State v. Zawitz
2013 Ohio 2540
Ohio Ct. App.2013Background
- Michael Zawitz pleaded guilty in three consolidated Cuyahoga County cases (CR-420037, CR-421418, CR-423331) to burglary and related offenses and received concurrent prison terms in 2002.
- In 2004 the trial court granted judicial release and imposed five years of community control sanctions (with warning that violations could lead to prison).
- In March 2005 the court found a community-control violation, continued supervision, and ordered six months of treatment.
- On March 29, 2006 the court revoked community control a second time and, at the revocation hearing, orally imposed a two-year prison term (journalized as 2 years that day).
- On May 12, 2006 the trial court issued a nunc pro tunc entry amending the March 29, 2006 journal entry to reflect a four-year total prison term.
- Zawitz moved in 2012 to correct the nunc pro tunc change; the trial court denied relief. On appeal the Eighth District reversed, holding the nunc pro tunc was improperly used to increase the sentence in the defendant’s absence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could use a nunc pro tunc entry to increase Zawitz’s sentence after the March 29, 2006 journal entry | The State defended the trial court’s correction as proper administrative/clerical action | Zawitz argued the nunc pro tunc improperly altered the sentence beyond correcting a clerical error and thus was invalid | Court held the nunc pro tunc improperly altered the sentence; it may not be used to change what the court actually decided |
| Whether increasing the sentence via nunc pro tunc without the defendant present violated Crim.R. 43(A) | The State argued no rule violation or that the correction was permissible without resentencing presence | Zawitz argued Crim.R. 43(A) entitles a defendant to be present for any change to sentence | Court held increasing the sentence in the defendant’s absence violated Crim.R. 43(A); resentencing (or equivalent presence) was required |
Key Cases Cited
- State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158 (Ohio 1995) (nunc pro tunc entries are limited to making the record speak the truth)
- Reinbolt v. Reinbolt, 112 Ohio St. 526 (Ohio 1925) (nunc pro tunc corrects the record to reflect what actually occurred)
- State ex rel. Phillips v. Indus. Comm., 116 Ohio St. 261 (Ohio 1927) (nunc pro tunc cannot modify an existing judgment)
- Natl. Life Ins. Co. v. Kohn, 133 Ohio St. 111 (Ohio 1937) (nunc pro tunc beyond the court's power produces an invalid order)