State v. Miller

[Cite as State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705.]

THE STATE OF OHIO, APPELLEE, v. MILLER, APPELLANT.

[Cite as State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705.]

Criminal law — Sentencing — Nunc pro tunc — Court may not use a nunc pro

tunc entry to impose a sanction that the court did not impose as part of the

sentence — Judgment reversed and cause remanded.

(No. 2009-1606 — Submitted September 15, 2010 — Decided

November 30, 2010.)

APPEAL from the Court of Appeals for Cuyahoga County,

No. 91543, 2009-Ohio-3307.

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SYLLABUS OF THE COURT

A court may not use a nunc pro tunc entry to impose a sanction that the

court did not impose as part of the sentence.

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O’CONNOR, J.

{¶ 1} After appellant, Andrew Miller, was indicted on two counts of

felonious assault, the state offered him the opportunity to plead guilty to a single

count of aggravated assault. In discussing the plea agreement with Miller, a

visiting judge informed him that the victim had requested $20,410 in restitution.

Miller’s attorney acknowledged that Miller was aware of the request for

restitution but stated that restitution “was of concern” to Miller. Nevertheless,

after consulting with counsel, Miller eventually pleaded guilty to the reduced

charge. The visiting judge informed Miller that his sentence would include

community control, court costs, random drug tests, and restitution. Miller stated

that he understood the consequences of his guilty plea.

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{¶ 2} Two weeks later, at the sentencing hearing, the visiting judge

sentenced Miller to an 18-month suspended prison sentence, community control,

and drug testing, but the judge did not impose fines. He also failed to impose

restitution either orally or by journal entry.

{¶ 3} Almost two months later, the state moved the trial court “to

convene a hearing to determine restitution.” The state’s motion asserted that

restitution to the victim in the amount of $20,409.35 was part of the plea

agreement and that it had been “inadvertently omitted from the plea and

sentencing orders.”

{¶ 4} Two months later, the trial court judge wrote on the motion, “The

court, having been read the transcript of the plea proceedings by [the court

reporter] is satisfied that [Miller] entered his guilty plea with full knowledge of

and agreement to the restitution [amount] of $20,409.35; the court finds that the

order of restitution was inadvertently omitted by the visiting judge at sentencing.

The court therefore amends the sentencing entry to also include [restitution] of

$20,409.35 * * *.”

{¶ 5} Miller appealed, asserting that the trial court had “abused its

discretion by entering a restitution order after the final sentencing order had been

journalized.” A divided court of appeals affirmed, holding that the trial court has

“continued jurisdiction to correct clerical mistakes.” State v. Miller, Cuyahoga

App. No. 91543, 2009-Ohio-3307, ¶ 16. We granted discretionary review, 124

Ohio St.3d 1447, 2010-Ohio-188, 920 N.E.2d 376, and now reverse.

Analysis

{¶ 6} In holding that the trial court could impose restitution on Miller

through an “amended journal entry,” the court of appeals concluded that the trial

court retained jurisdiction to include restitution as part of the sentence even

though restitution had not been imposed at sentencing or in the sentencing entry.

Miller, 2009-Ohio-3307, ¶ 10. It was error to do so.

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{¶ 7} The court of appeals recognized that the trial court had failed to

both advise Miller of the restitution amount at sentencing and include restitution

in the original sentencing entry. Id. But the court of appeals held that the

amendment was permissible. Id.

{¶ 8} In reaching its conclusion, the appellate court relied on State v.

Middleton, Preble App. No. CA2004-01-003, 2005-Ohio-681. There, the trial

judge had been informed, erroneously, that the burglary count against the

defendant was a third-degree felony. Id. at ¶ 4. In fact, the defendant had been

charged with a second-degree felony. Id. The court sentenced the defendant to

four years’ imprisonment. Id. The court then adjourned the sentencing hearing.

Id. at ¶ 5.

{¶ 9} Immediately after the hearing, and while the defendant was still

present, the judge was informed of the error, i.e., that the charge was burglary in

the second degree for which the potential prison term was two to eight years. Id.

at ¶ 4. “The court then stated on the record, while appellant was still present in

the courtroom, that it was imposing seven years for the burglary count.” Id. at ¶

5.

{¶ 10} On appeal, Middleton argued that the trial court could not modify

the sentence after it had orally announced it and had adjourned the sentencing

hearing. Id. at ¶ 8. In rejecting that claim, the court of appeals held that the trial

court did not "modify" an imposed sentence, because the seven-year prison

sentence that Middleton challenged was the only one journalized. Id. at ¶ 9.

{¶ 11} In dicta, the court of appeals continued, “Nevertheless, we can find

no law preventing the common pleas court from imposing the seven-year sentence

once it became aware at the sentencing hearing that the burglary count was

actually a second-degree felony. Crim.R. 36 states that ‘errors * * * arising from

oversight or omission, may be corrected by the court at any time.’ In this case,

the common pleas court corrected an error it had made when it initially sentenced

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appellant for a third-degree felony instead of the second-degree felony of which

appellant was convicted. The court’s mistake was due to a clerical error in the

pre-sentence investigation report. Appellant was fully aware that he had pled

guilty to and was convicted of a second-degree felony. In a written waiver,

appellant had previously acknowledged that the maximum penalty for the

burglary charge, a second-degree felony, was eight years. We find no error by

the common pleas court in immediately correcting a mistake arising from an

oversight that occurred at the sentencing hearing.” Id. at ¶ 10.

{¶ 12} Unlike the court of appeals in this matter, we do not find

Middleton dispositive here. Foremost, as the court of appeals in Middleton

observed, the axiomatic rule is that a court speaks through its journal entries.

Middleton, 2005-Ohio-681, ¶ 9. See, e.g., Gaskins v. Shiplevy (1996), 76 Ohio

St.3d 380, 382, 667 N.E.2d 1194. Thus, in Middleton, there was no reversible

error, because the court’s journal entry was consistent with the sentence that was

imposed on the appellant. That sentence was never modified, and it was upheld

on that basis.

{¶ 13} But the case before us is wholly distinguishable from Middleton. It

is not the original journal entry that is at issue here, but rather, a substantially

altered one. In fact, we are presented with a journal entry that was modified

several months after the visiting judge had pronounced sentence and after he had

issued the journal entry memorializing that sentence. Moreover, it was modified

based on the trial judge’s review of transcripts of hearings in which she did not

participate. Thus, Middleton does not control or persuade.

{¶ 14} Moreover, a trial court lacks the authority to reconsider its own

valid, final judgment in a criminal case, with two exceptions: (1) when a void

sentence has been imposed and (2) when the judgment contains a clerical error.

State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856

N.E.2d 263, ¶ 19, citing Crim.R. 36. The court of appeals in this case suggested

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that the latter exception applied and that nothing more than a nunc pro tunc entry

was invoked. Not so.

{¶ 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.’ ” Cruzado, 111 Ohio St.3d 353, 2006-Ohio-5795, 856

N.E.2d 263, ¶ 19, quoting State v. Brown (2000), 136 Ohio App.3d 816, 819-820,

737 N.E.2d 1057. “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.” ’ ” Cruzado, 111 Ohio St.3d 353,

2006-Ohio-5795, 856 N.E.2d 263, ¶ 19, quoting State ex rel. Mayer v. Henson, 97

Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 14, quoting State ex rel.

Fogle v. Steiner (1995), 74 Ohio St.3d 158, 164, 656 N.E.2d 1288. The amended

journal entry in this case may reflect what the trial court should have decided at

sentencing. It does not reflect what the trial court did decide but recorded

improperly. Thus, the use of the nunc pro tunc entry to impose restitution upon

Miller was improper because it does not reflect the events that actually occurred

at the sentencing hearing.

{¶ 16} Notably, the determination of restitution entails a substantive legal

decision or judgment and is not merely a mechanical part of a judgment.

Restitution is a financial sanction, based on a victim’s economic loss, that is

imposed by a judge as part of a felony sentence. See R.C. 2929.18(A)(1). See

also State v. Danison, 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d 444,

syllabus. It is not an order that is so “mechanical in nature” that its omission can

be corrected as if it were a clerical mistake. Londrico v. Delores C. Knowlton,

Inc. (1993), 88 Ohio App.3d 282, 285, 623 N.E.2d 723. As the dissenting judge

stated, a nunc pro tunc order cannot cure the failure of a judge to impose

restitution in the first instance at sentencing. Miller, 2009-Ohio-3307, ¶ 24.

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Accord Caprita v. Caprita (1945), 145 Ohio St. 5, 30 O.O. 238, 60 N.E.2d 483,

paragraph two of the syllabus (a nunc pro tunc entry corrects a judicial record that

fails to show a correct order or judgment of the court because the order or

judgment was not recorded properly in the first place). We agree and therefore

hold that a court may not use a nunc pro tunc entry to impose a sanction that the

court did not impose as part of the sentence.

{¶ 17} We need go no further. The trial court improperly used a nunc pro

tunc entry to impose a sanction on Miller that was not imposed by the visiting

judge at sentencing. It was error to do so, and the court of appeals erred in

affirming the order. We therefore reverse its decision and remand the cause to the

trial court to vacate the nunc pro tunc order and the order of restitution.

Judgment reversed

and cause remanded.

BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, and CUPP, JJ., concur.

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Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin,

Assistant Public Defender, for appellant.

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