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)477-7475--Faxjfountain@pickaway.or,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