2018 Ohio 4296
Ohio Ct. App.2018Background
- Donell Parker, an inmate convicted in Cuyahoga County of aggravated murder and aggravated robbery with firearm specifications, sought a declaratory judgment that two 1998 nunc pro tunc entries effectively dismissed both aggravated murder counts, making him eligible for parole earlier.
- The original September 24, 1996 sentencing entry reflected convictions for aggravated murder (30-to-life plus 3 years) and aggravated robbery (10-to-25 plus 3 years), but omitted that one indicted count had been dismissed and the remaining counts renumbered before jury submission.
- Two subsequent nunc pro tunc entries were filed: a January 22, 1998 entry (stating Count 2 was dismissed) and a March 16, 1998 amended nunc pro tunc entry (stating Count 1 was dismissed and correcting the renumbering).
- Parker requested a parole hearing in 2017; the Bureau of Sentence Computation confirmed a first-parole-hearing date of 2036 based on the aggravated murder sentence.
- Parker sued the Ohio Adult Parole Authority chair and the BOSC chief for declaratory relief. The trial court substituted the correct APA chair, gave notice of intent to dismiss under Civ.R. 12(B)(6), and then dismissed Parker’s complaint for failure to state a claim, finding no justiciable controversy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1998 nunc pro tunc entries dismissed both aggravated murder counts and changed Parker's sentence/parole eligibility | Parker: the two nunc pro tunc entries together dismissed both aggravated murder counts, leaving only an aggravated robbery conviction and making him parole-eligible | Defendants: the entries were clerical corrections; the March 16, 1998 entry corrected the earlier nunc pro tunc so only one aggravated murder conviction remained; the entries cannot erase a conviction or substantive sentence | Held: Nunc pro tunc entries corrected clerical error and reflected what the court actually decided; they did not dismiss the aggravated murder conviction or alter parole eligibility; no justiciable dispute shown. |
| Whether the complaint stated a justiciable controversy for declaratory relief | Parker: declaratory relief appropriate because his legal rights (parole eligibility) depend on the entries’ effect | Defendants: no adverse legal interest because the corrected record already reflects the convictions and the entries did not alter substantive rights | Held: Complaint failed to state a claim; no real controversy or legal right to relief. |
| Whether the trial court erred by denying Parker’s motions for summary judgment and for default judgment | Parker: Adams admitted no genuine issues of material fact, so summary/default judgment should follow | Defendants: motions were moot once the complaint was dismissed for failure to state a claim | Held: Motions were rendered moot by dismissal; no error. |
| Whether court costs were improperly assessed against Parker | Parker: clerk assessed costs despite trial court waiver | Defendants: trial court waived costs due to indigency; record shows no costs assessed | Held: No error; record confirms no costs assessed and appellate court lacks jurisdiction to order clerk otherwise. |
Key Cases Cited
- State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158 (1995) (nunc pro tunc entries may correct clerical errors so the record "speaks the truth")
- State v. Miller, 127 Ohio St.3d 407 (2010) (nunc pro tunc entries are limited to clerical corrections, not substantive changes to sentence)
- State v. Lester, 130 Ohio St.3d 303 (2011) (clarifies limits on nunc pro tunc use to correct mechanical record errors)
- O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975) (standard for Civ.R. 12(B)(6) dismissal: plaintiff cannot prove any set of facts entitling recovery)
- Norris v. Schotten, 146 F.3d 314 (6th Cir. 1998) (nunc pro tunc entry cannot be used to benefit a defendant by erasing convictions or sentences)