State v. Bragg

[Cite as State v. Bragg, 

.]




                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 108671
                 v.                               :

JOHN BRAGG,                                       :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: JUDGMENT REVERSED AND SENTENCE
                           MODIFIED
                 RELEASED AND JOURNALIZED: August 13, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-89-237718-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Frank Romeo Zeleznikar, Assistant
                 Prosecuting Attorney, for appellee.

                 John Bragg, pro se.
ON RECONSIDERATION1

MICHELLE J. SHEEHAN, J.:

             This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.App.R. 11.1. John Bragg appeals from the trial court’s judgment

denying his “Motion to Correct a Facially Illegal Sentence” regarding a sentence of

life imprisonment with parole eligibility after 30 years that he received in 1989 in a

murder case. Bragg was found guilty by the jury of two counts of aggravated murder.

The trial court imposed concurrent prison terms instead of merging the two counts

of murder for sentencing. Bragg argues his sentence was void pursuant to State v.

Williams, 

, 

, 

.

             In Williams, the Supreme Court of Ohio held that where a trial court

had determined that the defendant’s multiples offenses were allied offenses, it

cannot impose a separate sentence for each offense. Rather, the court had a

mandatory duty to merge the allied offenses before imposing a single sentence.

Furthermore, because the trial court’s imposition of separate sentences for the

multiple offenses — even if imposed concurrently — was contrary to law, the

defendant’s sentence was void and therefore would not be barred by res judicata.

Applying Williams, we agree with Bragg that the trial court’s judgment imposing

concurrent prison terms on the two counts of aggravated murder was void and his



      1 The original decision in this appeal, State v. Bragg, 8th Dist. Cuyahoga No.
108671, 

, released on February 27, 2020, is hereby vacated. This opinion,
issued upon reconsideration, is the court’s journalized decision in this appeal. See App.R.
22(C); see also S.Ct.Prac.R. 7.01.
claim is not barred by res judicata. However, instead of remanding the case to the

trial court for a resentencing hearing, we exercise the authority granted by Article

IV, Section 3(B)(2) of the Ohio Constitution, and modify his sentence to reflect a

merger of the two counts of murder and the imposition of a single term of life

imprisonment with parole eligibility after 30 years.

                              Procedural Background

             In 1989, Bragg was indicted by the grand jury in a multiple-count

indictment. He was indicted for aggravated murder (prior calculation and design)

with a felony murder specification and a firearm specification (Count 1); aggravated

murder (felony murder) with a felony murder specification and a firearm

specification (Count 2); kidnapping with a firearm specification (Count 3); and

aggravated robbery with a firearm specification in violation of R.C. 2911.01

(Count 4).

             A jury found Bragg guilty of all four counts and returned a

recommendation of 30 years to life on each count of aggravated murder. In a

sentencing entry dated October 18, 1989, the trial court sentenced him on Count 2

to life imprisonment with parole eligibility after 30 years. The court also sentenced

him to 10 to 25 years on Count 3 (kidnapping) and 10 to 25 years on Count 4

(aggravated robbery), to be served consecutively to Count 2. The court’s judgment,

which was somewhat vague, stated:

      Defendant [shall] be imprisoned and confined in the Correctional
      Reception Center, Orient, Ohio for life imprisonment with parole
      eligibility after serving 30 years, count 2. The court than [sic] merges
      their [sic] sentences along with the gun specification in all 4 counts into
      1 sentence of life imprisonment with parole eligibility after 30 years
      with a mandatory 3 years on the gun specification, and on count 3 of
      kidnapping 10 years to 25 years; on count 4, aggravated robbery, 10
      years to 25 years to be served consecutively to counts 1 and 2 ….

(Emphasis added.) Read in its entirety, the sentencing entry appeared to have

merged Count 1 and Count 2: there was no sentence on Count 1 and the last sentence

in the above-quoted portion of the entry stated Count 3 (kidnapping) and Count 4

(aggravated burglary) were to be served consecutively to Counts 1 and 2.

