State v. Clark , 2016 Ohio 8508 ( 2016 )

[Cite as State v. Clark, 2016-Ohio-8508.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NOS. 26944 and 26946
:
v. : T.C. NOS. 15CR481/1 and 15CR482
:
ANTHONY B. CLARK : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 30th day of December, 2016.
...........
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CHARLYN BOHLAND, Atty. Reg. No. 0088080, Assistant State Public Defender, 250
East Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Anthony Becton
Clark, filed December 9, 2015. Clark was convicted, in case No. 2015 CR 481,
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following a bench trial, on one count of escape, in violation of R.C. 2921.34(A)(1), a felony
of the second degree, and one count of vandalism (government property), in violation of
R.C. 2909.05(B)(2). Clark also entered a plea of guilty to one count of burglary, in
violation of R.C. 2911.12(A)(3), a felony of the third degree, in Case No. 2015 CR 482.
The court sentenced Clark to two mandatory years on the escape offense, to nine months
on the burglary offense, and to six months on the vandalism offense. The court ordered
that the nine month sentence for burglary be served consecutively to the two year
sentence for escape, and that the six month sentence for vandalism be served
concurrently to the nine month sentence and consecutively to the two year sentence, for
a total sentence of two years and nine months. Clark’s appeal is addressed to the merits
of his escape conviction only.
{¶ 2} The events giving rise to this matter began at Clark’s July 21, 2014
adjudication in juvenile court involving three cases, namely 2014-4362 (Count 1, robbery;
Count 2, burglary; Count 3, receiving stolen property); 2014-4803 (Count 1, burglary),
and 2014-3802 (Count 1, violation of probation). At the start of the adjudication, the
State advised the court that it was willing to withdraw its pending motion to relinquish
jurisdiction in case numbers 2014-4362 and 2014-4803, and dismiss case number 2014-
3802, in exchange for Clark’s admission of responsibility to the remaining offenses. The
following exchange occurred:
THE COURT: * * * And basically, what they are saying is that you
are going to admit that the charges are true in case number 2014-4362 and
2014-4803. One is a robbery charge, a felony of the second degree in the
adult system, * * *; count two - - that’s a felony of the second degree; count
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two is a burglary charge * * * again, the burglary charge in the adult system
and a felony of the second degree; and then finally, a receiving stolen
property involving a motor vehicle, a felony of the fourth degree in the adult
system. Now, do you understand those charges?
ANTHONY BECTON CLARK: Yes, sir.
***
THE COURT: * * * And, finally, you understand that with regard to
those three charges, they are all felonies. Therefore you could be
committed to the custody of the Department of Youth Services?
ANTHONY BECTON CLARK: Yes, sir.
THE COURT: For a minimum of two and-a-half years, maximum to
age 21. Do you understand that?
ANTHONY BECTON CLARK: Yes, sir.
THE COURT: * * * And then finally, there is a - - a separate charge
of burglary, a felony of the third degree in case number 4803, and it’s my
understanding that you are willing to admit that that is true, also, is that
correct?
ANTHONY BECTON CLARK: Yes, sir.
***
THE COURT: * * * And, again, that is a felony, could require you to
be committed to the Department of Youth Services on that particular charge,
a minimum of six months, maximum to age 21. But, all of those charges
could be added together. So that your minimum could be, in this case,
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three years.
ANTHONY BECTON CLARK: Yes, sir.
THE COURT: Maximum to age 21. Do you understand that?
ANTHONY BECTON CLARK: Yes, sir.
{¶ 3} At Clark’s disposition on August 6, 2014, the following exchange occurred:
THE COURT: * * * Both cases have been adjudicated and come
back before the Court today for disposition. The recommendation from
probation department and the formal review team is a recommendation for
termination of placement at the Nicholas Residential Treatment Center, and
I believe - - in 4362; and placement of Anthony at the Center for Adolescent
Services in both cases, that there be a suspended commitment on all the
charges to the Department of Youth Services. I think we have two felonies
of the second degree and a felony of the fourth degree in one case.
And the other case, we have a felony - - is that a felony three
burglary? All right. So that we would have suspended sentences to the
Department of Youth Services of one year on each of the felony two, six
months on the felony four, and six months on the felony three.
{¶ 4} After a lengthy discussion regarding restitution, the following exchange
occurred:
THE COURT: * * * You know, because we’re a little bit complicated
here, we talk a little bit about all the cases kind of grouped together and
what the Court’s disposition or sentence was going to be. It’s important
that you understand what that sentence means.
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First of all, on the one case where there are three counts, you get
sentenced to the Department of Youth Services for a minimum of twelve
month - - a minimum of eighteen months in a case, maximum to age 21.
Do you understand?
ANTHONY BECTON-CLARK: Yes, sir.
