State v. Bryan , 2019 Ohio 2980 ( 2019 )

[Cite as State v. Bryan, 2019-Ohio-2980.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. CT2018-0058
KEVIN J. BRYAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2018-0318
JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded
DATE OF JUDGMENT ENTRY: July 22, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
NO APPEARANCE JAMES A. ANZELMO
ANZELMO LAW
446 Howland Drive
Gahanna, Ohio 43230
Muskingum County, Case No. CT2018-0058 2
Wise, John, P. J.
{¶1} Appellant Kevin Bryan appeals his conviction on two weapons counts in the
Court of Common Pleas, Muskingum County. Appellee is the State of Ohio. The relevant
procedural facts leading to this appeal are as follows.
{¶2} On or about December 14, 2017, appellant’s parole officer asked the
Muskingum County Sheriff’s Office to check into appellant’s failure to maintain contact
with the Adult Parole Authority. Sheriff deputies went to an address in Zanesville, Ohio,
and spoke with appellant’s girlfriend. They subsequently discovered a .22 caliber
handgun on the premises, which appellant ultimately admitted was his. See Plea Hearing
Tr. at 10-11.
{¶3} On May 23, 2018, appellant was indicted on one count of having a weapon
while under a disability (R.C. 2923.13(A)(3)), a third-degree felony, and possession of a
defaced weapon (R.C. 2923.201(A)(2)), a first-degree misdemeanor.
{¶4} On August 10, 2018, appellant appeared with counsel before the court for
a plea hearing. The defense and prosecution jointly recommended a two-year prison
sentence and forfeiture of the handgun. See Plea Hearing Tr. at 3. Appellant entered
pleas of guilty to both charges.
{¶5} A sentencing hearing was conducted on August 13, 2018. Via a judgment
entry issued on August 14, 2018, appellant was sentenced to two years in prison on Count
I, and six months of local incarceration on Count II, to be served concurrently.
{¶6} In addition, the court concluded that appellant had violated the post-release
control that he had been serving under Muskingum County case number CR2012-0053.
The court therefore terminated that post-release control and ordered appellant to
Muskingum County, Case No. CT2018-0058 3
consecutively serve in prison the remaining post-release control time, which the court had
calculated at the sentencing hearing to be 1,124 days. See Sentencing Tr. at 8. However,
the sentencing entry did not restate the 1,124 figure or state a specific amount of prison
time for the post-release control violation from CR2012-0053. See Judgment Entry, Aug.
14, 2018, at 1-2. The entry merely stated that the court “imposes the remainder of time
left on Post Release Control be served in prison.” Id. at 2.
{¶7} The court also ordered appellant to pay court costs. Judgment Entry, Aug.
14, 2018, at 2. When the court costs ruling was announced on the record (Sentencing Tr.
at 8), appellant’s trial counsel did not object even though appellant had received
appointed counsel on June 11, 2018 due to his indigence.
{¶8} On September 7, 2018, appellant filed a notice of appeal. He herein raises
the following two Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED BRYAN, IN
VIOLATION OF HER [SIC] DUE PROCESS RIGHTS UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION.
{¶10} “II. BRYAN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
I.
{¶11} In his First Assignment of Error, appellant argues the trial court erred and
violated his rights to due process under the United States and Ohio Constitutions when it
Muskingum County, Case No. CT2018-0058 4
sentenced him, via the judgment entry of August 14, 2018, for violating his post-release
control from a prior case.
{¶12} The United States Supreme Court has stated that an accused is guaranteed
the right to be present at all stages of criminal proceedings that are critical to its outcome
when his or her absence may frustrate the fairness of the proceedings. See Kentucky v.
Stincer (1987), 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631. See, also, Crim.R.
43(A). Similarly, “[a] defendant is entitled to know his sentence at the sentencing hearing.”
State v. Santiago, 8th Dist. Cuyahoga No. 101640, 2015-Ohio-1824, ¶ 19. Thus,
sentencing terms in a judgment entry must match those announced in open court in the
defendant's presence. State v. Sullivan, 1st Dist. Hamilton No. C-150091, 2015-Ohio-
4845, ¶ 6, citing State v. Carpenter, 1st Dist. Hamilton No. C–950889, 1996 WL 577854.
{¶13} Under R.C. 2929.141(A)(1), when a defendant who is on post-release
control is convicted of or pleads guilty to a new felony, the trial court may terminate the
post-release control term and convert it into additional prison time, a penalty often referred
to as a “judicial sanction.” See State v. Bishop, 156 Ohio St. 3d 156, --- N.E.3d ---, 2018-
Ohio-5132, ¶ 13. In the case sub judice, appellant emphasizes that even though the trial
court orally ordered a specific judicial sanction of 1,124 days, consecutive, for his prior-
case post-release control violation, on top of the two-year sentence for his present
offenses, the number of days was not repeated in the written sentencing entry. But we
thus observe that the written sentencing entry did not add a new sanction vis-à-vis what
was pronounced orally, it merely left out an important numerical detail.
{¶14} A trial court has jurisdiction to correct clerical errors in its judgments. See
State ex rel. Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006–Ohio–5795, 856 N.E.2d 263,
Muskingum County, Case No. CT2018-0058 5
¶ 19, citing Crim.R. 36. A nunc pro tunc order can be used to supply information which
existed but was not recorded, and to correct typographical or clerical errors. See Jacks v.
Adamson (1897), 56 Ohio St. 397, 47 N.E. 48. Nunc pro tunc entries are limited in proper
use to reflecting what the court actually decided, not what the court might or should have
decided or what the court intended to decide. State v. Swogger, 5th Dist. Stark No. 2007
CA 00208, 2008-Ohio-2536, ¶ 12, quoting State ex rel. Fogle v. Steiner (1995), 74 Ohio
St.3d 158, 164, 656 N.E.2d 1288 (internal quotations omitted).
{¶15} Under the circumstances presented, we find the proper remedy in this
appeal is to remand the matter to the trial court to issue a nunc pro tunc sentencing entry
in accordance with law. Appellant’s First Assignment of Error is sustained to that extent.
II.
{¶16} In his Second Assignment of Error, appellant argues he received ineffective
assistance of trial counsel because his defense attorney did not request a waiver of court
costs. We disagree.
{¶17} This Court rejected such an argument in State v. Davis, 5th Dist. Licking
No. 17-CA-55, 2017-Ohio-9445. We have continued to follow our Davis holding in this
regard, most recently in State v. Ross, 5th Dist. Muskingum No. CT2018-0047, 2019-
Ohio-2472, ¶ 60. The present issue remains pending before the Ohio Supreme Court on
a certified conflict between Davis, supra, and State v. Springer, 8th Dist. Cuyahoga No.
104649, 2017-Ohio-8861.
{¶18} In State v. Ramsey, 5th Dist. Licking No. 17-CA-76, 2018-Ohio-2365, we
held that unless an Ohio Supreme Court decision is rendered on this issue to the contrary
in the future, we would continue to abide by our decision in Davis. Ramsey at ¶ 46.
Muskingum County, Case No. CT2018-0058 6
{¶19} Accordingly, we herein hold appellant was not deprived of the effective
assistance of trial counsel in violation of his rights under the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, § 10 of the Ohio Constitution.
{¶20} Appellant’s Second Assignment of Error is overruled.
{¶21} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Muskingum County, Ohio, is hereby affirmed in part, reversed in part,
and remanded.
By: Wise, John, P. J.
Baldwin, J., and
Wise, Earle, J., concur.
JWW/d 0703