State v. Moore, 5-07-18 (3-17-2008)State v. Moore, 5-07-18 (3-17-2008)
{¶ 1} In cases numbered 5-07-18, 5-07-20, and 5-07-21, Defendant-Appellant, Jason L. Moore, appeals the judgment of the Hancock County Court of Common Pleas sentencing him to non-minimum prison terms. In this consolidated
{¶ 2} In 2005, in case number 5-07-20,1 the Hancock County Grand Jury indicted Moore for one count of receiving stolen property in violation of
{¶ 3} In 2006, in case number 5-07-21,2 the Hancock County Grand Jury indicted Moore for one count of burglary in violation of
{¶ 4} In early 2007, in case number 5-07-18,3 the Hancock County Grand Jury indicted Moore for one count of trafficking in cocaine in violation of
{¶ 5} In June 2007, the trial court accepted Moore‘s no contest pleas in case numbers 5-07-18 and 5-07-21 and convicted him of both counts of trafficking and both counts of burglary, stating that “[Moore] entered his pleas of Guilty” (June 2007 Judgment Entry, p. 3). Thereafter, the trial court sentenced Moore to a ten-month prison term on each count of trafficking, to be served concurrently, for
{¶ 6} Simultaneously, in case number 5-07-20, the trial court held a community control violation hearing and found that Moore had violated the terms of his community control. The trial court then revoked Moore‘s community control and sentenced him to an eleven-month prison term for his conviction of receiving stolen property, to be served concurrently with the sentences imposed in case numbers 5-07-18 and 5-07-21.
{¶ 7} It is from the June 2007 judgments in case numbers 5-07-18, 5-07-21, and 5-07-20 that Moore appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPOSING NON-MINIMUM SENTENCES IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT AND THESIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION. TR. 34; MAY 30, 2007 JUDGMENT ENTRY (PLEA; SENTENCING) FOR CASE NO. 2007 CR 23; MAY 30, 2007 JUDGMENT ENTRY (PLEA; SENTENCING) FOR CASE NO. 2006 CR 141; FIFTH, SIXTH,AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; BLAKELY V. WASHINGTON (2004), 542 U.S. 296; UNITED STATES V. BOOKER (2005), 543 U.S. 220; CUNNINGHAM V. CALIFORNIA (2007), ___U.S.___, 127 S.CT. 856.
Assignment of Error No. II
MR. MOORE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL ALLOWED HIM TO ACCEPT AN AGREED-UPON SENTENCE OF A NON-MINIMUM PRISON TERM. TR. 34; MAY 30, 2007 JUDGMENT ENTRY (PLEA; SENTENCING) FOR CASE NO. 2007 CR 23; MAY 30, 2007 JUDGMENT ENTRY (PLEA; SENTENCING) FOR CASE NO. 2006 CR 141; STRICKLAND V. WASHINGTON (1984), 466 U.S. 668, 686-87.
Assignment of Error No. III
THE TRIAL COURT ERRED BY IMPROPERLY JOURNALIZING MR. MOORE‘S PLEA OF NO CONTEST, INCORRECTLY INDICATING IN ITS JUDGMENT ENTRY THAT MR. MOORE PLEADED GUILTY. TR. 27-28, 29; MAY 30, 2007 JUDGMENT ENTRY (PLEA; SENTENCING) FOR CASE NO. 2007 CR 23; MAY 30, 2007 JUDGMENT ENTRY (PLEA; SENTENCING) FOR CASE NO. 2006 CR 141.
I. Case Number 5-07-20
{¶ 8} Before addressing Moore‘s assignments of error, we must first address whether the prison sentence imposed in case number 5-07-20 was proper. We raise this issue sua sponte and will consider it under the standard of plain error.
{¶ 9} In order to find plain error under
{¶ 10}
{¶ 11} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, the Supreme Court of Ohio held that, in order to comply with
{¶ 12} Here, the December 2005 judgment entry in case number 5-07-20 reads that Moore was notified that, upon violation of his community control, he would receive “a more restrictive sanction, a longer sanction, or a prison term of up to eleven (11) months.” (2005 Judgment Entry, p. 5). Under Brooks, this “range” of possible sentences does not constitute notification of a specific term as required by
{¶ 13} Accordingly, we reverse Moore‘s sentence in case number 5-07-20 and remand the matter to the trial court for resentencing with a prison term not an option.
II. Case Numbers 5-07-18 5-07-21
{¶ 14} We now address Moore‘s assignments of error regarding case numbers 5-07-18 and 5-07-21.
Assignment of Error No. I
{¶ 15} In his first assignment of error, Moore argues that the trial court committed plain error by imposing non-minimum sentences in violation of the Due Process Clause of the
{¶ 16} In Foster, the Supreme Court of Ohio held parts of the felony sentencing statute that required judicial factfinding before imposition of non-minimum or consecutive sentences to be unconstitutional and severed those parts. Foster, 109 Ohio St.3d at ¶ 100. Accordingly, Foster held that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum,
{¶ 17} This court has repeatedly found that Foster does not violate the Due Process Clause. See State v. McGhee, 3d Dist. No. 17-06-05, 2006-Ohio-5162, ¶¶ 14-20, and subsequent cases citing thereto. For the reasons set forth in McGhee, we find Moore‘s arguments unpersuasive.