THE COURT: And that means that you - - your name goes to the
Department of Youth Services, your number goes to the Department of
Youth Services, but you don’t go. You stay here.
ANTHONY BECTON-CLARK: Yes, sir.
THE COURT: On the condition that you complete the programs and
the probation terms that the Court sets out. One of those would be that
you complete the program at the Center for Adolescent Services, and the
other complete your full probationary program.
You will be placed on probation for twelve months. If you violate
this, you come back here and you could go to the state institution. Do you
understand that?
ANTHONY BECTON-CLARK: Yes, sir.
THE COURT: And that’s similar for the other case. It’s a case
which the court could give you a commitment to the Department of Youth
Services. Is that an F2 or F3?
MS. XARHOULACOS: Three.
***
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THE COURT: F3. That carries a minimum of six months in the
institution, maximum to age 21. That sentence is suspended on the
condition that you also complete your probation of twelve months, as well
as your program at the Center for Adolescent Services. Do you
understand that?
ANTHONY BECTON-CLARK: Yes, sir.
{¶ 5} On July 22, 2014 a “Judge’s Order of Adjudication and Continuance” was
issued that provides in part that Clark “is a delinquent child as alleged in the complaint,
for Count 1, an act of robbery, contrary to Section 2911.02(A)(2) of the Ohio Revised
Code, a felony of the second degree; for Count 2, an act of burglary, contrary to section
2911.12(A)(2) of the Ohio Revised Code, a felony of the third degree; and Count 3, an
act of receiving stolen property, contrary to Section 2913.51(A) of the Ohio Revised Code,
a felony of the fourth degree.” The court continued the matter for investigation.
{¶ 6} The August 13, 2014 “Judge’s Order of Disposition” provides the following
finding by the court: “that the child is a delinquent by reason of having committed an act
which if committed by an adult would constitute a felony of the third degree * * *.” The
court ordered that “the child be and hereby is committed to the legal custody of the
Department of youth Services for institutionalization in a secured facility for a minimum
period of six months on each count for a total minimum period of 18 months, and a
maximum period not to exceed the child’s attainment of the age of twenty-one (21).” The
court suspended the commitment conditioned upon Clark’s compliance with the court’s
orders.
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{¶ 7} Thereafter, Clark escaped from CAS on November 3, 2014. On December
16, 2014 an “Amended Judge’s Order of Disposition” was issued. The order provides:
“This order is being amended to correct the felony degree of adjudicated charges.”
It further provides in part that Clark “is a delinquent by reason of having committed
acts which if committed by an adult would constitute a felonies [sic] of the second,
third and fourth degree, respectively, for Counts 1, 2, and 3 * * *.” The amended
order provides that Clark “is committed to the legal custody of the Department of Youth
Services for institutionalization in a secured facility for a minimum period of twelve (12)
months on Count 1, and six (6) months on each count for Counts 2 and 3, for a total
minimum period of twenty-four (24) months, and a maximum period not to exceed the
child’s attainment of the age of twenty-one (21).”
{¶ 8} On December 18, 2014 a hearing was held in juvenile court involving Clark
and two other juveniles on the State’s motion to relinquish jurisdiction based upon the
escape, as well as vandalism and burglary charges. At the start of the hearing, the
following exchange occurred:
MS. XARHOULACOS: * * * The State, under the escape charge,
the felony of the second degree, has to show that my client was in some
way detained, also for a felony in the second degree. The judge’s order of
disposition, when Anthony was sentenced on those original charges back
on August 6th, does not show an indication of the correct degree.
I was handed an amended order of disposition from December 16th
of this year, two days ago, where the Court has entered the felony of the
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second decree in the amended entry. My contention to the Court is that
my client’s entry at the time of the charges was not showing the correct level
of felony; therefore, the escape could not be a felony in the second degree.
***
MR. SAULINE: It’s the State’s intention today to submit the orders
of the three individuals that sent each of them to CAS, and request judicial
notice be taken of them. The order that defense counsel is referring to was
originally filed and scanned in. And it was only into the JCS system with
only one sheet. And as she indicated, it was incorrect in the way it stated
things. However, there was an adjudication entry that was filed just a week
prior to that, perhaps a little bit more than that, that indicated the correct
levels of the felonies. And as defense counsel was present for both of
those hearings, she’s the same counsel who represented him at the time.
She’s aware that he was adjudicated on the F2, F3 and F4. And as this
Court is aware, and it was merely a reconciling of those two, and
stenographer’s error that was changed in those entries.
MS. XARHOULACOS: And if I may, Your Honor. State’s counsel
will know that the Court speaks through its entries. That entry was
distributed to the Prosecutor’s Office. They had ample time to take care of
the matter and to amend it if necessary. What I’m stating to the Court is
that was not amended. Because the Court speaks through its entry at the
time that they are trying to take this charge, it was incorrect. They cannot
take the charge as a felony of the second degree. And just because they
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amend it after the fact doesn’t make it right.
{¶ 9} The court advised the parties that it would “take that matter under
advisement with regard to the nature of the charge of escape in that particular case.”
The prosecutor requested the court take judicial notice of the “certified copies of the
entries that sent these juveniles to CAS,” the court indicated that it “will take judicial notice
of its own orders,” and counsel for Clark objected to “the amended entry.” At the
conclusion of the hearing, counsel for Clark again argued that the escape charge “is
charged incorrectly. Again, because the Court speaks through its entries. And they
did not show that my client was detained at the CAS buildings for a felony of the first,
second or third degree. That * * * should not be put into evidence. And * * * we would
ask for that to be dismissed.” The court indicated that it found probable cause for Clark’s
offenses, and it referred the matter for probation reports and psychological evaluations.
Following an amenability hearing on February 9, 2015, the juvenile court transferred the
matter to the court of common pleas.
{¶ 10} On March 6, 2015, Clark was indicted on one count of burglary, and on
March 12, 2015, Clark was indicted on the escape and vandalism offenses. Clark’s
indictment provides in Count 1 that Clark, “knowing that he was under detention or being
reckless in that regard, did purposely break or attempt to break such detention, or
purposely fail to return to detention, while being detained for the charge of ROBBERY, in
violation of Section 2911.02 of the Revised Code, a felony of the second degree * * * .”
{¶ 11} On May 28, 2015, the court held a scheduling and pretrial conference.
The court indicated as follows:
* * * And we had the opportunity to talk in chambers about Mr.
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Clark’s cases. And there are some legal issues that we just need to drill
into a little bit deeper it seems to make sure that we’re getting it right in all
respects.
And it was my understanding, Mr. Dailey, that the game plan was
going to be that we were going to vacate the jury trial setting for Mr. Clark.
The State was going to order the transcript from the juvenile court
proceedings so we would get his plea as well as the sentencing transcripts
to have as much information as possible about what was said. And the
transcripts, as well as the termination entries and the related paperwork for
that, is going to be submitted to the Court. And once I know that we have
that, we’re going to set a briefing schedule to get clarity as to exactly what
felony level we ought to be dealing with on the escape charge and some
other issues that are kind of related to that.
{¶ 12} The court advised Clark of his right to a speedy trial on the escape and
vandalism charges, and Clark indicated that he was willing to waive that right. On
September 10, 2015, Clark signed a “Waiver of Jury,” and the bench trial commenced
after the court’s bailiff filed the waiver. The court indicated that the “bench trial is going
to proceed by way of, predominantly, stipulations as to documents that represent the
history of Mr. Clark’s proceeding in the juvenile court that gave rise to his detention in
CAS from which he left.” The court noted that “it’s largely a legal issue or it’s a combined
fact issue, legal issue. * * * The court has to sort through to determine whether or not Mr.
Clark was lawfully detained at CAS by the juvenile court pursuant to a lawful termination
entry by the juvenile court.” The court noted that “there’s no fact dispute to the fact that
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Mr. Clark engaged in behavior which would constitute an escape from CAS.” Defense
counsel stipulated to the vandalism charge, and the court indicated that “then the burglary
charge we would just have to take up in a different way at a different time.”
{¶ 13} The court noted that “there will be filed of record this listing of trial
stipulations that run from November 1 through November 15,” and that “the defendant is
stipulating to the authenticity of certain documents but has not necessarily stipulated as
to the admissibility of the documents.” Regarding the July 21, 2014 transcript of Clark’s
adjudication, defense counsel objected to its admission, and the following exchange
occurred:
MR. DAILEY: Your Honor, I do stipulate to that but we do object.
My argument is just because courts speak through their entries and I don’t
believe there’s any relevance while looking at the void entries that this
transcript would play in the case.
THE COURT: Well, it’s my understanding of the law that if a Court
does something correctly, a sentencing hearing, but then the termination
entry has clerical errors in it that then the clerical errors can be corrected
via a nunc pro tunc entry. And so the transcript of proceedings would have
relevance in helping the Court make the determination as to whether or not
there are discrepancies between what Mr. Clark was advised at any sort of
disposition or sentencing type hearings and how the termination entries
read in comparison to that. Because if he was misadvised of something
and then the termination entry embeds that wrong information that’s one
scenario that has one legal conclusion attached to it. If he was told the
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correct thing but then the sentencing entry gets something wrong that’s a
different legal conclusion because that might not, in all circumstances, but
it might be capable of correction via a nunc pro tunc entry.
So the transcripts, from the Court’s perspective because of that, are
indeed relevant because it’s part of the picture that I have to look at to
determine did something get said or done incorrectly and when did it get
said or done incorrectly.
So the Court would overrule that objection and we would admit that
transcript of proceedings.
{¶ 14} Regarding the July 22, 2014 order of adjudication and continuance, the
court admitted the document over defense counsel’s objection. The court admitted the
transcript of the August 6, 2014 dispositional hearing over defense counsel’s objection.
Regarding the August 13, 2014 dispositional order, defense counsel asserted that the
order “is void * * * and should not be part of the evidence.” The court responded, “I don’t
know how I could determine that without ever seeing it” and admitted the entry. Over
objection, the court admitted the juvenile court’s order discharging Clark to CAS on
August 7, 2014, as well as the August 13, 2014 order of disposition. The parties
stipulated to the fact that CAS is “a co-educational secure residential
correctional/treatment facility.”
{¶ 15} The court admitted, also over objection, the December 16, 2014 amended
order of disposition, noting that “this is the nunc pro tunc order that attempted to correct
deficiencies in the prior disposition order and that nunc pro tunc was placed of record
after the escape occurred; is that correct?” Defense counsel responded affirmatively and
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indicated “that’s the additional objection I have including the rest.” The parties stipulated
that “the amended judge’s order of disposition was filed in relation to the same disposition
hearing held on August 6th of 2014 regarding the adjudication hearing on July 21st of
2014.” The parties stipulated that “there has been no appeal taken by the State due to
the errors in the judge’s order of disposition,” and that Clark “was housed at CAS on or
about November 3rd of 2014,” which is in Montgomery County. The parties further
stipulated that on or about November 3, 2014, Clark “did purposely break his detention at
CAS without permission.” Defense counsel indicated that Clark had no evidence to
present and moved the court for an acquittal, and the court overruled the motion. The
court requested that the parties file post-trial briefs.
{¶ 16} The State’s “Post Trial Memorandum” was filed on October 2, 2015. The
State noted that the August 13, 2014 order of disposition “fails to correctly reflect the
charges and also left out one of the counts in 14-4362.” The State noted that the
amended order of December 16, 2014 “is also not in line with the sentencing hearing on
August 6, 2014,” since at the hearing it was clear “that on 14-4362 the defendant was
being sentenced on two second degree felonies and a fourth degree felony and that his
aggregate alternative sentence was 18 months to age 21 at DYS.” The State noted that
the “amended sentencing entry also changed the alternative sentence from 18 to 24
months,” and that the “sentencing hearing did not address whether the sentences for the
two case numbers would be concurrent or consecutive.”
{¶ 17} The State asserted that although “the disposition entries are not an accurate
reflection of what occurred at the dispositional hearing, this is not a defense to Escape,”
pursuant to R.C. 2921.34(B), which provides: “Irregularity in bringing about or maintaining
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detention * * * is not a defense to a charge under this section if the detention is pursuant
to judicial order or in a detention facility.” The State asserted as follows:
* * * Here, the Judge properly advised the defendant on the record
at the adjudication hearing and disposition hearing that he was before the
court for felonies of the second degree. More importantly, at the time of
disposition which resulted in his being discharged to CAS the defendant
was advised that he was being sent to CAS for felonies of the second, third
and fourth degrees. The defendant should not incur a windfall because of
clerical errors in the dispositional entries. The defendant at the time of
disposition was confined to CAS for, among other charges, Robbery, a
felony of the second degree.
{¶ 18} The State argued that “whether the nunc pro tunc entry is valid is not a
critical issue because of the plain language of the statute. However, assuming that the
court finds the irregularity of the original disposition entry to be an issue, the nunc pro
tunc did properly state that the defendant was being sent to CAS for a second degree
felony.” The State argued as follows:
The Ohio Supreme Court has recently held, in State ex rel. DeWine
v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-235, that Crim.R. 32(C) errors are
clerical in nature, and they are subject to correction at any time under
Crim.R. 36. Id. at ¶ 17-19. Because stating an incorrect felony level in
the judgment entry is a technical violation, not a violation of a statutorily
mandated term, it does not render the judgment a nullity. Id. at ¶ 19.
Instead, the failure to comply with Crim.R. 32(C) is “a mere oversight” and
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the trial court is vested with “specific, limited jurisdiction” to issue a new
sentencing entry to reflect the action actually taken. Id. Referring to one
of the judgment entries of conviction in that case, the Court explained that
correcting the error in the entry with a nunc pro tunc entry is logical because
the trial court and the parties had all proceeded under the presumption that
it constituted a final, appealable order. Id. See also State v. Ford, 2014-
Ohio-1859, Mont. App. No. 25796 (holding that error in felony level can be
remedied with nunc pro tunc entry to accurately reflect what happened on
the record)[.]
A nunc pro tunc sentencing entry that corrects an error in the original
entry relates back to that original sentencing entry. State ex rel. Womack
v. Marsh, 128 Ohio St. 3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 15.
