2015 Ohio 3712
Ohio Ct. App.2015Background
- Michael Turner was convicted by a jury of three counts of trafficking in cocaine (two counts charged as third-degree felonies, one as second-degree; at sentencing the State conceded all should be third-degree).
- At sentencing the court imposed concurrent 30-month terms on each count to run consecutively (total 90 months), ordered court costs, DNA sampling, and orally ordered $1,800 "restitution" to three law-enforcement agencies for buy money used in the investigation.
- The written judgment entry, signed after sentencing, (a) incorrectly listed the sentencing date and judge, (b) omitted the oral restitution order, and (c) instead imposed a $1,800 fine distributed to the same agencies—an outcome neither requested nor ordered at the hearing.
- Turner did not object at sentencing; he appealed the judgment entry challenging the restitution/fine and the discrepancy between the oral sentence and the journal entry.
- The State conceded law enforcement buy money cannot be restitution under R.C. 2929.18 and agreed the written entry did not reflect the announced sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution to law‑enforcement for buy money is permitted under R.C. 2929.18 | State conceded such restitution is improper because agencies are not "victims" for voluntarily spent buy money | Turner argued restitution for buy money violated R.C. 2929.18 | Court dismissed this assignment because the oral restitution was not included in the journal entry and a court speaks only through its journal; therefore not reached on plain‑error grounds |
| Whether the written judgment entry may differ from the sentence announced in defendant's presence (Crim.R. 43) | State conceded the journal entry did not reflect the announced sentence and requested correction limited to the buy‑money issue | Turner argued the discrepancy (imposition of a fine in the entry though none was imposed at hearing) violated due process and Crim.R. 43 | Court held the journal entry conflicted with the announced sentence; vacated/reversed the fine portion of the entry and remanded for resentencing to correct discrepancies |
| Whether any plain error review applies given defendant's failure to object at sentencing | State argued only restitution/fine needed addressing and prison term could be affirmed | Turner preserved assignment of error despite silence by seeking appellate review; plain‑error standard applies but court will not invoke it where journal controls | Court applied plain‑error framework but declined to find plain error on restitution because the restitution was not journalized; did find error as to the inconsistent fine in the journal entry and corrected it |
| Whether remand for resentencing is required due to multiple clerical/discrepancy issues in the record | State asked to affirm the term of imprisonment and limit relief | Turner sought remand to correct entry and eliminate improper fine/restitution | Court remanded for resentencing to cure date/judge/signature, clarify fines/restoration of journal to match announced sentence, and otherwise conform proceedings to opinion |
Key Cases Cited
- State v. Osie, 140 Ohio St.3d 131 (2014) (a court of record speaks only through its journal)
- State v. Montgomery, 970 N.E.2d 999 (2008) (restitution for law‑enforcement buy money is not authorized under statute)
- State v. Barnes, 759 N.E.2d 1240 (Ohio 2001) (plain‑error test and cautionary standard for Crim.R. 52(B))
- United States v. Vonn, 535 U.S. 55 (2002) (reviewing plain error when defendant is silent at trial)
- State v. Long, 372 N.E.2d 804 (Ohio 1978) (plain‑error relief is reserved for exceptional circumstances)