Opinion
No. L-10-1356.
Decided: May 20, 2011.
Trial Court No. CR0200303244.
Deborah Kovac Rump, for appellant.
DECISION AND JUDGMENT
{¶ 1} Appellant, Hisham El-Amin, has filed a motion to revise his brief that was filed in 2005 in his first appeal (L-05-1286) from the Lucas County Court of Common Pleas' judgment convicting him of two counts of rape. In that appeal, this court affirmed his conviction. Subsequently, the Ohio Supreme Court decided the case of State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330 in which the court held that a sentencing judgment that does not state the means of conviction, as required by Crim. R. 32(C), is void. El-Amin's 2005 sentencing judgment does not state the means of conviction. Therefore, El-Amin filed a motion in the common pleas court to correct his judgment of conviction so that it conforms to the Baker ruling. On November 16, 2010, the common pleas court judge issued a nunc pro tunc judgment that reiterated the original 2005 judgment of conviction but added that "the defendant was found guilty by a jury."
{¶ 2} On December 9, 2010, El-Amin filed the present notice of appeal from the November 2010 nunc pro tunc entry. In this appeal, appellant intends to re-litigate all issues raised in his 2005 appeal and asks, in this present motion, to add additional arguments to his 2005 brief for the court to address in this present appeal. Because the Ohio Supreme Court in Baker held that a sentencing entry that did not contain means of conviction was void, appellant believes that he can appeal his conviction as if the original judgment from 2005 never existed. This would be a valid assumption if the Ohio Supreme Court had not decided State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238 ("The scope of an appeal from a resentencing hearing * * * is limited to issues arising at the resentencing hearing." ¶ 40), and State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235.
{¶ 3} In De Wine, the Ohio Supreme Court states:
{¶ 4} "[T]he technical failure to comply with Crim. R. 32(C) by not including the manner of conviction * * * is not a violation of a statutorily mandated term, so it does not render the [first] judgment a nullity." Id. at ¶ 8.
{¶ 5} Thus, El-Amin's belief that he can now appeal his 2005 conviction as if the original judgment of conviction from 2005 never existed, is erroneous. See this court's recent decision, State v. Triplett, 6th Dist. No. L-10-1158, 2011-Ohio-1713. The only issue that El-Amin can now appeal is whether the November 16, 2010 resentencing entry complies with Crim. R. 32(C).
{¶ 6} Accordingly, appellant's Motion to Revise Brief is denied.
MOTION DENIED.
Peter M. Handwork, J., Arlene Singer, J., Stephen A. Yarbrough, J., CONCUR.