             Bragg immediately filed a “Motion for Modification of Sentence.” He

asked the trial court to modify his sentence by “merging” all his offenses or, at a

minimum, reducing the minimum terms of imprisonment.

             The trial court denied the motion and, for unknown reasons, issued a

nunc pro tunc entry on December 7, 1989. The entry imposed life imprisonment

with parole eligibility after 30 years on each count of aggravated murder and then

merged the two sentences. The nunc pro tunc entry stated:

      Defendant is sentenced to the Correctional Reception Center, Orient,
      Ohio, under all counts; life imprisonment with parole eligibility after
      thirty (30) years on each count one and two; the court merges sentence
      on count one and two along with the gun specification in all counts to
      one sentence of life imprisonment with parole eligibility after thirty
      (30) years, which is a full thirty (30) sentence. This sentence is to begin
      after the three (3) year actual mandatory [prison term] for the gun
      specification. Defendant is also sentenced to ten to twenty-five (10-25)
      years on count three, kidnapping, and sentenced to ten to twenty-five
      (10-25) years on count four, agg. Robbery. Counts three and four are
      to run consecutive to the merged first and second counts, but are to run
      concurrently with each other .[2]

      2  We note that, while courts possess the authority to correct errors in a judgment
entry so that the record speaks the truth, the errors subject to correction include only
clerical error, mistake, or omission that is mechanical in nature and apparent on the
             In his direct appeal, Bragg raised multiple issues regarding his

convictions of aggravated murder, kidnapping, and aggravated burglary. Regarding

his sentence, he claimed his offenses of kidnapping and aggravated robbery were

allied offenses of aggravated murder and the trial court should have merged all of

them for sentencing. This court affirmed his conviction and sentence in State v.

Bragg, 8th Dist. Cuyahoga No. 58859, 

 (June 27, 1991).

             In 1996, Bragg filed two motions for relief from judgment and two

petitions to vacate judgment and sentence, all of which were denied by the trial

court. He appealed the denial of his motions for relief from judgment, which this

court affirmed, in State v. Bragg, 8th Dist. Cuyahoga No. 70461, 

 (Sept. 5, 1996). In 2001, he filed a delayed motion to reopen his original

appeal, claiming his appellate counsel provided ineffective assistance of counsel for

failing to argue that his trial counsel was ineffective in not arguing certain issues

regarding his indictment. This court found his motion to be untimely and also found

the application meritless in State v. Bragg, 8th Dist. Cuyahoga No. 58859, 

 (Nov. 26, 2001). In 2004, Bragg filed an application for DNA

testing. The trial court denied it and he filed a Civ.R. 60(B)(5) motion for relief from

that judgment. The trial court denied the motion and this court affirmed the trial


record and does not involve a legal decision or judgment; in other words, nunc pro tunc
entries are used to make the record reflect what the court actually decided and not what
the court might or should have decided or what the court intended to decide. State v.
Trone, 8th Dist. Cuyahoga Nos. 108952 and 108966, 

. It is unclear
from the record why the trial court issued the nunc pro tunc entry and what was the
sentencing error the trial court attempted to correct.
court’s judgment in State v. Bragg, 8th Dist. Cuyahoga No. 89237, 

.

In 2009, Bragg filed a “Motion to Correct Void Judgment Entry,” asking the trial

court to correct its prior judgment denying his application for DNA testing. He

subsequently moved the trial court to dismiss that motion and the court granted his

request.

             The instant appeal concerns a “Motion to Correct a Facially Illegal

Sentence” that Bragg filed on May 21, 2019. He claimed the trial court’s December 7,

1989 nunc pro tunc entry was void because it imposed a prison term on each of the

two aggravated murder counts before merging them. He also claimed the trial

court’s imposition of the gun specification was void. Before the state filed a brief in

response, the trial court denied Bragg’s motion. Bragg now appeals, presenting two

assignments of error for our review:

      I.     A trial court commits prejudicial error when a defendant is
             convicted on two aggravated murder counts involving a single
             killing [and the court] imposes separate sentences on each count
             and then merges their sentences.

