State v. Davis ( 2011 )

[Cite as State v. Davis, 2011-Ohio-2526.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95440
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES A. DAVIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-428529
BEFORE: Celebrezze, P.J., Cooney, J., and Rocco, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ALSO LISTED:
James A. Davis
Inmate No. 444-458
P.O. Box 8107
Richland Correctional Institution
Mansfield, Ohio 44901
FRANK D. CELEBREZZE, JR., P.J.:
{¶ 1} James A. Davis (“appellant”) appeals from the trial court’s
judgment granting the state’s motion for nunc pro tunc entry filed on June 25,
2010. Finding no merit to the appeal, we affirm.
{¶ 2} On September 22, 2002, appellant was charged with one count of
aggravated murder, a first degree felony in violation of R.C. 2903.01, with
one- and three-year firearm specifications; and one count of tampering with
evidence in violation of R.C. 2921.12.
{¶ 3} On April 17, 2003, appellant entered a plea of guilty to the
amended charge of murder in violation of R.C. 2903.02. Pursuant to the plea
agreement, the firearm specifications and the tampering with evidence
charges were dismissed by the state in exchange for appellant’s guilty plea.
On April 28, 2003, appellant was sentenced to life in prison with the
eligibility for parole after 15 years. The trial court did not mention
postrelease control at the sentencing hearing; however, the sentencing
journal entry filed on April 30, 2003 included postrelease control sanctions.
The 2003 sentencing journal entry stated, in pertinent part:
{¶ 4} “THE COURT IMPOSES A PRISON TERM AT LORAIN
CORRECTIONAL INSTITUTION OF 15 YEARS TO LIFE. CREDIT FOR
TIME SERVED. POSTRELEASE CONTROL IS A PART OF THIS PRISON
SENTENCE FOR THE MAXIMUM PERIOD ALLOWED FOR THE ABOVE
FELONY UNDER R.C. 2967.28.”
{¶ 5} On July 22, 2003, appellant moved for a delayed appeal, which
this court granted on September 5, 2003. 1 Although this court initially
appointed counsel, that counsel withdrew, and this court directed appellant to
proceed pro se. He failed to file a brief, and this court dismissed the appeal
on February 12, 2004.
{¶ 6} Also on July 22, 2003, appellant filed a postconviction relief
petition, which the trial court denied on August 14, 2003. He moved to
withdraw his guilty plea on June 23, 2004, and the trial court denied that
motion on November 9, 2004. On September 7, 2005, appellant again moved
for a delayed appeal, which this court denied in October 2005. On July 13,
2009, he filed a motion to “revise/correct” the sentencing journal entry, which
the trial court denied on July 21, 2009.
{¶ 7} On August 24, 2009, appellant filed a petition for a writ of
mandamus to compel the trial court to issue a final, appealable order in the
underlying case. State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas,
Cuyahoga App. No. 93814, 2010-Ohio-1066, ¶3-4, affirmed, 127 Ohio St.3d 29,
2010-Ohio-4728, 936 N.E.2d 41 (Supreme Court affirmed this court’s denial of
the writ of mandamus). Appellant submitted that, because the trial court’s
sentencing journal entry did not reiterate the resolution of deleted
specifications and a nolled count and because it improperly included an order
1 Cuyahoga App. No. 83188.
of postrelease control, the sentencing journal entry is void and does not
constitute a final, appealable order; thus, he has a right to a new, correct
sentencing journal entry that would be a final, appealable order. This court
denied appellant’s petition on the grounds that appellant had no right to a
journal entry stating the means of exoneration for the other count and
specifications; and mandamus was not an appropriate procedure for
correcting an error in the imposition of postrelease control. Appellant
appealed the mandamus action to the Ohio Supreme Court.
{¶ 8} On June 25, 2010, in the midst of briefing appellant’s mandamus
action before the Ohio Supreme Court, the state filed a motion for nunc pro
tunc entry in the trial court. The state requested a correction to the 2003
sentencing journal entry to remove the improper imposition of postrelease
control. The trial court granted the state’s motion and removed the
postrelease control language from appellant’s sentencing journal entry. The
trial court’s nunc pro tunc journal entry, states as follows:
{¶ 9} “AFTER REVIEWING THE TRANSCRIPT OF THE PLEA AND
SENTENCING HEARING IN THIS CASE, PLAINTIFF’S MOTION FOR
NUNC PRO TUNC ENTRY IS GRANTED. THE FOLLOWING NUNC PRO
TUNC ENTRY PURSUANT TO CRIM.R. 36 SHALL RELATE BACK TO
THE SENTENCING JOURNAL ENTRY OF APRIL 30, 2003 * * *.”
{¶ 10} This timely appeal followed.
Law and Analysis
Postrelease Control
{¶ 11} In his sole assignment of error, appellant contends that the trial
court improperly granted the state’s motion for nunc pro tunc entry without
holding a de novo sentencing hearing. He specifically argues that he is
entitled to a de novo sentencing hearing because the trial court has never
issued a legally valid sentence in his underlying case. Appellant’s argument
lacks merit.
{¶ 12} Initially, we note that appellant’s sentence is not void in this
matter merely because the trial court included a postrelease control provision
in his sentencing journal entry. Neither party disputes the fact that an
individual who is sentenced for murder is not subject to postrelease control
because murder is a special felony. A review of appellant’s sentencing
journal entry reveals that the trial court did not impose a specific term of
postrelease control. Rather, the trial court stated that appellant was
“subject to postrelease control for the maximum period allowed for the above
felony under R.C. 2967.28.” Because R.C. 2967.28 does not provide for the
imposition of postrelease control for the special felony of murder, the
sentencing journal entry does not impose a term of postrelease control. See
State v. Gordon, Summit App. No. 25370, 2010-Ohio-6308.
{¶ 13} Accordingly, we do not find that the sentencing journal entry is
void because it limits postrelease control to what is authorized under R.C.
2967.28 and, therefore, does not actually impose any term of postrelease
control. State v. Austin, Cuyahoga App. No. 93028, 2009-Ohio-6108, ¶7.
{¶ 14} Nevertheless, appellant’s argument that he is entitled to a de
novo sentencing hearing is now moot under State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, which states that a de novo hearing to
which an offender was entitled under State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961, is now limited to proper imposition of
postrelease control. Therefore, had appellant’s sentence been somehow void,
it would have only been void in relation to the court’s imposition of
postrelease control. Pursuant to Fischer, appellant’s only available remedy
would have been to strike the postrelease control language from the record,
which is what occurred in this case.
{¶ 15} In the case at bar, the state’s motion for nunc pro tunc entry was
appropriate under Crim.R. 36, which 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.” A trial
court may use a nunc pro tunc entry to correct mistakes in judgments, orders,
and other parts of the record so the record speaks the truth. State v. Spears,
Cuyahoga App. No. 94089, 2010-Ohio-2229, at ¶1.
{¶ 16} Here, a review of the trial transcript indicates that appellant was
never informed at the time of his plea or at his April 28, 2003 sentencing
hearing that postrelease control was going to be imposed. It is clear from the
record that the trial court made a clerical error by including postrelease
control in the sentencing journal entry issued on April 30, 2003. The
amended sentencing journal entry reflects the truth of what actually
happened. Therefore, the trial court did not err in granting the state’s
motion for nunc pro tunc entry.
{¶ 17} Appellant’s sole assignment of error is without merit and is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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. 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
KENNETH A. ROCCO, J., CONCUR