State v. ZawitzState v. Zawitz
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-420037, CR-421418, and CR-423331
RELEASED AND JOURNALIZED: June 20, 2013
Michael Zawitz, pro se
Inmate No. 502-875
Grafton Correctional Institution
1500 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} This cause came to be heard on the accelerated calendar pursuant to
{¶2} Defendant-appellant, Michael Zawitz, appeals from the journal entry of sentencing, issued nunc pro tunc to correct the sentence originally imposed for appellant‘s violation of community control sanctions. After careful review of the record and relevant case law, we reverse the trial court‘s judgment and remand for the trial court to vacate its May 12, 2006 nunc pro tunc entry and reinstate the March 29, 2006 judgment.
{¶3} On January 28, 2002, appellant was indicted by the Cuyahoga County Grand Jury in Cuyahoga C.P. No. CR-420037, charging him with burglary in violation of
{¶4} On March 29, 2002, appellant was indicted by the Cuyahoga County Grand Jury in Cuyahoga C.P. No. CR-421418, on charges of burglary in violation of
{¶5} On May 23, 2002, appellant was indicted by the Cuyahoga County Grand Jury in Cuyahoga C.P. No. CR-423331, charging him with burglary in violation of
{¶6} On February 20, 2004, appellant filed a motion for judicial release, and the trial court held a hearing to review the merits of appellant‘s motion on April 4, 2004. At the conclusion of the hearing, the trial court determined that appellant was eligible for judicial release because he had served all mandatory prison time. The trial court sentenced appellant to five years of community control sanctions and notified him that violations of the terms and conditions of his release could result in more restrictive sanctions or a prison term.
{¶7} On March 15, 2005, appellant was found to be in violation of his community control sanctions. After careful consideration, the trial court continued appellant‘s community control, but ordered him to spend six months at the Keating Center for treatment.
{¶9} On May 12, 2006, the trial court issued a nunc pro tunc correction to the March 29, 2006 sentencing journal entry, thereby amending the journal entry to read that appellant was sentenced to a total of four years in prison, and not two years as previously stated.
{¶10} On September 27, 2012, appellant filed a motion to correct the improper nunc pro tunc entry, arguing that the trial court improperly modified the March 29, 2006 sentencing journal entry, in violation of
{¶11} Appellant, pro se, now appeals the trial court‘s denial of his motion, raising two assignments of error for review.
{¶12} In appellant‘s first assignment of error, he argues that the trial court committed plain error when it used a nunc pro tunc entry to increase his sentence to a greater term than was originally imposed. In his second assignment of error, appellant argues that the trial court committed plain error when it increased his sentence without his presence in court. Because appellant‘s first and second assignments of error raise common questions of law and fact, we consider them together.
{¶13} Courts possess inherent authority to correct errors in judgment entries in order for the record to speak the truth. State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163-164, 1995-Ohio-278, 656 N.E.2d 1288; see
{¶14} In the case at hand, appellant attached a transcript excerpt of the March 29, 2006 community control revocation hearing to his motion to correct the improper nunc
{¶15} Accordingly, the trial court‘s amendments to the March 29, 2006 sentencing journal entry were not made to correct a clerical error or to make the record speak the truth. Rather, the nunc pro tunc order reflected what the trial court may have intended to do at the revocation hearing, but did not do. This is not the proper use of such an order. See State v. Williams, 7th Dist. No. 11 MA 131, 2012-Ohio-6277, ¶ 57, citing State v. Marks, 7th Dist. No. 868, 2002-Ohio-6267, ¶ 28.
{¶16} Furthermore, the use of a nunc pro tunc order in this case is repugnant to the requirements of
{¶17} Based on the foregoing, appellant‘s first and second assignments of error are sustained. Accordingly, we reverse the trial court‘s judgment and remand the matter to the trial court to vacate the May 12, 2006 nunc pro tunc entry and reinstate the two-year sentence imposed in the March 29, 2006 journal entry. See State v. Leone, 8th Dist. No. 94275, 2010-Ohio-5358.
{¶18} This cause is reversed and remanded for proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, A.J., and
KENNETH A. ROCCO, J., CONCUR