      II.    A trial court does not have jurisdiction to impose a sentence
             outside of statutory mandates and when it does, its sentence is
             contrary to law, and thus, void.

                                         Law

               In Williams, 

, 

, 

, the

Supreme Court of Ohio addressed a conflict between this court’s decision in State v.

Holmes, 8th Dist. Cuyahoga No. 100388, 

, and the Ninth District’s

decision in State v. Williams, 9th Dist. Summit No. 27482, 

, on the
question of whether a trial court’s sentence was void when the trial court imposed

separate sentences on counts that it had determined to be subject to merger.

             In Holmes, the trial court had determined that the defendant’s

convictions for rape and kidnapping were allied offenses but nonetheless imposed

separate sentences for each offense. Although the defendant had not raised the issue

in his direct appeal, this court concluded his motion to vacate his sentences was not

barred by res judicata, because the sentences for allied offenses were void. Id. at

¶ 2-3. This court reasoned that “[o]nce a trial court determines that two offenses are

allied and are subject to merger, the trial court acts without authority when it

imposes a sentence on both offenses. Thus, acting without authority renders the

sentence void.” Id. at ¶ 20. Consequently, this court reversed the defendant’s

sentence and remanded the case to the trial court, instructing the court to conduct

a sentencing hearing to allow the state to make an election on which count was to

survive merger and then impose a sentence on that count only. Id. at ¶ 25.

              The Ninth District took a different approach on this issue in Williams,

. The defendant was found guilty of several offenses and, although

the trial court had found the offenses to be allied, it imposed concurrent sentences

on individual counts instead of merging the counts for sentencing. Subsequent to

his direct appeal, the defendant filed a motion to correct his sentence, asserting the

concurrent sentences were contrary to law and therefore void. The Ninth District

declined to apply Holmes and instead found the defendant’s claim to be barred by
res judicata, noting that the void-sentence jurisprudence has not been applied in this

context. Id. at ¶ 9.

               The Ninth District certified a conflict between its judgment and

Holmes. The Supreme Court of Ohio agreed to resolve the conflict between the

appellate districts on the following question: “Where a trial court sentences a

defendant on counts that it had previously determined were subject to merger, is the

sentence void or do principles of res judicata apply to preclude a defendant from

challenging the sentence after direct appeal?” Williams, 

, at ¶ 28

               The Supreme Court of Ohio first noted that “the imposition of

concurrent sentences is not the equivalent of merging allied offenses of similar

import.” Id. at ¶ 3. It explained that, where a trial court had determined that the

defendant’s multiples offenses were allied offenses, it cannot impose a separate

sentence for each offense. Rather, the trial court has a mandatory duty to merge the

allied offenses by imposing a single sentence. Id. at ¶ 28. The trial court’s imposition

of separate sentences for those offenses — even if imposed concurrently — is

contrary to law because of the mandate of R.C. 2941.25(A) (the allied offense

statute). Id. Those sentences were void and therefore the defendant’s claim would

not be barred by res judicata.3




       3 We note that Williams was a split decision. There were two separate dissenting
opinions, both of which would hold that the defendant’s sentence was not void but only
voidable, and therefore the defendant’s claim was barred by res judicata. Despite the split,
we are bound to follow the analysis set forth in the majority opinion until the court revisits
the Williams decision or the void-sentence doctrine.
              As for the defendant’s remedy, the Supreme Court of Ohio stated that,

generally, “a resentencing hearing limited to correcting the void sentence is a proper

remedy for a trial court’s failure to comply with mandatory sentencing laws.” Id. at

¶ 30, citing State v. Fischer, 

, 

, 

.

When a case involving an allied offenses sentencing error is remanded for

resentencing, the state has the right to elect which offense to pursue at resentencing.

 citing State v. Whitfield, 

, 

, 

.

