State v. Hafford , 2016 Ohio 7282 ( 2016 )

[Cite as State v. Hafford, 2016-Ohio-7282.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150578
TRIAL NO. B-1503639
Plaintiff-Appellee, :
vs. : O P I N I O N.
ALLEN HAFFORD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 12, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
STAUTBERG, Judge.
{¶1} Defendant-appellant Allen Hafford appeals the trial court’s judgment
revoking his community control. We overrule his assignment of error and affirm the
judgment of the trial court.
{¶2} Hafford was indicted for theft, a fifth degree felony, in violation of R.C.
2913.02(A)(1). Hafford had stolen his mother’s property and had pawned the
property at various pawnshops. On August 3, 2015, Hafford pleaded guilty to the
theft offense.
{¶3} At his sentencing hearing on September 8, 2015, the trial court
sentenced Hafford to serve three years’ community control with intensive
supervision. The trial court ordered Hafford to pay court costs, standard probation
fees, and restitution to the various pawnshops. At the sentencing hearing, the trial
court also orally ordered Hafford to “enter and complete a program of treatment at
River City Correctional Center (“River City”) to be held pending availability of a bed.”
The trial court also ordered Hafford to complete other terms and conditions related
to his community control sanction, including that Hafford “must complete treatment
or counseling as provided in the intensive treatment plan to be developed by the
Adult Probation Department and any other treatment or counseling program by
them.”
{¶4} The sentencing entry was entered on September 17, 2015, but the entry
did not include the language requiring Hafford to complete treatment at River City.
Several days later, the probation department filed a community control sanction
violation against Hafford for refusing to enter the River City program.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} On September 29, 2015, the trial court held a hearing on the alleged
community control violation. Before proceeding with the hearing, the trial court
stated, “I will note, for the record, that on reviewing the judgment entry the Court’s
order for River City was not carried into judgment due to a clerical error. The Court
did, in fact, announce River City and the defendant was to be held for a bed at River
City.” The trial court then asked defense counsel, “[H]ow would you like to
proceed?” Defense counsel replied, “Your honor, [Hafford is] going to enter a plea of
guilty to the violation.” After the state recited the facts, the trial court asked defense
counsel if there was anything else to add to the facts, to which defense counsel said
no. Defense counsel then waived probable cause. The trial court found Hafford
guilty of violating the terms of his community control.
{¶6} When asked by the trial court for mitigation, defense counsel
expressed that Hafford had, in the past, completed a River City program, and that he
did not want to complete the program again. Hafford, who claimed to be hard of
hearing, expressed that he was not aware that he was sentenced to River City until he
found out from a sheriff’s deputy after his sentencing hearing. The trial court
revoked Hafford’s community control, sentenced him to ten months’ incarceration,
and credited him with 85 days served.
{¶7} On October 2, 2015, the trial court, nunc pro tunc, corrected the
original sentencing entry by adding the River City requirement. On October 9, 2015,
the trial court journalized its judgment entry revoking Hafford’s community control
and imposing a sentence of incarceration.
{¶8} Hafford appealed and asserts one assignment of error. Hafford argues
that the trial court erred to his prejudice and deprived him of due process of law by
finding him guilty of a community control violation and revoking his community
3
OHIO FIRST DISTRICT COURT OF APPEALS
control where the sole term of the community control violation was not journalized
at the time of the revocation hearing.
{¶9} Hafford did not raise this issue below, therefore, he has forfeited all
but plain error. See State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, 873
N.E.2d 306, ¶ 15. In order to correct plain error, (1) there must be an error, i.e., a
deviation from the legal rule, (2) the error must be plain, an obvious defect in the
proceedings, and (3) the error must have affected substantial rights. Id. at 16. The
burden is on Hafford to demonstrate plain error. Id. at 17.
