2021 Ohio 697
Ohio Ct. App.2021Background
- Defendant David B. Chislton was indicted on 83 counts arising from an apartment fire and on January 10, 2019 pled guilty in open court to 14 counts and various specifications.
- The trial court’s January 12, 2019 journal entry (and subsequent entries) did not accurately reflect the pleas entered at the January 10 hearing; some counts the court sentenced were counts to which Chislton had not pleaded guilty, and some pleaded counts were not sentenced.
- The state filed a Crim.R. 36 "motion to correct the record" and the trial court issued multiple nunc pro tunc / corrected entries (Feb. 15, 2019; Feb. 19, 2019 sentencing; July 20, 2020; Aug. 5, 2020) that altered counts and sentencing without a new plea or hearing.
- This court initially dismissed the appeal for lack of a final appealable order, later reinstated it, then ordered briefing on whether the August 5, 2020 entry constituted plain error.
- The Court of Appeals concluded the journal entries did not reflect what occurred at the plea hearing, found plain error that affected substantial rights (including Crim.R. 11 protections), vacated several journal entries, and remanded for proceedings to impose sentence consistent with the Jan. 10, 2019 plea or otherwise proceed consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly used nunc pro tunc / Crim.R.36 entries to alter pleas/sentences after the plea hearing | State: corrections under Crim.R.36 justified to reflect intended amendments and dismissals | Chislton: journal entries do not match the plea transcript; nunc pro tunc cannot change what actually occurred | Court: Error — nunc pro tunc limited to memorializing what actually occurred; entries did not reflect the plea transcript |
| Whether the error was "plain" under Crim.R.52(B) | State: error not "obvious" or binding precedent required to find plain error | Chislton: discrepancies between transcript and entries make the error obvious | Court: Error is plain — established precedent limits nunc pro tunc to recording actual judicial action |
| Whether the plain error affected a substantial right (prejudice) | State: corrections were clerical/ministerial and did not prejudice outcome | Chislton: sentencing on counts not pleaded to and failure to conduct new Crim.R.11 colloquy prejudiced rights | Court: Affected substantial rights; the defects were inherently prejudicial (Crim.R.11 protections) |
| Appropriate remedy | State: allow corrections/entry adjustments as sought | Chislton: vacate incorrect entries and require sentencing consistent with actual plea or new plea/hearing | Court: Vacated the court’s January 12, 2019; February 15, 2019; February 19, 2019; July 20, 2020; and August 5, 2020 entries and remanded for a hearing to impose sentence consistent with the Jan. 10, 2019 plea or further proceedings per the opinion |
Key Cases Cited
- State v. Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240 (2002) (plain-error standard under Crim.R.52(B))
- State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 656 N.E.2d 1288 (1995) (nunc pro tunc may not be used to record what a court intended but did not actually do)
- Natl. Life Ins. Co. v. Kohn, 133 Ohio St. 111, 11 N.E.2d 1020 (1937) (nunc pro tunc used to make journal speak the truth about prior judicial action)
- State v. Myers, 154 Ohio St.3d 405, 114 N.E.3d 1138 (2018) (plain-error prejudice requires reasonable probability of different result)
- State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981) (failure to advise Crim.R.11 rights renders plea constitutionally defective)
- State v. Jackson, 151 Ohio St.3d 239, 87 N.E.3d 1227 (2017) (trial court must fully resolve counts and specifications for which convictions are recorded)