State v. Stevens

[Cite as State v. Stevens, 2015-Ohio-4009.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27366
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CORY J. STEVENS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 12 08 2481
DECISION AND JOURNAL ENTRY
Dated: September 30, 2015
HENSAL, Presiding Judge.
{¶1} Cory Stevens appeals from the judgment entry of the Summit County Court of
Common Pleas denying his motion to vacate a void sentence. For reasons set forth below, we
affirm.
I.
{¶2} On March 25, 2013, Mr. Stevens pleaded guilty to one count of rape in violation
of Revised Code Section 2907.02(A)(1)(b). The trial court sentenced him to life imprisonment
with the possibility of parole after ten years and issued a sentencing entry on April 17, 2013. In
the sentencing entry, the trial court wrote that the ten years was “not a mandatory term.”
{¶3} Mr. Stevens moved to withdraw his guilty plea on May 21, 2013. While that
motion remained pending, the trial court issued a nunc pro tunc on June 4, 2013, which corrected
the April 17, 2013 entry to indicate that the ten years prior to parole eligibility was a mandatory
term. The trial court denied Mr. Stevens’ motion to withdraw his plea on November 13, 2013.
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Mr. Stevens subsequently moved to vacate a void sentence, arguing that the nunc pro tunc entry
improperly resentenced him without his presence in the courtroom. The trial court denied his
motion, and Mr. Stevens has appealed, raising two assignments of error for our review. For ease
of discussion, we have rearranged his assignments of error.
II.
ASSIGNMENT OF ERROR II
THE COURT ABUSED ITS DISCR[E]TION WHEN IT DENIED
APPELLANT’S MOTION [TO] VACATE VOID SENTENCE AND FOR RE-
SENTENCING PURSUANT TO SECTION 10, ARTICLE I, OHIO
CONSTITUTION AND CRIMINAL RULE 43(A)[.]
{¶4} In Mr. Stevens’ second assignment of error, he argues that the trial court
committed reversible error when it did not vacate its June 4, 2013 nunc pro tunc entry as being a
void sentence. Although Mr. Stevens’ arguments in support of this assignment of error are
difficult to follow, he seems essentially to argue that the trial court materially changed his
sentence in the nunc pro tunc entry and, because the trial court did not resentence him in person,
this violated his right to be present at all important stages of the proceedings pursuant to
Criminal Rule 43.
{¶5} A court may issue a nunc pro tunc to correct a clerical mistake in an entry so that
the entry reflects what actually occurred in open court. State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, ¶ 30. See also State v. Ibn-Ford, 9th Dist. Summit No. 27380, 2015-Ohio-753,
¶ 8 (“Where a sentencing hearing transcript makes clear what the trial court decided, the trial
court has jurisdiction to correct typographical errors in a sentencing entry via a nunc pro tunc
entry.”). However, a nunc pro tunc cannot cure the failure to actually make findings, impose
restitution, or inform a defendant of his sentence. See Bonnell at ¶ 30, citing State v. Miller, 127
Ohio St.3d 407, 2010-Ohio-5705, ¶ 16.
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{¶6} As noted above, the trial court wrote in the April 17, 2013 sentencing entry that it
had sentenced Mr. Stevens to life imprisonment with parole eligibility after ten years. It also
wrote that this prison term was “not a mandatory term * * *.” The June 4, 2013 nunc pro tunc
corrected the entry to say that the prison term “[wa]s a mandatory term * * *.” Under the
circumstances, the nunc pro tunc would have been appropriate if the trial court had informed Mr.
Stevens at his sentencing hearing that his prison term was a mandatory term but then had
inadvertently written that the prison term was not mandatory in its April 17, 2013 sentencing
entry. See id. However, no transcript of the sentencing hearing is in the appellate record, nor
was it before the trial court, and, therefore, there is no evidence in the record as to what occurred
at the sentencing hearing. Furthermore, nothing in the sentencing entry or the nunc pro tunc
indicates that this change was not clerical in nature. “A party seeking to collaterally attack an
allegedly void judgment bears the burden of demonstrating that the judgment is void.” See
Guzman v. Smarr, 9th Dist. Lorain No. 11CA010038, 2012-Ohio-3522, ¶ 4. Accordingly,
because there is nothing in the record indicating the nunc pro tunc did anything beyond
correcting a clerical error, we cannot conclude that Mr. Stevens has demonstrated that the nunc
pro tunc entry rendered his sentence void.
{¶7} Mr. Stevens’ second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE COURT ABUSED ITS DESCR[E]TION WHEN IT DENIED
APPELLANT’S MOTION TO WITHDRAW [HIS] GUILTY PLEA[.]
{¶8} Mr. Stevens argues in his first assignment of error that the trial court erred when it
denied his motion to withdraw his guilty plea. However, the trial court denied his motion to
withdraw on November 13, 2013, and Mr. Stevens did not file the current appeal until May 15,
2014. The denial of a postsentence motion to withdraw a guilty plea was a final, appealable
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order, and, thus, any appeal of the denial of the motion to withdraw should have been made
within 30 days. See State v. Bennett, 9th Dist. Summit No. 26241, 2012-Ohio-3664, ¶ 15 (“A
denial of a post-sentence motion to withdraw a guilty plea is also a final, appealable order.”);
App.R. 4(A). However, Mr. Stevens did not do so nor did he move to file a delayed appeal.
Furthermore, Mr. Stevens’ notice of appeal only included the journal entry denying his motion to
vacate a void sentence. See App.R. 3(D). Accordingly, Mr. Stevens’ first assignment of error is
overruled as it is outside the scope of this appeal. See State v. Cobb, 9th Dist. Summit No.
26847, 2014-Ohio-1923, ¶ 16.
III.
{¶9} Mr. Stevens’ assignments of error are overruled, and the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
CORY J. STEVENS, pro so, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.