2019 Ohio 1126
Ohio Ct. App.2019Background
- Michael Jones was convicted after a bench trial of burglary and grand theft; the state elected to proceed on the burglary count. The trial court imposed prison time and ordered the sentence to run consecutively to a separate sentence, producing an aggregate term.
- On direct appeal this court found the evidence supported burglary as a third-degree offense under R.C. 2911.12(A)(3), not the charged second-degree provision, and remanded for resentencing under the correct offense level.
- On remand the trial court resentenced Jones to 36 months to run consecutively to a prior sentence and stated statutory findings at the hearing justifying consecutive terms under R.C. 2929.14(C)(4).
- The trial court’s written sentencing entry, however, failed to incorporate the consecutive-sentence findings and earlier entries incorrectly listed the burglary count as a second-degree felony rather than a third-degree felony.
- Jones had completed his sentence by the time of this appeal, so his challenge to the consecutive nature of the sentence was moot as to relief shortening the sentence, but the court retained authority to correct clerical errors and to order a nunc pro tunc entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not including R.C. 2929.14(C)(4) consecutive-sentence findings in its journal entry | State concedes the journal entry omitted the findings but urges affirmance and a remand for a nunc pro tunc correction | Jones argues the omission renders the sentence improper and requests concurrent sentences | The omission was clerical; because the court made the findings at the hearing, the sentence is not contrary to law and remand for a nunc pro tunc entry is ordered to memorialize the findings |
| Whether the appeal is moot because Jones already served his sentence | State did not contest mootness of shortening sentence; court notes general rule | Jones argues sentences should be concurrent notwithstanding release | Court finds challenge to consecutive service moot (no relief possible) but retains authority to remedy clerical errors and conviction-degree mislabeling |
| Whether prior judgment entries correctly identify the degree of burglary | State and Jones agree entries are wrong | Jones seeks correction to reflect third-degree burglary | Court orders correction: burglary is third-degree under R.C. 2911.12(A)(3), not second-degree under (A)(2) |
| Whether failure to include findings renders sentence contrary to law | Court references precedent that omission can be corrected when findings were made at hearing | Jones argues omission violates Bonnell requirements | Held: omission was inadvertent clerical error; a nunc pro tunc entry will correct the record |
Key Cases Cited
- State v. Golston, 71 Ohio St.3d 224, 643 N.E.2d 109 (Ohio 1994) (a felony conviction creates a continuing collateral interest even after sentence served)
- State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659 (Ohio 2014) (court must make statutory consecutive-sentence findings on the record and include them in the judgment entry; clerical omissions may be corrected by nunc pro tunc entry)