              However, the Supreme Court of Ohio emphasized that a resentencing

is not required in all cases. It pointed out that Article IV, Section 2(B)(2)(f) of the

Ohio Constitution grants the Supreme Court of Ohio appellate jurisdiction to

“review and affirm, modify, or reverse the judgment in any case certified by any

court of appeals,” and similarly, Article IV, Section 3(B)(2) grants authority to the

courts of appeals “to review and affirm, modify, or reverse judgments or final orders

of the courts of record inferior to the court of appeals within the district.” Williams,

, 

, 

. The Supreme Court of

Ohio then observed that ‘“[c]orrecting a defect in a sentence without a remand is an

option that has been used in Ohio and elsewhere for years in cases in which the

original sentencing court, as here, had no sentencing discretion.”’ 

 quoting

Fischer at ¶ 29. Such a remedy, as the court noted, “can provide an equitable,

economical, and efficient remedy for a void sentence.” Id.

              In Williams, the defendant was found guilty of three counts of murder

(Counts 1-3) and the state elected to have him sentenced on Count 3. The trial court,
however, sentenced him to three concurrent prison terms. The Supreme Court of

Ohio determined the defendant’s sentence was void because the trial court

purported to merge the sentences for allied offenses by ordering the sentences to be

served concurrently. The court, however, decided that a resentencing hearing was

unnecessary because the state had already elected to have the defendant sentenced

on Count 3. Instead, the Supreme Court of Ohio modified “the judgment of the court

of appeals to vacate the sentences imposed [on Count 1 and Count 2]” and kept intact

the prison term imposed on Count 3. Id. at ¶ 33.

                                       Analysis

              In the instant appeal, although the trial court appeared to have

properly merged the two counts of aggravated murder and imposed a sentence of

life imprisonment with parole eligibility after 30 years on Count 2 only in the

original (October 18, 1989) sentencing entry, the court, for unknown reasons, issued

a nunc pro tunc entry imposing a prison term each on Count 1 and Count 2 and then

merging them. Pursuant to Williams, such a sentence was void. The state concedes

the issue on appeal, but contends that a remand for a resentencing hearing in this

case is not necessary pursuant to Williams. The state points out that the court’s

original sentencing entry imposed a prison sentence on Count 2 only, which

reflected a merger of Count 1 into Count 2. The state indicates in its brief that “the

state would elect for that outcome.”

              Pursuant to Williams, 

, 

, 

, it is necessary for the state to elect the count the defendant is to be sentenced
on before the trial court imposes a sentence on the merged count. Our reading of

the original sentencing entry shows the trial court imposed a sentence on Count 2

only, which seemingly reflected a merger of the two aggravated murder counts prior

to the court’s imposition of a prison term on Count 2. Although the limited record

before us does not show that there was an election by the state to proceed on Count 2

after the trial court merged the two counts, 4 the state on appeal does not challenge

the merger of Count 1 into Count 2 and indicates it “would elect for that outcome.”

               “[T]he right to elect the charge to pursue for sentencing is a right

belonging to the state of Ohio, not the offender.” State v. Cruz-Altunar, 10th Dist.

Franklin No. 18AP-951, 

. See also State v. Smith, 10th Dist.

Franklin No. 19AP-341, 

. We recognize that generally, the

remedy to correct a void sentence is to remand the matter to the trial court for the

purpose of allowing the state to elect on which offense it wishes to seek sentencing.

