State v. Kimmie
2013 Ohio 2906
Ohio Ct. App.2013Background
- Kimmie was sentenced in two 1997 cases: CR-349507 burglary/tools (8 years, concurrent with other counts) and CR-348645 rape/kidnapping/tampering/evidence (rape/kidnapping 10 years, intimidation 5 years concurrent, tampering 5 years consecutive to the others, total 15 years).
- The rape sentence was ordered to be served consecutively to a case referenced as CR-223382, which did not involve Kimmie.
- During 2012 resentencing, the court imposed postrelease control as part of the reentry; in September 2012, the court issued a nunc pro tunc entry correcting the “consecutive to” language to reference CR-349507-ZA (the burglary case) as the prior sentence being served.
- Kimmie appealed, and the appellate court (a) sustained the postrelease-control issue (invalid given time served), (b) addressed the nunc pro tunc correction and its procedural propriety, and (c) concluded the nunc pro tunc correction reflected the court’s intent and was not barred by res judicata or due process concerns.
- The result: the judgment is affirmed in part and reversed in part; the nunc pro tunc correction is affirmed, but postrelease control in the burglary case is reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the nunc pro tunc sentencing correction was proper | State argues correction reflects the court’s actual intent | Kimmie contends correction improperly changes judgments | Nunc pro tunc correction proper; no error in correction of record. |
| Whether the nunc pro tunc correction required defendant’s presence | State asserts presence not required for clerical correction | Kimmie asserts absence invalidates correction | No error; presence not required for clerical correction. |
| Whether postrelease control on an already served sentence was valid | State maintains authority to impose PRC via correction | Kimmie argues PRC invalid after sentence served | Sustained; PRC invalid where sentence already completed. |
Key Cases Cited
- State v. Simpkins, 117 Ohio St.3d 420 (2008) (postrelease-control imposition limits; corrections after service barred)
- State v. Bezak, 114 Ohio St.3d 94 (2007) (Bezak: limits on postrelease control corrections; finality concerns)
- State v. Bloomer, 122 Ohio St.3d 200 (2009) (postrelease-control corrections when sentence served)
- Jacks v. Adamson, 56 Ohio St.3d 397 (1997) (nunc pro tunc reflects actual judicial action; not a modification)
- Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995) (final judgments; res judicata principles)