[Cite as State v. Nashe, 2012-Ohio-4122.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J,
-vs-                                         :
                                             :
EDWARD D. NASHE                              :       Case No. 11-CA-64
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2011CR341



JUDGMENT:                                            Affirmed/Reversed in Part




DATE OF JUDGMENT:                                    September 4, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOCELYN S. KELLY                                     MARK P. ORT
239 West Main Street                                 13297 Rustic Drive, NW
Suite 101                                            Pickerington, OH 43147
Lancaster, OH 43130
Fairfield County, Case No. 11-CA-64                                                        2

Farmer, J.

      {¶1}   On August 5, 2011, the Fairfield County Grand Jury indicted appellant,

Edward Nashe, on one count of trafficking in cocaine in violation of R.C. 2925.03 and

one count of possessing crack cocaine in violation of R.C. 2925.11.

      {¶2}   A jury trial commenced on October 25, 2011. The jury found appellant

guilty as charged. After the verdicts were read, the trial court sentenced appellant to

twelve months on the trafficking count and seventeen months on the possession count,

to be served consecutively. The judgment entry reflecting this sentence was filed on

November 15, 2011.

      {¶3}   On October 31, 2011, appellant filed a motion for postconviction relief,

claiming the two counts should have been merged for sentencing. A hearing was held

on November 4, 2011. By nunc pro tunc judgment entry filed December 6, 2011, the

trial court merged the trafficking count with the possession count and sentenced

appellant to seventeen months on the possession count. The trial court also sentenced

appellant to a consecutive term of twelve months for a violation of postrelease control.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶5}   "THE EVIDENCE WAS SUCH THAT REASONABLE MINDS COULD

NOT CONCLUDED (SIC) THAT EITHER CHARGED OFFENSE HAD BEEN PROVEN

BEYOND A REASONABLE DOUBT THUS THE CONVICTION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."
Fairfield County, Case No. 11-CA-64                                                    3


                                           II

      {¶6}   "THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT INITIALLY

SENTENCED THE APPELLANT FOR THE ALLIED OFFENSES OF TRAFFICKING IN

COCAINE AND FOR POSSESSION OF THE SAME COCAINE IN VIOLATION OF THE

HOLDING IN STATE V. CABRALES."

                                           III

      {¶7}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED

THE     APPELLANT        TO    CONSECUTIVE         SENTENCES         THAT     CLOSELY

APPROXIMATED THE MAXIMUM ALLOWABLE SENTENCE FOR EACH OFFENSE."

                                           IV

      {¶8}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN, UPON

GRANTING THE DEFENDANT'S MOTION FOR POST CONVICTION RELIEF AND

CORRECTING THE PLAIN ERROR COMMITTED, THE COURT REPLACED THE

INTENDED IMPROPER SENTENCE FOR THE MERGED OFFENSE WITH A

SANCTION FOR COMMITTING A NEW OFFENSE WHILE ON POST RELEASE

CONTROL."

                                            I

      {¶9}   Appellant claims his conviction was against the manifest weight of the

evidence. We disagree.

      {¶10} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must
Fairfield County, Case No. 11-CA-64                                                      4

be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175.

See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new

trial "should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction." Martin at 175.

       {¶11} Appellant was convicted of trafficking in cocaine in violation of R.C.

2925.03 and possession of crack cocaine in violation of R.C. 2925.11 which state the

following, respectively:

       {¶12} "(A) No person shall knowingly do any of the following:

       {¶13} "(1) Sell or offer to sell a controlled substance;

       {¶14} "(2) Prepare for shipment, ship, transport, deliver, prepare for distribution,

or distribute a controlled substance, when the offender knows or has reasonable cause

to believe that the controlled substance is intended for sale or resale by the offender or

another person.

       {¶15} "(A) No person shall knowingly obtain, possess, or use a controlled

substance."

       {¶16} Appellant argues that none of the evidence presented tied him to drug

possession or trafficking in the residence of Eugene Harman.

       {¶17} It is undisputed that Brian Ball was arrested and found to be in possession

of crack cocaine. Mr. Ball testified he ordered the cocaine from Mr. Harman, went to

Mr. Harman's residence, met Mr. Harman at the door, and exchanged money for the

cocaine. T. at 284-285.

