State v. Ludy ( 2011 )


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  • [Cite as State v. Ludy, 
    2011-Ohio-4544
    .]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MONTGOMERY COUNTY
    STATE OF OHIO                                                                                     :
    :          Appellate Case No. 24261
    Plaintiff-Appellee                                                               :
    :          Trial Court Case No. 07-CR-2497
    v.                                                                                                                    :
    :
    CARY M. LUDY                                                                                      :       (Criminal
    Appeal from
    :          (Common Pleas Court)
    Defendant-Appellant                                                   :
    :
    ...........
    OPINION
    Rendered on the 9th day of September, 2011.
    .........
    MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County Prosecutor’s Office, Appellate Division,
    Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
    Attorneys for Plaintiff-Appellee
    CHARLES L. GROVE, Atty. Reg. #0029144, Law Office of the Public Defender, 117
    South Main Street, Suite 400, Dayton, Ohio 45422
    Attorney for Defendant-Appellant
    .........
    HALL, J.
    {¶ 1} Ohio Crim.R. 32(C) requires, inter alia, that a judgment of conviction set
    forth the manner of conviction. Ludy had pled guilty to two counts of unlawful sexual
    2
    conduct with a minor. He was sentenced to two years in prison on each count, to be
    served concurrently. After Cary Ludy completed his sentence, the trial court filed a
    nunc pro tunc sentencing entry that corrected the original sentencing entry by setting
    forth the manner of Ludy’s conviction, omitted from the original. Ludy argues that the
    court lacked jurisdiction to correct the entry because he had completed the sentence.
    Ludy further argues that the court improperly used a nunc pro tunc entry to correct the
    original because the original is a nullity, since it failed to comply with Crim.R. 32(C).
    Based on the Ohio Supreme Court’s explication of the law applicable here in State ex
    rel. DeWine v. Burge, 
    128 Ohio St.3d 236
    , 
    2011-Ohio-235
    , we conclude that the trial
    court did not err. Therefore, we affirm.
    {¶ 2} In late 2007, Ludy pleaded guilty to a pair of unlawful-sexual-conduct charges, and he was sentenced to prison. The
    trial court also designated Ludy a sexually-oriented offender under Ohio’s sex offender registration law. But, the court also told Ludy
    that he would be reclassified as a Tier 2 sex offender on January 1, 2008, under the newly enacted S.B. 10.1
    {¶ 3} In May 2010, after he had served his 2-year sentence, Ludy was charged, in case No. 2010-CR-01380, under S.B. 10's
    notification provision with failing to notify the sheriff that he was residing at a new address. Ludy moved to dismiss the charge on the
    ground that he had no such notification duty. He argued that his 2007 conviction was void because the sentencing entry failed to
    comply with Crim.R. 32(C) by omitting the manner of his conviction.2 The trial court overruled the motion to dismiss. On August
    1
    The pertinent paragraphs of the sentencing entry state:
    “The Court finds defendant has been convicted of a sexually oriented offense(s) as
    defined by Ohio Revised Code 2950.01 AND therefore, the defendant is a sexually
    oriented offender.
    “* * *
    “The Court further advised the defendant that as of January 1, 2008 the
    defendant will be designated as a Tier 2 sex offender/child victim offender and advised
    the defendant of the corresponding registration requirement.”
    2
    The first paragraph of the November 2, 2007 sentencing entry states only, “The
    defendant herein having been convicted of the offense(s) of 2 COUNTS: UNLAWFUL
    3
    6, 2010, on the state’s motion, the court entered a nunc pro tunc sentencing entry that set forth the manner of Ludy’s conviction.3
    {¶ 4} Ludy appealed from the nunc pro tunc entry.4
    {¶ 5} “THE ENTRY FILED ON NOVEMBER 2, 2007, WAS NOT A VALID,
    FINAL APPEALABLE ORDER AND THEREFORE, CANNOT BE USED AS THE
    PREDICATE                FOR A             NEW          CHARGE, AND EVEN AS AMENDED,                                                   THE
    TERMINATION ENTRY IMPERMISSIBLY DELEGATED THE CLASSIFICATION OF
    THE DEFENDANT.”
    {¶ 6} We must first delineate the scope of this appeal. Ludy did not directly
    appeal the original, November 2, 2007, sentencing entry. The present appeal is from
    the August 6, 2010 nunc pro tunc entry entered in the 2007 case. The scope of this
    appeal, then, is limited to issues concerning the lawfulness of the nunc pro tunc entry
    for what is apparently a predicate offense in Case 2010-CR-01380, which is not before
    us. With this limitation in mind, we turn to the sole assignment of error.
    {¶ 7} In DeWine, the Court addressed the remedy for a sentencing entry that does not comply with Crim.R. 32(C) because
    it omits the manner of conviction. The Court said that such an error is treated as merely clerical. Id. at ¶17-18. A trial court has “specific,
    limited jurisdiction,” said the Court, to remedy this error with a revised sentencing entry–a nunc pro tunc entry. Id. at ¶17-19. (Italics
    omitted.) A new hearing is not required. Id. at ¶18. The Court also said that, because omitting the manner of conviction is merely a
    SEXUAL CONDUCT WITH A MINOR F3 was on November 1, 2007, brought before the
    Court.”
    3
    The first paragraph of the August 6, 2010 nunc pro tunc entry states, “The
    defendant herein having pled guilty to the offense(s) of 2 COUNTS: UNLAWFUL
    SEXUAL CONDUCT WITH A MINOR F3, and a judgment of guilt having been entered as
    to both counts, was on November 1, 2007, brought before the Court.” (Emphasis added.)
    4
    This court allowed Ludy to file a delayed appeal. At Ludy’s request, the trial court continued Case No. 2010-CR-01380, pending
    the outcome of this appeal.
    4
    technical failure to comply with Crim.R. 32(C), “it does not render the judgment [of conviction] a nullity.” Id. at ¶19. Therefore the trial
    court’s use of the nunc pro tunc entry here was proper. We further note that clerical errors “* * * may be corrected by the court at any
    time.” Crim.R. 36.
    {¶ 8} The predicate-offense issue raised by the assignment of error is beyond the scope of this appeal. Consequently, we will
    not address it directly.
    {¶ 9} In support of the error assigned in the alternative, in his merit brief, Ludy contends that the
    sentencing entry’s implicit delegation of his reclassification under S.B. 10 is unlawful
    under State v. Bodyke, 
    126 Ohio St.3d 266
    , 
    2010-Ohio-2424
    , which held that the
    reclassification provisions in S.B. 10 violate the separation-of-powers doctrine. In his
    reply brief, though, Ludy contends that his reclassification is unlawful under State v.
    Williams, Slip Opinion No. 
    2011-Ohio-3374
    . In Williams, the Ohio Supreme Court
    concluded that S.B. 10's registration requirements are punitive, which means that they
    cannot be applied retroactively without running afoul of the Ohio constitution’s
    prohibition of retroactive laws. See id. at ¶20. Therefore, the Court held that S.B. 10
    violates the constitution as applied to any sex offender who committed an offense
    before the law’s enactment. Id. at ¶21.
    {¶ 10} While Ludy’s reclassification likely is unlawful under Williams, the issue is not within the scope of this appeal,
    particularly since the lawfulness of his reclassification has never before been raised in this case. Moreover, we do not address whether
    Ludy’s address reporting requirement under Ohio’s version of Megan’s Law is consistent with that under the version of the Adam Walsh
    Act. We note that all those issues would seem pertinent in the 2010 case charging Ludy with violating notification provisions, but they
    are best addressed first by the trial court.
    {¶ 11} The sole assignment of error is overruled.
    {¶ 12} The judgment of the trial court is affirmed.
    5
    ..............
    FAIN and FROELICH, JJ., concur.
    Copies mailed to:
    Mathias H. Heck, Jr.
    Johnna M. Shia
    Charles L. Grove
    Hon. Dennis J. Langer
    

Document Info

Docket Number: 24261

Judges: Hall

Filed Date: 9/9/2011

Precedential Status: Precedential

Modified Date: 4/17/2021