State v. Larson ( 2012 )

[Cite as State v. Larson, 2012-Ohio-3157.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97894
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TERRY LARSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-268344
BEFORE: Blackmon, A.J., Jones, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: July 12, 2012
APPELLANT
Terry Larson, Pro Se
Inmate #243-247
Grafton Correctional Institution
2500 South Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Katherine Mullin
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:
{¶1} In this accelerated appeal, appellant Terry Larson (“Larson”) appeals pro se
the trial court’s denial of his motion to correct his sentence and the trial court’s issuing a
nunc pro tunc sentencing entry. He assigns the following error for our review:
I. The trial court abused its discretion when acting unreasonably,
using arbitrary conduct and or unconscionably disregarding
appellant’s rights thereby prejudicing appellant in violation of the Fifth
and Fourteenth Amendments to the United States Constitution and
Articles 1 § 16 and 4 § 3 of the Ohio Constitution.
{¶2} Having reviewed the record and relevant law, we affirm the trial court’s
decision in part and remand for the nunc pro tunc entry to reflect Larson’s indigence
status. The apposite facts follow.
Facts
{¶3} After a jury trial, Larson was convicted of four counts of rape, and one
count each of gross sexual imposition and kidnapping. The trial court imposed a
sentence of consecutive 15 – 25 years for each rape and kidnapping count and a
consecutive four to ten years for the gross sexual imposition count. Larson filed a direct
appeal. This court affirmed Larson’s convictions, but remanded for the trial court to
resentence Larson on the gross sexual imposition charge. State v. Larson, 8th Dist. No.
63001, 1993 WL 4622880 (Nov. 10, 1993). The reason we remanded was because gross
sexual imposition is a fourth-degree felony, with a maximum sentence of five years.
However, the trial court imposed a term of four to ten years in prison on the gross sexual
imposition charge.
{¶4} On April 21, 1994, the trial court resentenced Larson to three to five years
in prison for the gross sexual imposition count to run concurrently to the other counts.
The trial court issued a new sentencing entry only for the gross sexual imposition count.
The court failed to issue a judgment entry that also included the convictions for the other
counts. Thus, multiple documents had to be considered to determine the aggregate
sentence.
{¶5} On October 21, 2011, over 17 years after the court resentenced Larson,
Larson filed with the trial court a “motion to correct ambiguous sentencing entry, per
Criminal Rule 32(C).” He argued that his current sentencing entry failed to comply with
State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, because multiple
documents had to be considered to determine his sentence. He also requested that the
trial court run each count concurrently instead of consecutively.
{¶6} The state opposed any modification of the sentence to run the counts
concurrently, but agreed the sentencing entry was not compliant with Crim.R. 32(C) and
attached a proposed nunc pro tunc entry to resolve the problem. The trial court denied
Larson’s motion to modify his sentence, but issued a nunc pro tunc entry in which it
included Larson’s convictions for all of the counts in one entry.
Sentencing Entry
{¶7} In his sole assigned error, Larson argues that the trial court erred by denying
his motion and committed errors in issuing the nunc pro tunc entry.
{¶8} Larson contends that the trial court’s denial of his motion to correct the
ambiguous sentence was inconsistent with its entering a nunc pro tunc entry correcting
the entry as he requested in his motion. We conclude the trial court’s denial of the
motion pertained to Larson’s request that the trial court run his sentences concurrently.
The trial court correctly stated that it had no authority to modify a valid sentence. State
v. Clark, 8th Dist. No. 82519, 2003-Ohio-3969. Larson’s sentence was valid; the
problem was that the sentencing entry the trial court issued after our remand did not
contain all of the convictions. Placing all of the convictions in one journal entry to
comply with Crim.R. 32(C) is an administrative function; therefore, a nunc pro tunc entry
was the correct mechanism for correcting the entry. State ex rel. DeWine v. Burge, 128
Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535.
{¶9} Larson’s contention that he was never served with the trial court’s nunc pro
tunc entry is moot. The docket indicates that the trial court directed the clerk to send a
copy of the order to Larson at the Grafton Correctional Institution. Larson nonetheless
contends he never received the entry. We conclude that any error in Larson not receiving
the entry is moot because he obviously had notice of the entry by virtue of his appeal, and
he was able to file an appeal from the journal entry within 30 days of it being issued.
Thus, no harm resulted.
{¶10} Larson also contends that the trial court erred by not ordering that the
minimum term for his aggregate sentences was 15 years. Former R.C. 2929.41(E)(2),
which existed at the time of his original sentencing, imposed an aggregate minimum cap
of 15 years on consecutive sentences. The Ohio Supreme Court has held that former
R.C. 2929.41(E)(2) did not apply to definite sentences; in other words, the 15-year
limitation applied only to the aggregate minimum term of indefinite sentences. State ex
rel. Mora v. Wilkinson, 105 Ohio St.3d 272, 2005-Ohio-1509, 824 N.E.2d 1000;
Yonkings v. Wilkinson, 86 Ohio St.3d 225, 226-228, 1999-Ohio-98, 714 N.E.2d 394.
Because Larson received a definite sentence on each charge, this provision does not apply
to his sentence. Moreover, the statute is self-executing. That is, it automatically
operates to limit the minimum term of imprisonment; therefore, it cannot form the basis
for reversal. State v. White, 18 Ohio St.3d 340, 481 N.E.2d 596 (1985); State v. Warren,
168 Ohio App.3d 288, 2006-Ohio-4104, 859 N.E.2d 998, ¶ 30 (8th Dist.).
{¶11} Lastly, Larson contends that the nunc pro tunc entry does not reflect the
action taken, because unlike the original judgment entry, it does not include that he was
found indigent. The state argues that the nunc pro tunc entry only operates to correct the
resentencing entry and does not replace the original entry. In the instant case, however,
the trial court included in the nunc pro tunc entry everything from the original and
resentencing orders, except for the finding that Larson is indigent. Therefore, for the
sake of clarity, we remand for the trial court to include in the nunc pro tunc entry that
Larson is indigent.
{¶12} Larson also contends the trial court erred by ordering in the nunc pro tunc
entry that he pay costs. However, our review of the original sentencing entry indicates
the original sentencing judge did order Larson to pay costs. “R.C. 2947.23 requires a
judge to assess costs against all convicted criminal defendants, and waiver of costs is
permitted — but not required — if the defendant is indigent.” State v. White, 103 Ohio
St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. The Ohio Supreme Court expressly
stated that “a trial court may assess court costs against an indigent defendant convicted of
a felony as part of the sentence.” Id. at paragraph one of the syllabus. Therefore,
although a defendant is declared indigent, the declaration does not prohibit a court from
assessing costs against the indigent defendant. The trial court did not err in ordering
Larson to pay costs. Accordingly, Larson’s assigned error has merit in part.
{¶13} Judgment affirmed in part and remanded for correction of the journal entry.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution. The defendant’s conviction having been affirmed, 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.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
LARRY A. JONES, SR., J., and
SEAN C. GALLAGHER, J., CONCUR