“A nunc pro tunc order cannot be used to supply omitted action . . . .”
How later courts described this case
- “A nunc pro tunc order cannot be used to supply omitted action . . . .”
Written by the judges who cited it.
The opinion
[Cite as State v. Brown, 2024-Ohio-6010.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 31057
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JAMES BROWN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2009-05-1600
DECISION AND JOURNAL ENTRY
Dated: December 26, 2024
HENSAL, Judge.
{¶1} James Brown appeals a journal entry of the Summit County Court of Common
Pleas that modified his sentence nunc pro tunc. For the following reasons, this Court reverses.
I.
{¶2} In 2010, a jury found Mr. Brown guilty of multiple counts of rape, sexual battery,
and corrupting another with drugs for conduct that occurred in 1998, 2008, and 2009. The trial
court sentenced him to a total of 23 years imprisonment. On appeal, this Court upheld his
convictions but remanded the matter so that the trial court could consider whether the rape and
sexual battery offenses were allied offenses of similar import. The trial court determined that some
of the offenses merged and resentenced him to a total of 23 years imprisonment.
{¶3} In 2023, Mr. Brown moved for judicial release. The State opposed his motion and
moved for a nunc pro tunc order so that the sentencing entry would reflect that Mr. Brown’s
sentences for rape were mandatory. The trial court denied Mr. Brown’s motion for judicial release
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and entered a nunc pro tunc sentencing order that specifies that his sentences for rape are
mandatory terms. Mr. Brown has appealed, arguing that the trial court incorrectly entered a nunc
pro tunc sentencing order.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING A NUNC PRO TUNC THIRTEEN
(13) YEARS AFTER SENTENCING, SUBSTANTIVELY MODIFYING
DEFENDANT/APPELLANT’S SENTENCE TO MANDATORY PRISON
TIME.
{¶4} Mr. Brown argues that the trial court made an impermissible substantive change to
its sentencing entry when it changed his sentences for rape to mandatory terms. The State
acknowledges that the trial court exceeded its authority when it modified the entry.
{¶5} Under Criminal Rule 36, a court may correct “[c]lerical mistakes in judgments . . .
and errors in the record arising from oversight or omission . . . .” The Ohio Supreme Court has
recognized that courts “retain continuing jurisdiction to correct clerical error in judgments by nunc
pro tunc entry to reflect what the court actually decided.” State ex rel. Womack v. Marsh, 2011-
Ohio-229, ¶ 13. In general, however, they “lack authority to reconsider their own valid final
judgments in criminal cases . . . .” Id. “A trial court exceeds its authority when it uses a nunc pro
tunc order to substantively modify its prior final determination of an issue, and such an order is
invalid.” In re M.O., 2018-Ohio-2176, ¶ 8 (9th Dist.).
{¶6} In State v. Mullens, 2007-Ohio-2893 (9th Dist.), this Court determined that “a nunc
pro tunc order was not the proper mechanism by which the trial court could modify” the
defendant’s sentence to change a ten-year sentence with seven mandatory years to a ten-year
sentence with ten mandatory years. Id. at ¶ 20. This Court explained that the change “did not
merely correct a typographical error or mathematical calculation” but “effectively vacated its
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previous sentence and imposed a new sentence.” Id. Similarly, in this case, the modification of
Mr. Brown’s sentence to mandatory imprisonment was an improper substantive change to his
sentence that exceeded the trial court’s authority. See State v. Greulich, 61 Ohio App.3d 22, 25
(9th Dist. 1988) (“A nunc pro tunc order cannot be used to supply omitted action . . . .”). Mr.
Brown’s assignment of error is sustained.
III.
{¶7} Mr. Brown’s assignment of error is sustained. The judgment of the Summit County
Court of Common Pleas is reversed, and this matter is remanded to the trial court with instructions
for it to vacate its February 14, 2024, journal entry.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
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Costs taxed to Appellee.
JENNIFER HENSAL
FOR THE COURT
CARR, P. J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
ELI R. HELLER and CORINNE HOOVER SIX, Attorneys at Law, for Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant
Prosecuting Attorney, for Appellee.