State v. Davidson

[Cite as State v. Davidson, 2022-Ohio-694.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 110625
                 v.                                 :

JAVON DAVIDSON,                                     :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED AND REMANDED
                 RELEASED AND JOURNALIZED: March 10, 2022


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-20-653874-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel T. Van, Assistant Prosecuting
                 Attorney, for appellee.

                 Cullen Sweeney, Cuyahoga County Public Defender, and
                 Jonathan Sidney, Assistant Public Defender, for
                 appellant.


MARY EILEEN KILBANE, J.:

                   Defendant-appellant Javon Davidson (“Davidson”), raising a single

assignment of error, argues that the Reagan Tokes Law is unconstitutional and,
therefore, his sentence imposed under that law is invalid. For the following reasons,

we affirm the lower court’s sentence and remand for further proceedings.

Factual and Procedural History

               On November 5, 2020, a Cuyahoga County Grand Jury indicted

Davidson on     nine counts including aggravated robbery in violation of R.C.

2911.01(A)(1); aggravated robbery in violation of R.C. 2911.01(A)(3); robbery in

violation of R.C. 2911.02(A)(1); robbery in violation of R.C. 2911.02(A)(2); robbery

in violation of R.C. 2911.02(A)(3); felonious assault in violation of R.C.

2903.11(A)(2); grand theft in violation of R.C. 2913.02(A)(1); having weapons while

under disability in violation of R.C. 2923.13(A)(1); and theft in violation of R.C.

2913.02(A)(1). All counts except having weapons while under disability and theft

carried one-year and three-year firearm specifications.

               On December 3, 2020, Davidson was declared indigent and pleaded

not guilty to the indictment. Bond was set with the requirement that Davidson have

no contact with the victim.

               On March 2, 2021, Davidson withdrew his former pleas of not guilty

and pleaded guilty to one count of robbery in violation of R.C. 2911.02(A)(1), a felony

of the second degree with a three-year firearm specification; one count of felonious

assault in violation of R.C. 2903.11(A)(2), a felony of the second degree; and one

count of having weapons while under disability in violation of R.C. 2923.13(A)(1), a

felony of the third degree. Davidson also agreed to have no contact with the victim
and to pay restitution in an amount to be determined. The state nolled the

remaining counts and specifications.

              On the same date, the trial court sentenced Davidson to three years

on the firearm specification, to be served prior to and consecutive with a two-year

prison term on the underlying robbery charge. The court also sentenced Davidson

to two years each on the felonious assault and having weapons while under disability

charges. The two-year prison terms on the robbery, felonious assault, and having

weapons while under disability charges were to run concurrent with each other.

Based upon the three-year consecutive sentence on the firearm specification and the

two-year concurrent sentences on the other offenses, Davidson received an

aggregate minimum sentence of five years with a potential maximum term of six

years. The trial court also mandated three years postrelease control on the robbery

charge.

              On June 30, 2021, Davidson filed a timely notice of appeal arguing

that the trial court erred when it imposed an indefinite sentence pursuant to the

Reagan Tokes Law because the law is unconstitutional.

Legal Analysis

              Davidson’s sole assignment of error is that his indefinite sentence

under the Reagan Tokes Law is unconstitutional because it violates (1) Davidson’s

right to a trial by jury as protected by Article 1, Section 5 of the Ohio Constitution

and the Sixth Amendment of the United States Constitution, (2) the separation-of-
powers doctrine, and (3) due process rights under Article I, Section 16 of the Ohio

Constitution and the Fourteenth Amendment of the United States Constitution.

               Davidson’s arguments are overruled pursuant to this court’s en banc

decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, which

overruled the challenges presented in this appeal to the Reagan Tokes Law enacted

through S.B. 201. Therefore, we find that Davidson’s sentence pursuant to Reagan

Tokes was not a violation of his constitutional rights. Davidson’s assignment of

error is overruled.

               Although not raised as an issue by either party, we sua sponte remand

the case for correction of the trial court’s April 1, 2021 judgment entry.

               On March 2, 2021, the trial court issued a judgment entry that stated

the trial court sentenced Davidson to a minimum term of five years in prison based

upon (1) the three-year firearm specification to be served consecutive to and prior

to the underlying robbery offense and (2) the two-year sentences on the underlying

robbery, felonious assault, and having weapons while under disability charges that

were to be served concurrent with each other. The March 2, 2021 judgment entry

also included this language: “The court imposes a minimum prison term of eight

year(s) and a maximum prison term of 12 year(s) on the underlying offense(s).” On

April 1, 2021, the trial court issued a nunc pro tunc entry that removed the wording

“on the underlying offense(s)” from the above-cited sentence. However, the April 1,

2021 nunc pro tunc judgment entry contained clerical errors; the entry stated the

trial court imposed a minimum prison term of eight years and a maximum prison
term of 12 years when the trial court actually imposed an aggregate minimum

sentence of five years and a maximum term of six years. 1

               Trial courts retain jurisdiction to correct clerical errors in judgment

entries so that the entries accurately reflect the trial court’s decision. State ex rel.

Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19;

Crim.R. 36 (“[c]lerical mistakes in judgments, orders, or other parts of the record,

and errors in the record arising from oversight or omission, may be corrected by the

court at any time”). Clerical mistakes refer to mistakes or omissions that are

“mechanical in nature and apparent on the record” and do not address a legal

decision or judgment. State v. Brown, 136 Ohio App.3d 816, 820, 737 N.E.2d 1057

(3d Dist.2000), citing Dentsply Internatl., Inc. v. Kostas, 26 Ohio App. 3d 116, 118,

498 N.E.2d 1079 (8th Dist.1985). While courts have inherent authority to correct

clerical errors in judgment entries so that the record is accurate, “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 ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223,

¶ 14, quoting State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164, 656 N.E.2d 1288

(1995).



      1   The March 2, 2021 judgment entry also included the following sentence:
“Defendant advised of Reagan Tokes, and potential sentence of 8 years to 12 years on the
underlying offense.” The trial court’s April 1, 2021 nunc pro tunc entry removed the
wording “on the underlying offense” from the above-cited sentence. We do not find that
the trial court’s April 1, 2021 nunc pro tunc judgment entry created a clerical error
regarding this sentence.
              The April 1, 2021 judgment entry contains clerical errors that can be

corrected through a nunc pro tunc entry. Davidson received an aggregate minimum

five-year sentence and maximum term of six years about which he was properly

advised at the sentencing hearing. The April 1, 2021 judgment entry should be

corrected to reflect the actual imposed sentence. Therefore, we sua sponte remand

the matter to the trial court to issue a nunc pro tunc entry that (1) states the

maximum term of six years and (2) excludes the following sentence from the April 1,

2021 judgment entry: “The court imposes a minimum prison term of 8 year(s) and

a maximum prison term of 12 year(s).”

              Judgment affirmed and case remanded.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR

N.B. Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B.
Forbes and the concurring in part and dissenting in part opinion by Judge Anita
Laster Mays in Delvallie and would have found the Reagan Tokes Law
unconstitutional.