STATE OF OHIO v. SHAUN D. KENDRICK, SR.
Appellate Case No. 24626
Trial Court Case No. 03-CR-4234
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
February 10, 2012
2012-Ohio-504
KLINE, J. (sitting by assignment)
Criminal Appeal from Common Pleas Court
Rendered on the 10th day of February, 2012.
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
SHAUN D. KENDRICK, SR., #A489-082, Pickaway Correctional Institution, Post Office Box 209, Orient, Ohio 43146 Defendant-Appellant, pro se
KLINE, J. (sitting by assignment)
{¶ 1} Shaun D. Kendrick, Sr., appeals the denial of his Motion to Dismiss and Vacate Conviction Pursuant to
I.
{¶ 2} On January 26, 2005, Kendrick accepted a plea deal and pled guilty to seven counts of rape. “Six of those convictions were for rapes that had occurred prior to the July 1, 1996 effective date of the Senate Bill 2 sentencing laws, and the other one took place after that date. The trial court sentenced Kendrick to five consecutive, indeterminate sentences of 10 to 25 years and one concurrent sentence of 10 to 25 years for the pre-S.B. 2 rapes. The court also ordered a consecutive 10-year term for the post-S.B. 2 rape. We affirmed Kendrick‘s convictions and sentence. State v. Kendrick, Montgomery App. 20965, 2006-Ohio-311 [hereinafter ’Kendrick I‘].” State v. Kendrick, Montgomery App. No. 21790, 2007-Ohio-6136, at ¶2 (hereinafter ”Kendrick II“).
{¶ 3} The Supreme Court of Ohio reversed Kendrick‘s post-S.B. 2 sentence following our decision in Kendrick I. See In re Ohio Sentencing Cases, 109 Ohio St.3d 411, 2006-Ohio-2394, at ¶19. The case was remanded for re-sentencing in line with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. See Kendrick II at ¶3.
{¶ 4} The trial court re-sentenced Kendrick on remand to ten years on the post-S.B. 2 count, and, in August 2006, the trial court issued a new termination entry (hereinafter the “Resentencing Entry“). The court ordered Kendrick to serve that sentence consecutive to his other six sentences. Kendrick appealed following the resentencing hearing, and we affirmed
{¶ 5} On January 20, 2011, Kendrick filed a “Motion to Dismiss and Vacate Conviction Pursuant to
{¶ 6} Kendrick appeals and asserts the following assignment of error:
{¶ 7} “THE TRIAL COURT ERRED IN NOT ISSUING A FINAL APPEALLABLE [sic] ORDER VIOLATING THE SIXTH & FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, §16 TO THE OHIO CONSTITUTION.”
II.
{¶ 8} In his sole assignment of error, Kendrick argues that the trial court‘s Resentencing Entry does not meet the requirements of a final appealable order, and, therefore, he is entitled to a hearing on why his case should not be dismissed.
{¶ 9}
{¶ 10} Thus, “[a] judgment of conviction is a final appealable order under
{¶ 11} Kendrick asserts that the Resentencing Entry is not a final appealable order because it fails to set forth the manner of Kendrick‘s conviction. That is, the entry does not indicate that Kendrick pled guilty to the crimes for which he was convicted. The State concedes the error in the Resentencing Entry. Kendrick notes that it has been six years since his original sentence and five years since the Resentencing Entry. According to Kendrick, the trial court has failed to impose his sentence without unnecessary delay, and, therefore, he claims he is entitled to an evidentiary hearing on why his case should not be dismissed. Kendrick‘s argument is misplaced because dismissal is not the proper remedy for the trial court‘s error.
{¶ 12} A nunc pro tunc entry is the proper method for correcting clerical errors such as the error in this case. “Clerical 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.”
{¶ 13} Thus, the trial court properly denied Kendrick‘s motion because Kendrick sought relief that was unavailable to him. That is, Kendrick sought an evidentiary hearing on why his case should not be dismissed. The proper remedy, however, for a trial court‘s failure to set forth the manner of a defendant‘s conviction in a judgment entry is to issue a nunc pro tunc entry that corrects the error.1
{¶ 14} Accordingly, we overrule Kendrick‘s sole assignment of error, and we will affirm the judgment of the trial court.
GRADY, P.J., and FAIN, J., concur.
(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck
Shaun D. Kendrick, Sr.
Hon. Michael Tucker