2014 Ohio 4816
Ohio Ct. App.2014Background
- In Nov. 2012 Bay Village charged Mark Barringer with violating a temporary protection order; by plea agreement (Jan. 3, 2013) he pleaded no contest and agreed to move out of Bay Village.
- Sentencing (Feb. 25, 2013) imposed 180-day jail sentence suspended, two years probation, counseling, fines, and allowed visits to his elderly parents but prohibited contact with certain neighbors.
- The City later alleged Barringer remained spending substantial time at his parents’ Bay Village home; probation obtained GPS monitoring beginning Aug. 29, 2013 (court paid from IDAM fund).
- Barringer moved to remove the GPS device, arguing the court lacked authority to impose/extend it and asserting the journal entry did not reflect a move-out requirement.
- At a Jan. 2, 2014 hearing GPS data showed Barringer spent ~7 daytime hours at his parents’ home; the trial court denied the motion to remove the GPS.
- The appellate court affirmed denial, held the trial court had authority under community-control statutes to require/modify GPS monitoring, found the omission of the "move out" condition in the journal was a clerical error, and remanded for a nunc pro tunc entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had authority to require or continue GPS monitoring as a condition of community control | City argued GPS monitoring was a proper, reasonably related condition to ensure Barringer complied with the move-out requirement and to protect the community | Barringer argued the court lacked jurisdiction to modify his sentence by imposing/continuing GPS monitoring | Court held R.C. authority permits the court to impose/modify community-control conditions; denial of motion to remove GPS was within trial court discretion |
| Whether omission in the journal that Barringer must move out of Bay Village invalidated the GPS condition | City relied on lengthy on-the-record agreement and subsequent proof Barringer moved out | Barringer argued the journal did not reflect the move-out condition so it was not enforceable | Court treated omission as clerical error correctable under Crim.R. 36 and remanded for nunc pro tunc entry to reflect the move-out condition |
Key Cases Cited
- State v. Jones, 49 Ohio St.3d 51 (Ohio 1990) (sets factors for valid probation conditions)
- State v. Miller, 127 Ohio St.3d 407 (Ohio 2010) (court "speaks through its journal entries")
- State ex rel. DeWine v. Burge, 128 Ohio St.3d 236 (Ohio 2011) (nunc pro tunc entries correct oversight to reflect what court actually did)
- State ex rel. Mayer v. Hensen, 97 Ohio St.3d 276 (Ohio 2002) (nunc pro tunc limited to recording the court's actual actions)