State v. Jones , 2018 Ohio 3534 ( 2018 )

[Cite as State v. Jones, 2018-Ohio-3534.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-P-0058
- vs - :
ROBERT F. JONES, JR., :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2010 CR
0320.
Judgment: Affirmed.
Victor Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor,
241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Robert F. Jones, Jr., pro se, PID: A593-772, Marion Correctional Institution, P.O. Box
57, 940 Marion-Williamsport Rd., Marion, OH 43302 (Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Robert F. Jones, Jr., pro se, appeals the judgment of the
Portage County Court of Common Pleas, denying his motion to reconsider his request
to change his November 10, 2010 sentencing entry to show he pled guilty and was
sentenced on one count of attempted purposeful murder and one count of attempted
felony murder, as opposed to two counts of attempted purposeful murder. For the
reasons that follow, we affirm.
{¶2} On May 27, 2010, appellant was indicted, as pertinent here, for attempted
purposeful murder of Jon Rotilie, a felony-one, in violation of R.C. 2923.02 (attempt)
and R.C. 2903.02(A) Count 1; attempted felony murder of Jon Rotilie, a felony-one, in
violation of R.C. 2923.02 and R.C. 2903.02(B) (Count 2); attempted purposeful
murder of Cassandra Badini, a felony-one, in violation of R.C. 2923.02 and R.C.
2903.02(A) (Count 3); and attempted felony murder of Cassandra Badini, a felony-
one, in violation of R.C. 2923.02 and R.C. 2903.02(B) (Count 4).
{¶3} On November 8, 2010, appellant entered a written guilty plea to “Count (1)
Attempted Murder (F1) in violation of Ohio Revised Code Sections 2923.02 [and]
2903.02(A) * * *[;] Count (3) Attempted Murder (F1) in violation of Ohio Revised Code
Sections 2923.02 [and] 2903.02(B) * * *.”
{¶4} The parties agree the transcript of the plea hearing is not available. They
further agree that, as part of the written plea agreement, appellant was to plead guilty to
an attempted murder count as to each of the two victims. Counts 1 and 2 referred to
Mr. Rotilie, while counts 3 and 4 referred to Ms. Badini. The parties further agree that,
during the plea negotiations, their counsel agreed the written plea did not reflect the
parties’ agreement to address each victim as Counts 1 and 2 referred to Mr. Rotilie.
Thus, the 2 in Count 2 (regarding Mr. Rotilie) was written over with a 3 for Count 3
(regarding Ms. Badini) to reflect that agreement. However, the statutory reference for
Count 2 (R.C. 2903.02(B)) in the written plea was not changed to show the statutory
reference for Count 3 (R.C. 2903.02(A)), as set forth in the indictment.
{¶5} That same day, November 8, 2010, the trial court sentenced appellant. In
the court’s sentencing entry, the trial court noted that appellant entered a written guilty
plea “to Counts One and Three of the Indictment, charging the Defendant with the
2
offense of ‘Attempted Murder’ felonies of the first degree, in violation of R.C. 2923.02
and 2903.02(A) * * *.” The court then sentenced appellant to eight years in prison on
Count 1 and seven years on Count 2, the two terms to be served consecutively to each
other. Appellant did not appeal his sentence.
{¶6} In 2014, the judge who presided over appellant’s case, John A. Enlow,
retired, and a new judge, Becky L. Doherty, was elected to that position. Two years
later, on February 22, 2016, appellant filed a motion to correct his sentencing entry to
show he pled guilty to one count of attempted purposeful murder, in violation of
2903.02(A), and one count of attempted felony murder, in violation of R.C. 2903.02(B).
{¶7} On February 25, 2016, Judge Doherty issued a nunc pro tunc sentencing
entry, which stated – with the only change highlighted in bold - that appellant entered a
written guilty plea to “Count One of the Indictment, charging [him] with the offense of
‘Attempted Murder,’ a felony of the first degree, in violation of R.C. 2923.02 and
2903.02(A) * * * and Count Three, ‘Attempted Murder” [in violation of R.C.] 2923.02 and
2903.02(B) * * *.” Appellant did not appeal that entry.
{¶8} Instead, on April 1, 2016, appellant filed a motion to correct the record.
He alleged the nunc pro tunc entry partially corrected the record, but that the court
needed to change the count number from Count 3 to Count 4 since Count 4 in the
indictment charged a violation of R.C. 2903.02(B), while Count 3 charged a violation of
R.C. 2903.02(A). On April 6, 2017, the trial court denied that motion, stating:
{¶9} This matter came before the Court initially February 2016 on motion
to correct the plea and sentencing journal entry to comport with the
written plea of guilty. This Court prepared a nunc pro tunc entry
specifying the Revised Code sections defendant pled guilty to as
outlined in the written plea agreement. Per the signed “written plea
of guilty” form dated November 10, 2010, defendant pled guilty to
Count One, Attempted Murder, a felony of the first degree, in
violation of R.C. 2923.02 [and] 2903.02(A) * * * and Count Three,
3
Attempted Murder, a felony of the first degree, in violation of R.C.
2923.02 [and] 2903.02(B) * * *. The corresponding journal entry
dated November 10, 2010 was in error, indicating that both counts
were R.C. 2923.02(A). The nunc pro tunc entry dated February
2016 corrected that error.
{¶10} Again, appellant did not appeal this entry. Instead, on May 1, 2017, he
filed a motion to reconsider the court’s April 6, 2017 entry denying his request to change
the count number, citing the same reasons appellant provided in his April 1, 2017
motion to correct the record. On July 17, 2017, the trial court denied the motion, stating:
{¶11} The Court has previously corrected [the record] via nunc pro tunc,
the discrepancies in the written plea of guilty and the plea and
sentencing entry signed by Judge Enlow on November 8, 2010.
Defendant is requesting this Court alter the written plea of guilty to
Count 1 and Count 4, rather than Count 1 and Count 3 as
written on the plea form. The plea and sentencing journal entry
reflects that guilty pleas were entered on Count 1 and Count 3 as
well, consistent with the written plea, signed by defendant. * * * The
Court speaks through the journal entries filed in the Clerk’s Office,
and this Court cannot alter an entry filed where there is no
indication in the record that it is incorrect and not reflective of the
record made in court. (Emphasis sic.)
{¶12} Appellant appeals this entry (seven years after he was sentenced),
asserting the following for his sole assignment of error:
{¶13} “The trial court erred by not making the admitted clerical error requested
as they corrected [sic] the erroneous subsection yet the court refused to change the
now erroneous count number which corresponds to the correct subsection. This error
by the court violates Crim.R. 36 as well as this appellant’s constitutional rights under the
5th and 14th amendments of the U.S. Constitution and the equivalent Articles and
Sections of the Ohio Constitution.”
{¶14} Before addressing appellant’s argument, we note the state contends the
trial court erred in entering its February 25, 2016 nunc pro tunc entry by changing the
4
statutory reference in Count 3 from R.C. 2903.02(A) to R.C. 2903.02(B) because the
original sentencing entry correctly reflected appellant’s sentence. We agree.
{¶15} 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 Supreme Court of Ohio addressed Crim.R. 36
in State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, as follows:
{¶16} It is well settled that courts possess the authority to correct errors in
judgment entries so that the record speaks the truth. * * * Errors
subject to correction by the court include a clerical error, mistake, or
omission that is mechanical in nature and apparent on the record
and does not involve a legal decision or judgment. * * * 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. * * * Id. at ¶18.
{¶17} Further, this court, in State v. Hundzsa, 11th Dist. Portage No. 2008-P-
0012, 2008-Ohio-4985, stated:
{¶18} “‘When a court exceeds its power in entering a purported nunc pro
tunc order, that order is invalid.’” [Swift v. Gray, 11th Dist. Trumbull
No. 2007-T-0096, 2008-Ohio-2321,] ¶65, citing State v. Breedlove,
46 Ohio App. 3d 78, 81 (1988), citing National Life Ins. Co. v. Kohn,
133 Ohio St. 111 (1937), paragraph three of the syllabus. Thus, a
nunc pro tunc entry could not be used if the court was attempting to
impose a sentence that it merely intended to, yet did not, truly
impose. See State v. Delmar, 3d Dist. Nos. 1-07-69 and 1-07-81,
2008-Ohio-1345 (that found the nunc pro tunc entry, which
changed the sentences to run consecutively rather than
concurrently was error as the modification was not an attempt to fix
a clerical omission, but was an actual change in the terms of the
sentence) * * *. Hundzsa, supra, at ¶28.
{¶19} Here, the trial court’s change in the nunc pro tunc entry regarding the
statutory reference of the offense alleged in Count 3 from R.C. 2903.02(A) to R.C.
2903.02(B) did not correct a clerical error. Rather, this changed the name or identity of
the offense from attempted purposeful murder to attempted felony murder. This court
has stated “‘an indictment may be amended to correct a clerical error so long as it does
5
not change the identity of the offense.’” State v. Coughlin, 11th Dist. Ashtabula No.
2006-A-0026, 2007-Ohio-897, ¶38, quoting State v. Earle, 120 Ohio App. 3d 457, 467
(11th Dist.1997), see also Crim.R. 7(D) (“The court may * * * amend the indictment * * *
in respect to any defect * * * provided no change is made in the name or identity of the
crime charged.”).
{¶20} Further, the pertinent docket entries show appellant pled guilty to Count 3,
attempted purposeful murder of Ms. Badini, in violation of R.C. 2903.02(A). As noted
above, during the plea negotiations, the parties’ counsel wrote over the 2 in Count 2 a 3
for Count 3 to reflect the parties’ intent that appellant would plead guilty to an attempted
murder count for Ms. Badini, but counsel did not make the corresponding change
regarding the statutory reference for Count 3 (R.C. 2903.02(A)). However, the
indictment alleged in Count 3 that appellant committed attempted purposeful murder of
Mr. Badini, in violation of R.C. 2903.02(A).
{¶21} In addition, as noted above, the court’s contemporaneous sentencing
entry correctly reflected the indictment counts to which appellant pled (Counts 1 and 3)
along with their correct statutory references as set forth in the indictment. That entry
provided: “The Court finds that the Defendant * * * has entered a Written Plea of Guilty
* * * to Counts One and Three of the Indictment, charging the Defendant with the
offense of ‘Attempted Murder’ felonies of the first degree, in violation of R.C. 2923.02
and 2903.02(A) * * *.” Thus, the sentencing entry confirmed that appellant pled guilty to
two offenses of attempted purposeful murder, in violation of R.C. 2903.02(A).
{¶22} For these reasons, the trial court exceeded its power in entering the nunc
pro tunc sentencing entry and it is invalid. As a result, the nunc pro tunc entry is
stricken from the record. State v. Breedlove, 46 Ohio App. 3d 78, 82 (1st Dist.1988).
6
{¶23} Turning now to appellant’s assigned error, he argues the trial court erred
in denying his motion for reconsideration to correct the sentencing entry to indicate he
pled guilty to Count 4 rather than Count 3.1 In support, appellant argues this was a
“simple clerical error” that needed to be corrected to reflect the parties’ agreement that
he pled guilty to one count of attempted felony murder of Ms. Badini. However, for the
reasons stated above, the change appellant requested was no “simple clerical error,”
but, rather, a change of the name or identity of the offense.
{¶24} In addition, Count 3 of the indictment alleged a violation of R.C.
2903.02(A), and the original sentencing entry recited that appellant pled guilty to Count
3. Further, no docket entry shows the parties agreed appellant would pled guilty to
Count 4. We therefore hold the trial court did not err in denying appellant’s motion for
reconsideration to change the sentencing entry to show he pled guilty to that count.
{¶25} For the reasons stated in this opinion, the assignment of error lacks merit
and is overruled. It is the order and judgment of this court that the judgment of the
Portage County Court of Common Pleas denying appellant’s motion for reconsideration
is affirmed.
THOMAS R. WRIGHT, P.J.,
COLLEEN MARY O’TOOLE, J.,
concur in judgment only.
1. While we recognize that a judgment ruling on a motion for reconsideration is a nullity, Keyerleber v.
Keyerleber, 11th Dist. Ashtabula No. 2007-A-0010, 2007-Ohio-3018, ¶3, because appellant implies the
state violated the plea bargain, he is suggesting his plea is void. See State v. Young, 2d Dist. Greene
No. 2002-CA-78, 2003-Ohio-3052, ¶5. For this reason, we address the argument.
7