{¶10} It is well-settled law that a court speaks only through its journal
entries. See State ex rel. Fogle v. Steiner, 74 Ohio St. 3d 158, 163, 656 N.E.2d 1288
(1995); Crim.R. 32. However, where there are “[c]lerical mistakes in judgments,
orders, or other parts of the record, and errors in the record arising from oversight or
omission,” Crim.R. 36 allows for those errors to “be corrected by the court at any
time.” (Emphasis added.) Errors that are subject to correction include clerical
errors, mistakes, or omissions that are mechanical in nature and apparent on the
record and do not involve a legal decision or judgment. State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 18, citing State v. Miller, 127 Ohio
St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15.
{¶11} These errors may be corrected through nunc pro tunc entries. “The
purpose of the nunc pro tunc entry is to make the record ‘speak the truth’ ”—to
reflect what a court actually decided, not what it may have intended to or could have
decided. Miller v. Watkins & State Auto. Mut. Ins. Co., 1st Dist. Hamilton No. C-
030065, 2004-Ohio-3132, ¶ 6; State v. Ware, 141 Ohio St. 3d 160, 2014-Ohio-5201,
22 N.E.3d 1082, ¶ 16. “[A] nunc pro tunc entry does not replace the original
judgment entry; it relates back to the original entry.” N.Y. Frozen Foods, Inc. v.
4
OHIO FIRST DISTRICT COURT OF APPEALS
Bedford Hts. Income Tax Bd. of Rev., 144 Ohio St. 3d 1481, 2016-Ohio-465, 45
N.E.3d 247, ¶ 8, quoting State v. Thompson, 141 Ohio St. 3d 254, 2014-Ohio-4751, 23
N.E.3d 1096, ¶ 43.
{¶12} Hafford argues that because the River City term was not a part of the
judgment entry at the time of his revocation hearing, the trial court did not have the
authority to find him guilty of a community control violation. He further argues that
his plea was a nullity, as it was based on a nonexistent term of his community
control. He also asserts that a nunc pro tunc entry issued after the revocation
hearing violated his due process rights.
{¶13} Hafford relies on State v. Sheffield, 8th Dist. Cuyahoga No. 95434,
2011-Ohio-2395, and State v. Puttick, 5th Dist. Morrow No. 12CA0012, 2013-Ohio-
3295. These cases are distinguishable, as they involve maximum terms of
imprisonment journalized in the entry imposing community control. Other courts,
however, have permitted nunc pro tunc entries to correct clerical errors as to the
length of a defendant’s community control sanction, the factual findings on a
judgment entry, and the length of postrelease control. See, e.g., State v. Battle, 9th
Dist. Summit No. 23404, 2007-Ohio-2475, ¶ 9-10; State v. Taylor, 78 Ohio St. 3d 15,
676 N.E.2d 82 (1997); State v. Harrison, 12th Dist. Butler Nos. CA2009-10-272 and
CA2010-01-019, 2010-Ohio-2709.
{¶14} Here, the record demonstrates that Hafford was notified of the River
City term of his community control at his sentencing hearing, but the term was
omitted from the sentencing entry. This is the type of clerical error that is
appropriately corrected through a nunc pro tunc entry.
{¶15} We also find no error in the timing of the nunc pro tunc entry. At
Hafford’s revocation hearing, the trial court informed him that there had been a
5
OHIO FIRST DISTRICT COURT OF APPEALS
clerical error as to the River City term and asked how he would like to proceed.
Knowing this, Hafford still waived probable cause and pleaded guilty to the violation.
{¶16} The nunc pro tunc entry, although entered subsequent to Hafford’s
community control revocation hearing, reflected the actual decision of the trial court
at Hafford’s sentencing hearing. Hafford pleaded guilty to a community control
violation, albeit one orally imposed but not yet journalized at the time. But because
the nunc pro tunc entry related back to the date of the original sentencing entry, the
plea was proper and the trial court did not violate his due process rights when it
revoked his community control and sentenced him to a term of imprisonment.
Hafford’s sole assignment of error is overruled. We therefore affirm the judgment
of the trial court.
Judgment affirmed.
FISCHER, P.J., and CUNNINGHAM, J., concur.
Please note:
This court has recorded its own entry this date.
6