State v. WheelerState v. Wheeler
Jeffrey P. Nunnari, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Brandon K. Wheeler, appeals the judgment of the Wood County Court of Common Pleas, convicting him, following a guilty plea, of one count of failure to comply with an order or signal of a police officer, and one count of petty theft, and sentencing him to serve a total prison term of 36 months. For the reasons that follow, we reverse.
{¶ 2} On February 20, 2020, the Wood County Grand Jury indicted appellant on one count of failure to comply with an order or signal of a police officer in violation of
{¶ 3} On May 8, 2020, appellant withdrew his initial plea of not guilty, and pleaded guilty to the counts as presented in the indictment. Following a
{¶ 4} Sentencing was held on June 26, 2020. At the sentencing hearing, the trial court noted appellant‘s lengthy criminal history of theft and drug use. The court further recounted the specifics of the present case in which appellant led police on a car chase lasting 15 minutes and traversing 25 miles. During that time, appellant operated his vehicle at a speed in excess of 100 m.p.h. Appellant also ran red lights and stop signs, traveled on the wrong side of the roadway, and continued to drive his truck even after the hood flew up and blocked the windshield. The court concluded,
The report in regard to what you did is really troubling, the way you drove. I understand that drugs are part of this and they suspended your
ability to make good decisions; but it appears that your ability to make good decisions has been suspended for a while in regard to this. You are forty years old. You have a long history of all of these offenses. You may be rehabilitatable (sic) and maybe community control will be appropriate at some time, but it‘s not right now.
Thus, the trial court ordered appellant to serve the maximum prison term of 36 months on the count of failure to comply, and 180 days on the count of petty theft. The court further ordered those sentences to be served concurrently.
{¶ 5} In its subsequent judgment entry of conviction, the trial court stated,
The Court further finds that after considering the factors set forth in
R.C. 2929.12 , a prison term is consistent with the purposes and principles of sentencing set forth inR.C. 2929.11 and the Defendant is not amenable to an available community control sanction.The Court further finds that a combination of community control sanctions would demean the seriousness of the Defendant‘s conduct and its impact on the victim, that a sentence of imprisonment is commensurate with the seriousness of the Defendant‘s conduct and its impact on the victim and that a prison sentence does not place an unnecessary burden on the state‘s governmental resources.
The Court finds that pursuant to
R.C. 2929.13(B) it is presumed that a prison term is necessary in order to comply with the purposes andprinciples of sentencing under R.C. 2929.11 , including, but not limited to, the fact that Defendant‘s prior record consists of over 5 traffic offenses and at least 6 theft offenses. (Emphasis sic.)
II. Assignment of Error
{¶ 6} Appellant has timely appealed his judgment of conviction, and now asserts one assignment of error for our review:
- The trial court erred to the prejudice of appellant by imposing sentence under the false belief that a prison sentence was statutorily presumed.
III. Analysis
{¶ 7} We review criminal sentences under the standard set forth in
{¶ 8} In his assignment of error, appellant argues that his sentence is contrary to law because it is based on the trial court‘s incorrect finding that a prison term is presumed
{¶ 9} The state, for its part, concedes that the court‘s reference to a prison term being presumed under
{¶ 10} We agree with the parties that the trial court‘s reference to a presumption of a prison term under
{¶ 11} It is axiomatic that “a court speaks through its journal entries.” State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. “Although courts possess inherent authority to correct clerical 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.” (Citations omitted.) Id. at ¶ 15. “A clerical error or mistake refers to ‘a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment.‘” Id., quoting State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263 ¶ 19 (overruled on other grounds).
{¶ 12} Here, the error or mistake involves the incorrect presumption of a prison term under
{¶ 13} Accordingly, appellant‘s assignment of error is well-taken.
IV. Conclusion
{¶ 14} For the foregoing reasons, we find that substantial justice has not been done the party complaining, and the judgment of the Wood County Court of Common Pleas is reversed and appellant‘s sentence is vacated. The matter is remanded to the trial court for resentencing. Appellee, the state of Ohio, is ordered to pay the costs of this appeal pursuant to
Judgment reversed and remanded.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Christine E. Mayle, J.
JUDGE
Myron C. Duhart, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.