[Cite as State v. Roehrig, 2015-Ohio-5187.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               DEFIANCE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 4-15-15

        v.

PAUL B. ROEHRIG III,                                     OPINION

        DEFENDANT-APPELLANT.




                         Appeal from Defiance Municipal Court
                           Trial Court No. TR15-1386A&B

                       Judgment Reversed and Cause Remanded

                          Date of Decision:   December 14, 2015




APPEARANCES:

        Ian A. Weber for Appellant

        Carson L. Slade for Appellee
Case No. 4-15-15


SHAW, J.

       {¶1} Defendant-appellant, Paul B. Roehrig III, appeals the July 6, 2015

“nunc pro tunc” judgment entry of the Defiance Municipal Court amending its

July 2, 2015 judgment to reflect the suspension of Roehrig’s operator’s license for

six months commencing on July 2, 2015. On appeal, Roehrig argues that the trial

court lacked the authority to impose a more restrictive license suspension in the

“nunc pro tunc” entry than the one it imposed on the record at the original

sentencing hearing.

       {¶2} On March 28, 2015, Roehrig was stopped and arrested for OVI, in

violation of R.C. 4511.19(A)(1)(a), and a tail light and license plate light offense,

in violation of R.C. 4513.05. Roehrig initially entered a plea of not guilty.

       {¶3} On July 2, 2015, Roehrig appeared in open court to enter a guilty plea

pursuant to an agreement with the state. In exchange for tendering his guilty plea,

the state moved for leave to amend the OVI charge to a charge of Reckless

Operation as a second offense, in violation of R.C. 4511.20.                    The state

recommended the following sentence: a Two Hundred and Fifty Dollar fine and

costs, thirty days in jail, with twenty-seven days suspended on the condition that

Roehrig not commit any similar infractions for a period of two years, and a six-

month suspension of Roehrig’s operator’s license effective March 28, 2015. The

state also moved to dismiss the tail light and license plate light violation.


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      {¶4} At the hearing, the trial court permitted the state to amend the charge

and accepted Roehrig’s guilty plea.      The trial court imposed the following

sentence on the record.

      We will follow the recommendation on the amended charge. It
      will be a Two Hundred Fifty Dollar fine, court costs, thirty days
      and a six-month license suspension relating back to the date of the
      stop, March 28th. Limited driving privileges could be granted
      for the balance of that suspension upon proof of insurance and a
      letter outlining what you would need for those limited driving
      privileges. They’ll help you out with that at the Clerk’s office.
      Your ALS will be vacated as a result of pleading to this charge,
      and we’ll substitute the driver intervention program for the
      three days in jail.

(Doc. No. 26 at 3) (emphasis added).

      {¶5} The trial court issued a judgment entry journalizing its acceptance of

Roehrig’s guilty plea and the imposition of the sentence stated above.

Specifically, the trial court imposed in its judgment entry a six-month suspension

of Roehrig’s operator’s license effective March 28, 2015.

      {¶6} Four days later, on July 6, 2015, for reasons not apparent in the record,

the trial court sua sponte issued a “nunc pro tunc” judgment entry implementing

the following orders:

      Defendant appeared for a change of plea on the 2nd day of July,
      2015, and the Court suspended his operator’s license for a
      period of six (6) months effective March 28, 2015;

      WHEREUPON, the Court does hereby ORDER that the
      Judgment Entry file stamped July 2, 2015, be amended to reflect


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       that the defendant’s operator’s license is suspended for a period
       of six (6) months commencing on July 2, 2015.

       All Orders contained in the Judgment Entry file-stamped July 2,
       2015, in the above captioned matter not affected by this
       amendment shall remain in full force and effect.

       SO ORDERED.

(Doc. No. 16).

       {¶7} This appeal followed with Roehrig asserting the following assignment

of error.

       THE TRIAL COURT LACKED THE AUTHORITY TO
       RESENTENCE APPELLANT IMPOSING A MORE
       SERVERE AND RESTRICTIVE SENTENCE AFTER
       IMPOSITION OF THE ORIGINAL SENTENCE, AND IS
       CONTRARY TO LAW.

       {¶8} In his sole assignment of error, Roehrig contends that the trial court

lacked the authority to amend its former judgment because there was no clerical

error or mistake that could be corrected under Crim.R. 36. Roehrig further claims

the trial court erred in modifying its final criminal judgment because it imposed a

more restrictive sanction than the one announced on the record at sentencing and

journalized in the original judgment entry when it sua sponte amended the

effective date delaying the commencement of his six-month operator’s license

suspension. Notably, the state concedes that the trial court’s actions amounted to a

“resentencing” which it lacked the authority to do.



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       {¶9} It is well-settled that trial courts lack authority to reconsider their own

valid final judgments in criminal cases, with two exceptions: (1) when a void

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

State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 14; State v. Burton, 12th

Dist. Clermont No. CA2013–09–071, 2014-Ohio-1692, ¶ 13. With respect to the

second exception, trial courts possess the authority to correct errors in judgment

entries so that the record speaks the truth. State ex rel. Fogle v. Steiner, 74 Ohio

St.3d 158, 163-164 (1995); see also Crim.R. 36 (providing that “[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).”

Errors subject to correction by the court include a clerical error, mistake, or

omission that is mechanical in nature and apparent on the record and do not

involve a legal decision or judgment. Miller at ¶ 15.

       {¶10} 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. State v. Lester, 130 Ohio St.3d 303, 2011-

Ohio-5204, ¶ 18. Thus, “[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.” Miller at syllabus.

       {¶11} The transcript of the proceedings establishes that the trial court

imposed a six-month suspension of Roehrig’s operator’s license effective March


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28, 2015.   The original July 2, 2015 judgment entry accurately reflected the

license suspension imposed by the trial court on the record. Thus, the record is

devoid of any evidence invoking the trial court’s authority under Crim.R. 36 to

issue a nunc pro tunc for the purpose of correcting a clerical error, mistake, or

omission in the record. Moreover, we have found no authority permitting the trial

court to modify a final criminal sentence after journalization. See generally State

v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553 (explaining the general rule that

a trial court lacks authority to modify a final criminal judgment). Accordingly, we

find merit in Roehrig’s argument that the trial court lacked authority to modify the

July 2, 2015 sentencing entry after journalization of the criminal conviction and

sentence.

       {¶12} Based upon the foregoing, the assignment of error is sustained and

we reverse the July 6, 2015 judgment and remand the matter to the trial court for

execution of the original sentence.

                                                           Judgment Reversed and
                                                                Cause Remanded

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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