[Cite as State v. Davis, 2013-Ohio-4905.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99376


                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                        ROBERT DAVIS
                                                        DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-509762

               BEFORE:           Blackmon, J., Celebrezze, P.J., and E.A. Gallagher, J.

              RELEASED AND JOURNALIZED:                     November 7, 2013
ATTORNEY FOR APPELLANT

Guy D. Rutherford
614 W. Superior Avenue
Suite 940
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Joseph J. Ricotta
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Robert Davis (“Davis”) appeals the sentence imposed by the trial

court and assigns the following error for our review:

       The sentencing court erred and acted contrary to law when it filed a nunc
       pro tunc judgment entry for purposes other than correcting clerical mistakes
       as permitted by Rule 36 of the Ohio Criminal Rules of Procedure.

       {¶2} Having reviewed the record and pertinent law, we affirm Davis’s sentence.

The apposite facts follow.

       {¶3} The Cuyahoga County Grand Jury indicted Davis for one count of burglary

and one count of aggravated theft. On June 12, 2009, Davis entered a plea to burglary

and the theft count was nolled. After obtaining a presentence report, the trial court

sentenced Davis to five years of community control. The court ordered that if Davis

violated the terms of his community control, the court could impose a sentence of eight

years in prison.

       {¶4} In August 2009, the trial court conducted a probation violation hearing after

Davis had failed two separate drug tests. The trial court terminated his community

control and sentenced Davis to eight years in prison. Davis appealed the trial court’s

decision, and we reversed and remanded the matter because the court failed to afford

Davis a probable cause hearing prior to determining he violated his probation. State v.

Davis, 8th Dist. Cuyahoga No. 93959, 2009-Ohio-5126 (“Davis I”).

       {¶5} On remand, the trial court accepted Davis’s waiver of his right to have a

probation violation hearing and again found him in violation of his probation. At the
July 11, 2011 hearing, the court stated on the record: “[t]he original sentence will be

ordered into execution. Sir, upon your release from prison, the Ohio Parole Board

will impose a period of postrelease control of three years * * *.” No objection

was made at the hearing regarding the imposition of a prison sentence nor did Davis

assert that his original sentence was community control sanctions and not a term of

imprisonment.

       {¶6} In its July 26, 2011 sentencing entry, the court imposed sentence in

pertinent part as follows: “Sentence ordered into execution. Postrelease control is part of

this prison sentence for 3 years for the above felony(s) under R.C. 2967.28.” On July 27,

2011, the court entered a nunc pro tunc entry stating in pertinent part: “For clarification

as a result of A.P.V., defendant is sentenced to pay a $250.00 fine and court costs and 8

years at LCI.”

       {¶7} Davis appealed the sentence arguing that the trial court erroneously

imposed a prison term of eight years. He contended that at the sentencing hearing, the

court imposed his “original sentence,” which he contends was five years of community

control sanctions. This court affirmed the sentence stating:

               This artfully crafted argument has no merit considering that the
       record is clear that the trial court was imposing the same sanction it had
       previously imposed in August 2009 — the suspended eight-year prison
       sentence. Although the trial court did not expressly state on the record that
       it was imposing the suspended eight-year prison sentence, the record clearly
       reflects that the trial court was imposing a prison sentence, and nothing in
       the record even suggests the trial court was reinstating Davis to a term of
       community control sanctions. The context of the remand hearing was to
       remedy the errors the trial court made, as noted in Davis I. Moreover, the
       trial court, after stating “[o]riginal sentence will be ordered into execution,”
       explained the imposition of postrelease control “upon [Davis’s] release
       from prison.” Based on this court’s reasoning and analysis in Davis I, Davis
        knew he was receiving the same prison sentence previously imposed, but
        failed to make any objection challenging the imposition of the prison term,
        despite his alleged belief on appeal that his “original sentence” was
        community control sanctions. * * *.

                For Davis to argue on appeal that he was under the impression that
        the trial court was reinstating his community control sanctions or that the
        trial court “indicated in open court that it was extending Mr. Davis’s
        community control sanctions” is disingenuous. The record is clear that the
        trial court intended to impose the suspended eight-year prison sentence for
        Davis’s violation of the terms and conditions of community control. As a
        matter of semantics, the trial court could have stated “original suspended
        sentence ordered into execution,” but, we do not find that manifest injustice
        occurred to warrant reversal under any analysis — plain error or otherwise.

State v. Davis, 8th Dist. Cuyahoga No. 97227, 2012-Ohio-2499, ¶ 11 and 14. (“Davis

II”).

                                      Nunc Pro Tunc

        {¶8} In his sole assigned error, Davis contends the trial court erred by entering

the July 27, 2011 nunc pro tunc entry clarifying his sentence because it did not correct a

clerical mistake because the court never imposed an eight-year prison term at the

sentencing hearing.

        {¶9} Res judicata prevents Davis from raising this assigned error. Where an

argument could have been raised on an initial appeal, res judicata dictates that it is

inappropriate to consider that same argument on a second appeal. State v. D’Ambrosio,

73 Ohio St.3d 141, 143, 1995-Ohio-129, 652 N.E.2d 710; State v. Gillard, 78 Ohio St.3d

548, 549, 1997-Ohio-183, 679 N.E.2d 276.

        {¶10} Davis could have asserted the argument that the trial court erred by entering

a nunc pro tunc order to clarify its sentence in Davis II, because the journal entry existed
at the time he filed his notice of appeal, and the appeal concerned what the trial court

meant by “original sentence” in sentencing Davis.

In Davis II, we held that in imposing the “original sentence” the trial court was referring

to the eight years in prison that it suspended in favor of community control. Thus,

Davis’s argument that the nunc pro tunc entry, which clarified that the sentence was eight

years in prison, was invalid, would have been an appropriate argument to raise during the

prior appeal.

       {¶11} Even if res judicata did not apply, we find no error. While courts possess

authority to correct 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 or what the court intended to decide. State ex

rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163-164, 656 N.E.2d 1288 (1995). In Davis II,

we concluded the trial court’s ordering the “sentence into execution” referred to the

eight-year sentence the court had suspended in favor of community control. Thus, the

court’s entering a nunc pro tunc entry clarifying the sentence was eight years in prison

reflected the sentence actually imposed by the trial court. Accordingly, Davis’s sole

assigned error is overruled.

       {¶12} Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
