State v. McAdamsState v. McAdams
Judgment: Affirmed and remanded.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Concetta F. Grimm, 11455 Rust Drive, Chesterland, OH 44026 (For Defendant-Appellant).
OPINION
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Craig McAdams, appeals from the Judgment Entry of the Lake County Court of Common Pleas, sentencing him to a totаl term of imprisonment of ten years for Operating a Vehicle While Intoxicated (OVI). For the
{¶2} On August 1, 2009, the City of Mentor Police Department received a citizen‘s report that a man had been at a BP gas station, discussing that he was drunk. The report stated that the man had left the BP and was traveling on Heisley Road, driving a silver van. Nearby рolice officers quickly saw a silver van weaving across the lanes of travel. Police performed a stop of this vehicle, which was driven by McAdams. McAdams admitted to police that he did not have a valid driver‘s license. The police noticed that McAdams had slurred speech, glassy eyes, and smelled of alcohol. McAdams admitted that he had a few drinks prior to driving.
{¶3} Police requested that McAdams perform field sobriety tests. After failing the hоrizontal nystagmus test, McAdams told the officers that he could not perform the walk and turn or one legged stand test. McAdams was placed under arrest for OVI.
{¶4} On September 20, 2009, McAdams was indicted by the Lake County Grand Jury for one count of OVI, a felony of the third degree, in violation of
{¶5} On November 24, 2009, a change of plea hearing was held. McAdams entered a plea of guilty to one count of OVI, in violation of
{¶6} On January 4, 2010, a sentencing hearing was held. During the hearing, McAdams gave a statement expressing remorse, accepting responsibility for his actions, and explaining his willingness to change. The court placed on the record that it was sympathetic to McAdams’ struggle with alcohol and that the court accepted McAdams remorse as genuine. However, the court also noted that McAdams had twelve prior convictions for OVI. McAdams had served two terms of imprisonment for felony OVI, the most recent ending in 2008. The court expressed concern over these repeated violations and McAdams’ inability to respond to alcohol treatment. Consequently, the court sentenced McAdams to five years on the
{¶7} McAdams timely appeals and asserts the following assignments of error:
{¶8} “[1.] The trial court erred to the prejudice of the defendant-appellant when it sentenced the defendant-appellant to a mandatory prison term on the underlying OVI offense contrary to the plain language of
{¶9} “[2.] Defendant-appellant was denied effective assistance of counsel in violation of the
{¶10} “[3.] The trial court erred by sentencing the defendant-appellant to the maximum term of imprisonment.”
{¶11} In his first assignment of error, McAdams argues that the court committed plain error when it sentencеd him to a sixty-day mandatory prison term as part of a five-year sentence imposed on the underlying third-degree felony OVI offense. McAdams asserts that this was contrary to the plain language of
{¶12} The State concedes that the Judgment Entry contains a plain error in sentencing and requests that the trial court be allowed to correct this error.
{¶13} “If the offender is being sentenced for a third or fourth degree felony OVI offense under division (G)(2) of section 2929.13 of the Revised Code, the sentencing court shall impose upon the offender a mandatory prison term in accordance with that division.”
{¶14}
{¶15} Both
{¶16} McAdams’ position is supported by this court‘s decision in State v. Stillwell, 11th Dist. No. 2006-L-010, 2007-Ohio-3190. In that case, appellant was found guilty of fourth degree felony OVI, with
{¶17} Here, a clerical mistake occurred in that the Judgment Entry, provided by the State to the court and later signed by the court, incorrectly included language stating that McAdams was to serve a sixty-day mandatory term of incarceration. A review of the record and the hearing transcript reflects that a sixty-day mandatory term of incarceration was never discussed or ordered by the court during the sentencing hearing.
{¶18} In State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, the Ohio Supreme Court acknowledged that “a trial court can correct clerical errors in judgments.” Id. at ¶19 (citation omitted);
{¶19} The trial court can cure the error in the Judgment Entry of sentence with a nunc pro tunc entry, so that “the record speaks the truth” regarding the sentence given by the court to McAdams at the sentencing hearing, which did not include the sixty-day mandatory sentence included in the Judgment Entry. Here, the court rendered its true judgment during the sentencing hearing and the Judgment Entry inadvertently failed to
{¶20} Moreover, it is аppropriate for this court to order the trial court to issue a nunc pro tunc entry. See State v. Moore, 3rd Dist. Nos. 5-07-18, 5-07-20, and 5-07-21, 2008-Ohio-1152, at ¶29 (Appellate court concluded that “the trial court‘s error in journalizing [appellant‘s] plea was a clerical mistake and, therefore, that a nunc pro tunc entry is the proper tool to correct the error,” found that resentencing was unnecessary and remanded to the trial court to issue a nunc pro tunc еntry.)
{¶21} Therefore, we remand and order that the trial court issue a nunc pro tunc entry, removing the sixty-day mandatory sentence that was mistakenly included in the Judgment Entry of Sentence.
{¶22} The first assignment of error is with merit, only to the extent discussed above.
{¶23} In his second assignment of error, McAdams asserts that he failed to receive effective assistance of counsel.
{¶24} The Ohio Supreme Court has adopted a two-part test to decide whether an attоrney‘s performance is below the constitutional standard for effective assistance of counsel. To reverse a conviction due to ineffective assistance of counsel, the defendant must prove “(1) that counsel‘s performance fell below an objective standard
{¶25} If a deficiency in counsel‘s performance is found, the appеllant must then show that prejudice resulted. State v. Swick, 11th Dist. No. 97-L-254, 2001-Ohio-8831, 2001 Ohio App. LEXIS 5857, at *5. “To warrant reversal, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘” State v. Stojetz, 84 Ohio St.3d 452, 457, 1999-Ohio-464, citing Strickland, 466 U.S. at 694.
{¶26} McAdams argues that “trial counsel failed to object to the trial court‘s imposition of a sixty-day mandatory prison term as part of a five-year sentence it imposed on the underlying third-degree felony OVI offense contrary to the plain language of
{¶27} Regardless of whether trial counsel was ineffective in failing to recognize the error in the court‘s Judgment Entry, no prejudice to McAdams resulted. The sixty day mandatory sentence does not add additional time to McAdams’ sentence or prevent
{¶28} McAdams also asserts that sentencing him on
{¶29} McAdams asserts that the prior OVI convictions forming the basis for the
{¶30}
{¶31} ”
{¶32} In light of the foregoing, the application of the
{¶33} McAdams also argues that sentencing him on both a third-dеgree felony OVI offense and an
{¶34} “[W]here its intent is manifest, the General Assembly may prescribe the imposition of cumulative punishments for crimes which constitute the same offense without violating the constitutional protections against double jeopardy.” State v. Zampini, 11th Dist. No. 2007-L-109, 2008-Ohio-531, at ¶11. ”
{¶35} On multiple occasions, this court has held that no double jeopardy oсcurs when a defendant receives a punishment for both the underlying OVI offense and the
{¶36} In light of our prior opinions on this issue, no violation of McAdams’ double jeopardy rights occurred in this case.
{¶37} The second assignment of error is without merit.
{¶38} In his third assignment of error, McAdams argues that the trial court erred in sentencing him to the maximum term of imprisonment.
{¶39} “[A]ppellate courts must apply a two-step approach when reviewing felony sentences. First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶26.
{¶40} The overriding purposes of felony sentencing in Ohio “are to protect the public from future crime by the offender *** and to punish the offender.”
{¶41} It is well-established that
{¶42} McAdams does not claim that his sentence was contrary to law. Rather, he argues the trial court failed to give “careful and substantial deliberation to the
{¶43} We find no abuse of discretion in the trial court‘s decision to impose the maximum sentence for a third-degree felony OVI and its accompanying specification. The record demonstrates that the court complied with
{¶44} The third assignment of error is without merit.
{¶45} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, sentencing McAdams to a total term of imprisonment of ten years for OVI is affirmed. This matter is remanded to the trial court for thirty days from the date of the judgment entry in this case with instructions for the trial court to issue a nunc pro tunc entry, removing the sixty-day mandatory sentence from its Judgment Entry of sentence. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
{¶46}
{¶47} “For more than seventy years, Ohio law has been clear that the function of a nunc pro tunc order, whether requested by a party or entered on the court‘s own initiative, is, essentially, clerical; it is to record officially an action or actions of a court actually taken but not duly recorded. Helle v. Pub. Util. Comm. (1928), 118 Ohio St. 434, ***; Webb v. Western Reserve Bond & Share Co. (1926), 115 Ohio St. 247, ***;
{¶48} “While courts possess authority to correct errors in judgment entries so that the record speaks the truth, nunc 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. State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 163-164, ***; State v. Hawk (1992), 81 Ohio App.3d 296, 300, ***. As stated in National Life Ins. Co. v. Kohn (1937), 133 Ohio St. 111, 113, ***:
{¶49} “‘(***) 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.‘”
{¶50} I find the error allеged by appellant regarding his sentence, in that it contains both a mandatory sixty day term on his underlying OVI conviction, as well as a mandatory term on the felony specification, is beyond that which may be corrected by a nunc pro tunc judgment entered pursuant to
{¶51} Further,
{¶52} Consequently, I would reverse and remand for resentencing on the first assignment of error, and find the others, moot.
{¶53} I respectfully dissent.