THE STATE OF OHIO, APPELLEE, v. LESTER, APPELLANT.
Nos. 2010-1007 and 2010-1372
Supreme Court of Ohio
Submitted April 6, 2011—Decided October 13, 2011
130 Ohio St.3d 303, 2011-Ohio-5204
{17} Relator had requested a one-year suspension, but the panel and board recommended a six-month suspension. Although an actual suspension from the practice of law is the general sanction when an attorney engages in dishonest conduct, a lesser sanction may be appropriate when the misconduct is an isolated incident in an attorney‘s career or when little or no harm resulted from the misconduct. Disciplinary Counsel v. Cuckler, 101 Ohio St.3d 318, 2004-Ohio-784, 804 N.E.2d 966, ¶ 10. Given Cameron‘s misconduct as it relates to this single matter, the length of his career, and the limited harm attributable to the misconduct, a one-year stayed suspension is appropriate.
{18} Accordingly, respondent John Brooks Cameron is suspended from the practice of law for a period of one year, but the suspension is stayed on the condition that he commit no further misconduct. If he fails to comply with this condition, the stay will be lifted and he will serve the entire one-year suspension. Costs of these proceedings shall be taxed to respondent.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
John Porter; and The Bailey Law Firm and William E. Steiger II, for relator.
John Brooks Cameron, pro se.
{11} We are asked to determine this certified question: Is a nunc pro tunc judgment entry that is issued for the sole purpose of complying with
I. Background
{12} In 2006, a jury found appellant, Steven Lester, guilty of various crimes. Appellant was sentenced to prison, and he was advised at the sentencing hearing that he would be subject to postrelease control after completing his prison term. In accordance with
{13} On remand, the trial court resentenced appellant to the same prison term to which it had originally sentenced him, and it corrected the postrelease-control portion of the sentence. Again, the sentencing entry stated, “The Court finds the Defendant has been convicted of [abduction, theft, attempted felonious assault, and aggravated menacing],” but the judgment entry did not set out how appellant‘s original convictions were effected, that is, whether they were based upon a guilty or no-contest plea, or findings after a bench trial, or a verdict after a jury trial.
{14} Appellant again appealed. The court of appeals affirmed the trial court‘s sentence. 3d Dist. No. 2-07-34, 2008-Ohio-1148, 2008 WL 696901. This court declined to accept a discretionary appeal. 119 Ohio St.3d 1413, 2008-Ohio-3880, 891 N.E.2d 771. Appellant then filed a second motion for postconviction relief, which the trial court also denied. The denial was affirmed by the appellate court, and this court declined further review. 122 Ohio St.3d 1524, 2009-Ohio-4776, 913 N.E.2d 459 (May 11, 2009), 3d Dist. No. 2-08-24.
{15} On April 5, 2010, the trial court sua sponte filed a nunc pro tunc judgment entry. The nunc pro tunc entry supplemented the wording of the original resentencing judgment entry by adding the following sentence to the existing text: “The Court finds the Defendant has been convicted, pursuant to a verdict at Jury Trial returned May 16, 2006, of [abduction, theft, attempted felonious assault, and aggravated menacing].” (Emphasis sic.) Appellant filed a notice of appeal from this nunc pro tunc entry in the Third District Court of Appeals. Before the matter was set for briefing, the appellate court sua sponte dismissed the appeal for lack of jurisdiction. (May 12, 2010), 3d Dist. No. 2-10-20. The court concluded that the nunc pro tunc entry had been issued “for the sole purpose of retrospectively correcting a clerical omission in the prior sentencing judgment to comply with
{16} Thereafter, appellant obtained a certification of a conflict of the decision in this case with that of State v. Lampkin, Lucas App. No. L-09-1270, 2010-Ohio-1971, 2010 WL 1781496. We recognized the conflict and accepted appellant‘s
II. Crim.R. 32(C) and State v. Baker
{17} As a threshold matter to the question presented in this appeal, we must address a separate issue: whether a judgment entry of conviction that states the fact of defendant‘s conviction but does not state how the conviction was effected is nevertheless a final order from which an appeal may be taken. This issue arises because the judgment entry of conviction prior to the nunc pro tunc entry in the case now before us stated the fact of defendant‘s conviction but did not state whether the defendant was convicted through a guilty plea, a no-contest plea upon which the court made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial. Resolution of this foregoing issue requires a discussion of
{18}
{19} In Baker, we also stated that
{110} Accordingly, we begin by observing that the purpose of
{111} We further observe that
{112} In contrast, when the substantive provisions of
{13} This analysis is not contrary to Baker. The circumstances and question presented in this case are distinguishable from those presented in Baker, which asked whether the term “the plea” in
{14} Nevertheless, to the extent that Baker implies, or has been interpreted to require, that more than the fact of conviction and the substantive provisions of
{15} Notwithstanding the foregoing, because a statement of how a defendant‘s conviction was effected is required by
{16} Consequently, if a judgment entry of conviction does not indicate how a defendant‘s conviction was effected, whether it was by a guilty plea, a no-contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial, and if it is not corrected by the court sua sponte, as was done in this case, a party may obtain a correction to the judgment entry by a motion filed with the trial court to correct the judgment of conviction. See
III. Nunc pro tunc entries
{17}
{18} The remaining question is whether appellant may appeal from the nunc pro tunc entry. It is well settled that courts possess the authority to correct errors in judgment entries so that the record speaks the truth. State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 163-164, 656 N.E.2d 1288;
{19} “Nunc pro tunc” means “now for then” and is commonly defined as “[h]aving retroactive legal effect through a court‘s inherent power.” Black‘s Law Dictionary (9th Ed.2009) 1174. Therefore, a nunc pro tunc entry by its very nature applies retrospectively to the judgment it corrects. See, e.g., Miller at ¶ 14, 15; Fogle at 163-164. Appellate courts throughout the state have consistently applied these principles. See, e.g., State v. Harrison, Butler App. Nos. CA2009-10-272 and CA2010-01-019, 2010-Ohio-2709, 2010 WL 2373151, ¶ 24, citing State v. Battle, Summit App. No. 23404, 2007-Ohio-2475, 2007 WL 1490053, ¶ 6 (“generally, [a] nunc pro tunc entry relates back to the date of the journal entry it corrects“); State v. Yeaples (3d Dist.), 180 Ohio App.3d 720, 2009-Ohio-184, 907 N.E.2d 333, ¶ 15 (“A nunc pro tunc entry is the procedure used to correct clerical errors in a judgment entry, but the entry does not extend the time within which to file an appeal, as it relates back to the original judgment entry“); State v. Breedlove (1st Dist.1988), 46 Ohio App.3d 78, 81, 546 N.E.2d 420, quoting Natl. Life Ins. Co. v. Kohn (1937), 133 Ohio St. 111, 113, 10 O.O. 122, 11 N.E.2d 1020 (“‘The power to make nunc pro tunc entries is restricted ordinarily to the subsequent recording of judicial action previously and actually taken. It is a simple device by which a court may make its journal speak the truth.’ It ‘speaks the truth’ by correcting a judicial record that fails to show an order or a judgment of the court because the order or judgment was not recorded at all in the first instance“).
{20} In the case now before us, the original resentencing order complied with the substantive requirements of
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER and MCGEE BROWN, JJ., concur.
LUNDBERG STRATTON and O‘DONNELL, JJ., concur in part and dissent in part.
LANZINGER, J., dissents.
O‘DONNELL, J., concurring in part and dissenting in part.
{21} I concur in the majority‘s decision that the original judgment of conviction entered in this case constituted a final, appealable order, notwithstanding the sentencing court‘s failure to specify the “manner of conviction.”
{22} However, I dissent from the majority‘s suggestion that ”
{23} Rather, our decision in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, inadvertently added the requirement to specify the manner of conviction to
Crim.R. 32(C)
{24} Prior to the adoption of
{25} In accord with this precedent, the court adopted Crim.R. 32(B) (now (C)), effective July 1, 1973, and as amended, it now provides: “A judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence. Multiple judgments of conviction may be addressed in one judgment entry. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.” This rule contains plain, unambiguous language and has been easily understood and followed for decades.
{26} In cases decided after the adoption of this rule, we have continued to recognize that a judgment of conviction is composed of two essential elements: the adjudication of guilt and the sentence. E.g., State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568 (“‘conviction’ includes both the guilt determination and the penalty imposition” [emphasis sic]); State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24 (“a ‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty” [emphasis sic]). Cf. State v. Tuomala, 104 Ohio St.3d 93, 2004-Ohio-6239, 818 N.E.2d 272, ¶ 14-15 (explaining that no judgment of conviction is entered when a defendant is found not guilty by reason of insanity).
{27} The
{28} For purposes of the finality of a judgment of conviction, however, the manner of conviction is not a requirement; rather,
State v. Baker
{29} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, we declared that “[a] judgment of conviction is a final appealable order under
{30} Explaining that language in Baker, we further stated that “a trial court is required to sign and journalize a document memorializing the sentence and the manner of the conviction: a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial.” (Emphasis added.) Id. at ¶ 14.
{31} In an attempt to guide trial judges in their efforts to comply with
{32} According to the plain language of the rule, sentencing courts do not need to indicate the manner of conviction in a judgment of conviction. Rather,
Conclusion
{33} Accordingly, I concur in the majority‘s holding that
{34} Despite holding that specifying the manner of conviction is not a “substantive” requirement of
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
LANZINGER, J., dissenting.
{35}
{36} Contrary to the statement that Baker has been “modified,” the majority now rewrites
{37} Lester‘s sentencing entry did not contain the first required element. His judgment entry did not state the manner of his conviction—whether obtained through “a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial“—which Baker clearly holds is required under
{38} We have consistently cited Baker and have held that a judgment of conviction complies with
{39} In essence, the majority rewrites one of the rule‘s requirements for a final, appealable order. It deletes the words “the plea, the verdict, or findings,
{40} The problem, of course, is what is to be done in cases in which a sentencing entry is defective, at least according to the current rule. Should there be a right to appeal from an order that is corrected so that it is made subject to appeal? The majority resolves the issue by denying a defendant the right to appeal from an order that is corrected to conform to
{41} Nevertheless, unless
{42} The sentencing entry before us was not final and appealable until it was corrected to meet the requirements set forth in
Edwin A. Pierce, Auglaize County Prosecuting Attorney, and Amy Otley Beckett, Assistant Prosecuting Attorney, for appellee.
Tucker, Ellis & West, L.L.P., and Jon W. Oebker, for appellant.
Timothy Young, Ohio Public Defender, and E. Kelly Mihocik, Assistant Public Defender, urging reversal for amicus curiae Ohio Public Defender.
Michael DeWine, Attorney General, Alexandra T. Schimmer, Chief Deputy Solicitor General, and David M. Lieberman, Deputy Solicitor, urging affirmance for amicus curiae Ohio Attorney General.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.