2016 Ohio 4750
Ohio Ct. App.2016Background
- Derek L. Fisher pled no contest on August 6, 2015 to an amended Count 1 (trafficking in heroin) and to Counts 4 and 6 (possession of heroin). The amendment removed the “within 1,000 feet of a school” language, reducing Count 1 from a second- to a third-degree felony.
- The plea agreement led to dismissal of eleven other felony counts in exchange for the three no-contest pleas.
- On August 26, 2015 the trial court sentenced Fisher: 18 months (amended Count 1), and 4 years each on Counts 4 and 6, to be served consecutively.
- The original sentencing entry and a September 10, 2015 nunc pro tunc entry incorrectly described the amended Count 1 as a second-degree felony and mischaracterized certain credit-eligibility language.
- Fisher appealed, arguing (1) the nunc pro tunc entry was erroneous because it failed to reflect the amendment to a third-degree felony, and (2) the court misstated his eligibility for earned-time credit at the plea hearing.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Fisher) | Held |
|---|---|---|---|
| Whether the nunc pro tunc entry may be corrected to reflect Count 1 as a third-degree felony | Court should be allowed to correct clerical errors via a nunc pro tunc entry to reflect what was actually decided | Nunc pro tunc entry is incorrect and should be vacated because it misstates the amended charge | Trial court may issue a corrected nunc pro tunc entry; remanded for correction (affirmed in part, reversed in part) |
| Whether the court’s inaccurate statements about earned-time credit at plea hearing invalidate the plea | Any mistaken remark about earned-time credit did not induce the plea; substantial compliance suffices absent prejudice | The court misstated eligibility for earned-time credit (particularly as to mandatory-placement counts), which could have affected his decision to plead | No prejudice shown; plea stands. Court’s general statement about earned credit was erroneous as to mandatory sentences but did not render plea involuntary (second assignment not well-taken) |
Key Cases Cited
- State v. Griggs, 103 Ohio St.3d 85 (2004) (distinguishes constitutional vs. nonconstitutional Crim.R. 11 errors and requires prejudice for nonconstitutional errors to vacate plea)
- State v. Nero, 56 Ohio St.3d 106 (1990) (defines substantial compliance standard for Crim.R. 11 colloquies)
- State v. Clark, 119 Ohio St.3d 239 (2008) (trial courts must provide accurate expanded explanations in plea colloquies)
- State ex rel. Womack v. Marsh, 128 Ohio St.3d 303 (2011) (trial courts retain jurisdiction to correct clerical judgment errors by nunc pro tunc entry)