State v. Bradley

[Cite as State v. Bradley, 2013-Ohio-5032.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99673
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALBERT J. BRADLEY
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-559416
BEFORE: Celebrezze, P.J., Keough, J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 14, 2013
ATTORNEY FOR APPELLANT
Adam M. Van Ho
Burdon and Merlitti
137 South Main Street
Suite 201
Akron, Ohio 44308
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, Albert J. Bradley, brings the instant appeal from his conviction for
domestic violence. He claims that trial counsel was constitutionally ineffective,
requiring this court to vacate his conviction and remand for a new trial. This court,
however, lacks jurisdiction over the present appeal, and therefore, it must be dismissed.
I. Factual and Procedural History
{¶2} Appellant was indicted on two counts of felonious assault and one count of
domestic violence stemming from a fight with his brother, Ronald Bradley, on February
1, 2012. The counts of felonious assault were tried to a jury, while appellant elected to
have the count of domestic violence tried to the judge. The jury found appellant not
guilty of both counts of felonious assault, but the trial court found appellant guilty of
violating R.C. 2919.25(A), domestic violence, a fourth-degree felony. Appellant was
sentenced to time served for this conviction.
{¶3} At the sentencing hearing on October 5, 2012, the trial court explained to
appellant that he had the right to appeal, but did not inform appellant, who was found to
be indigent by the trial court, about his right to have counsel appointed if he could not
afford an attorney and did not inform appellant that he had the right to a transcript at the
state’s expense. Therefore, the trial court did not comply with Crim.R. 32(B). Three
weeks after the date of sentencing, the trial court appointed appellate counsel. Then, on
March 6, 2013, the trial court entered a nunc pro tunc entry modifying the October 5,
2012 order only to add “Court assigns attorney Adam Van Ho for appeal.” Appellant
then filed a notice of appeal on March 20, 2013.
II. Law and Analysis
{¶4} In the present appeal, appellant claims trial counsel was ineffective.
However, this court does not have jurisdiction to determine the issues raised.
{¶5} The trial court’s March 6, 2013 nunc pro tunc entry improperly attempts to
correct the court’s failure to comply with Crim.R. 32(B)(3) regarding appellate rights.
Those rights were not properly addressed at the October 5, 2012 sentencing hearing.
Therefore, a nunc pro tunc entry cannot be used to correct that error. See State v.
Melton, 8th Dist. Cuyahoga No. 93299, 2010-Ohio-4476, ¶ 21. The use of a nunc pro
tunc order is limited to correcting clerical mistakes in an entry so that it may properly
reflect what actually took place. State v. McIntyre, 2d Dist. Montgomery No. 25502,
2013-Ohio-3281, ¶ 5 (“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”). As a result, the nunc pro tunc order is void. Id.{¶6} Further, “a nunc pro tunc entry cannot operate to extend the period within
which an appeal may be prosecuted, especially where the appeal grows out of the original
order rather than the nunc pro tunc entry.” State v. Shinkle, 27 Ohio App.3d 54, 56, 499
N.E.2d 402 (12th Dist.1986).
{¶7} This appeal from the October 5, 2012 entry of sentence is untimely and must
be dismissed for lack of jurisdiction. Cleveland v. Zakaib, 8th Dist. Cuyahoga Nos.
76928, 76929, and 76930, 2000 Ohio App. LEXIS 4756 (Oct. 12, 2000); App.R. 4(A).
Seeking leave to file a delayed appeal is the proper remedy. See App.R. 5.
{¶8} Accordingly, the appeal is dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
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
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR