State v. Beaver , 2018 Ohio 2840 ( 2018 )


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  • [Cite as State v. Beaver, 
    2018-Ohio-2840
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 106170
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    DUSTIN J. BEAVER
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED AS MODIFIED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-16-602795-A
    BEFORE: Keough, J., Kilbane, P.J., and Blackmon, J.
    RELEASED AND JOURNALIZED: July 19, 2018
    ATTORNEY FOR APPELLANT
    Robert A. Dixon
    4403 St. Clair Avenue
    Cleveland, Ohio 44103
    ATTORNEYS FOR APPELLEE
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    By: Melissa Riley
    Assistant County Prosecutor
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    KATHLEEN ANN KEOUGH, J.:
    {¶1} In January 2016, defendant-appellant, Dustin J. Beaver, was named in a seven-count
    indictment charging him with five counts of rape and two counts of kidnapping.                 He
    subsequently pleaded guilty to one count of rape and an amended count of attempted rape. On
    October 24, 2016, the trial court sentenced Beaver to a total of nine years, to be served
    consecutively to the one-year sentence in Cuyahoga C.P. No. CR-15-592396, which was imposed
    on February 24, 2015.
    {¶2} In this delayed appeal, Beaver contends in his sole assignment of error that the trial
    court failed to make the requisite findings prior to imposing consecutive sentences. Pursuant to
    Loc.App.R. 16(B), the state concedes the error. However, after reviewing the record, this court
    was concerned that the issue may be moot because the trial court ordered the nine-year sentence
    to be served consecutively to a sentence that was already completed. Accordingly, this court
    ordered the parties to brief the following issue:
    What effect does the trial court’s journal entry dated October 18, 2016 in
    Cuyahoga C.P. No. CR-16-602795 ordering the nine-year “sentence to run
    consecutive to the sentence that he is presently serving on CR-592396” have on
    the conceded error in this appeal? Pursuant to the February 24, 2015 sentencing
    journal entry in Cuyahoga C.P. No. CR-15-592396, appellant was ordered to serve
    a one-year sentence, which would have been completed by the time appellant was
    sentenced in CR-16-602795.
    {¶3} The state responded that the trial court intended that Beaver serve the nine-year
    sentence consecutive to the prison sentence he was still serving. The state concedes that Beaver
    completed his sentence in CR-15-592396, but maintains that the error can be corrected by having
    the trial court issue a nunc pro tunc and order the nine-year sentence consecutive to the case
    number under which Beaver is still serving his sentence.         Defense counsel responded by
    “agree[ing] completely with the arguments and conclusions” provided by the state. However,
    we do not.
    {¶4} It is axiomatic that the trial court speaks through its journal entry. State v. Brooke,
    
    113 Ohio St.3d 199
    , 
    2007-Ohio-1533
    , 
    863 N.E.2d 1024
    , ¶ 47, citing Kaine v. Marion Prison
    Warden, 
    88 Ohio St.3d 454
    , 455, 
    727 N.E.2d 907
     (2000). Therefore, we must review the
    sentencing journal entries in these cases to decide the issue before this court.
    {¶5} When Beaver was sentenced for the rape offenses, the court stated in open court:
    Okay. This sentence will run consecutive to the sentence that he is now serving,
    and that will be in case number 592396, which is also concurrent to 586857 and
    585738. Okay.
    (Tr. 41-42.) The sentencing journal entry accurately reflects the court’s oral pronouncement —
    “sentence to run consecutive to the sentence that he is prensently [sic] serving on CR-592396.”
    Therefore, the use of a nunc pro tunc would be improper. State v. Miller, 
    127 Ohio St.3d 407
    ,
    
    2010-Ohio-5705
    , 
    940 N.E.2d 924
    , ¶ 15 (nunc pro tunc entries are limited to reflect what the court
    actually decided, not what the court might or should have decided); State v. Waltz,
    
    2014-Ohio-2474
    , 
    14 N.E.3d 429
    , ¶ 28 (12th Dist.) (a trial court lacks authority to correct final
    entry to reflect the court’s intention of imposing a five-year term of community control, when the
    trial court at the hearing and in the final entry imposed a one-year term). Moreover and absent
    any exceptions, “once a sentence has been executed, the trial court loses jurisdiction to amend or
    modify the sentence.” State v. Carr, 
    167 Ohio App.3d 223
    , 
    2006-Ohio-3073
    , 
    854 N.E.2d 571
    (3d Dist.), ¶ 3, citing State v. Garretson, 
    140 Ohio App.3d 554
    , 
    748 N.E.2d 560
     (12th
    Dist.2000).
    {¶6} The record clearly reflects that at sentencing and in its journal entry, the trial court
    ordered Beaver’s nine-year sentence consecutive to the sentence in CR-15-592396, which was
    only one year. If the court wanted to impose an aggregate sentence of 13 years, the court should
    have ordered Beaver’s nine-year sentence consecutive to the four-year sentence imposed in
    CR-14-586857. As this court has previously stated, “we are bound by the record as presented.
    Whatever was the trial court’s intention with respect to the aggregate sentence, it must be set
    aside.”     State v. Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 
    2016-Ohio-3062
    , ¶ 4
    (discussing court ordering community control consecutive to a nonexistent sentence in another
    case).
    {¶7} Accordingly the trial court’s failure to make the statutory findings pursuant to R.C.
    2929.14(C)(4) is harmless and the assignment of error is overruled. The portion of the trial
    court’s entry ordering Beaver’s nine-year sentence to run consecutive to an already served
    sentence is vacated. The nine-year sentence, therefore, will run concurrent with the sentence he
    is currently serving. See R.C. 2929.41(A).
    {¶8} Judgment affirmed as modified.
    It is ordered that the parties share equally the 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. The defendant’s conviction having been affirmed as
    modified, 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.
    KATHLEEN ANN KEOUGH, JUDGE
    MARY EILEEN KILBANE, P.J., and
    PATRICIA ANN BLACKMON, J., CONCUR
    

Document Info

Docket Number: 106170

Citation Numbers: 2018 Ohio 2840

Judges: Keough

Filed Date: 7/19/2018

Precedential Status: Precedential

Modified Date: 7/19/2018