COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 56777 : STATE OF OHIO : : : Plaintiff-appellee : : : -vs- JOURNAL ENTRY : AND DARIES Y. SHERRILLS : OPINION Defendant-appellant : : DATE OF ANNOUNCEMENT : SEPT. 18, 1997 OF DECISION CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-230459 (Delayed reconsideration) JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Uche Mgbaraho, Esq. Cuyahoga County Prosecutor 1677 East 40th Street By: Arthur A. Elkins, Esq. Cleveland, Ohio 44103 Assistant Prosecuting Atty. The Justice Center Daries Sherrills, pro se 1200 Ontario Street #206-377 Cleveland, Ohio 44113 P.O. Box 57 Marion, Ohio 43302-0057 ROCCO, J.: In the case, sub judice, this court granted Mr. Sherrills' application for reopening on the invalid specification issue. State v. Sherrills (Apr. 5, 1990), Cuyahoga App. No. 56777, 2 unreported, reopening allowed in part and denied in part (June 24, 1996), Motion No. 55362. This court appointed counsel for Mr. Sherrills to present the issue fully. After the parties had briefed the issue, this court remanded the case to the trial court for resentencing to correct the error caused by the invalid specification. After the trial court had imposed a new sentence, both Mr. Sherrills and his counsel filed new briefs for Mr. Sherrills' release. The state did not file reply briefs. Nevertheless, for the following reasons, this court affirms the conviction and resentencing. In February 1983, in Cuyahoga County Common Pleas Court Case No. Cr. 176192, Mr. Sherrills was convicted of aggravated burglary. However, this court reversed the conviction and discharged Mr. Sherrills because the speedy trial act had been violated. State v. Sherrills(Mar. 2, 1984), Cuyahoga App. No. 46602, unreported. The State of Ohio endeavored to appeal this decision to the Supreme Court of Ohio, but the Court dismissed the appeal for lack of a substantial constitutional question. On September 1, 1988, the Grand Jury indicted Mr. Sherrills for aggravated burglary, kidnapping, two counts of rape and three counts of gross sexual imposition; each count contained an aggravated felony specification for the 1983 aggravated burglary conviction, which this court had vacated. At a bench trial the evidence established that Mr. Sherrills broke into the victim's apartment in the early morning. Over the course of several hours the victim testified that Mr. Sherrills repeatedly raped and 3 molested her. She was able to identify him because she could see his face from lights on elsewhere in the apartment. At one time during the ordeal she tried to escape and ran to her apartment's porch. There Mr. Sherrills caught her, but by the streetlight, she was able to see his face. Furthermore, Mr. Sherrills lived in the neighborhood; in fact, his brother lived in the same apartment that the victim did, and the victim had seen him in the neighborhood. Also Mr. Sherrills spoke to the victim several times during the course of the incident. The victim identified Mr. Sherrills very shortly afterwards. A rape test kit tested positive for sperm. The trial court convicted Mr. Sherrills on all counts and sentenced him as follows: ten to twenty-five years for each of the first degree felonies, aggravated burglary, kidnapping and two counts of rape; these sentences were to run concurrent. The court ruled that the kidnapping charge merged with the rape counts. For each count of gross sexual imposition, the court sentenced Mr. Sherrills to two to five years; these sentences were to run concurrent with each other, but consecutive to the sentences for the first degree felonies. On appeal this court affirmed the conviction, including overruling an assignment of error that the conviction was against the manifest weight of the evidence. This court clarified that because the kidnapping count merged with the rape counts, the conviction for kidnapping was vacated. Mr. Sherrills himself appealed to the Supreme Court of Ohio, which declined to hear his case for lack of a substantial constitutional question. Mr. 4 Sherrills then sought relief through a variety of motions and pleadings, including a motion for new trial and a postconviction petition. These efforts were unsuccessful. Mr. Sherrills then applied to reopen his appeal for ineffective assistance of appellate counsel. This court rejected all the grounds for reopening except for the use of the invalid specification. This court noted that the use of the invalid specification prejudiced Mr. Sherrills because it allowed the trial court to enhance his sentence and for the convictions of gross sexual imposition made the sentences wrong. Under R.C. 2929.11(B)(1)(b) the minimum sentence for a first degree aggravated felony, if the defendant has been convicted of an aggravated felony, is ten to twenty-five years, but under subsection (B)(1)(a), the maximum sentence for a first degree aggravated felony, if the defendant has not been convicted of an aggravated felony, is ten to twenty-five years. Thus, the ten to twenty-five year sentence Mr. Sherrills received was the minimum with the specification, but would have been the maximum without it. The prejudice was even clearer for the fourth degree felonies of gross sexual imposition. R.C. 2929.11(B)(7) provides the sentences for fourth degree felonies: The minimum term shall be eighteen months, two years, thirty months or three years, and the maximum term shall be five years. However, R.C. 2929.11(G) mandates that no person convicted of a fourth degree felony shall be sentenced to an indefinite term of imprisonment unless the indictment charging him contains a specification. R.C. 2929.11(D) provides that the 5 definite term for a fourth degree felony shall be six months, one year or eighteen months. Thus, it appeared that Mr. Sherrills received an improper and prejudicial sentence because the state included an improper specification in the indictment. Accordingly, this court reopened the appeal, appointed counsel for Mr. Sherrills and order full briefing on the issue. In its brief the State of Ohio admitted that Mr. Sherrills had been wrongly sentenced to an enhanced sentence based on an invalid specification. The state further noted that the trial court had determined that its sentence was improper and had ordered Mr. Sherrills returned from prison for resentencing. In order to avoid any possible jurisdictional impediments, this court remanded the case to the trial court for resentencing. At resentencing the trial court imposed nine to twenty-five year sentences for each of the first degree felonies and eighteen month sentences for each count of gross sexual imposition. All sentences are to run concurrent. Furthermore, these sentences are within the proper limits for the crimes for which Mr. Sherrills had been convicted. After resentencing both Mr. Sherrills and his attorney filed supplemental briefs arguing that Mr. Sherrills should be released. The first argument is that the inclusion of the invalid specification completely compromised the integrity of the entire proceedings from the grand jury indictment through the bench trial. The argument asserts that the knowledge that Mr. Sherrills had been convicted of aggravated burglary must have inflamed the minds of 6 the grand jurors and the trial judge and disposed them to indict and convict. Alternatively, the state's knowing use of a vacated conviction for a specification is such an egregious and tyrannical abuse of power and denial of fundamental due process that Mr. Sherrills should be released. These arguments are not persuasive. The testimony of the victim that she observed, heard and saw Mr. Sherrills over the several hours of her ordeal is very persuasive evidence that Mr. Sherrills perpetrated the crimes for which he was convicted. A review of the evidence satisfies the court that the inclusion of the improper specification did not compromise the integrity of the Grand Jury's deliberations or the trial itself. Nor is the abuse of power argument compelling. The lapse of approximately four years from the reversal of the conviction to its inclusion in the new indictments indicates inadvertence rather scienter. The problem created by the invalid specification was not that the trial was unfair, but that the sentence was wrong. The trial court corrected that error by properly resentencing Mr. Sherrills without the enhancement caused by the specification. Resentencing was the proper remedy. The second argument is that the use of the invalid specification violated the guarantees against double jeopardy. This argument maintains that including the invalid specification punished Mr. Sherrills for the 1983 aggravated burglary charge, even though this court reversed that conviction and ordered Mr. Sherrills released. The authorities upon which Mr. Sherrills 7 relies, Stateex rel. Owens v. Campbell (1971), 27 Ohio St.2d 264, 272 N.E.2d 116,1 and Ashe v. Swenson (1970), 397 U.S. 436, 25 L.Ed.2d 469, 90 S.Ct. 1189 are not applicable. Those cases stand for the proposition that double jeopardy protection extends to untried charges when an acquittal on one charge must necessarily result in acquittals on the untried charges. In the present case, the 1983 aggravated burglary charge is totally unrelated to the 1988 charges. Rather, in the present case, any double jeopardy problem resulting in enhanced punishment from the invalid specification was cured by the resentencing which voided the enhanced punishment. The result, a proper sentence for the crimes committed, effected society's interest in enforcing the law and meting out the punishment the legislature has deemed just. State v. Beasley (1984), 14 Ohio St.3d 74, 471 N.E.2d 774. Mr. Sherrills in his pro se supplemental briefs repeats the same arguments that his counsel presented in his supplemental brief, i.e., the inclusion of the invalid specification tainted the Grand Jury proceedings and the prosecutor's conduct was so egregious that he should be discharged. This court has already rejected these arguments. Additionally, Mr. Sherrills presents many other issues in shot gun fashion, including prosecutorial misconduct, invalid indictments, missing transcripts and perjured testimony in other cases; improper parole board actions; arguments, such as the inconsistency in the victim's initial statement and 1 Owens was overruled on other grounds in State v. Thomas (1980), 61 Ohio St.2d 254, 400 N.E.2d 897, cert. denied (1980), 449 U.S. 852, 66 L.E.2d 64. 8 subsequent statements; which have already been rejected in this case, and other violations of rules, statutes and constitutional provisions. The issues raised from other matters, such as parole board hearings and other cases, are irrelevant to this reopened appeal, which is limited to the specification issue. Moreover to the extent that such arguments rely on matters and evidence outside the record of this case, they are not properly before the court. Similarly, this court has already reviewed and rejected many of the arguments Mr. Sherrills has presented. Finally, the gravamen of Mr. Sherrills' remaining arguments is that the inclusion of an invalid specification rendered the entire indictment void. This argument is not well taken. R.C. 2941.08(K) provides that an indictment is not invalid [f]or other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits. In the present case the inclusion of the invalid specification did not prejudice Mr. Sherrills on the merits of the 1988 charges, and any prejudice because of sentencing has been corrected. In State v. Turpin (1969), 19 Ohio App.2d 116, 250 N.E.2d 94, paragraph five of the syllabus, the court ruled that an indictment is not made invalid for defects or imperfections when the words of the indictments are sufficient to give the accused notice of the offenses of which he is charged. The indictments in the present case did that. Similarly, in State v. Jones (1987), 29 Ohio St.3d 53, 506 N.E.2d 53, the Supreme Court of Ohio ruled that the existence of a prior conviction, which only enhances the penalty for a subsequent offense, is not an essential element of 9 the subsequent offense. Cf. State v. Townsend (1988), 62 Ohio App.3d 411, 575 N.E.2d 1182, - an enhancer does not change the name or identity of the crimes charged and is not an essential element of the charged offenses. Accordingly, the conviction and new sentence are affirmed. 10 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., AND JOHN T. PATTON, J., CONCUR. JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .