2021 Ohio 588
Ohio Ct. App.2021Background
- Marcus D. White was found guilty at a 2005 jury trial of murder and felonious assault with firearm specifications and originally sentenced to an aggregate 28 years to life.
- This court reversed and remanded; on remand the trial court merged firearm specifications and resentenced White on October 26, 2006 to an aggregate 25 years to life.
- On October 24, 2019 White filed a Crim.R. 36 motion asking the court to correct a clerical error in the sentencing entry to show conviction specifically under R.C. 2903.02(B) (felony murder) rather than the generic 2903.02 citation.
- The trial court granted the motion and issued a “Second Nunc Pro Tunc Re-Sentencing Entry” on April 30, 2020 that was identical to the 2006 entry except it added the subsection “(B).”
- White appealed, arguing the amendment converted or clarified his verdict to felony murder dependent on a predicate offense and thus required a resentencing hearing (and his presence) under Crim.R. 43 and controlling Ohio precedent. The court instead held the nunc pro tunc entry was a clerical correction that related back to the 2006 final order and dismissed the appeal as untimely for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court may amend the sentencing entry from 2903.02 to 2903.02(B) nunc pro tunc without a resentencing hearing | The State: the change is a clerical correction under Crim.R.36 that merely clarifies form and does not alter substance or sentence | White: the specification to 2903.02(B) makes the conviction dependent on a predicate offense and thus required resentencing and his presence under Crim.R.43 | The court treated the amendment as a clerical nunc pro tunc correction and not a substantive resentencing; the assignment of error was moot because of lack of jurisdiction (appeal untimely). |
| Whether the April 30, 2020 nunc pro tunc entry is a final, appealable order | The State: the October 26, 2006 resentencing entry was the final appealable order; the nunc pro tunc entry relates back to that entry and does not create a new final order | White: the 2020 entry altered the citation sufficiently to permit appeal or required procedural safeguards | The court held the 2020 nunc pro tunc entry is not a new final order, it relates back to the 2006 final entry, and therefore the appeal from the 2020 entry was untimely and must be dismissed. |
Key Cases Cited
- State v. Lester, 130 Ohio St.3d 303 (Ohio 2011) (explains Crim.R.36 nunc pro tunc corrections are for clerical errors, relate back to the original judgment, and do not create a new final order)
- In re Estate of Parmelee, 134 Ohio St. 420 (Ohio 1938) (nunc pro tunc entries are not independent judgments from which an appeal will lie)
- Roth v. Roth, 65 Ohio App.3d 768 (6th Dist. 1989) (generally an appeal cannot be taken from a nunc pro tunc judgment; appeal must be from the order the entry corrects)