State v. Andrasak , 194 Ohio App. 3d 838 ( 2011 )

[Cite as State v. Andrasak, 194 Ohio App.3d 838, 2011-Ohio-3425.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
THE STATE OF OHIO, C.A. No. 10CA0050-M
Appellee,
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANDRASAK, COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant. CASE No. 09-CR-0403
DECISION AND JOURNAL ENTRY
Dated: July 11, 2011
Dean Holman, Medina County Prosecuting Attorney, and Russell A. Hopkins,
Assistant Prosecuting Attorney, for appellee.
Joseph F. Salzgeber, for appellant.
MOORE, Judge.
{¶1} Appellant, Cheryl L. Andrasak, appeals from the judgment of the Medina County
Court of Common Pleas, which ordered as a condition of community control that she have no
contact with her husband or son. This court affirms in part and reverses in part.
{¶2} On September 24, 2009, the Medina County Grand Jury indicted Andrasak on one
count of permitting drug abuse in violation of R.C. 2925.13(B), a felony of the fifth degree, and
one count of trafficking in drugs in violation of R.C. 2923.03(A)(2), 2925.03(A)(1), and
2925.03(C)(1)(a), a felony of the fourth degree.
{¶3} On February 10, 2010, Andrasak pleaded guilty to both counts, and the court
ordered a presentence investigation. On March 22, 2010, the trial court sentenced her to five
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years of community control, during which she was to have no contact with her codefendants, as
well as 180 days in the county jail and a six-month driver’s license suspension.
{¶4} Andrasak timely filed a notice of appeal. She has raised one assignment of error
for our review.
The trial court abused its discretion and committed plain error
affecting the substantial rights of [Andrasak] by imposing, as part of her
five-year sentence of community control or probation, the conditions that
[she] have no contact with her son and her husband contrary to her
fundamental constitutional rights.
{¶5} In her assignment of error, Andrasak contends that the trial court abused its
discretion and committed plain error by ordering that she have no contact with her husband and
son during a five-year term of community control. We agree in part.
{¶6} During the March 22, 2010 sentencing hearing, the trial court told Andrasak,
“[Y]ou’re to have no contact with Howard Williams and Eric Hanning while you’re on
probation.” In its sentencing entry filed on March 25, 2010, the trial court wrote that Andrasak
was to have “no contact with codefendants.” On April 6, 2010, the trial court filed a nunc pro
tunc entry, which stated that Andrasak was to have “no contact with co-defendants, Howard
Williams, Jr., Eric Hanning and Nathaniel Andrasak.”
Husband
{¶7} When the court told Andrasak at sentencing that she was to have no contact with
her husband, Eric Hanning, she did not object. “An appellate court need not consider an error
which a party complaining of the trial court’s judgment could have called, but did not call, to the
trial court's attention at a time when such error could have been avoided or corrected by the trial
court.” State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of the syllabus. Therefore,
she forfeited these issues. Forfeiture of her constitutional argument does not, however, foreclose
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Andrasak’s plain-error argument. Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the court.”
Plain error is only to be noticed “under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus.
“This Court will apply Crim.R. 52(B) only if it appears on the face of the record that an error
was committed, and the result of the trial clearly would have been different but for the alleged
error.” State v. Dent, 9th Dist. No. 20907, 2002-Ohio-4522, at ¶ 6, citing State v. Bock (1984),
16 Ohio App.3d 146, 150.
{¶8} We recognize that marriage is one of the basic civil and fundamental rights of
man, Skinner v. Oklahoma (1942), 316 U.S. 535, 541, and we do not readily support forced
separation of spouses. But see, e.g., State v. Conkle (1998), 129 Ohio App.3d 177, 179
(upholding a three-year no-contact order between spouses when a wife was the victim of
domestic violence at the hands of her husband). With respect to Hanning, however, there is no
evidence in the record that he and Andrasak are married. The only reference to a relationship
between the two found in the record is contained in the state’s “answer to defendant’s demand
for discovery.” A summary provided in the state’s discovery response identified Hanning as
Andrasak’s boyfriend. It is conceivable that the presentence investigation upon which the court
relied in sentencing her contains a reference to the couple’s being married. However, neither the
state nor Andrasak made the presentence investigation part of the record. Additionally, Hanning
and Andrasak do not bear the same last name. This fact is hardly dispositive, but it is more
understandable that the trial court might not have assumed or suspected a familial relationship.
Because the marital status of Andrasak and Hanning is not in the record before us, we cannot say
that an error was committed. Dent, 2002-Ohio-4522, at ¶ 6. Therefore, on the state of the
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record, Andrasak has failed to demonstrate plain error with respect to the no-contact order with
Eric Hanning.
Son
{¶9} The United States Supreme Court has “recognized on numerous occasions that the
relationship between parent and child is constitutionally protected.” Quilloin v. Walcott (1978),
434 U.S. 246, 255. The Supreme Court of Ohio has similarly recognized the importance of the
relationship between parent and child. In re Murray (1990), 52 Ohio St.3d 155, 157. Our
resolution of the assignment of error with respect to Andrasak’s son, Nathaniel Andrasak, does
not, however, turn on the constitutional importance of the mother-son relationship.
{¶10} Instead, we note the discrepancy between the sentencing transcript, which does
not mention her son, the sentencing journal entry, which refers only to “co-defendants,” and the
nunc pro tunc sentencing entry in which Nathaniel’s name finally appears along with the two
codefendants whom the trial court specifically mentioned during the sentencing hearing. The
trial court’s procedure in this respect raises two concerns: (1) a defendant’s right to be present at
sentencing and (2) the proper use of a nunc pro tunc entry.
{¶11} “Crim.R. 43(A) requires that a criminal defendant be present for sentencing.
‘When a sentence pronounced in open court is subsequently modified and the judgment entry
reflects the modification, the modification must have been made in the defendant’s presence.’ ”
State v. Mullens, 9th Dist. No. 23758, 2007-Ohio-5678, at ¶ 7, quoting State v. Hodges (June 22,
2001), 1st Dist. No. C-990516. As previously noted, during the sentencing hearing the trial court
informed Andrasak that she was to have no contact with Howard Williams and Eric Hanning
while subject to community control. The nunc pro tunc entry included a modification, the
addition of her son’s name. The trial court did not hold a hearing for this modification, and there
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was no opportunity for Andrasak to object to the modification. Accordingly, the trial court
sentenced Andrasak outside her presence.
{¶12} Moreover, the sentence modification presents an inappropriate use of a nunc pro
tunc entry. A trial court may properly issue a nunc pro tunc entry “as an exercise of its inherent
power, to make its record speak the truth.” State v. Greulich (1988), 61 Ohio App.3d 22, 24. “It
is used to record that which the trial court did, but which has not been recorded.” Id. The proper
use of such an entry, therefore, is to reflect only ‘what the court actually decided, not what the
court might or should have decided.’” State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,
2006-Ohio-5795, at ¶ 19, quoting State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-
6323, at ¶ 14. In this case, what the court actually decided was stated during the sentencing
hearing, namely that Andrasak was to have no contact with Howard Williams and Eric Hanning.
The nunc pro tunc entry that added her son’s name to the no-contact list was not proper because
it did not accurately reflect what the court decided. Because a nunc pro tunc entry may not be
used to reflect what the court believes it should have decided, the addition of Nathaniel
Andrasak’s name to the no-contact list was improper.
{¶13} Accordingly, Andrasak’s assignment of error is overruled with respect to Eric
Hanning and sustained with respect to Nathaniel Andrasak.
{¶14} The judgment of the Medina County Court of Common Pleas is affirmed in part
and reversed in part, and the cause is remanded for further proceedings consistent with this
opinion.
Judgment affirmed in part
and reversed in part,
and cause remanded.
_______________________
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BELFANCE, P.J., concurs.
CARR, J., concurs in judgment only.
CARR, Judge, concurring in judgment only.
{¶15} I concur in the majority’s judgment but I am compelled to write separately to
emphasize our concerns regarding the imposition of a condition of probation that may infringe
on a married couple’s fundamental right to companionship with one another. Under the specific
facts of this case, however, I agree that this court has no choice but to affirm in part, given the
lack of evidence in the record that Andrasak and Hanning are married.
{¶16} While Andrasak may have other remedies, such as postconviction relief, she has
no grounds for relief on direct appeal in the absence of any evidence that Hanning is her
husband.