mistakes in transcription, or omission of any papers and documents."
State v. Garretson, 140 Ohio App.3d 554, 559, 748 N.R.2d 560 (12th Dist.
2000), citing Dentsply Intl., Inc. v. Kostas, 26 Ohio App.3d 116, 118, 498
N.E.2d 1079, 1081 (8th Dist. 1985).
Sanders has a substantive right, protected by the due process clauses of
Section 16, Article I of the Ohio Constitution and the Fourteenth Amendment to
the United States Constitution, to have his judgment of conviction corrected
under Ohio Rules of Criminal Procedure, Rule 36 when the trial judge imposed
concurrent sentences upon Sanders while addressa.ng Sanders in open court
pursuant to the mandates of Criminal Rule 32(A), subsequently talked to the
attorneys for both parties about providing consecutive sentences but never
addressed Sanders to impose consecutive sentences upon Sanders, and the trial
court clerk typed onto the judgment of conviction the consecutive sentences
the attorneys and judge talked about rather than the concurrent sentences
imposed upon Sanders pursuant to Crim.R. 32(A).
Proposition of Law No. 2: tYlotions to correct mistakes in the transcription of
criminal sentences upon the sentencing judgment entry are evaluated under
Criminal Rule 36.
The Court of Appeals erred in ruling that Sanders' Criminal Rule 36
rAotion may be recast and evaluated as a R.C. 2953.21 petition for post
conviction relief filed untimely and barred by res judicata.
Sanders' motion met the requirements of Criminal Rule 36. Sanders did not
argue that the judgment is void or voidable, or should be set aside or vacated
under R.C. 2953.21, and is not trying to set aside or vacate a death sentence
under R.C. 2953.21.
Sanders argued a transcription mistake in the sentencing judgment entry.
A nunc pro tunc entry should be sufficient to correct the mistake, since
concurrent sentences have already been imposed upon Sanders at the sentencing
13
hearing, but the sentencing judgment entry imposes consecutive sentences.
Sanders argued that he had a due process right protected by Section 16,
Article I of the Ohio Constitution and the Fourteenth Amendment to the United
States Constitution to have the sentencing judgment entry impose the same
concurrent sentences the trial court imposed upon Sanders at the sentencing
hearing, rather than imposing a more severe sentence that was not imposed upon
Sanders at the sentencing hearing, and the trial court denied Sanders due
process when it failed to correct the judgment entry under Criminal Rule 36.
The decision of the court of appeals is in conflict with State v.
C,arretsm, supra, on the issue of whether " mistakes in transcription" may be
corrected at any time pursuant to Criminal Rule 36.
Conclusion
For the reasons discussed above, this case involves matters of public and
great general interest, a substantial constitutional question and a felony.
The appellant requests that this court accept jurisdiction in this case so
that the important issues presented will be reviewed on the merits.
Respectfully submitted,
Bill Adam Sanders #A308-019Defendant-Appellant, Pro seChillicothe Corr. Inst.P.O. Box 5500Chillicothe, OH. 45601
Certificate of Service
I certify that a copy of this Memorandum In Support Of Jurisdiction
was sent by ordinary U.S. mail, First class postage prepaid, to counsels for
L "pp^'a c1^e, .T a+..r„^^ C .^ Wolford and .^ay:ne Hartley Fountain, Pickaway Couintyi3e sa
Prosecutors Office, 203 South Scioto St., P.O. Box 910, Circleville, Ohio
43113 on March )S^^h, 2013.
Bill Adam Sanders Pro Se
14
APPENDIX
FILED-COtlRT OF APPEALS
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICTPICKAWAY COUNTY
STATE OF OHIO, •
Plaintiff-Appellee, . Case No. 12CA4
vs.
BILL ADAM SANDERS,
Defendant-Appellant.
I013FE8-6 AII: I'J
JAMES W. DEANCLERK (3F COURTS
PICK^`^htAY COUNTY '
. DECISION AND JUDGMENT ENTRY
APPEARANCES:
APPELLANT PRO SE: Bill Adam Sanders, #A308-019,Chillicothe Correctional Institution,P.O. Box 5500, Chillicothe, Ohio 45601,
Pro Se
COUNSEL FOR APPELLEE: Judy C. Wolford, Pickaway CountyProsecuting Attorney, and Jayme Hartley
Fountain, Pickaway County AssistantProsecuting Attorney, 203 South SciotoStreet. P.O. Box 910, Circleville, Ohio
43113
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:
ABELE, J.
This is an appeal from a Pickaway County Common Pleas Court
judgment that denied a motion to "Correct the Record of The
Judgment Entry of Sentence" filed by Bill Adam Sanders, defendant
below and appellant herein.
Appellant assigns the following error for review:
"THE TRIAL COURT ERRED TO THE PREJUDICE OFDEFENDANT-APPELLANT IN OVERRULING HIS MOTIONTO CORRECT THE RECORD OF THE JUDGMENT ENTRYOF SENTENCE, IN VIOLATION OF THE DUE PROCESSOF LAW GUARANTEED BY SECTIONS 2 AND 16 OF THE
^1j^Pen^iK Paqe 1
2PICKAWAY, 12CA4
OHIO CONSTITUTION AND THE FOURTEENTHAMENDMENT TO THE UNITED STATES CONSTITUTION."
In March 1995, appellant was convicted of three counts of
attempted murder, all with firearm specifications. The trial
court sentenced appellant to serve three years on each firearm
specification and, once he completed those sentences, consecutive
sentences for each attempted niurdcr count with an aggregate
minimum of twenty-four years (24) incarceration, up to an
aggregate maximum term of seventy-five (75) years. We affirmed
his conviction and sentence. State v. Sanders, 4t' Dist. No.
95CA6, 1996 WL 734666 (Dec. 10, 1996)(Sanders I).
Appellant commenced the instant proceedings on January 25,
2012 with a motion to correct his sentence. The gist of his
argument is that during the sentencing hearing, the trial court
ordered the sentences on counts two and three to be served
concurrently, but the actual sentencing entry ordered them served
consecutively. The appellee did not file an answer and the trial
court denied the motion. This appeal followed.
Generally, courts may recast irregular motions into whatever
category necessary to identify and to establish the criteria by
which a iiiotion should be evaluated. State v. Lett, 7th Dist. No.
09MA131, 2010-Ohio-3167, at 115 citing State v. Schlee, 117 Ohio
St.3d 153, 2008-Ohio-545, 882 N.E.2d 431,at 112. Although the
motion to correct sentence filed in the trial court did not raise
constitutional claims, appellant's assignment of error is couched
3PICKAWAY, 12CA4
in such terms and, thus, we will treat this matter as a denial of
a petition for postconviction relief. After so doing, we note
that any one of a number of reasons exist to affirm the denial of
appellant's motion below.
First, petitions for postconviction relief must be filed no
later than one hundred and eighty days after the expiration of
the time for filing an appeal. R.C. 2953.21(A)(2). Here, the
expiration of time for filing an appeal expired in 1995, but
appellant did not file his motion until 2012. Obviously,
appellant filed his motion out of rule.
Second, The Ohio Supreme Court has held that the doctrine of
res judicata applies when determining whether postconviction
relief is warranted under R.C. 2953.21. See State v. Szefcyk, 77
Ohio St.3d 93, 671 N.E.2d 233, at the syllabus (1996); State v.
Nichols,11 Ohio St.3d 40, 42, 463 N.E.2d 375 (1984); State v.
Perry,10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph eight of
the syllabus (1967). In other words, a petitioner may not raise,
for purposes of postconviction relief, any error that was raised,
or could have been raised, on direct appeal. State v.Franklin,
4 th Dist. No. 05CA9, 2006-0hio-1198, at 9110; State v. Peeples, 4 th
Dist. No. 05CA25, 2006-Ohio-218, at 9[11. Here, the alleged error
is one that could have been discovered and raised in Sanders I.
It was not. Appellant's attempt to raise it seventeen years
later is barred by res judicata.
^ix pqge3
4PICKAWAY, 12CA4
Finally, and most important, the portion of the transcript
upon which appellant relied in his motion does not bear out his
claim. That exhibit shows that the trial court stated "the
minimum sentence to be served in each of them, consecutively,
each of these eight to 25 years be served consecutively ...
(Emphasis added.) In other words, the sentencing entry did not
contradict the oral pronouncement at the sentencing hearing and
the motion to correct sentence is without merit.
