State v. O'NealState v. O'Neal
Dated: March 29, 2010
DICKINSON, Presiding Judge.
INTRODUCTION
{¶1} William O’Neal pleaded guilty to three counts of kidnapping with firearm specifications, two counts of felonious assault, one count of carrying a concealed weapon, and one count of illegal possession of a firearm in a liquor premises. The trial court sentenced him to 13 years in prison. This Court reversed his sentence under State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856. After the court resentenced him in June 2006, Mr. O’Neal appealed. This Court dismissed the appeal because it concluded that the court’s judgment entry was not a final, appealable order because it did not comply with
POST-RELEASE CONTROL
{¶2} Mr. O’Neal’s assignment of error is that the trial court incorrectly denied his motion to invalidate his sentence. According to Mr. O’Neal, he is entitled to a new sentencing hearing because the court incorrectly wrote in its judgment entry that post-release control was for a discretionary period of “up to a maximum of five years.”
{¶3} The trial court sentenced Mr. O’Neal for kidnapping, a felony of the first degree, felonious assault, a felony of the second degree, carrying a concealed weapon, a felony of the fourth degree, and illegal possession of a firearm in a liquor premises, a felony of the fifth degree. Under
{¶4} “If an offender is subject to more than one period of post-release control, the period of post-release control for all of the sentences shall be the period of post-release control that expires last, as determined by the parole board or court.”
{¶5} Under
{¶6} At Mr. O’Neal’s May 2006 sentencing hearing, the trial court told him that “the prison authority could put you on post-release control for up to five years.” In its June 2006 “Judgment Entry” and its April 2007 “Nunc Pro Tunc Judgment Entry,” the court wrote “that post-release control is mandatory in this case up to a maximum of 5 years . . . .” Each time, the court mistakenly indicated that Mr. O’Neal could be subject to less than five years of post release control instead of indicating that he will be subject to the full term of five years. See State v. Pirovolos, 9th Dist. No. 08CA0087-M, 2009-Ohio-4422, at ¶3. His sentence, therefore, does not conform to the statutory requirements for post-release control under
{¶7} In State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, the Ohio Supreme Court held that, “[i]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void . . . .” Id. at syllabus. The Supreme Court reasoned that “no court has the authority to substitute a different sentence for that which is required by law.” Id. at ¶20. It concluded that “a
{¶8} In State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, the Ohio Supreme Court reconsidered Simpkins and its other post-release control opinions to address the effect that
{¶9} The trial court did not properly impose post-release control when it resentenced Mr. O’Neal. Under Singleton, the remedy is dependent on whether the sentence was imposed before or after July 11, 2006. State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, at ¶1. The trial court entered its “Judgment Entry” on June 14, 2006. It entered its “Nunc Pro Tunc Judgment Entry,” however, on April 4, 2007.
{¶10} “A nunc pro tunc order may be issued by a trial court, as an exercise of its inherent power, to make its record speak the truth.” State v. Greulich, 61 Ohio App. 3d 22, 24 (1988). “It is used to record that which the trial court did, but which has not been recorded.” Id. “[It is] limited in proper use to reflecting what the court actually decided, not what the court might or should have decided.” State ex rel. Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-Ohio-5795, at ¶19 (quoting State ex rel. Mayer v. Henson, 97 Ohio St. 3d 276, 2002-Ohio-6323, at ¶14). “It can be used to supply information which existed but was not recorded, to correct mathematical calculations, and to correct typographical or clerical errors.” Greulich, 61 Ohio App. 3d at 24.
{¶11} It is not necessary to determine whether the trial court’s “Nunc Pro Tunc Judgment Entry” was correctly labeled as a nunc pro tunc entry. After the trial court issued its “Nunc Pro Tunc Judgment Entry,” this Court considered the notice of appeal that Mr. O’Neal filed from it and determined that his appeal was “now properly before this Court.” State v. O’Neal, 9th Dist. No. 07CA0050-M, 2008-Ohio-1325, at ¶4. The doctrine of law of the case “provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St. 3d 1, 3 (1984). It “precludes a litigant from attempting to rely on arguments at a retrial [that] were fully pursued, or available to be pursued, in a first appeal. New arguments are subject to issue preclusion, and are barred.” Hubbard ex rel. Creed v. Sauline, 74 Ohio St. 3d 402, 404-05 (1996).
{¶12} After this Court issued its decision affirming the trial court’s “Nunc Pro Tunc Judgment Entry,” the parties could have moved this Court to reconsider it on the basis that the trial court’s judgment entry was not a proper nunc pro tunc order. They also could have appealed that issue to the Ohio Supreme Court. Because they did not, this Court must assume, under the doctrine of law of the case, that the “Nunc Pro Tunc Judgment Entry” was a proper nunc pro tunc entry.
{¶13} In general, “[a] nunc pro tunc entry relates back to the date of the journal entry it corrects.” State v. Battle, 9th Dist. No. 23404, 2007-Ohio-2475, at ¶6; see In re Petition for Inquiry into Certain Practices, 150 Ohio St. 393, paragraph two of the syllabus (1948) (noting that a nunc pro tunc entry is generally “given a retrospective application as between the parties thereto.“). “It is an order issued now, which has the same legal force and effect as if it had been issued at an earlier time, when it ought to have been issued.” State v. Greulich, 61 Ohio App. 3d 22, 24 (1988). Accordingly, even though the trial court issued its “Nunc Pro Tunc Judgment Entry” in April 2007, it must be treated as if it had been issued at the time the court entered its June 2006 judgment entry.
{¶14} Because the “Nunc Pro Tunc Judgment Entry” is treated as if it was entered on June 14, 2006, it was issued before the effective date of
CONCLUSION
{¶15} The trial court incorrectly denied Mr. O’Neal’s motion to invalidate his sentence. The judgment of the Medina County Common Pleas Court is reversed, and this cause is remanded for further proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to appellee.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, J. CONCURS
CARR, J. DISSENTS, SAYING:
{¶16} Regardless of whether the nunc pro tunc entry relates back to June 2006, I respectfully dissent as I am unwilling to extend this Court’s reasoning and hold that O’Neal’s sentence is void pursuant
APPEARANCES:
JOSEPH F. SALZGEBER, attorney at law, for appellant.
DEAN HOLMAN, prosecuting attorney, and RUSSELL HOPKINS, assistant prosecuting attorney, for appellee.