State v. Blackford , 2018 Ohio 3115 ( 2018 )

[Cite as State v. Blackford, 2018-Ohio-3115.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 18-CA-00006
MICHAEL P. BLACKFORD :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Perry County
Court of Common Pleas, Case No. 09-CR-
0052
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 3, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT MICHAEL P. BLACKFORD, PRO SE
PROSECUTING ATTORNEY #617-898
111 North High Street 1150 North Main Street
Box 569 Mansfield, OH 44901
New Lexington, OH 43764-0569
[Cite as State v. Blackford, 2018-Ohio-3115.]
Gwin, P.J.
{¶1} Appellant Michael Blackford appeals the February 20, 2018 judgment
entries of the Perry County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} In August of 2009, appellant was indicted by the Perry County Grand Jury
on the following counts: count one, aggravated burglary in violation of R.C.
2911.11(A)(1); count two, aggravated robbery in violation of R.C. 2911.11(A)(2); counts
three and four, aggravated robbery in violation of R.C. 2911.01(A)(1), and counts five,
six, seven, and eight, kidnapping in violation of R.C. 2905.01(A)(2). Each of the eight
counts contained two firearm specifications.
{¶3} On October 26, 2009, appellant entered pleas of guilty to one count of
aggravated burglary in violation of R.C. 2911.11(A)(1), one count of aggravated robbery
in violation of R.C. 2911.01(A)(1), and four counts of kidnapping in violation of R.C.
2905.01(A)(2). The remaining charges, along with all of the firearm specifications, were
dismissed.
{¶4} On November 23, 2009, the trial court sentenced appellant to three years
on the aggravated burglary count, three years on the aggravated robbery count, and two
years each on the kidnapping counts, all to be served consecutively, for an aggregate
term of fourteen years.
{¶5} Appellant filed a delayed appeal and argued that the trial court erred in
imposing consecutive sentences on his four kidnapping counts; the trial court erred in
failing to merge one kidnapping count with aggravated robbery; and that he received
Perry County, Case No. 18-CA-00006 3
ineffective assistance of counsel. In State v. Blackford, 5th Dist. Perry No. 12 CA 3, 2012-
Ohio-4956, we overruled appellant’s assignments of error.
{¶6} On January 19, 2018, appellant filed a motion to vacate void judgment.
Appellant argued he was improperly sentenced on two counts of aggravated burglary and
that since the judgment entry stated he was being sentenced for an aggravated robbery
charge contained in the “second count,” his sentence is void. Appellee filed a
memorandum in opposition on February 8, 2018.
{¶7} On February 20, 2018, the trial court denied appellant’s motion to vacate
void judgment and issued a nunc pro tunc judgment entry to reflect that the aggravated
robbery charge was contained in count three of the indictment, rather than in count two
of the indictment.
{¶8} Appellant appeals the February 20, 2018 judgment entries of the Perry
County Court of Common Pleas and assigns the following as error:
{¶9} “I. IS THE NOVEMBER 23, 2009 JOURNALIZED JUDGMENT ENTRY
VOID.
{¶10} “II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
‘MOTION TO VACATE VOID JUDGMENT’ FILED IN THE COURT OF COMMON PLEAS
ON JANUARY 19, 2018.
{¶11} “III. THE TRIAL COURT ERRED WHEN IT MODIFIED ITS NOVEMBER
26, 2009 JOURNAL ENTRY WHEN IT ISSUED A NUNC PRO TUNC ENTRY ON
FEBRUARY 20, 2018 IN RESPONSE TO APPELLANT’S ‘MOTION TO VACATE VOID
JUDGMENT.
Perry County, Case No. 18-CA-00006 4
{¶12} “IV. THE TRIAL COURT ACTED WITHOUT AUTHORITY/JURISDICTION
WHEN IT IMPOSED A SENTENCE ON A DISMISSED COUNT RENDERING THE
JUDGMENT VOID.
{¶13} “V. THE TRIAL COURT VIOLATED OHIO CRIMINAL RULE 43(A) WHEN
IT ISSUED A NUNC PRO TUNC ENTRY CHANGING THE OFFENSE FOR WHICH
APPELLANT WAS SENTENCED WITHOUT HIM BEING PRESENT.”
I., II., III., IV.
{¶14} In his first four assignments of error, appellant argues the trial court erred in
denying his motion to vacate void judgment and in issuing a nunc pro tunc judgment entry
to reflect that the aggravated robbery charge was contained in count three of the
indictment, rather than in count two of the indictment.