       {¶18} Mr. Harman testified on prior occasions, he drove with appellant to pick up

cocaine and appellant supplied him with crack cocaine.            T. at 155; 158-159.   Mr.
Fairfield County, Case No. 11-CA-64                                                      5


Harman would take orders for crack cocaine and appellant would weigh it and hand it to

Mr. Harman for delivery. T. at 160-161. On the evening in question, appellant brought

crack cocaine to Mr. Harman's residence and Mr. Harman gave the crack cocaine to

those who had placed orders. T. at 164, 166.

         {¶19} Joann Crist testified on prior occasions, she purchased crack cocaine from

appellant and she would assist him in selling it. T. at 237-239. On the evening in

question, appellant removed crack cocaine from his boxer pants area, weighed it,

placed it in a baggie, and handed it over to Ms. Crist to deliver. T. at 239-240, 241-242.

         {¶20} Mr. Ball testified he gave appellant rides in exchange for crack cocaine. T.

at 280. On the day in question, Mr. Ball drove appellant to Columbus and appellant

paid him in crack cocaine. T. at 282. Mr. Ball dropped appellant off at Mr. Harman's

residence. T. at 283-284.

         {¶21} When the police entered Mr. Harman's residence, they observed appellant

in a doorway in a back room, his arms were moving, and he did not show police his left

hand. T. at 74-75, 343. Nobody else was in the room. T. at 76. During a search of the

back room, a bag of crack cocaine was immediately to the right of the doorway where

appellant had been. T. at 84. An officer outside the residence looking through the

window of the back room observed a bag of cocaine hit the floor. T. at 342-343. The

officer saw "the arm of a black person there in that doorway." T. at 343. Appellant was

the only black individual in the apartment at the time of the raid.

         {¶22} Both Mr. Harman and Ms. Crist identified appellant as the supplier of the

crack cocaine who would give them some in exchange for assisting him in selling the

drugs.    Although several drug buys were witnessed by the police at Mr. Harman's
Fairfield County, Case No. 11-CA-64                                                      6


residence on the evening in question, after the arrests, appellant was the only one with

money in his pockets ($471.00). T. at 350, 356.

      {¶23} Mr. Ball, Mr. Harman, and Ms. Crist specifically identified appellant as

possessing crack cocaine and Mr. Harman and Ms. Crist identified appellant as the

crack cocaine supplier and dealer.           The testimony was substantiated by the

circumstantial evidence of appellant's location and proximity to the crack cocaine baggie

discovered in the back room, his actions at the time of the raid, and the fact that he was

the only individual with money in his pockets.

      {¶24} Upon     review,   given   the    direct   evidence   and   the   corroborative

circumstantial evidence, we find no manifest miscarriage of justice.

      {¶25} Assignment of Error I is denied.

                                             II

      {¶26} Appellant claims the trial court erred in originally failing to merge the two

convictions for sentencing.

      {¶27} In its original sentence, the trial court sentenced appellant to twelve

months on the trafficking count and seventeen months on the possession count, to be

served consecutively. The trial court corrected the allied offenses issue via a nunc pro

tunc judgment entry filed December 6, 2011, wherein the trial court merged the

trafficking count with the possession count and sentenced appellant to seventeen

months on the possession count.

      {¶28} "The purpose of a nunc pro tunc entry 'is restricted to placing upon the

record evidence of judicial action which has been actually taken' and 'it can be

exercised only to supply omissions in the exercise of functions that are clerical merely.'
Fairfield County, Case No. 11-CA-64                                                       7

Jacks v. Adamson (1897), 56 Ohio St. 397, 402; 'The function of nunc pro tunc is not to

change, modify, or correct erroneous judgments, but merely to have the record speak

the truth.[']   Ruby v. Wolf (1931), 39 Ohio App. 144 (Emphasis added.); Dentsply

Internatl., Inc. v. Kostas (1985), 26 Ohio App.3d 116. See, also, Pepera v. Pepera

(March 26, 1987), Cuyahoga App. Nos. 51989, 52024, unreported (A court may not by

way of a nunc pro tunc entry, enter of record that which it intended or might have made

but which in fact was not made.) McGowan v. Giles (March 16, 2000), Cuyahoga App.

No. 76332.

       {¶29} The nunc pro tunc judgment entry in this case made a correction as to a

matter of law and therefore was a substantive change. Appellant did not challenge the

vehicle by which the trial court corrected its sentence, but merely argued the trial court

erred in not originally merging the two offenses for sentencing. In its nunc pro tunc

judgment entry filed December 6, 2012, the trial court merged the offenses and

sentenced appellant on only one. We find the arguments relating back to the original

sentence are moot.

       {¶30} Assignment of Error II is denied.

                                             III

       {¶31} Appellant claims the trial court erred in sentencing him to the almost

maximum allowable sentence. We disagree.

       {¶32} Appellant was sentenced to seventeen months on a felony four offense.

Pursuant to R.C. 2919.14(A)(4), felonies of the fourth degree are punishable by "six,

seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or

eighteen months."
Fairfield County, Case No. 11-CA-64                                                      8


       {¶33} The sentence imposed is clearly within the statutory guidelines.          The

record demonstrates that appellant has had a continuous history of criminal

involvement. T. at 520-523.

       {¶34} Upon review, we find no abuse of discretion in sentencing appellant to

seventeen months on the felony four offense.

       {¶35} Assignment of Error III is denied.

                                            IV

       {¶36} Appellant claims the trial court erred in sentencing him to a term for

violating postrelease control.

       {¶37} In its original sentence, the trial court did not impose a prison term for

violating postrelease control. In its nunc pro tunc judgment entry filed December 6,

2011, the trial court imposed a twelve month term for violating postrelease control:

       {¶38} "On the date first mentioned, the Court sentenced the Defendant as to

Count Two to be confined in the Correctional Reception Center, Orient, Ohio, for a

period of 17 months. The Court further ordered the Defendant to pay the Court costs

and the costs of prosecution. The Court further found that the time that these offenses

were committed, the Defendant was on Post-Release control. The Court elected due to

the Defendant's criminal history to impose a 12 month sentence upon the Defendant for

violating PRC. Said sentence is to be served consecutive to the 17 month sentence as

to Count Two for a total prison sentence of 29 months."

       {¶39} Appellant argues the trial court erred in imposing the twelve month term as

it was not imposed in the original sentence and the additional sentence is an indication

of vindictiveness.   Appellant argues upon realizing the allied offenses error in the
Fairfield County, Case No. 11-CA-64                                                       9


original sentence, the trial court sought to impose the same aggregate term with the

addition of twelve months for the postrelease control violation.

       {¶40} At the original sentencing hearing, the trial court spoke directly to the

postrelease control violation issue as follows:

       {¶41} "MR. ORT: Were you on parole?

       {¶42} "THE DEFENDANT: Yes.

       {¶43} "THE COURT: There's a penalty that can be imposed for being on post-

release control.

       {¶44} "MR. ORT: But would that be by the Court that initially sentenced him?

       {¶45} "THE COURT: No. It would be by the Judge who imposes - - me, who

imposes the sentence in this case. The Court is not imposing a penalty. But the Parole

Board could take action against you, Mr. Nashe. And you'll just have to deal with the

Parole Board on whether or not they return you to prison to serve any portion of your

previously imposed sentences." T. at 535-536.

       {¶46} By amending its decision in the December 6, 2012 judgment entry, the

trial court demonstrated the original sentence of seventeen months was what it

considered to be appropriate.      We find it was error on resentencing to sentence

appellant for an additional twelve month term for violating postrelease control given the

fact that the trial court originally declined to impose a term and specifically stated so on

the record.   The twelve month sentence for violating postrelease control is hereby

stricken.

       {¶47} Assignment of Error IV is granted.
Fairfield County, Case No. 11-CA-64                                                   10


      {¶48} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed in part and reversed in part.

By Farmer, J.

Delaney, P.J. and

Wise, J. concur.




                                                s / Sheila G. Farmer______________



                                                s/ Patricia A. Delaney_____________



                                                s / John W. Wise________________

                                                            JUDGES


SGF/sg 814
[Cite as State v. Nashe, 2012-Ohio-4122.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
EDWARD D. NASHE                                :
                                               :
        Defendant-Appellant                    :        CASE NO. 11-CA-64




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed in part and

reversed in part. The twelve month sentence for violating postrelease control is hereby

stricken. Costs to appellant.




                                               s / Sheila G. Farmer______________



                                               s/ Patricia A. Delaney_____________



                                               s / John W. Wise________________

                                                           JUDGES