{¶ 18} Additionally, although Moore contends that the United States Supreme Court rejected a Foster-type remedy in Cunningham v. California, supra, this court has previously found that Foster is consistent with Cunningham:
Cunningham struck down California‘s three-tiered determinate sentencing law, which required trial courts to make certain findings of facts before imposing a higher-tier prison term. Cunningham remedied the constitutional infirmity by severing those portions making the scheme mandatory, leaving only advisory guidelines in place, which is the precise remedy adopted by Foster.
State v. Land, 3d Dist. No. 2-07-20, 2007-Ohio-6963, ¶ 11 (citation omitted). See, also, State v. Kindle, 3d Dist. No. 5-07-11, 2007-Ohio-6422; State v. Orwick, 3d Dist. No. 5-06-59, 2007-Ohio-4488. Accordingly, Foster complies with Cunningham and Moore‘s argument to the contrary is erroneous.
{¶ 19} Accordingly, we overrule Moore‘s first assignment of error.
Assignment of Error No. II
{¶ 20} In his second assignment of error, Moore asserts that he was denied effective assistance of counsel because his counsel allowed him to accept an agreed-upon sentence of a non-minimum prison term. Specifically, Moore asserts that non-minimum prison terms are illegal, and, therefore, his counsel should have objected to the imposition of the sentence in order to preserve the issue for appellate review. We disagree.
{¶ 21} An ineffective assistance of counsel claim requires proof that trial counsel‘s performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, but for counsel‘s errors, the outcome at trial would have been different. Id. at paragraph three of the syllabus. “Reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by constitutional amendment on other grounds as recognized by State v. Smith, 80 Ohio St.3d 89, 103, 1997-Ohio-355.
{¶ 22} Furthermore, the court must look to the totality of the circumstances and not isolated instances of an allegedly deficient performance. State v. Malone (1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not
{¶ 23} Here, the trial court held the adjudicatory hearing to revoke Moore‘s community control in June 2007, nearly nine months after this Court decided McGhee, supra. Thus, Moore‘s counsel was not deficient for failing to argue that his sentence was illegal for reasons we rejected in McGhee and Moore has not proven that his counsel‘s performance fell below the standards of reasonable representation under the circumstances. See State v. Aguilar, 3d Dist. No. 4-07-15, 2007-Ohio-6017, ¶ 15.
{¶ 24} Additionally, as stated above, Foster explicitly held that trial courts have full discretion to impose non-minimum, maximum, or consecutive prison terms within the proper statutory range. Foster, 109 Ohio St.3d at paragraph seven of the syllabus. Therefore, Moore has also failed to demonstrate any reasonable probability that, had his counsel objected to his non-minimum, consecutive prison terms, the outcome of his probation revocation hearing would have been different. See Aguilar, 2007-Ohio-6017, ¶ 17.
{¶ 25} Accordingly, we overrule Moore‘s second assignment of error.
Assignment of Error No. III
{¶ 26} In his third assignment of error, Moore asserts that the trial court erred because it improperly journalized his no contest pleas as guilty pleas in case numbers 5-07-18 and 5-07-21. Specifically, Moore contends that there are significant legal differences between a no contest and a guilty plea, and requests that we remand case numbers 5-07-18 and 5-07-21 for resentencing.
{¶ 27} Here, the record reflects that Moore entered no contest pleas in case numbers 5-07-18 and 5-07-21. Additionally, the State concedes that the trial court erroneously journalized Moore‘s no contest pleas as guilty pleas in case numbers 5-07-18 and 5-07-21.
{¶ 28}
The tool utilized to correct such errors is generally a nunc pro tunc entry. The term “clerical mistake” refers to “a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment.” Furthermore, “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.”
{¶ 29} While we agree with Moore‘s assertion that the trial court‘s error in journalizing his plea must be corrected, we disagree with his contention that we must remand case numbers 5-07-18 and 5-07-21 for resentencing. Instead, we find that the trial court‘s error in journalizing his plea was a clerical mistake and, therefore, that a nunc pro tunc entry is the proper tool to correct the error. Additionally, instead of entering, as a corrective entry, a complete restatement of the original entry with the properly corrected language, we note that the better procedure is for the entry nunc pro tunc to state only what was corrected without unnecessarily repeating the entire entry. This procedure relieves an interested party from examining the entire corrective entry in order to determine what was changed and guarantees that nothing that was originally stated correctly has since been improperly restated. See Herbert v. Porter, 165 Ohio App.3d 217, 225-226, 2006-Ohio-355 (Rogers, J., concurring in part and dissenting in part).
{¶ 30} Accordingly, we sustain Moore‘s third assignment of error only to the limited extent set forth herein.
{¶ 31} In case numbers 5-07-18 and 5-07-21, having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we
{¶ 32} In case number 5-07-20, having found error prejudicial to the appellant herein regarding the trial court‘s failure to provide notice of a specific prison term, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment reversed and cause remanded in case number 5-07-20. Judgment affirmed and cause remanded in case numbers 5-07-18 5-07-21.
SHAW, P.J., and WILLAMOWSKI, J., concur.