State v. Thompson
2015 Ohio 3882
Ohio Ct. App.2015Background
- Defendant Lonnie Thompson was convicted by jury of RICO, multiple counts of forgery, telecommunications fraud, identity fraud, and theft related to a counterfeit-check scheme and sentenced on March 4, 2013.
- At sentencing the court pronounced individual terms that, when summed correctly, total 31½ years; during the hearing there was confusion and participants misstated the aggregate as 28½ or 29½ years.
- The March 13, 2013 written sentencing entry contained clerical errors: it listed Count 30 as consecutive (creating a 32½-year aggregate), and it memorialized fines, costs, and restitution that were not imposed in open court (the court had found defendant indigent and said fines/costs would be suspended; restitution was requested but not ordered at sentencing).
- Thompson appealed; this court earlier affirmed convictions, ordered resentencing on merged counts, and Thompson filed post-appeal motions to correct the sentencing journal entry seeking suspension/removal of financial sanctions and correction of the aggregate term.
- On November 12, 2014 the trial court issued a nunc pro tunc entry reducing the written aggregate from 32½ to 31½ years but left in the written fines, costs, and restitution; Thompson also sought 48 days of pretrial/jury-verdict jail-time credit that was never determined at sentencing.
- This appeal challenges (1) the November 12, 2014 nunc pro tunc and the court’s journalization of a sentence greater than 28½ years and imposition of financial sanctions, and (2) the trial court’s failure to award 48 days jail-time credit.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Thompson) | Held |
|---|---|---|---|
| Validity/scope of nunc pro tunc correction and whether sentence exceeded agreed 28½ years; improper journalization of fines/costs/restitution | Res judicata bars re-litigation of sentencing aggregate and sentencing issues raised on prior appeal; trial court may correct clerical errors by nunc pro tunc | The nunc pro tunc entry fails to reflect the true sentence pronounced (he was sentenced to 28½ years), and fines/costs/restitution were not imposed at sentencing and therefore cannot be journalized | Court: res judicata bars reargument of the original sentencing dispute about aggregate beyond framing it as nunc pro tunc. Trial court properly used nunc pro tunc to correct the clerical/math error from 32½ to 31½ years but must issue a new nunc pro tunc correcting all clerical items (remove/reflect suspended fines, costs, and restitution as appropriate) |
| Jail-time credit for 48 days (Jan 29–Mar 18, 2013) | Res judicata (in state’s briefing) because defendant did not raise at sentencing or on direct appeal | Court failed to determine and journalize jail-time credit; defendant entitled to credit and has a statutory post-sentencing procedure to obtain correction | Court: R.C. 2929.19(B)(2)(g)(iii) permits the trial court to correct jail-time credit errors at any time after sentencing; defendant must file motion in trial court to obtain the credit (res judicata does not bar this statutory remedy) |
Key Cases Cited
- State v. Qualls, 131 Ohio St.3d 499 (Ohio 2012) (trial court may correct certain clerical errors by nunc pro tunc entry)
- State ex rel. Womack v. Marsh, 128 Ohio St.3d 303 (Ohio 2011) (courts retain inherent authority to correct clerical errors so the record reflects the truth)
- State ex rel. DeWine v. Burge, 128 Ohio St.3d 236 (Ohio 2011) (nunc pro tunc authority and correction of clerical mistakes)
- State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353 (Ohio 2006) (record must speak the truth; clerical corrections appropriate)
- State v. Miller, 127 Ohio St.3d 407 (Ohio 2010) (nunc pro tunc may correct errors arising from oversight or omission)
- State v. Lester, 130 Ohio St.3d 303 (Ohio 2011) (nunc pro tunc cannot change what court actually decided; limited to memorializing prior action)