Once issued, it has the same legal force and effect as if it had been issued
at an earlier time, when it ought to have been issued. State v. Greulich
(1988), 61 Ohio App. 3d 22, 24, 572 N.E.2d 132. Thus a nunc pro tunc
entry will “fix”[] the technical error of omission in the original sentencing
entry by making the record reflect that which was obvious from the record,
that defendant had been adjudicated delinquent by reason of committing
second, third and fourth degree felonies.
{¶ 19} Clark’s post-trial memorandum was filed on October 5, 2015. He asserted
that at the August 6, 2014 dispositional hearing, the “sentence given was less than the
statutorily mandated minimum Anthony was facing at the adjudication hearing held
on July 21, 2014.” Clark noted that in the August 13, 2014 order of disposition, there
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“was no mention of any felonies of the second degree, or any felony of the fourth degree.”
{¶ 20} Clark argued that the State failed to prove that he was being detained on a
second degree felony robbery charge when he escaped. Clark argued that the
“sentence in the underlying case was confusing, unclear, and inconsistent throughout.
Looking at the whole process, the State did not prove beyond a reasonable doubt that
Anthony was being detained on the Robbery charge.” He argued that the “apparent
suspended sentence [imposed at disposition] did not meet the minimum statutorily
mandated requirements for the charges (minimum of 2.5 years)” pursuant to R.C.
2152.16. Clark asserted that “the only level of charge mentioned [in the August 13, 2014
order of disposition] was a ‘felony of the third degree,’ ’’ and that “this Order added a
specific sentence for each count, which was not stated on the record. It changed the
levels of the charges, which was contrary to the adjudication hearing (but, maybe
consistent with the Judge’s intent).” Finally, Clark asserted that the amended entry “only
increased the confusion on what sentence Anthony was given.” Clark asserted as
follows:
The errors within this Order included: the levels of charges still were
not consistent with the adjudication hearing or the disposition hearing, it
included the specific sentencing for each count which never happened at
the disposition hearing, and it still included a felony of the 3rd degree which
never had existed. The most confusing error was it upped the sentence to
a minimum of 24 months, however, this change is very important in the
current case. They needed to change the sentence to a minimum of 24
months to follow the statutory mandated requirements of R.C. 2152.61 (1
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year on the F2 + 6 months on the F3 + 6 months of the F4 = 24 months).
They attempted to do this through a nunc pro tunc entry! Again, this
sentence is not consistent with what was on the record, there were never
any F3s, and the minimum statutory mandated sentence was supposed to
be 2.5 years.
Did the judge fail to sentence at the disposition hearing on both F2s?
Did he sentence on the F2 – Robbery, as required in the indictment, or the
F2 – Burglary, which the Grand Jury never decided on when they indicted
the Escape, and then forgot to sentence on the other F2? Did he
mistakenly, or purposely, change the levels of the charges to F3s when
sentencing Anthony? Was he looking at the wrong case or charges?
Which charge(s) was Anthony sent to CAS on? It is not clear on the record
what happened with the sentence, or which charges sent Anthony to CAS.
There are too many questions that cannot be answered to prove this case
beyond a reasonable doubt. Therefore, the Defendant requests a Not
Guilty on the Escape charge.
{¶ 21} Clark argued that the “sentence in the underlying case has numerous
errors, and should be found to be void and invalid.” Clark directed the court’s attention
in part to State v. Billiter, 134 Ohio St. 3d 103, 2012-Ohio-5144, 980 N.E.2d 960, and he
argued that since the sentence imposed is not authorized by law, the sentence is void.
Clark argued that “where a sentence is void because it does not contain a statutorily
mandated term, the proper remedy is to resentence the defendant. Everything that
occurs after the sentence is also a nullity until a valid sentencing occurs.” Clark asserted
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that he “still has never been sentenced to the statutorily mandated sentence, which was
the minimum of 2.5 years, with a maximum of age 21.” Clark argued that “the Court was
required to provide [him] with a new sentencing hearing. That did not occur, and as we
stand here today, the sentence remains a nullity until a valid sentencing occurs.”
{¶ 22} Clark argued that the trial court lacked jurisdiction to convict him of the
escape. Again citing Billiter, Clark asserted that void “sentences can be collaterally
attacked at anytime [sic], including during a later charge of escape based on that void
sentence. When an escape charge is based on an invalid sentence, a trial court is
without jurisdiction to convict that person of the escape.” Citing R.C. 2921.34(B), Clark
argued that “this is not an irregularity or a lack of jurisdiction. The Juvenile Court had
jurisdiction to impose sentence on Anthony, however, the sentence was Constitutionally
infirm under the Due Process Clause, and was therefore void. With the void sentence
on the underlying charge, it is the current Court, according to Billiter, that cannot convict
Anthony.”
{¶ 23} Finally, Clark argued that the errors in the amended order of disposition
“could not be cured by a nunc pro tunc entry because the sentence was not clear
and apparent on the record. Therefore, this Order was also void.” Clark argued that
a “nunc pro tunc entry is inappropriate when it reflects a substantive change in the
judgment. When a court exceeds its power in entering a nunc pro tunc order, the
resulting nunc pro tunc order is invalid.” According to Clark, the “failure to impose a
statutorily mandated sentence has been held to be more than administrative or clerical
error, because it is an act that lacks both statutory and constitutional authority.” Clark
directed the court’s attention to City of Mayfield Heights v. Barry, 8th Dist. Cuyahoga No.
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99361, 2013-Ohio-3534, and State v. Williams, 7th Dist. Mahoning No. 11 MA 131, 2012-
Ohio-6277, noting that “an order that changes the length of a defendant’s sentence
substantively modifies the sentence.” Clark argued that a “new sentencing hearing is
what was required, and that did not occur. The failure to impose a statutorily mandated
sentence is more than an administrative or clerical error, as it lacks both statutory and
constitutional authority.”
{¶ 24} On October 13, 2015, the trial court issued a “Verdict and Finding of Guilt
on Counts One and Two.” The entry provides in part as follows:
The court finds that Defendant’s detention was pursuant to a judicial
order and/or in a detention facility. Although the orders of disposition may
contain errors regarding the statement of charges and/or associated
minimum term of Department of Youth Services commitment, each
disposition entry placed Defendant at the Center for Adolescent Services
(CAS), from which Defendant escaped and harmed property. Lack of
jurisdiction by the detaining authority (CAS) is not a defense given the
juvenile court’s order that Defendant be placed at CAS.
{¶ 25} On October 15, 2015, Clark pled guilty to burglary. On November 5, 2015,
Clark filed an “Objection to Possible Finding of Mandatory Prison Sentence.” Clark cited
this Court’s decision in State v. Hand, 2d Dist. Montgomery No. 25840, 2014-Ohio-3838
(Donovan, J. dissenting), noting that the matter was currently pending in the Ohio
Supreme Court.
{¶ 26} The court imposed sentence on November 5, 2015. The court indicated in
part as follows:
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The defense did file and the Court has reviewed, this morning, a
memorandum regarding sentencing for Mr. Clark arguing that by virtue of
his juvenile status that the underlying charge should not serve as an
enhancement to turn the present second degree felony into a mandatory
time charge. And the record should reflect that those arguments are
lodged with the [C]ourt. The Court did consider them. And the Court is
not going to accept those arguments and is going to proceed with
sentencing under the analysis that the escape, while detained on a second
degree felony, is a felony of the second degree that presents a mandatory
sentence scenario.
{¶ 27} We note that Clark’s November 13, 2015 Judgment Entry of Conviction in
case number 2015 CR 0481 provides incorrectly that Clark pled guilty to escape and
vandalism.
{¶ 28} On November 12, 2015, Clark filed a “Motion to Stay Execution of
Sentence” pending “the outcome of his motion to reconsider and/or vacate plea.” On the
same day, Clark filed a second “Motion to Stay Execution of Sentence” pending “the
outcome of his appeal.” On November 18, 2015, the trial court issued a “Decision, Order
and Entry Denying Defendant’s Motion to Stay Execution of Sentence.”
{¶ 29} Clark asserts two assignments of error herein. His first assigned error is
as follows:
THE TRIAL COURT VIOLATED ANTHONY CLARK’S RIGHT TO
DUE PROCESS OF LAW WHEN IT CONVICTED HIM OF ESCAPE, A
SECOND-DEGREE FELONY, IN THE ABSENCE OF SUFFICIENT
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EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE U. S. CONSTITUTION; AND, CRIM.R. 29(A). * * *
{¶ 30} Clark asserts that “the State failed to prove beyond a reasonable doubt that
Anthony was being held on a second-degree felony. R.C. 2921.34(C)(2)(a). In the light
most favorable to the prosecution, the State only proved that Anthony was being held on
a third-degree felony.” According to Clark, “the juvenile court’s orders do not clearly
demonstrate that Anthony was being held for a second-degree felony.” Clark asserts that
the “felony level associated with each offense is unclear throughout the juvenile court
proceedings. The disposition hearing transcript and the disposition entry reflects that the
judge did not commit Anthony to CAS on a second-degree felony.” Instead, Clark
argues, “at the hearing, [the] judge imposed suspended DYS commitments consistent
with third-, fourth-, or fifth-degree felonies, and the journalized entry reflects the judge’s
intentions.” Clark asserted that “the juvenile court could not issue the amended entry to
act as a nunc pro tunc entry, because there were no errors to be fixed.”
{¶ 31} Clark asserts courts speak through their journal entries, and that “although
the juvenile court’s amended entry noted that ‘[t]his order is being amended to correct the
felony degree of adjudicated charges,’ the amended entry changed Anthony’s disposition
and did not reflect what the juvenile court stated during open court at the disposition
hearing.” According to Clark, the “amended entry cannot satisfy the elements of the
underlying felony level because it is a void entry.” Clark asserts that “[a]t most, the State
proved that Anthony was held on a third-degree felony, because that is how the juvenile
court sentenced Anthony and that is what is reflected in the juvenile court’s entry.” Clark
argues that “this Court should reverse the court’s decision for lack of sufficient evidence
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and vacate Anthony’s conviction for second-degree felony escape.”
{¶ 32} The State responds that it is “undisputed that Clark was adjudicated
delinquent for having committed three offenses, the most serious of which – robbery
under R.C. 2911.02(A)(2) – would be a felony of the second degree if committed by an
adult.” The State further asserts that it “is also undisputed that at the August 6, 2014
dispositional hearing, the juvenile court committed Clark to CAS as a condition of his
probation following his adjudication for, among other charges, second-degree felony
robbery.” The State asserts as follows:
The only confusion arises in the juvenile court’s Order of Disposition,
which incorrectly states that Clark was adjudicated delinquent for having
committed only one act that, if committed by an adult, would have been a
felony of the third degree. * * * But errors in the juvenile court’s Order of
Disposition have no relevance to determining the only question that matters
in this case: When Clark escaped from CAS, was he being detained for an
act that would be a felony of the second degree if committed by an adult?
{¶ 33} The State argues that each element of escape was proven beyond a
reasonable doubt, and that “Clark nevertheless ignores what actually occurred at his
adjudication and disposition and focuses instead exclusively on what was stated in the
juvenile court’s August 13, 2014 Order of Disposition – an Order the State agrees does
not properly reflect Clark’s true adjudication or disposition.” According to the State, “the
contents of the Order of Disposition is of no consequence because all that really matters
is that Clark was at CAS because he was adjudicated to be a delinquent child for having
committed an offense that would be a second-degree felony if committed by an adult.”
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The State asserts that “it is Clark’s adjudication – not his disposition – that determines the
felony level of his escape charge.” Finally, the State asserts that “the trial court correctly
found as part of its verdict that Clark was guilty of escape because the errors in the Order
of Disposition did not change the fact that Clark’s detention at CAS was pursuant to a
judicial order and that CAS is a detention facility.”
{¶ 34} As this Court has previously noted:
“A sufficiency of the evidence argument disputes whether the State
has presented adequate evidence on each element of the offense to allow
the case to go to the jury or sustain the verdict as a matter of law.” State v.
Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, at ¶ 10, citing
State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997). When
reviewing whether the State has presented sufficient evidence to support a
conviction, “the relevant inquiry is whether any rational finder of fact, after
viewing the evidence in a light most favorable to the State, could have found
the essential elements of the crime proven beyond a reasonable doubt.”
State v. Dennis, 79 Ohio St. 3d 421, 430, 683 N.E.2d 1096 (1997), citing
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979). A guilty verdict will not be disturbed on appeal unless “reasonable
minds could not reach the conclusion reached by the trier-of-fact.” Id.
State v. Quinn, 2016-Ohio-139, 57 N.E.3d 379, ¶ 50 (2d Dist.).
{¶ 35} R.C. 2921.34(A)(1) provides in part: “No person, knowing the person is
under detention, other than supervised release detention, or being reckless in that regard,
shall purposely break or attempt to break the detention * * *.” R.C. 2921.34(C)(2) provides
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that if the offender violates division (A)(1) of this section, escape is: “(a) A felony of the
second degree, * * * if the person was under detention as an alleged or adjudicated
delinquent child, when the most serious act for which the person was under detention
would be aggravated murder, murder, or a felony of the first or second degree if
committed by an adult.” R.C. 2921.34(B) provides: “Irregularity in bringing about or
maintaining detention, or lack of jurisdiction of the committing or detaining authority, is not
a defense to a charge under this section if the detention is pursuant to judicial order or in
a detention facility. * * *.”
{¶ 36} R.C. 2152.16(A)(1)(d) provides that for a child who has been adjudicated
delinquent of an offense that would be a felony of the first or second degree if committed
by an adult, the juvenile court may sentence the child “for an indefinite term consisting of
a minimum period of one year and a maximum period not to exceed the child’s attainment
of twenty-one years of age.” R.C. 2152.16(A)(1)(e) provides that for an offense that
would be a felony of the third, fourth, or fifth degree if committed by an adult, the juvenile
court may sentence the child “for an indefinite term consisting of a minimum period of six
months and a maximum period not to exceed the child’s attainment of twenty-one years
of age.”
{¶ 37} “It is well established that a court speaks through its journal entries.” State
v. Hottenstein, 2015-Ohio-4787, 43 N.E.3d 463, ¶15 (2d Dist.). Crim.R. 32(C) provides
that a “judgment of conviction shall set forth the fact of conviction and the sentence.”
Crim.R. 36 provides that “[c]lerical 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.” As this Court has previously noted:
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* * * It is well settled that a nunc pro tunc entry can be used only to
reflect what a court actually decided, not what it might have decided or
should have decided. State v. Miller, 127 Ohio St. 3d 407, 2010-Ohio-
5705, 940 N.E.2d 924, ¶ 15. Stated differently, a nunc pro tunc entry may
be used to “reflect what the trial court did decide but recorded improperly.”
Id. An improper nunc pro tunc entry is void. Plymouth Park Tax Services
v. Papa, 6th Dist. Lucas No. L-08-1277, 2009-Ohio-3224, ¶ 18, citing Natl.
Life Inc. Co. v. Kohn, 133 Ohio St. 111, 11 N.E.2d 1020 (1937), paragraph
three of the syllabus.
State v. McIntyre, 2d Dist. Montgomery No. 25502, 2013-Ohio-3281, ¶ 5.
{¶ 38} At the start of the disposition hearing, the court indicated that pursuant to
the recommendation of the probation department and the formal review team, “we would
have suspended sentences to the Department of Youth Services of one year on each of
the felony two, six months on the felony four, and six months on the felony three.” At the
conclusion of the hearing, however, the court indicated that “on the one case where there
are three counts, you get sentenced to the Department of Youth Services for a minimum
of twelve month - - a minimum of eighteen months in a case, maximum to age 21,” and
further indicated that the felony-three burglary “carries a minimum of six months in the
institution, maximum to age 21.” The disposition order provides that Clark committed an
act which if committed by an adult would constitute a felony of the third degree, and it
imposed a total suspended sentence of 18 months, six months on each count. The
amended order provides that its purpose is “to correct the felony degree of adjudicated
charges,” but then the order alters Clark’s total sentence to “a minimum of twelve (12)
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months on Count 1, and six (6) months on each count for Counts 2 and 3, for a total
minimum period of twenty-four (24) months * * *.”
{¶ 39} We conclude that the amended disposition entry is void, since it does not
reflect what occurred at Clark’s disposition, namely that he received a total sentence of
18 months. After viewing the evidence most strongly in favor of the State, however, at
the time of Clark’s escape, the original order of disposition established that Clark was
placed at CAS for “an act which if committed by an adult would constitute a felony of the
third degree.” No appeal was taken from this original order. It is undisputed that Clark
escaped while this original order was in place. Accordingly, there is sufficient evidence
to convict Clark of the lesser level of escape as a felony of the third degree which does
not carry mandatory time. Clark’s first assigned error is sustained in part and overruled
in part.
{¶ 40} Clark’s second assignment of error is follows:
THE TRIAL COURT ERRED WHEN IT USED ANTHONY’S PRIOR
JUVENILE ADJUDICATION AS AN ENHANCEMENT FOR A
MANDATORY PRISON TERM IN COMMON PLEAS COURT, IN
VIOLATION OF HIS RIGHT TO DUE PROCESS AS GURANTEED BY THE
FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND
ARTICLE 1, SECTION 16, OHIO CONSTITUTION. * * *
{¶ 41} R.C. 2929.13(F)(6) provides that “the court shall impose a mandatory prison
term” for a felony of the first or second degree “if the offender previously was convicted
of or pleaded guilty to * * * any first or second degree felony.” R.C. 2901.08 provides:
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If a person is alleged to have committed an offense and if the person
previously has been adjudicated a delinquent child or juvenile traffic
offender for a violation of a law or ordinance, * * * the adjudication as a
delinquent child or as a juvenile traffic offender is a conviction for a violation
of the law or ordinance for purposes of determining the offense with which
the person should be charged and, if the person is convicted of or pleads
guilty to an offense, the sentence to be imposed upon the person relative to
the conviction or guilty plea.
{¶ 42} We note that in State v. Hand, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-
5504, ¶ 37, the Ohio Supreme Court determined that R.C. 2901.08(A) is unconstitutional
“because it is fundamentally unfair to treat a juvenile adjudication as a previous conviction
that enhances either the degree of or the sentence for a subsequent offense committed
as an adult.” Finally, since Clark’s sentence is reversed and vacated, and since he is
subject to resentencing for a felony of the third degree, he is not subject to a mandatory
sentence, rendering this assignment of error moot.
{¶ 43} Clark’s sentence for escape is reversed and vacated, and the matter is
remanded for resentencing on that offense. The judgment of the trial court is affirmed in
all other respects.
..........
HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Andrew T. French
Charlyn Bohland
Hon. Mary L. Wiseman