State v. Williams , 2015 Ohio 371 ( 2015 )


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  • [Cite as State v. Williams, 
    2015-Ohio-371
    .]
    COURT OF APPEALS
    LICKING COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                 :      JUDGES:
    :      Hon. W. Scott Gwin, P.J.
    Plaintiff-Appellee                    :      Hon. William B. Hoffman, J.
    :      Hon. Sheila G. Farmer, J.
    -vs-                                          :
    :
    DAVID WILLIAMS                                :      Case No. 14-CA-67
    :
    Defendant-Appellant                   :      OPINION
    CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
    Pleas, Case No. 13CR523
    JUDGMENT:                                            Affirmed
    DATE OF JUDGMENT:                                    January 30, 2015
    APPEARANCES:
    For Plaintiff-Appellee                               For Defendant-Appellant
    PAULA M. SAWYERS                                     DANIEL J. SABOL
    20 South Second Street                               580 East Rich Street
    Fourth Floor                                         Columbus, OH 43215
    Newark, OH 43055
    Licking County, Case No. 14-CA-67                                                    2
    Farmer, J.
    {¶1}   On September 12, 2013, the Licking County Grand Jury indicted
    appellant, David Williams, on one count of gross sexual imposition in violation of R.C.
    2907.05 and one count of sexual imposition in violation of R.C. 2907.06.
    {¶2}   On December 16, 2013, the trial court dismissed the indictment at the
    state's request. The entry stated the dismissal was "with prejudice."
    {¶3}   On May 9, 2014, the state refiled the indictment (Case No. 14CR363). On
    July 1, 2014, the state filed a motion for nunc pro tunc order of the December 16, 2013
    entry to reflect a dismissal "without prejudice." The requested nunc pro tunc order was
    filed on July 3, 2014.
    {¶4}   Appellant filed an appeal and this matter is now before this court for
    consideration. Assignment of error is as follows:
    I
    {¶5}   "THE TRIAL COURT ERRED IN VACATING THE DISMISSAL WITH
    PREJUDICE WITH A NUNC PRO TUNC ENTRY WHEN NO CLERICAL ERROR
    EXISTED."
    I
    {¶6}   Appellant claims the trial court erred in issuing a nunc pro tunc order
    correcting the December 16, 2013 dismissal "with prejudice" to a dismissal "without
    prejudice." We disagree.
    {¶7}   Crim.R. 36 governs clerical mistakes and states: "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."
    Licking County, Case No. 14-CA-67                                                       3
    {¶8}   Crim.R. 48 governs dismissal. Subsection (A) states: "The state may by
    leave of court and in open court file an entry of dismissal of an indictment, information,
    or complaint and the prosecution shall thereupon terminate."
    {¶9}   On December 16, 2013, the state filed a motion to dismiss the indictment,
    citing the following reason:
    The Defendant in this case was indicted on September 12, 2013, in
    case no. 13CR523 on ct. 1, Gross Sexual Imposition, a felony of the 3rd
    degree; and ct. 2, Sexual Imposition, a misdemeanor of the 3rd degree.
    The State of Ohio is moving to dismiss at this time, in order to collect
    additional evidence. The State of Ohio will re-indict the case once that
    additional evidence is available.
    {¶10} The state prepared the dismissal entry for the trial court which included
    the language "dismissed with prejudice." Appellee's Brief at 1, 4. The entry was signed
    by the trial court and filed on December 16, 2013. No appeal was taken from this
    dismissal entry.
    {¶11} The indictment was refiled on May 9, 2014 (Case No. 14CR363). On July
    1, 2014, the state filed a motion for nunc pro tunc order of the December 16, 2013 entry
    to reflect a dismissal "without prejudice." The requested nunc pro tunc order was filed
    on July 3, 2014, based upon Crim.R. 36, cited above.
    {¶12} We concur with the following two opinions issued by our brethren from the
    Eighth District.
    Licking County, Case No. 14-CA-67                                                       4
    {¶13} In State v. Annable, 
    194 Ohio App.3d 336
    , 
    2011-Ohio-2029
     (8th Dist.), the
    trial court had dismissed the case "with prejudice" and some six months later, corrected
    the entry to read "without prejudice." The Annable court stated the following at ¶ 22-24:
    This record evidences that the trial court's original judgments
    dismissing the two prior cases contained a clerical error, that is, dismissal
    with prejudice. A new case could not have been filed, as the judgments
    stated one was, if the dismissals were with prejudice. Moreover, in order
    to dismiss a case with prejudice, a trial court must find a deprivation of a
    defendant's constitutional or statutory rights. State v. Worwell, Cuyahoga
    App. No. 86032, 
    2005-Ohio-6343
    , 
    2005 WL 3219726
    , ¶ 16. There was no
    such finding in either of the two prior cases, further evidencing that the
    original dismissals with prejudice were clerical errors.
    A clerical mistake is a mistake or omission, mechanical in nature
    and apparent on the record, that does not involve a legal decision or
    judgment. State v. Patrick, Cuyahoga App. No. 89214, 
    2007-Ohio-6847
    ,
    
