State v. Armstrong
101 N.E.3d 56
| Ohio Ct. App. | 2017Background
- In 2008 Armstrong was indicted on three counts of burglary arising from three incidents at the same residence.
- In 2009 Armstrong entered a plea agreement reflected in a partially-altered written form; the form indicated the State would nolle Counts 2 and 3, but the record contained inconsistencies about which counts were disposed of and the October 15, 2009 judgment referenced convictions on Counts 1 and 2 while imposing a single community-control sentence.
- Armstrong violated community control, pled guilty to violations in 2011 and again in 2014; in November 2014 the court revoked community control and imposed an eight-year prison term (8 years on Count 1 and 8 years on Count 2, to be served concurrently).
- Armstrong filed a pro se motion in 2015 to vacate his sentence as void; the trial court denied it. This court remanded for clarification; the State then nolled Count 2 and the court issued a nunc pro tunc entry reflecting conviction only on Count 1 and re-imposed the eight-year sentence on Count 1.
- The majority affirmed the trial court, concluding the plea/sentencing irregularities were clerical or voidable (not void) and that the court had jurisdiction to revoke community control and impose the suspended prison term; a dissent argued the original community-control entry violated Crim.R. 32(C) and Saxon and therefore was void.
Issues
| Issue | State's Argument | Armstrong's Argument | Held |
|---|---|---|---|
| Whether the written plea agreement was ambiguous and whether Armstrong pled only to Count 1 | The plea form and subsequent nunc pro tunc correction show the State intended to nolle Counts 2 and 3; the court should enforce that outcome | The plea was ambiguous and should be construed against the State; Armstrong only pled to Count 1 | Moot as to Count 2/3 after remand and nunc pro tunc: court found Armstrong convicted of Count 1 only and Count 2/3 nolled |
| Whether the plea was knowingly, intelligently, voluntarily under Crim.R. 11 | No challenge was raised below; absence of a plea transcript requires presumption of regularity | Plea was not properly reviewed with Armstrong and therefore defective under Crim.R. 11 | Armstrong failed to supply transcript or raise issue below; presumption of regularity applies, so claim fails on this record |
| Whether the trial court properly issued a nunc pro tunc to correct the record | Nunc pro tunc appropriately corrects clerical errors to reflect the court’s true action (correcting which counts were convicted/nolled) | Nunc pro tunc altered more than clerical record and cannot be used to change substantive outcome | Court held nunc pro tunc was permissible here to correct clerical mistake about which counts were convicted; burden was on Armstrong to produce transcript if contesting what actually occurred |
| Whether the original community-control entry was void (Crim.R.32/Saxon) so that no violation could support imprisonment | Original entry reflected only one sentence on one count (in substance); clerical error in referencing two counts rendered the 2009 judgment voidable, not void; court retained jurisdiction to revoke and impose the suspended prison term | Original October 15, 2009 entry unlawfully lumped sentences for two counts into one community-control sentence (violating Crim.R.32(C) and Saxon), rendering the judgment void and unenforceable | Majority: the error was clerical re: which counts were pled, the sentence imposed was for one count, so the 2009 judgment was voidable (not void) and revocation/prison term was valid. Dissent: the lumped community-control entry violated Crim.R.32/Saxon and was void. |
Key Cases Cited
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (standard for appellate review of felony sentences)
- State v. Saxon, 109 Ohio St.3d 176 (Ohio 2006) (sentences must be imposed separately for each offense; no "sentencing package")
- State v. Heinz, 146 Ohio St.3d 374 (Ohio 2016) (courts retain jurisdiction to impose previously suspended sanctions when original judgment is voidable rather than void)
- State v. Fischer, 128 Ohio St.3d 92 (Ohio 2010) (a sentence that does not comply with statutorily mandated terms may be void)
- State v. Holdcroft, 137 Ohio St.3d 526 (Ohio 2013) (a conviction consists of both finding of guilt and imposition of sentence)
- State v. Beasley, 14 Ohio St.3d 74 (Ohio 1984) (discussing void sentences and compliance with statutory mandates)