{¶15} Appellant contends the November 23, 2009 judgment entry must be
vacated because it sentenced him for two counts of aggravated burglary when he only
pled guilty to one count of aggravated burglary. Further, that the trial court failed to
impose a sentence for aggravated robbery even though he entered a plea of guilty to that
offense and thus the judgment entry is void. We disagree.
{¶16} In the November 23, 2009 judgment entry, the trial court specifically
sentenced appellant on one count of aggravated burglary, Section 2911.11(A)(1), to a
definite term of three years. The trial court did not sentence appellant on the second
count of burglary and specifically noted the State of Ohio entered a nolle prosequi to one
count of aggravated burglary pursuant to R.C. 2911.11(A)(2). Further, the trial court did
impose a sentence for aggravated robbery pursuant to R.C. 2911.01(A)(1), a definite term
of three years, consecutive to the sentence for aggravated burglary. Accordingly, the
Perry County, Case No. 18-CA-00006 5
trial court sentenced appellant on only one count of aggravated burglary and did impose
a sentence for aggravated robbery.
{¶17} Appellant also argues the trial court erred in issuing a nunc pro tunc entry.
The nunc pro tunc entry filed by the trial court on February 20, 2018 changes one word –
it changes, in the sentence for aggravated robbery, “a felony of the first degree as
contained in the second count of the indictment,” to “a felony of the first degree as
contained in the third count of the indictment.”
{¶18} With respect to nunc pro tunc judgment entries, the court in State v. Lester,
130 Ohio St. 3d 303, 2011-Ohio-5204, 958 N.E.2d 142, observed as follows:
It is well settled that courts possess the authority to correct errors in
judgment entries so that the record speaks the truth. State ex rel. Fogle v.
Steiner, (1995), 74 Ohio St. 3d 158, 163-164, 656 N.E.2d 1288; Crim.R. 36.
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. State v. Miller, 127 Ohio St. 3d
407, 2010-Ohio-5705, 940 N.E.2d 924, paragraph 15; Crim.R. 36. 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. Miller at paragraph 15; Fogle at 164, 656 N.E.2d
1288.
“Nunc pro tunc” means “now for then” and is commonly defined as “[h]aving
retroactive legal effect through a court’s inherent power.” Black’s Law
Perry County, Case No. 18-CA-00006 6
Dictionary (9th Ed.2009) 1174. Therefore, a nunc pro tunc entry by its very
nature applies retrospectively to the judgment it corrects. * * *
{¶19} In this case, at the sentencing hearing, the trial court stated it “is going to
sentence you to three years on the aggravated robbery count, three years on the
aggravated burglary count, two years on each kidnapping count, for a total of fourteen
years, all counts running consecutive to each other.” Appellant confirmed that he
understood the trial court’s sentence and did not have any questions.
{¶20} The nunc pro tunc entry does not substantively change appellant’s
sentence; rather it corrected the clerical error that the aggravated robbery charge was
actually the third count of the indictment and not the second count of the indictment. See
State v. Patterson, 5th Dist. Stark No. 2017CA00153, 2017-Ohio-9001; State v. Dudley,
5th Dist. Fairfield No. 2005 CA 1005, 2006-Ohio-6290. Accordingly, the trial court had
the authority to correct this clerical error in a nunc pro tunc entry and this correction does
not render his sentence void.
{¶21} Appellant’s first four assignments of error are overruled.
V.
{¶22} In his fifth assignment of error, appellant argues the trial court violated
Criminal Rule 43(A) when it issued a nunc pro tunc entry changing the offense for which
appellant was sentenced without him being present. We disagree.
{¶23} As discussed above, the nunc pro tunc sentencing entry did not change the
offense for which appellant was sentenced, but merely corrected a clerical error. While
Rule 43(A) has been held to apply to situations whereby a sentence is vacated and a new
sentence imposed, “such is not the case when a nunc pro tunc entry is issued to correct
Perry County, Case No. 18-CA-00006 7
an error in the journal entry to reflect the actual sentence imposed at the sentencing
hearing.” State v. Francis, 5th Dist. Guernsey No. 98CA13, 2000 WL 93682; State v.
Walker, 5th Dist. Richland No. 17-CA-32, 2017-Ohio-8566.
{¶24} The sentence in this case was not vacated. The court was not required to
correct the entry in appellant’s presence. Id. Appellant’s fifth assignment of error is
overruled.
{¶25} Based on the foregoing, appellant’s assignments of error are overruled.
The February 20, 2018 judgment entries of the Perry County Court of Common Pleas are
affirmed.
By Gwin, P.J,
Delaney, J., and
Wise, Earle, J., concur