    2007 WL 4443398
    , ¶ 20.         A court may, at any time, correct clerical
    mistakes arising from oversight or omission. State v. Walton, Cuyahoga
    App. No. 87347, 
    2006-Ohio-4771
    , 
    2006 WL 2627542
    , ¶ 8.
    On this record, Annable's double-jeopardy rights were not violated;
    the prior cases were dismissed without prejudice, and the nunc pro tunc
    entries stating so were proper.
    Licking County, Case No. 14-CA-67                                                       5
    {¶14} In State ex rel. Townsend v. Calabrese, 8th Dist. Cuyahoga No. 97822,
    
    2012-Ohio-1649
    , the trial court had issued a "nunc pro tunc" order to correct a dismissal
    "with prejudice" to a dismissal "without prejudice." The Townsend court dismissed a writ
    of prohibition, citing at ¶ 9 to the holding in Annable, that a nunc pro tunc order can
    correct a dismissal "with prejudice" to one "without prejudice":
    As to the propriety of the nunc pro tunc orders, this court in State v.
    Annable, 8th Dist. No. 94775, 
    2011-Ohio-2029
    , ruled that a trial court may
    issue a nunc pro tunc order changing a dismissal with prejudice in a
    criminal case to a dismissal without prejudice if the new entry corrects a
    clerical error. Moreover, a re-indictment mentioned in the original order
    and an absence of a reason to dismiss with prejudice indicate that the
    original dismissal with prejudice was a clerical error.          So too, in
    Townsend's case, the lack of a reason to dismiss and the reference to
    Case III, which immediately went to trial, shows that the dismissal with
    prejudice was a clerical error.    Annable also shows that this issue is
    properly reviewed on appeal. Therefore, prohibition will not lie to nullify
    the nunc pro tunc orders or vacate Townsend's convictions because the
    respondent judge had the authority to issue the order and try the case,
    and Townsend had an adequate remedy at law through appeal.
    {¶15} The Annable case was appealed to the Supreme Court of Ohio wherein
    the case was not accepted for review. State v.Annable, 
    129 Ohio St.3d 1504
    , 2011-
    Licking County, Case No. 14-CA-67                                                  6
    Ohio-5358.      The Townsend case was not appealed.     A subsequent postconviction
    petition filed by Townsend on the same issue was denied and the denial was affirmed
    on appeal. State v. Townsend, 8th Dist. Cuyahoga No. 97544, 
    2012-Ohio-3452
    . An
    appeal to the Supreme Court of Ohio was not accepted for review. State v. Townsend,
    
    134 Ohio St.3d 1418
    , 
    2013-Ohio-158
    .
    {¶16} Upon review, we find the trial court did not err in correcting an obvious
    mistake with the nunc pro tunc order made pursuant to Crim.R. 36.
    {¶17} The sole assignment of error is denied.
    {¶18} The judgment of the Court of Common Pleas of Licking County, Ohio is
    hereby affirmed.
    By Farmer, J.
    Gwin, P.J. and
    Hoffman, J. concur.
    SGF/sg 116
    

Document Info

Docket Number: 14-CA-67

Citation Numbers: 2015 Ohio 371

Judges: Farmer

Filed Date: 1/30/2015

Precedential Status: Precedential

Modified Date: 3/3/2016