2019 Ohio 1502
Ohio Ct. App.2019Background
- David Nixon pleaded guilty in Feb 2017 to domestic violence (36 months) and violating a protection order (12 months); the cases were consolidated for sentencing.
- At the April 7, 2017 sentencing hearing the court orally ordered the sentences to run consecutively for a total of four years, but the April 10, 2017 written entry omitted any statement whether the terms were consecutive or concurrent.
- The written entry credited Nixon with 303 days (Case No. 2016 CR 0394) and 268 days (Case No. 2016 CR 0496) in jail; at the hearing the court said only that he would be credited for time served.
- Nixon was granted judicial release on October 11, 2017 and placed on community control; the state moved to revoke in March 2018.
- On April 4, 2018 the trial court issued a nunc pro tunc entry adding detailed consecutive-sentence findings and changing the jail-credit statement to 309 days; Nixon appealed the nunc pro tunc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had jurisdiction to act when it issued the nunc pro tunc | State: court retained authority to revoke judicial release and supervise Nixon | Nixon: court lacked jurisdiction because he had served the one-year term on the protection-order case before nunc pro tunc | Court: court retained authority—Nixon remained under supervision and subject to revocation |
| Whether the nunc pro tunc properly corrected clerical omissions vs. impermissibly changed the sentence | State: nunc pro tunc reflected what the court actually decided at sentencing | Nixon: nunc pro tunc improperly modified the original sentence and added findings not made at the hearing | Court: nunc pro tunc improperly changed the original sentence (consecutive findings) and thus was invalid |
| Legitimacy of adding consecutive-sentence findings by nunc pro tunc | State: findings properly reflect oral pronouncement and may be memorialized nunc pro tunc | Nixon: statutory consecutive findings must be made at the sentencing hearing, not later | Court: absent the requisite findings at the hearing, nunc pro tunc cannot supply them; therefore sentences run concurrently under R.C. 2929.41(A) |
| Correctness of modifying jail-time credit in nunc pro tunc | State: nunc pro tunc corrected the credit to 309 days | Nixon: trial court erred by changing credit and failing to award separate credits for each case as argued | Court: changing the jail-credit number in nunc pro tunc was an improper alteration of the original entry; the nunc pro tunc was void as to that change |
Key Cases Cited
- State v. Lester, 130 Ohio St.3d 303 (2011) (a nunc pro tunc issued solely to correct clerical omissions is not a new final order for appeal purposes)
- McKay v. McKay, 24 Ohio App.3d 74 (11th Dist.) (nunc pro tunc that improperly modifies a prior decision may be reversed)
- State v. Miller, 127 Ohio St.3d 407 (2010) (nunc pro tunc must reflect what the court actually decided; cannot supply findings not made at sentencing)
- State v. Bonnell, 140 Ohio St.3d 209 (2014) (consecutive sentences require specific statutory findings at sentencing)
- State v. Qualls, 131 Ohio St.3d 499 (2012) (clerical errors in failing to include postrelease control notice can be corrected by nunc pro tunc when the right notice was given at hearing)
- State v. Waltz, 14 N.E.3d 429 (12th Dist.) (an improper nunc pro tunc order is void)
- State v. Jama, 939 N.E.2d 1309 (10th Dist.) (same principle: improper nunc pro tunc may be void)
Decision: The court reversed and vacated the trial court’s April 4, 2018 nunc pro tunc entry because it improperly added consecutive-sentence findings and altered jail-credit; the original sentencing entry governs and the sentences run concurrently.