State v. Bryan
2019 Ohio 2980
Ohio Ct. App.2019Background
- Kevin J. Bryan pleaded guilty to: (1) having a weapon while under a disability (felony 3) and (2) possession of a defaced weapon (misdemeanor 1). Plea and joint recommendation for a two-year prison sentence and forfeiture of the handgun.
- At sentencing the court imposed two years on Count I and six months concurrent on Count II. The court orally found Bryan had violated post-release control from an earlier case and announced a judicial sanction of 1,124 days to be served consecutively.
- The written judgment entry, however, did not state the 1,124-day figure; it only said the remainder of post-release control time is to be served in prison.
- The court also ordered Bryan to pay court costs; defense counsel did not object at sentencing. Bryan had been appointed counsel due to indigence.
- Bryan appealed, raising: (1) due process error in sentencing for the post-release-control violation and (2) ineffective assistance of counsel for failing to request a waiver of court costs.
- The appellate court affirmed in part, reversed in part, and remanded for a nunc pro tunc entry to reflect the oral sanction; it rejected the ineffective-assistance claim.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bryan) | Held |
|---|---|---|---|
| Whether the sentencing judgment entry violated due process by failing to state the numerical length of the judicial sanction for a prior post-release-control violation | The court orally pronounced the sanction; the written omission was a clerical error that can be corrected | The omission deprived Bryan of due process because the written judgment did not match the sentence announced in open court | Court: Omitted numerical detail is a clerical error; remand for a nunc pro tunc entry to reflect the oral 1,124-day sanction (First assignment sustained in part) |
| Whether defense counsel was ineffective for not requesting a waiver of court costs | Court costs were properly imposed; failure to request waiver did not constitute ineffective assistance under controlling precedent | Counsel’s failure to seek a waiver of costs deprived Bryan of effective assistance | Court: No ineffective assistance; appellate precedent governs and counsel’s conduct was not deficient (Second assignment overruled) |
Key Cases Cited
- Kentucky v. Stincer, 482 U.S. 730 (U.S. 1987) (defendant entitled to be present at critical stages that affect fairness of proceedings)
- State v. Bishop, 156 Ohio St.3d 156 (Ohio 2018) (trial court may convert post-release control into prison time as a judicial sanction)
- State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353 (Ohio 2006) (trial court has authority to correct clerical errors in judgments)
- Jacks v. Adamson, 56 Ohio St. 397 (Ohio 1897) (nunc pro tunc entries may supply information that existed but was not recorded)
- State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158 (Ohio 1995) (nunc pro tunc limited to reflecting what court actually decided, not what it intended)