For all these reasons, we hereby overrule appellant's
assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
R f ' p - 0 A IX Pa.qe i-1
5PICKAWAY, 12CA4
Kline, J., concurring.
For the following reasons, I respectfully concur in judgment
only. First, because we have recast Sanders's motion as a
petition for postconviction relief, I would review his appeal
under an abuse-of-discretion standard. See State v. Hicks, 4th
Dist. No. 09CA15, 2010-Ohio-89, 1 9-11. The principal opinion,
however, does not contain a standard of review. Second, because
Sanders appealed his conviction, he had to file a petition for
postconviction relief "no later than one hundred eighty days
after the date on which the trial transcript [was] filed in the
court of appeals in the direct appeal ***." R.C.
2953.21(A)(2). The principal opinion, however, states the
deadline for when "no appeal is taken." Id. Nevertheless, I
agree that the sentencing entry conforms to the oral
pronouncement at the sentencing hearing. As a result, I would
affirm the judgment of the trial court.
Accordinaly, I respectfully concur in judgment onlv-
gpfen a ^ x Pdg eS
PICKAWAY, 12CA4
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
6
It is ordered that a special mandate issue out of this Court
directing the Pickaway County Common Pleas Court to carry this
judgment into execution.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, P.J.: Concurs in Judgment OnlyKline, J.: Concurs in Judgment Only with Opinion
For the
BY
NOTICE TO COUNSEL
er B. Abe/7.e, Judge
Pursuant to Local Rule No. 14, this document constitutes afinal judgment entry and the time period for further appealcommences from the date of filing with the clerk.
9ppenj ix PGge 6
17404'r7731376 PiCKA'YAY CLERK OF CO 03: 95;34 a.m. 05-29-2070 7/10
IN THE COURT OF COMMON Fi<P-AS, FI^^^AY COUNTY, OHIO
State of Ohio,
Plaintiff,
Vs.
BLII Adam Sanders,
Defendant.
Case No. 94-CR-206
^^^ OF ^^^^^^IVCING
This matter crrine before the Court this 8t.h day of March, 1M, %=z.th Alan F.
Sedlak, AssLtant Frosecuting Attorney for Pickaway County being present and
representing the State of Ohio and Defendant being presen.t. and represented by Jeremiah
1. Spires, EsTah, Lancaster, Ohio, for sentencing. 'Ilie Defendant W previoLfslv been
found A a.iity, at triai by jury, fOr thrm counts of th:, offense of Attempted IvIurtier,
Aggrava.ted Felonies of the First Degree, contrary to ORC Section 2923.02, and fi:rther
that .he did have a firearm on or about his person or nndcr his control Wh1e committing
tne saidoffenses. The vcrdfct of the jury was returned Ma-rch 2, 1995 and upon finciing
tiie verdicts regarding aU three cQunts of the indieLment to be in pzoper form, the CaurL
ardered that sentencing b-, caw^.nued uiitrl this riatc.
^vThereup-on, the court addressed the defendant personally and asi^,e^ him if he
wished to make a statement in his hei}.ai.f or present any informatioi? in rni.tigafien of
punis.hznent, and the d,efe-ndant responding, and the Court having considemd the criteria
set forth in QItC Sections 2929.12,2929.13, and 2951.02, imposed sentence as follows:
As to the offense of Attempted Murder, ORC Section 2923.02, an Aggravated Felony of
the First Degree, as set forth in the first count of tite indictment, that the tiefendant be
4
dpp ev, J a`k- PagC'7
17404773 :76 PICKAWAY CLERY. OF Cf703:15:55a,m. 06-23-2010 Bf10
501
icu^^so,_Ied in ^^ Correctiof^^ ^^pit ^.^ ^€^r, at ^^e^^t, for a ^s^€ur^? term of eight
(8) ^eami, whien is 2er&by i^^sed as a ^^ of adud incarcerejon, and a rouimum of
twenty-five (25) years; As to the f^earm speifibatic^n set for^ in the first ^^^ of th^
indictment, pursuant to ORC Sed_ on 29-29,71, that the &-fendant be imprisoned in the
^orrwio.^ ^^^^^^^ Center for a pefliod of thw, (3) yew actesJv, i^^^dont IWth
such to be ^erv+^ prior and consecutive to the af^^^^atio.-ned indafizafte serkmrtca for the
first count of the inc#ictmnt; As to ft Qffe^.^ of Attempttd Murder, ORC &cdon
259,23.02, an Aggravated Felony of the First Degree, as set fbrth in the second count of
the indictmrit, that ft deftdant be imprisoned in the Correc^^^^ Reception Center,
at C}riett, for a mm"mum term of eight (8) yem, which is hereby impowZ as a trcrm of
acaud incareemdon, and a maximum of twenty-five (25) years; As to the firearm
spe-cific.aticzn set forth in tho wconi count of tb-,- i^ictmnt, pursuant to ORC Section
2929.71, ftt, the defendant be in-iprisoned in flie Correctional Re=ptian Cef AcT for a
pwicd of thm (3) years actual ircarcerativn„ with such to be ^^ vod pdor and
co^cudve tcr the aforemendowd indefinite sentence for th.- wcGnd count of the
i.nd:vmeat As to t^ ^^ense of A€^^^^ ^toda, ORC Section 2923.02, an
Aggravated. Felony of the First Degree, as s-et forth in the third count of the indictment,
ffiat the &fen€iant be a^^oned in the Carrection1 Reception Center, at Orient, for a
minimum term of eight (8) yean, which is hereby irVes€d as a term of actuO
incarceration, and a maxirriIIau of tweuty-five (25) yem-s< Pursumit to ORC Section
2929.71, the Cg^ finds that the felonies committed by defendant as id forth in the
second and bA counts of the imhctment were commined as part of tho same act or
^ppeoj,`x C, ye 9
i 740<773°76 PICKAWAY CLERK 4F CO03:16:20 a.m. 06-23-2090
0
tramgcti€r, and that ority one thret-year tam of ircarceraton, f(-,. &.e fire^n
5170
speciftcation, may bc'imposed by law. ThtrOfcrie, thc Court finds and hereby ORDERS
that the ^^eam specification as ret f^^h in the thiA count of the indictment be rrFcrged
with the firearm specificadon set forth in the s=ond c^urit of the inffictment. All said
scntences ^*e to be at hard labor but without solits'ry coeirrement. IT IS FURTHE'z
{^^ERED that the scnLf-u= imposed in each of the tm (3) counts of the indictment,
for each count cf the ofFens° of Attempted Murder, shaLl bee s^-ved consecutivc to each
other, as well as consecutive to eaeb of the two (2) firmm specifications setforth herein.
Therefore, by the fcregoing senWnces imposW krein by ft Court, IT I-S ORDERED
that defendant first serve the fireum specification for ttie finst count of the indictment,
such being a term of actuaI incsa cea.ticn of three (3) ^ears¢ that the defendant tm serve
the firearm specification to the second court of ffie indictment, such also boing a Wrm of
anual incarceradon of three (3) yesm; and ^t the d..^ndant t^eredter serve the ffiree
(3) cons^^ativ6 sentmces fbr tlze ttm (3) counts oil Attempted Murder, wiih such
corse mtive indefinite sente=s hereby i^pvs^ having an aggmgatc minimum term of
twenty-four (24) years, Vitli such to be served as a term of seU - in4srmration, and an
aggreg-ate maximum tcrm of soventy-fivc (75) year& The acfend.nt is to rewivo credit
on said sentences for the time he has bmn incarcerated as esertified, by tlre Sheriff of
Picka,way County, Ohio, being days.
The Court therenpw1 fully advised the defendant of his fights tc appea]. pursuant
to Criminal Rule 32(A)(2); further, the Court found ffie defendant to be indigent, for the
purposm of appaintment. vf c.gunel and a copy of the transollpt for any such appeal.
^^^e') d i x page ^
17404773976 FICKA4't°AYCLERKOEC4' 03:16:45a.m.. 06-29-2010 10/90
IT IS THE FURTHER t)RDER OF T'^^ COURT ffiat the dw&n.dw-t pay the ccsLe
of this prob-ecution fori- which execution is hereby awarded.
• ^ ;,, ,
J'UI^^E WII..Li^A AMMERSrIT^^ ^YASSIGNMERIT
APPROVED:
. i . . . . ^ ^^ ^^.
R P. ^^DLAK CW18372}ASSISTANT PROSECUTOR
DATE:
^ppP o J ► x fag ^ l o