Lead Opinion
{¶ 2} Ferrell appealed his convictions and sentence. This court, while affirming his convictions, reversed Ferrell's sentence and remanded to the trial court for resentencing because Ferrell should have been sentenced in accordance with the statutory scheme in effect in 1992 — the law in effect when the crimes occurred — and not in accordance with Senate Bill 2, which was enacted in 1996.
{¶ 3} On remand, the trial court conducted a resentencing hearing and sentenced Ferrell to life in prison with the possibility of parole after serving a full 30 years in prison for each of the two murders he committed. The trial court also sentenced Ferrell to ten to 25 years in prison for the aggravated robbery, aggravated burglary, and kidnapping convictions. Ferrell now appeals, citing two assignments of error.
{¶ 5} The Supreme Court of Ohio in State v. Penix (1987),
{¶ 6} "[W]hen an accused is tried by jury and convicted of aggravated murder with specification, a death sentence may be imposed by the trial judge only upon recommendation of the same jury that tried the guilt phase of the proceedings, pursuant to the criteria set forth in R.C.
{¶ 7} Although the jury in Penix recommended a death sentence and the jury here recommended life imprisonment without the possibility of parole for Ferrell, the Penix holding is still applicable. This court, like thePenix court, vacated Ferrell's sentence and remanded to the trial court for resentencing because of applying the wrong statutory sentencing scheme to Ferrell's sentence. On remand at the resentencing, the trial court was limited to the sentences available pursuant to the 1992 version of R.C.
{¶ 8} Following Penix, the trial court, and not a jury, resentenced Ferrell. Despite Ferrell's argument to the contrary, he is not entitled to another jury recommendation at resentencing, as death is no longer a possible sentence and the Supreme Court of Ohio specifically provided that it is the trial court that resentences the offender. The trial court properly resentenced Ferrell to life imprisonment with the possibility of parole after serving a full 30 years in prison for both aggravated murder convictions. Thus, Ferrell's first assignment of error is overruled.
{¶ 10} It is patently clear from the transcript at the resentencing hearing, at which Ferrell was present, that the trial court informed Ferrell of the possible sentence that could be imposed for his aggravated burglary, aggravated robbery, and kidnapping convictions pursuant to the 1992 version of R.C.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANN DYKE, P.J., CONCURS IN JUDGMENT ONLY. MARY EILEEN KILBANE, J., CONCURS IN PART AND DISSENTS IN PART WITHSEPARATE OPINION.
Notes
Dissenting Opinion
{¶ 11} I concur with the majority's opinion disposing of the first assignment of error, but respectfully dissent with the majority's conclusion that the trial court's nunc pro tunc order was merely a correction of a clerical error.
{¶ 12} Crim.R. 36 provides that "[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time." Crim.R. 43, however, provides that:
"(A) Defendant's presence
The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules. In all prosecutions, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the verdict. A corporation may appear by counsel for all purposes."
{¶ 13} Upon this Court's original remand for resentencing, the trial court noted that since Ferrell's offenses occurred on or about December 19, 1992, a time before the sentencing changes under Senate Bill 2, Ferrell would be sentenced under those guidelines. Before imposing sentence, the court advised Ferrell of the possible sentences and advised him that:
"Under Section
{¶ 14} After allowing argument from defense counsel and from the State, and advising Ferrell of the possible range of sentences, the trial court sentenced Ferrell and found:
"Now, with respect to counts five through ten, the Court imposes the sentence of 10 years in prison on each of these counts. These 10 year sentence [sic] on counts five through ten will run concurrent to each other." (Transcript at 18.)
{¶ 15} Although the majority contends that any correction of Ferrell's sentence from ten years to ten to twenty-five years was merely a clerical error, I believe this correction imposes a substantive change that necessitates a remand for resentencing.
{¶ 16} In State v. Brown,
{¶ 17} Likewise, in State v. Gabriel, (Dec. 31, 1987), Cuyahoga App. No. 53141, the defendant appealed claiming that the trial court, outside of his presence, increased his original sentence through the use of a nunc pro tunc entry. Although Gabriel was originally sentenced to a period of nine to twenty-five years and five to fifteen years on various charges, seven days later, the trial court vacated its original sentence and imposed a sentence of ten to twenty-five years on each count, sentences to run concurrent. The trial court then journalized an entry indicating that the later entry was a nunc pro tunc, which therefore replaced the first entry.
{¶ 18} On appeal, this Court noted that Crim.R. 43(A) specifically requires a defendant's presence at every stage of the proceedings, including the imposition of sentence, and further found that this reasoning applied where one sentence is vacated and a new sentence imposed. See City of Columbus v. Rawland (1981),
{¶ 19} Similarly, in State v. Calvillo (Nov. 25, 1991), Cuyahoga App. No. 59282, the defendant appealed his felonious assault conviction claiming that the trial court's nunc pro tunc entry increasing his sentence violated Crim.R. 43 since he was not present for resentencing. The facts reveal that the initial sentence, i.e., a two- to fifteen-year sentence for an aggravated felony of the second degree, was not statutorily authorized. To correct this error, the trial court used a nunc pro tunc order to state the proper statutory period, i.e., three to fifteen years. This Court found that a trial court can correct an illegal sentence so long as it is in open court with the defendant present and with a full explanation for resentencing — a fact not present in the instant case.
{¶ 20} In this case, I believe the trial court likewise used a nunc pro tunc entry to make a substantive correction to a prior entry. As held by the Ohio Supreme Court, "[n]unc pro tunc entries are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided or what the court intended to decide." Stateex rel. Fogle v. Steiner,
{¶ 21} The transcript reflects that on January 17, 2005, Ferrell was sentenced to ten years on counts five through ten. Fifteen days later, on February 1, 2005, the trial court entered a nunc pro tunc order altering the sentence from ten years to ten to twenty-five years. While the court might have imposed or intended to impose a ten- to twenty-five-year sentence originally, it clearly did not do so at the time of sentencing. Nunc pro tunc orders are allowed only to make the record reflect whatactually occurred at the hearing. See State v. McCornell, Cuyahoga App. No. 81581,
{¶ 22} For these reasons, I would find Ferrell's second assignment of error to have merit and remand for a complete resentencing.