Williams, 

, 

, 

. However, a

resentencing hearing is not required in all cases and the court of appeals has the

authority granted by the Ohio Constitution to modify a sentence. Id. at ¶ 31. Under

the unique circumstances of this case, we conclude a remand for a sentencing

hearing is unnecessary because the state has exercised its right to elect by indicating


      4  We note that Bragg does not provide a transcript of the sentencing hearing for
our review of his claim. An appellant bears the burden of providing the reviewing court
with a transcript of the proceedings to demonstrate any claimed errors. State v. Blashaw,
8th Dist. Cuyahoga No. 98719, 

. When portions of the transcript
necessary for resolution of assigned errors are omitted from the record, the reviewing
court has no choice but to presume the validity of the lower court’s proceedings. State v.
Simmons, 8th Dist. Cuyahoga No. 100638, 

.
that the original sentencing entry properly reflected its election for Bragg to be

sentenced on Count 2. In the interest of providing an economical and efficient

remedy, we therefore modify the trial court’s sentence and vacate the life

imprisonment with eligibility for parole after 30 years imposed on Count 1 in the

nunc pro tunc entry. The life imprisonment imposed on Count 2 in the nunc pro

tunc entry is not affected by our decision. Williams at ¶ 33. The first assignment of

error is sustained in part.5

                Regarding the second assignment of error, Bragg claims the trial court

erred by failing to impose a three-year term of actual incarceration to be served

consecutively with, and prior to, his term of life imprisonment as required by former

R.C. 2929.71(B), which was in effect at the time of his sentencing.6 Claiming his


       5 In State v. Reed, 8th Dist. Cuyahoga No. 108498, 

, defendant was

found guilty of two aggravated murder counts (Counts 2 and 3) that were merged by the
trial court. This court reversed the trial court’s sentencing judgment where the trial court
found Count 3 merged with Count 2 and sentenced the defendant on Count 3 while the
sentencing transcript did not reflect the state’s election on Count 2 for sentencing. Reed
is distinguishable. In that case, a transcript was available for a review of appellant’s claim.
Furthermore, in the present case, the original journal entry, although replaced by a nunc
pro tunc entry, reflects a merger of the two aggravated murder counts and, implicitly, the
state’s election of Count 2. In Reed, although the docket also reflected an earlier
sentencing entry (which was subsequently vacated), the earlier entry stated the two
aggravated murder counts merged without stating which of the two counts defendant was
sentenced on, unlike the present case.

       6   Former R.C. 2929.71(B) provides:

              If an offender is convicted of, or pleads guilty to, two or more felonies
       and two or more specifications charging him with having a firearm on or
       about his person or under his control while committing the felonies, each of
       the three-year terms of actual incarceration imposed pursuant to this
       section shall be served consecutively with, and prior to, the life sentences or
       indefinite terms of imprisonment imposed pursuant to section 2907.02,
       2907.12, 2929.02, or 2929.11 of the Revised Code, unless any of the felonies
firearm specification sentence was therefore void, he asks this court to reverse his

firearm sentence and remand the case to the trial court for an imposition of a lawful

sentence on the firearm specification.

              Our reading of the nunc pro tunc sentencing entry indicates that the

trial court properly imposed a three-year term of imprisonment to be served

consecutively with, and prior to, his term of life imprisonment. The nunc pro tunc

sentencing entry stated that the life imprisonment with parole eligibility after 30

years “is to begin after the three (3) year actual mandatory for the gun specification.”

While the entry did not track the statutory language verbatim, the language

employed by the trial court (the life imprisonment “is to begin after the three (3)

year actual mandatory [prison term] for the gun specification”) unambiguously

reflects a three-year term for the gun specification to be served prior to and

consecutively with the prison term for his murder offense. The second assignment

of error is overruled.

              The trial court’s judgment denying Bragg’s motion to correct an illegal

sentence is reversed, and the case is remanded with instructions for the trial court




      were committed as part of the same act or transaction. If any of the felonies
      were committed as part of the same act or transaction, only one three-year
      term of actual incarceration shall be imposed for those offenses, which
      three-year term shall be served consecutively with, and prior to, the life
      sentences or indefinite terms of imprisonment imposed pursuant to section
      2907.02, 2907.12, 2929.11 of the Revised Code.

(Emphasis added.)
to issue a sentencing entry reflecting Bragg’s sentence as modified in paragraph 20

of this opinion.

      It is ordered that appellant recover from appellee 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

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MICHELLE J. SHEEHAN, JUDGE

EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR