[Cite as State v. Gilmore, 2012-Ohio-5989.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 MA 30
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
MARLON GILMORE )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 91 CR 177
JUDGMENT: Dismissed. Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Timothy Young
Ohio Public Defender
Atty. Stephen P. Hardwick
Assistant State Public Defender
Office of the Ohio Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 14, 2012
[Cite as State v. Gilmore, 2012-Ohio-5989.]
WAITE, P.J.
Summary
{¶1} Appellant, Marlon Glimore, appeals the trial court’s February 4, 2011
nunc pro tunc entry that attempts to correct the omission of Crim.R. 32(C) language
specifying the manner of conviction in his original February 25, 1991 sentencing
entry. However, the 2011 nunc pro tunc entry erroneously included post-1991
findings and sentencing language that did not reflect Appellant’s original sentence.
The addition of this language creates an amended sentence, and as a result the trial
court’s entries are nullities. Even if the trial court’s entries were not nullities,
Appellant has no right of appeal from a nunc pro tunc entry under State v. Lester,
130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. This appeal is dismissed, but
the matter is remanded to the trial court for filing of a nunc pro tunc entry that
accurately reflects both the manner of conviction and the sentences actually imposed
on Appellant in 1991.
Factual and Procedural History
{¶2} On May 24, 1991, Appellant was found guilty by a jury on one count of
complicity to aggravated murder, two counts of complicity to aggravated robbery, and
three firearm specifications. Appellant was sentenced in separate judgment entries
to life in prison on the first count, two indeterminate prison sentences of ten to twenty-
five years for the robbery convictions, and a definite term of three years for each
firearm specification. (Appellant’s Brf., Appendix pp. A-12-A-16). Each entry stated
that Appellant had been convicted of the listed offense, but omitted the manner of
conviction. In addition to stating that Appellant had been convicted, each entry
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included his sentence on the named charge, the judge’s signature, and a time-stamp
from the clerk of courts.
{¶3} On December 22, 2010 Appellant filed a pro se “Motion for
Revised/Corrected Sentencing Entry in Compliance with Crim.R. 32(C)” because the
final judgment entries resolving his prosecution in 1991 did not include the phrase “by
a jury.” The state filed a response to Appellant’s motion conceding this defect on
January 27, 2011. Subsequently, the trial court entered four nunc pro tunc and
amended nunc pro tunc entries, two of which were orders granting Appellant’s motion
for a corrected sentencing entry and two of which are actually modified sentencing
entries. The modified sentencing entries (filed as a February 4, 2011 nunc pro tunc
entry and the other as a February 9, 2011 amended nunc pro tunc entry) include the
following language:
The Court has considered the record, oral statements, and any victim
impact statement as well as the principles and purposes of sentencing
under R.C. 2929.11, and has balanced the seriousness and recidivism
factors under R.C. 2929.12.
***
Pursuant to R.C. 2929.13(C), the Court finds the Defendant is not
amenable to community control and that prison is consistent with the
purposes of R.C. 2929.11.
***
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The Defendant was advised pursuant to O.R.C. 2929.19 and O.R.C.
2967.28 that this sentence includes a mandatory period of five years of
post release control to be supervised by the Adult Parole Authority
subject to all laws, and all rules, regulations, and other conditions
imposed by the Adult Parole Authority. Defendant was also advised of
punishments for violations of Post Release Control and that such
punishments are included within this sentence pursuant to O.R.C.
2929.19, 2929.141, and 2967.28 as follows: * * * [additional language
pertaining to post release control omitted]
(2/4/11 J.E., p. 2.) Among the various other errors, one of the trial court’s amended
nunc pro tunc entries, filed February 9, 2011, omits Appellant’s conviction on count 4
of the indictment, aggravated robbery. Appellant filed a pro se notice of appeal of the
February 4, 2011 nunc pro tunc entry on February 25, 2011.
{¶4} Appellant subsequently sought to have counsel appointed for his
appeal on the grounds that the deficiency in the 1991 sentencing entries rendered his
original appeal as of right null and claiming that the instant appeal was, in effect, his
first appeal of his conviction and sentences. We denied Appellant’s motion for
appointed counsel because the instant appeal is from a nunc pro tunc entry
correcting a sentencing order, and not an appeal as of right. We also clarified that
Appellant could not relitigate issues already decided in his original appeal and that
“[t]he review of the February 4, 2011 judgment will be limited to any legal issue
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arising from that entry.” (3/7/11 J.E.) Appellant also sought and received a stay of
this matter pending the outcome of Lester, supra.
Argument and Law
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY ISSUING A NUNC PRO TUNC
ORDER THAT DID NOT REFLECT THE SENTENCE ORIGINALLY
IMPOSED.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY CONVICTING MARLON IN THE
ABSENCE OF SUBJECT MATTER JURISDICTION.
{¶5} Appellant’s first and second assignments of error will be considered
together because the resolution of the first issue determines the resolution of the
second.
{¶6} The trial court issued two nunc pro tunc and two amended nunc pro
tunc judgment entries in this matter, none of which accurately reflect the sentences
actually imposed on Appellant in 1991. Appellant, under Crim. R. 32(C), Lester, and
State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, is entitled to a
sentencing entry that clearly states (1) the fact and manner of conviction, and (2) the
sentence. This entry must also be (3) signed by the judge and (4) journalized, as
indicated by the clerk’s time-stamp.
{¶7} Appellant correctly posits that the Ohio Supreme Court’s decision in
State v. Lester is determinative of his appeal of the trial court’s February 4, 2011
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judgment entry. Under Lester, Appellant’s original 1991 sentencing entries, all of
which include the fact that he was convicted, the sentence on each count, the fact
that the sentences are consecutive, a judge’s signature and the time-stamp of the
clerk indicating journalization, were final appealable orders when originally
journalized. (Appellant’s Brf., Appendix pp. A-12-A-16 and Lester, paragraph one of
the syllabus.) For this reason Appellant’s original appeal, which was a direct appeal
as of right, is still valid and serves as res judicata as to the issues raised in that
appeal.
{¶8} However, under Lester, Appellant has no right to his present appeal
because a “nunc pro tunc judgment entry issued for the sole purpose of complying
with Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new
final order from which a new appeal may be taken.” Id., paragraph two of the
syllabus. In his filing, however, Appellant has accurately described the defects
contained in the various nunc pro tunc entries made by the trial court on February 4
and February 9, 2011. While a trial court has the “authority to correct errors in
judgment entries so that the record speaks the truth,” Id. at ¶18, citing State ex rel.
Fogle v. Steiner, 74 Ohio St.3d 158, 163-164, 656 N.E.2d 1288 (1995); Crim.R. 36,
this authority is limited to “clerical error, mistake, or omission that is mechanical in
nature and apparent on the record and does not involve a legal decision or
judgment.” Lester at ¶19, citing State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705,
940 N.E.2d 924, ¶15; Crim.R. 36. Nunc pro tunc entries are, by their nature,
retrospective. Their effect relates back to the date of the journal entry they purport to
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correct. Lester at ¶19. In the instant matter, the 2011 nunc pro tunc and amended
nunc pro tunc entries contained language stating that the trial court considered the
principles and purposes of sentencing. These did not exist in the relevant statutes
(R.C. 2929.11 and 2929.12) at the time of the original entry of sentence. The trial
court also included findings based on those statutes that the court could not have
made in 1991. The 2011 entries further ordered “mandatory post release control”
which was not, and could not have been, imposed in 1991 because the statutory
scheme creating and requiring it did not exist until 1996 (R.C. 2929.19 and 2929.28).
{¶9} For these reasons, the trial court exceeded its authority to correct
omissions and clerical errors. Instead, the court entered what was in substance a
modified sentence. When a court exceeds its authority, the resulting judgment is null
and a null judgment is not a final appealable order. However, while Appellant’s
original 1991 convictions and sentences were proper in substance under Lester, they
were not proper in form under Lester. Id. ¶14-16. Thus, Appellant remains entitled
to a judgment entry that complies in substance and in form with Crim.R. 32(C) and
his remedy is a nunc pro tunc entry which precisely reflects the exact terms of his
original convictions and sentences with the sole addition of the phrase by “a jury.” Id.
¶14-16. This remedy lies solely with the trial court. Hence, we must remand this
matter for the trial court to devise an entry that conforms to law and includes the text
of the original entry or entries, with the addition of an amendment to the second
sentence of each entry to read “Defendant having been found guilty by a jury of
complicity to * * *.” The entries must also list each charge and specification of
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Appellant’s conviction. Any nunc pro tunc entry or entries must accurately reflect that
Appellant was found guilty of counts one, three and four of the indictment by a jury
and that each count included a firearm specification. The entry or entries must also
recite that on count one, Appellant was sentenced to life without consideration for
parole for twenty years for violating R.C. 2923.03(A)(2)(F) and 2903.01(B), complicity
to aggravated murder. Appellant’s life sentence on count one is to run consecutively
with the terms for counts three and four, as well as the terms for the firearms
specifications. Appellant was sentenced to indefinite terms of ten to twenty-five years
on counts three and four, both of which were violations of R.C. 2923.03(A)(2)(F) and
2911.01(A)(1), complicity to aggravated robbery, with actual incarceration of ten
years on each count. Appellant is to serve his sentences for counts three and four
concurrently, but the concurrent sentences for counts three and four are to be served
consecutively to his life sentence on count one, and consecutively to the firearm
specification sentences. Appellant was sentenced to three years of actual
incarceration to be served consecutively to his sentences for complicity to murder
and aggravated robbery and for the first firearms specification. The original trial court
merged Appellant’s second firearm specification with the first firearm specification
and ordered that the two terms of three years’ actual incarceration be served
concurrently to one another but consecutively to the terms imposed under counts
one, three, and four. The court then imposed three years of actual incarceration for
the third firearm specification, which is to be served consecutively to the sentences
for counts one, three and four, and the firearms specifications for counts one and
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three. In addition to correctly reflecting the sentences imposed on Appellant in 1991,
the nunc pro tunc entry is required to include only the exact findings, statutes and
information cited by the original sentencing court.
Conclusion
{¶10} Pursuant to Lester, Appellant’s appeal must be dismissed for lack of
jurisdiction of this Court. However, because the trial court’s nunc pro tunc and
amended nunc pro tunc entries exceeded the court’s authority and were therefore
null, we must remand this matter to the trial court for the issuance of a nunc pro tunc
entry that clearly conforms with Crim.R. 32(C), Lester, and this Court’s instructions.
Donofrio, J., concurs.
DeGenaro, J., concurs.