[Cite as State v. Patterson, 2017-Ohio-9001.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :    JUDGES:
                                                :    Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                    :    Hon. John W. Wise, J.
                                                :    Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :
BRANDON C. PATTERSON                            :    Case No. 2017CA00153
                                                :
        Defendant - Appellant                   :    OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No. 2009-
                                                     CR-0136



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    December 11, 2017



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      BRANDON PATTERSON, pro se
Prosecuting Attorney                                 Inmate A564-655
                                                     Trumbull Correctional Institution
By: KRISTINE W. BEARD                                P.O. Box 901
Assistant Prosecuting Attorney                       Leavittsburg, Ohio 44430
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00153                                                 2

Baldwin, J.

       {¶1}   Defendant-appellant Brandon Patterson appeals from the July 20, 2017

“Judgment Entry-Re-Sentencing Nunc Pro Tunc As of 6/1/15”. Plaintiff-appellee is the

State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On March 11, 2009, the Stark County Grand Jury indicted appellant on one

count of attempted murder in violation of R.C. 2903.02(A) and 2923.02(B), and two counts

of felonious assault in violation of R.C. 2903.11, all containing firearm specifications.

Appellant was also indicted on one count of having weapons while under disability in

violation of R.C. 2923.13(A)(3). The charges arose from the shooting of two individuals

at a party.

       {¶3}   A jury trial commenced on April 29, 2009. The jury, on May 1, 2009, found

appellant guilty as charged. As memorialized in a Judgment Entry filed on May 19, 2009,

the trial court sentenced appellant to an aggregate term of twenty years in prison.

Appellant filed an appeal. Pursuant to an Opinion filed on June 28, 2010, this Court

affirmed appellant's convictions. State v. Patterson, 5th Dist. Stark No.2009CA00142,

2010–Ohio–2988.

       {¶4}   On October 29, 2014, appellant filed a “Motion for Correction of Sentence

and Termination Order”, claiming that the sentencing entry did not indicate the order in

which the sentences were to be served and that the trial court failed to impose a sanction

for each offense. By Judgment Entry filed on November 5, 2014, the trial court overruled

the motion.
Stark County, Case No. 2017CA00153                                                  3


       {¶5}   Appellant then filed an appeal. Pursuant to an Opinion filed on May 4, 2015

in State v. Patterson, 5th Dist. Stark No. 2014CA0020, 2015-Ohio-1714, this Court held

that the trial court did not err in denying appellant's Motion to Correct Sentence and

Termination Order. However, this Court found that appellant was entitled to a new

sentencing hearing, limited to the proper imposition of post-release control. While this

Court affirmed the judgment of the trial court, this Court remanded the matter to the trial

court for the proper imposition of post-release control.

       {¶6}   A re-sentencing hearing was held on May 27, 2015. The trial court, via a

Judgment Entry filed on June 1, 2015, re-sentenced appellant and imposed a mandatory

5 year term of post-release control.

       {¶7}   Appellant then appealed. Pursuant to an Opinion filed on October 13, 2015

in State v. Patterson, 5th Dist. Stark No. 2015CA00125, 2015-Ohio-4325, this Court

affirmed the judgment of the trial court.

       {¶8}   Thereafter, on July 20, 2017, the trial court issued a “Judgment Entry Prison

Sentence Imposed Nunc Pro Tunc As of 5/6/2009.” The trial court, in such Judgment

Entry, stated that it “has reviewed its sentencing entry filed on May 19, 2009, and the

attached transcript from the hearing related to that entry. The Court hereby issues the

following nunc pro tunc entry.” On July 20, 2017, the trial court also issued a “Judgment

Entry- Re-Sentencing Nunc Pro Tunc As of 6/1/15.” The trial court, in such Judgment

Entry, stated that it “has reviewed its sentencing entries filed on May 19, 2009 and June

1, 2015. After a review of the entries and transcripts from both hearings, the Court issued

a nunc pro tunc entry regarding its May 19, 2009, entry, this nunc pro tunc entry corrects

the related sentencing entry filed on June 1, 2015.”
Stark County, Case No. 2017CA00153                                                          4


         {¶9}   Appellant now appeals from the July 20, 2017 “Judgment Entry Re-

Sentencing Nunc Pro Tunc As of 6/1/15”, raising the following assignment of error on

appeal:

         {¶10} THE TRIAL COURT ERRED WHEN IT ISSUED A NUNC PRO TUNC

ENTRY THAT DOES NOT REFLECT THE RECORD FOR THE ORIGINAL JOURNAL

ENTRY FOR MAY 19, 2009 DUE TO THE TRIAL COURT MAKING SUBSTANTIVE

CHANGES THAT ARE IN DIRECT DISAGREEMENT WITH FIFTH DISTRICT COURT

OF APPEALS AND IS, IN FACT, A NEW JUDGMENT ENTRY VIOLATING

APPELLANT’S SUBSTANTIAL RIGHTS PROTECTED BY DUE PROCESS AND

DOUBLE JEOPARDY CLAUSE UNDER THE UNITED STATES CONSTITUTIONS

(SIC),    FIFTH     AND     FOURTEENTH         AMENDMENT          (SIC)   AND     THE       OHIO

CONSTITUTION ARTICLE ONE, SECTIONS TEN AND SIXTEEN.

                                                    I

         {¶11} Appellant, in his sole assignment of error, argues that the trial court lacked

jurisdiction to file the July 20, 2017 Nunc Pro Tunc Judgment Entry as of 6/1/15 and that

the same improperly made substantial changes to his original sentence.

         {¶12} With respect to nunc pro tunc judgment entries, the court in State v. Lester,

130 Ohio St.3d 303, 2011–Ohio–5204, 958 N.E.2d 142 observed as follows at

paragraphs 18-19:

                It is well settled that courts possess the authority to correct errors in

         judgment entries so that the record speaks the truth. State ex rel. Fogle v.

         Steiner (1995), 74 Ohio St.3d 158, 163–164, 656 N.E.2d 1288; Crim.R. 36.

         Errors subject to correction by the court include a clerical error, mistake, or
Stark County, Case No. 2017CA00153                                                      5


     omission that is mechanical in nature and apparent on the record and does

     not involve a legal decision or judgment. State v. Miller, 127 Ohio St.3d 407,

     2010–Ohio–5705, 940 N.E.2d 924, ¶ 15; Crim.R. 36. Nunc pro tunc entries

     are used to make the record reflect what the court actually decided and not

     what the court might or should have decided or what the court intended to

     decide. Miller at ¶ 15; Fogle at 164, 656 N.E.2d 1288.

            “Nunc pro tunc” means “now for then” and is commonly defined as

     “[h]aving retroactive legal effect through a court's inherent power.” Black's

     Law Dictionary (9th Ed.2009) 1174. Therefore, a nunc pro tunc entry by its

     very nature applies retrospectively to the judgment it corrects. See, e.g.,

     Miller at ¶ 14, 15; Fogle at 163–164, 656 N.E.2d 1288. Appellate courts

     throughout the state have consistently applied these principles. See, e.g.,

     State v. Harrison, Butler App. Nos. CA2009–10–272 and CA2010–01–019,

     2010–Ohio–2709, 2010 WL 2373151, ¶ 24, citing State v. Battle, Summit

     App. No. 23404, 2007–Ohio–2475, 2007 WL 1490053, ¶ 6 (“generally, [a]

     nunc pro tunc entry relates back to the date of the journal entry it corrects”);

     State v. Yeaples (3d Dist.), 180 Ohio App.3d 720, 2009–Ohio–184, 907

     N.E.2d 333, ¶ 15 (“A nunc pro tunc entry is the procedure used to correct

     clerical errors in a judgment entry, but the entry does not extend the time

     within which to file an appeal, as it relates back to the original judgment

     entry”); State v. Breedlove (1st Dist.1988), 46 Ohio App.3d 78, 81, 546

     N.E.2d 420, quoting Natl. Life Ins. Co. v. Kohn (1937), 133 Ohio St. 111,

     113, 10 O.O. 122, 11 N.E.2d 1020 (“ ‘The power to make nunc pro tunc
Stark County, Case No. 2017CA00153                                                     6


       entries is restricted ordinarily to the subsequent recording of judicial action

       previously and actually taken. It is a simple device by which a court may

       make its journal speak the truth.’ It ‘speaks the truth’ by correcting a judicial

       record that fails to show an order or a judgment of the court because the

       order or judgment was not recorded at all in the first instance”).

       {¶13} In the case sub judice, the trial court stated as follows on the record in

sentencing appellant on May 6, 2009:

       {¶14} For that attempted murder the Court is sentencing you to ten years in prison.

With regard to the gun specification, three years.

       {¶15} Now, as it relates to the felonious assault for the same victim, it arose out

of the same conduct technically because there were two shots. There could be a separate

sentence for this, but the Court is going to make the sentence concurrent as it relates to

that felonious assault of three years for the felonious assault and three years for the gun

spec to be merged with the attempted murder.

       {¶16} With regard to the second victim, the felonious assault sentence will be

three years. The gun spec, three years consecutive to that time and that sentence will

be consecutive to the attempted murder sentence, and with regard to the firearm

specification - - or excuse me - - the weapon under disability one year.

       {¶17} The total sentence is 20 years…

       {¶18} Transcript from May 6, 2009 sentencing hearing at 6-7.

       {¶19} The trial court, in its May 19, 2009 Judgment Entry, stated, in relevant part,

as follows:
Stark County, Case No. 2017CA00153                                                 7


       {¶20} IT IS THEREFORE ORDERED that the defendant shall serve a prison term

of ten (10) years on the charge of Attempt to Commit an Offense (Murder), 1 ct.[R.C.

2923.02(A)] [R.C. 2903.02(B)] (F1) (With Firearm Specification) as contained in Count

One, and

       {¶21} IT IS FURTHER ORDERED that the defendant shall serve the sentence in

count one consecutive to and subsequent to a determinate term of three (3) years actual

incarceration for the specification that defendant had a firearm, and

       {¶22} IT IS FURTHER ORDERED that the defendant shall serve a prison term of

three (3) years on the charge of Felonious Assault, 1 Ct. [R.C. 2903.11(A)(2)](F2) (With

Firearm Specification) as contained in Count Three, and

       {¶23} IT IS FURTHER ORDERED that the defendant shall serve the sentence in

count three consecutive to and subsequent to a determinate term of three (3) years actual

incarceration for the specification that the defendant had a firearm, and

       {¶24} IT IS FURTHER ORDERED that the defendant shall serve a prison term of

one (1) year on the charge of Having Weapons While Under Disability, 1 Ct. [R.C.

2923.13(A)(3)](F3) as contained in count four, and

       {¶25} IT IS FURTHER ORDERED that this defendant shall serve all the above

sentences consecutively for a total of twenty (20) years of incarceration, ***

       {¶26} As noted by appellee, the trial court’s May 19, 2009 Judgment Entry did not

state that the three years imposed for the second count of felonious assault was to run

concurrently to count one or state that the three year sentence for the firearm

specifications in counts one and two would merge for sentencing purposes.        After this

Court remanded the matter for resentencing for the proper imposition of post-release
Stark County, Case No. 2017CA00153                                                 8


control, the trial court, in its June 1, 2015 Judgment Entry, incorrectly stated that count

two (felonious assault) and three (felonious assault) merged for sentencing purposes

when it ordered that the three year sentences for the firearm specifications in the two

counts merged.

      {¶27} Subsequently, the trial court, on July 20, 2017, issued two Nunc Pro Entries

to properly reflect what occurred on the record at appellant’s sentencing on May 6, 2009.

      {¶28} The Nunc Pro Tunc Entry filed July 20, 2017 properly states as follows:

      {¶29} IT IS THEREFORE ORDERED that the defendant shall serve a prison term

of ten (10) years on the charge of Attempt to Commit an Offense (Murder), 1 Ct. [R.C.

2923.02(A)][R.C. 2903.02(B)](F1) (With Firearm Specification) as contained in Count

One; and

      {¶30} IT IS FURTHER ORDERED that the defendant shall serve the prison term

in Count One consecutive to and subsequent to a determinative three (3) years actual

incarceration for the specification that the defendant had a firearm, and

      {¶31} IT IS FURTHER ORDERED that the defendant shall serve a prison term of

three (3) years on the charge of Felonious Assault, 1 Ct. [R.C. 2903.11(A)(2)](F2)(With a

firearm specification) as contained in Count Two, and

      {¶32} IT IS FURTHER ORDERED that the specification to Count Two that the

defendant had a firearm shall merge into the specification to Count One that defendant

had a firearm, and

      {¶33} IT IS FURTHER ORDERED that the defendant serve a prison term of three

(3) years on the charge of Felonious Assault, 1 Ct.[R.C. 2903.11(A)(2)](F2) (With Firearm

Specification) as contained in Count Three, and
Stark County, Case No. 2017CA00153                                                      9


       {¶34} IT IS FURTHER ORDERED that the defendant shall serve the prison term

for Count Three consecutive to and subsequent to a determinate term of three (3) years

actual incarceration for the specification that the defendant had a firearm, and

       {¶35} IT IS FURTHER ORDERED that the defendant shall serve a prison term of

one (1) year on the charge of Having Weapons While Under Disability, 1 Ct. [R.C.

2933.13(a)(3)](F3) as contained in Count Four, and

       {¶36} IT IS FURTHER ORDERED THAT this defendant shall serve the prison

term for Count One and its accompanying specification concurrently with the prison term

for Count Two, but consecutively with the prison terms for Count Three and its

accompanying specifications, and consecutively with the prison term for Count Four.

Further, the prison terms for Count Three, and its accompanying specification, and the

prison term for Count Four shall be served consecutively with each other, for a total prison

term of 20 years***

       {¶37} We find that the trial court had jurisdiction to correct the clerical errors in its

Judgment Entries to reflect what actually occurred at the sentencing hearing on May 27,

2015 and that the Nunc Pro Tunc Judgment Entries did not make substantive changes to

appellant’s sentence.

       {¶38} Appellant’s sole assignment of error is, therefore, overruled.
Stark County, Case No. 2017CA00153                                         10


      {¶39} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Gwin, P.J. and

John Wise, J. concur.
