[Cite as State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235.]




        THE STATE EX REL. DEWINE, ATTY. GEN., ET AL., APPELLANTS, v.
                               BURGE, JUDGE, APPELLEE.
 [Cite as State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235.]
Common pleas court judge lacked jurisdiction to remedy a Crim.R. 32(C) defect
        by granting a judgment of acquittal — Court of appeals’ judgment
        denying writ of prohibition reversed — Writ of prohibition issued to
        compel judge to vacate the judgment of acquittal and to issue a corrected
        sentencing entry.
  (No. 2010-1216 — Submitted January 4, 2011 — Decided January 27, 2011.)
  APPEAL from the Court of Appeals for Lorain County, Nos. 09CA009723 and
                            09CA009724, 2010-Ohio-3009.
                                  __________________
        Per Curiam.
        {¶ 1} This is an appeal from a judgment of the court of appeals
dismissing a claim for a writ of prohibition to compel a common pleas court judge
to vacate a judgment of acquittal in a criminal case and to issue a corrected
sentencing entry pursuant to applicable precedent and return the defendant to
prison. Because the judge patently and unambiguously lacked jurisdiction to
remedy a Crim.R. 32(C) defect by granting a judgment of acquittal, we reverse
the judgment of the court of appeals and grant the writ.
                                           Facts
                                  Criminal Proceedings
        {¶ 2} In 1994, a jury convicted Nancy Smith and Joseph Allen of
numerous sex offenses involving children enrolled in the Lorain Head Start
Program. In the Lorain County Court of Common Pleas’ sentencing entries for
Smith and Allen, the court noted that they had appeared in court for sentencing
                             SUPREME COURT OF OHIO




“after having been found guilty” of the various offenses. The sentencing entries
did not specify the manner of the convictions–that Smith and Allen had been
found guilty by a jury. Smith and Allen were both sentenced to lengthy prison
terms.    On appeal, the Court of Appeals for Lorain County affirmed the
convictions and sentences. See State v. Smith (Jan. 24, 1996), Lorain App. No.
95CA006070, 1996 WL 27908, and State v. Allen (Feb. 7, 1996), Lorain App. No.
94CA005944, 1996 WL 48550.
         {¶ 3} In 2008, Smith filed a motion for reconsideration of her sentence.
In 2009, Allen filed a motion for resentencing. The defendants claimed that their
August 1994 sentencing entries did not comply with Crim.R. 32(C) and thus did
not constitute final, appealable orders.      Appellee, Lorain County Court of
Common Pleas Judge James M. Burge, who succeeded the judge who had
sentenced the defendants to prison, granted the motions and vacated the
convictions and sentences.      Judge Burge ruled that the court’s jurisdiction
included “the preparation of a corrected sentencing entry or, in the court’s
discretion, a resentencing.” On June 24, 2009, Judge Burge entered judgments of
acquittal pursuant to Crim.R. 29(C) for both Smith and Allen, discharged them,
and ordered the Lorain County Sheriff’s Department to remove them from the
sex-offender registration and notification system.
                                 Prohibition Cases
         {¶ 4} In December 2009, appellants, Richard Cordray, who was the Ohio
Attorney General at the time,1 and Lorain County Prosecuting Attorney Dennis
Will, filed complaints in the Court of Appeals for Lorain County for writs of
prohibition to compel Judge Burge to vacate his orders acquitting the defendants



1
  Effective January 10, 2011, Michael DeWine replaced Richard Cordray as Ohio Attorney
General.




                                          2
                                 January Term, 2011




and to order their return to prison. Judge Burge filed motions for judgment on the
pleadings and for leave to file answers instanter.
        {¶ 5} The court of appeals dismissed the prohibition claim concerning
Smith’s acquittal for failure to state a claim upon which relief can be granted.
State ex rel. Cordray v. Burge, Lorain App. Nos. 09CA009723 and 09CA009724,
2010-Ohio-3009, ¶ 29, 36. The court of appeals determined that Judge Burge did
not patently and unambiguously lack jurisdiction to reconsider the court’s earlier
denial of Smith’s timely Crim.R. 29(C) motion for acquittal. Id. The court of
appeals did, however, issue a writ of prohibition vacating Judge Burge’s acquittal
of Allen because, unlike Smith, Allen had not filed a timely motion for acquittal
pursuant to Crim.R. 29(C). Id. at ¶ 30, 34, 36.
        {¶ 6} This cause is now before the court upon the appeal as of right by
the attorney general and the prosecuting attorney regarding the court of appeals’
refusal to issue a writ in relation to Smith.
                                   Legal Analysis
                                     Prohibition
        {¶ 7} To be entitled to the requested writ of prohibition vacating Smith’s
acquittal, the appellants were required to show that Judge Burge patently and
unambiguously lacked jurisdiction to enter the judgment of acquittal. State ex rel.
Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12.
                                    Crim.R. 32(C)
        {¶ 8} Crim.R. 32(C) provides that a “judgment of conviction shall set
forth the plea, the verdict, or findings upon which each conviction is based, and
the sentence.” In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893
N.E.2d 163, syllabus, we explained this requirement by holding that a “judgment
of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1)
the guilty plea, the jury verdict, or the finding of the court upon which the




                                           3
                             SUPREME COURT OF OHIO




conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry
on the journal by the clerk of court.”
       {¶ 9} Appellants initially assert that Judge Burge patently and
unambiguously lacked jurisdiction to vacate Smith’s convictions and sentence
because the original sentencing entry complied with Crim.R. 32(C).
       {¶ 10} For the following reasons, appellants’ assertion lacks merit.
       {¶ 11} First, according to the court of appeals’ opinion, the state agreed
that Smith’s sentencing entry did not constitute a final, appealable order. See
State v. Smith, Lorain App. Nos. 09CA009634 and 09CA009635, 2010-Ohio-
3007, ¶ 3 (“the parties briefed the question and the State conceded that the 1994
judgment of conviction was not final”). A “ ‘party is not permitted to take
advantage of an error that he himself invited or induced the court to make.’ ”
Webber v. Kelly, 120 Ohio St.3d 440, 2008-Ohio-6695, 900 N.E.2d 175, ¶ 7,
quoting Davis v. Wolfe (2001), 92 Ohio St.3d 549, 552, 751 N.E.2d 1051.
       {¶ 12} Second, appellants themselves, in their complaint for extraordinary
relief in prohibition, requested that Judge Burge “issue a corrected sentence
pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330 [893 N.E.2d
163].” Again, appellants thus invited any error by the court of appeals in holding
that Smith’s sentencing entry did not comply with Crim.R. 32(C) and Baker.
Webber at ¶ 7.
       {¶ 13} Finally, Smith’s sentencing entry did not comply with Crim.R.
32(C). In Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, at ¶ 14,
we found that under Crim.R. 32(C), “a trial court is required to sign and
journalize a document memorializing the sentence and the manner of the
conviction: a guilty plea, a no contest plea upon which the court has made a
finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict
resulting from a jury trial.” (Emphasis added.) Smith’s sentencing entry recited




                                         4
                                January Term, 2011




only that she had been found guilty of the various offenses and did not disclose
that she had been found guilty by a jury.
       {¶ 14} Contrary to appellants’ assertion, our holding in State ex rel. Barr
v. Sutula, 126 Ohio St.3d 193, 2010-Ohio-3213, 931 N.E.2d 1078, does not
require a different result. In that case, we held that a sentencing entry in a
criminal case in which the defendant had been found guilty by the court after a
bench trial complied with Crim.R. 32(C) because it contained language that the
defendant had been found guilty by the court. By contrast, here, the sentencing
entry did not disclose that Smith had been found guilty by a jury. Barr did not
overrule Baker.
       {¶ 15} Therefore, appellants’ first contention lacks merit.
                  Remedy for Correcting a Sentencing Entry that
                       Does Not Comply with Crim.R. 32(C)
       {¶ 16} Appellants next claim that Judge Burge’s jurisdiction to correct the
Crim.R. 32(C) deficiency in Smith’s sentencing entry was limited to issuing a
nunc pro tunc entry correcting it.
       {¶ 17} Pursuant to Crim.R. 36, “[c]lerical mistakes in judgments, orders,
or other parts of the record, and errors in the record arising from oversight or
omission, may be corrected by the court at any time.” “[C]ourts possess inherent
authority to correct clerical errors in judgment entries so that the record speaks the
truth.” State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795,
856 N.E.2d 263, ¶ 19. “[N]unc pro tunc entries ‘are limited in proper use to
reflecting what the court actually decided, not what the court might or should
have decided.’ ” Mayer, 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. A nunc pro tunc entry is often used to correct a sentencing entry
that, because of a mere oversight or omission, does not comply with Crim.R.
32(C). See, e.g., State v. Havugiyaremye, Lucas App. No. L-08-1201, 2010-



                                            5
                            SUPREME COURT OF OHIO




Ohio-4204, ¶ 1, fn. 1; State v. Evans, Medina App. No. 09CA0102-M, 2010-
Ohio-2514, ¶ 2.
       {¶ 18} Consistent with the treatment of Crim.R. 32(C) errors as clerical
mistakes that can be remedied by a nunc pro tunc entry, we have expressly held
that “the remedy for a failure to comply with Crim.R. 32(C) is a revised
sentencing entry rather than a new hearing.” State ex rel. Alicea v. Krichbaum,
126 Ohio St.3d 194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶ 2; see also State ex rel.
Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-
4609, 895 N.E.2d 805, ¶ 10-11 (a defendant is entitled to a sentencing entry that
complies with Crim.R. 32(C)); Dunn v. Smith, 119 Ohio St.3d 364, 2008-Ohio-
4565, 894 N.E.2d 312, ¶ 10 (when a trial court fails to comply with Crim.R.
32(C), “the appropriate remedy is correcting the journal entry”).
       {¶ 19} This result is logical. The trial court and the parties all proceeded
under the presumption that the sentencing entry for Smith constituted a final,
appealable order.    Any failure to comply with Crim.R. 32(C) was a mere
oversight that vested the trial court with specific, limited jurisdiction to issue a
new sentencing entry to reflect what the court had previously ruled and not to
issue a new sentencing order reflecting what, in a successive judge’s opinion, the
court should have ruled.     These circumstances are thus distinguishable from
egregious defects, such as an entry that is not journalized, that permit a court to
vacate its previous orders. Cf. State ex rel. White v. Junkin (1997), 80 Ohio St.3d
335, 337-338, 686 N.E.2d 267. Moreover, the technical failure to comply with
Crim.R. 32(C) by not including the manner of conviction in Smith’s sentence is
not a violation of a statutorily mandated term, so it does not render the judgment a
nullity. Cf. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961,
¶ 10-12, quoting Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267-268, 39
O.O.2d 414, 227 N.E.2d 223; see also State v. Fischer, 128 Ohio St.3d 92, 2010-




                                         6
                                 January Term, 2011




Ohio-6238, 942 N.E.2d 332, ¶ 39 (“fact that the sentence was illegal does not
deprive the appellate court of jurisdiction to consider and correct the error”).
         {¶ 20} Contrary to Judge Burge’s assertion, McAllister v. Smith, 119 Ohio
St.3d 163, 2008-Ohio-3881, 892 N.E.2d 914, ¶ 9, and Mitchell v. Smith, 120 Ohio
St.3d 278, 2008-Ohio-6108, 898 N.E.2d 47, ¶ 1, do not warrant a different result.
In those cases, we observed that the appropriate remedy for a violation of Crim.R.
32(C) is “resentencing.” But we did not suggest that this term encompassed
anything more than issuing a corrected sentencing entry that complies with
Crim.R. 32(C). And by granting judgments of acquittal that the previous trial
court judge had not, Judge Burge did far more than simply “resentence” Smith
and Allen.
         {¶ 21} Based on the foregoing, Judge Burge patently and unambiguously
lacked jurisdiction to vacate Smith’s convictions and sentence when his authority
was limited to issuing a corrected sentencing entry that complies with Crim.R.
32(C).
                                Judge Burge’s Claim
         {¶ 22} Judge Burge, in his appellate brief, asserts that the court of appeals
erred in granting a writ of prohibition vacating his acquittal of Allen. The judge,
however, did not appeal from this judgment, and his argument is thus not properly
before us.
                                     Conclusion
         {¶ 23} The court of appeals erred in dismissing appellants’ prohibition
claim against Judge Burge concerning Smith’s criminal case. We reverse the
judgment of the court of appeals and grant the writ of prohibition to compel Judge
Burge to vacate his acquittal of Smith and to issue a corrected sentencing entry
that complies with Crim.R. 32(C).
                                                                  Judgment reversed
                                                                    and writ granted.



                                           7
                                  SUPREME COURT OF OHIO




         O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, CUPP, and
MCGEE BROWN, JJ., concur.
         PFEIFER, J., concurs in judgment only.
         LANZINGER, J., concurs separately.
                                    __________________
         Lanzinger, J., concurring.
         {¶ 24} I concur in the court’s opinion, but write separately to note that our
decision today leaves open the question whether new appellate rights arise from a
new sentencing entry issued in order to comply with Crim.R. 32(C).2 We have
held that a sentencing entry that violates Crim.R. 32(C) renders that entry
nonappealable. State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119
Ohio St.3d 535, 2008-Ohio-4609, 895 N.E.2d 805, ¶ 9. In light of the facts of the
present case, we eventually will need to determine what effect an appellate
decision has when the appellate court’s jurisdiction was premised upon a
sentencing entry that violated Crim.R. 32(C) and was thus nonappealable.
                                    __________________
         Michael DeWine, Attorney General, Benjamin C. Mizer, Solicitor
General, David M. Lieberman, Deputy Solicitor, and M. Scott Criss, Assistant
Attorney General; and Dennis P. Will, Lorain County Prosecuting Attorney, and
Billie Jo Belcher, Assistant Prosecuting Attorney, for appellants.
         James M. Burge, pro se.




2
  The state has raised this issue in its second proposition of law in State v. Allen, case No. 2010-
1342, 126 Ohio St.3d 1615, 2010-Ohio-5101, 935 N.E.2d 854, and State v. Smith, case No. 2010-
1345, 126 Ohio St.3d 1615, 2010-Ohio-5101, 935 N.E.2d 854, both of which we accepted for
review and held for our decision in this case. The issue is also pending in State v. Lester, which
we agreed to review on order of a certified conflict and on a discretionary appeal, case Nos. 2010-
1007, 126 Ohio St.3d 1581, 2010-Ohio-4542, 934 N.E.2d 354, and 2010-1372, 126 Ohio St.3d
1579, 2010-Ohio-4542, 934 N.E.2d 353.




                                                 8
                              January Term, 2011




       Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard
S. Kasay, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio
Prosecuting Attorneys Association.
       Timothy Young, Ohio Public Defender, and E. Kelly Mihocik, Assistant
Public Defender, urging affirmance for amicus curiae Ohio Public Defender.
                           _____________________




                                       9
