State v. Duncan ( 2024 )

[Cite as State v. Duncan, 2024-Ohio-1370.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 113165 and 113169
v. :
AMIRA DUNCAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: April 11, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-23-678223-A and CR-23-678627-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kerry A. Sowul, Assistant Prosecuting
Attorney, for appellee.
Michael P. Maloney, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant, Amira Duncan, appeals her conviction for
involuntary manslaughter, which was rendered after a guilty plea. She raises one
assignment of error:
I. The trial court’s docket and journal entry reflect error in the identity
of the offense of conviction.
Finding some merit to the appeal, we affirm the convictions but remand
for the issuance of nunc pro tunc journal entries.
On January 31, 2023, appellant was indicted in Case No. CR-23-
678223-A with aggravated burglary, in violation of R.C. 2911.11(A)(1), with one- and
three-year firearm specifications; aggravated burglary, in violation of
R.C. 2911.11(A)(2), with one- and three-year firearm specifications; felonious
assault, in violation of R.C. 2903.11(A)(1), with one- and three-year firearm
specifications; felonious assault, in violation of R.C. 2903.11(A)(2), with one- and
three-year firearm specifications; tampering with evidence, in violation of
R.C. 2921.12(A)(1), with a one-year firearm specification; and obstructing justice, in
violation of R.C. 2921.32(A)(5).
On February 14, 2023, appellant was charged in Case No. CR-23-
678627-A with aggravated murder, in violation of R.C. 2903.01(A), with one- and
three-year firearm specifications; murder, in violation of R.C. 2903.02(A), with one-
and three-year firearm specifications; murder, in violation of R.C. 2903.02(B), with
one- and three-year firearm specifications; felonious assault, in violation of
R.C. 2903.11(A)(1), with one- and three-year firearm specifications; and felonious
assault, in violation of R.C. 2903.11(A)(2), with one- and three-year firearm
specifications.
On August 11, 2023, as reflected by the transcript and in accordance
with the plea offer, appellant entered a plea of guilty in Case No. CR-678627-A, to
one amended count of involuntary manslaughter, in violation of R.C. 2903.04(A)
with a three-year firearm specification and one count of felonious assault, in
violation of R.C. 2903.11(A)(1). The remaining counts and specifications were
dismissed. As part of her plea agreement, appellant agreed that the involuntary
manslaughter and felonious assault counts would not merge for purposes of
sentencing. Appellant additionally agreed to a sentencing range of 16 to 19 years in
prison with no early release to run concurrent to her sentence in Case No. CR-
678223-A.
On August 14, 2023, appellant entered into a plea in Case No. CR-
678223-A to one count of felonious assault and one count of tampering with
evidence. The remaining counts and specifications were dismissed. The transcript
reflects that the trial court sentenced appellant to 13 years for involuntary
manslaughter (ten years on the base count plus the three-year firearm specification)
consecutive to five years for felonious assault. The court ordered the sentence to run
concurrent to Case No. CR-678223-A, in which the court sentenced appellant to an
indefinite sentence of five to seven and one-half years in prison for felonious assault
concurrent to one year for tampering with evidence. Thus, appellant was sentenced
to a total of 18 years in prison.
Appellant filed timely notices of appeal; this court consolidated the
cases for briefing and review.
On appeal, appellant contends that the trial court erred because the
journal entries for Case No. CR-678627-A state that appellant pleaded guilty to
aggravated murder, not involuntary manslaughter. Appellant does not challenge
her conviction in Case No. CR-678223-A. Appellant asks for “reversal of her
conviction and/or remand.”
The journal entry issued on August 11, 2023, in Case No. CR-678627-A
states, in pertinent part: “Defendant retracts former plea of not guilty and enters a
plea of guilty to aggravated murder R.C. 2903.01 a un [sic] with firearm
specification(s) - 3 years (2941.145) as amended in count(s) 1 of the indictment.” In
addition, the sentencing journal entry, issued on August 14, 2023, states, in
pertinent part: “On a former day of court the defendant pleaded guilty to aggravated
murder R.C. 2903.01 A un [sic] with firearm specification(s) - 3 years (2941.145) as
amended in Count(s) 1 of the indictment.” The transcript reflects that appellant
pleaded guilty and was sentenced for involuntary manslaughter, not aggravated
murder. The state agrees that the journal entries incorrectly state that appellant
pleaded guilty to aggravated murder.
“[C]ourts possess the authority to correct errors in judgment entries,”
including clerical errors, mistakes, or omissions that are mechanical in nature,
apparent on the record, and that do not involve a legal judgment, “so that the record
speaks the truth.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d
142, ¶ 18, citing State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 656 N.E.2d 1288(1995). “Nunc pro tunc entries are used to reflect what the court actually decided
and not what the court might or should have decided or what the court intended to
decide.” Lester at id., citing State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705,
940 N.E.2d 924. Additionally, Crim.R. 36 provides that “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.”
R.C. 2953.08(D)(1) provides: “A sentence imposed upon a defendant
is not subject to review under this section if the sentence is authorized by law, has
been recommended jointly by the defendant and the prosecution in the case, and is
imposed by a sentencing judge.” In this case, the sentence imposed by the court was
within the agreed-upon range outlined in the plea. However, because the plea and
sentencing journal entries do not reflect the true nature of appellant’s plea, the case
is remanded for the trial court to issue nunc pro tunc entries to reflect appellant’s
plea to and sentence for involuntary manslaughter.
The sole assignment of error is sustained; conviction is affirmed. Case
remanded for proceedings consistent with this opinion.
It is ordered that appellant and appellee pay their own 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. The trial court is hereby directed to vacate its
prior sentencing order journalized August 11, 2023, and issue a journal entry
consistent with this opinion. The trial court is further directed to take all necessary
administrative steps to inform the prison system of appellant’s modified sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MICHAEL JOHN RYAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR