State v. Gilmore

[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
 -2-

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.

***
 -3-

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
 -4-

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
 -5-

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
 -6-

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
 -7-

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
 -8-

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.