[Cite as State v. Dixon, 2016-Ohio-955.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                     No. 15AP-1037
v.                                               :                 (C.P.C. No. 97CR-781)

Marvell E. Dixon,                                :         (ACCELERATED CALENDAR)

                 Defendant-Appellant.            :


                                           D E C I S I O N

                                      Rendered on March 10, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee.

                 On brief: Marvell E. Dixon, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Marvell E. Dixon ("appellant") appeals from the denial of his "Motion for
Re-Sentencing." For the reasons set forth below, the trial court's denial of the motion was
in error.
        {¶ 2} A jury found appellant guilty of aggravated murder, in violation of R.C.
2903.01, with a firearm specification, and guilty of felonious assault, in violation of R.C.
2903.11, with a firearm specification. (Tr., 803-04.) The trial court held a sentencing
hearing on April 23, 1998. A judgment entry filed on April 24, 1998 imposed the following
sentence:
                 LIFETIME SENTENCE WITH NO ELIGIBILITY OF PAROLE
                 LESS THAN TWENTY (20) YEARS WITH RESPECT TO
                 COUNT ONE PLUS THREE (3) YEARS DETERMINATE
                 SENTENCE WITH RESPECT TO THE FIREARM
                 SPECIFICATION; EIGHT TO FIFTEEN (8-15) YEARS WITH
No. 15AP-1037                                                                                            2

                RESPECT TO COUNT TWO PLUS THREE (3) YEARS
                DETERMINATE SENTENCE WITH RESPECT TO THE
                FIREARM    SPECIFICATION; THE    FIREARM
                SPECIFICATIONS TO RUN CONCURRENT TO EACH
                COUNT AND MERGE WITH EACH OTHER; AND
                COUNT TWO TO RUN CONSECUTIVE TO COUNT
                ONE * * *.

(Emphasis added.)
        {¶ 3} Appellant filed a notice of appeal on May 21, 1998. He also filed a motion for
post-conviction relief on December 22, 1998.
        {¶ 4} On June 26, 2000, Marina VanKirk, the acting records supervisor at the
Southern Ohio Correctional Facility, sent a letter to the sentencing judge that contained
the following observation:
                In this particular matter, your entry for [appellant] states that
                the firearm specification is to run concurrently to other
                counts. My interpretation of [R.C.] 2929.14 (E)(1)1 is that the
                mandatory prison term is to be served consecutively and prior
                to, not only the underlying felony, but also "consecutively to
                any other prison term or mandatory prison term previously or
                subsequently imposed on the offender."

                At this time, the sentence has been calculated as ordered in
                your April 23, 1998 entry. Please review and advise this office
                of your findings at your earliest convenience.

        {¶ 5} On August 2, 2000, the trial court filed an entry captioned "Corrected
Entry." In relevant part, the entry stated:
                FOR SENTENCING PURPOSES, THE FIREARM
                SPECIFICATIONS, WITH RESPECT TO COUNTS
                ONE AND TWO, MERGE.

                [I]t is the sentence of the Court that the defendant pay the
                costs of this prosecution and serve LIFETIME SENTENCE
                WITH NO ELIGIBILITY OF PAROLE LESS THAN TWENTY
                (20) YEARS WITH RESPECT TO COUNT ONE; EIGHT TO
                FIFTEEN (8-15) YEARS WITH RESPECT TO COUNT TWO;
                THREE (3) YEARS DETERMINATE SENTENCE WITH

1 In the version of R.C. 2929.14 in effect when appellant was originally sentenced, the provision requiring

consecutive sentences for firearm specification offenses was subsection (E). In an amendment to R.C.
2929.14 passed on June 29, 2011, the Ohio Legislature renumbered the statute's subsections and changed
the provision in question from subsection (E) to (C). 2011 Am.Sub.H.B. No. 86.
No. 15AP-1037                                                                           3

              RESPECT TO THE FIREARM SPECIFICATION; SAID
              FIREARM SPECIFICATION TO RUN CONSECUTIVE
              TO COUNT ONE; AND COUNT TWO TO RUN
              CONSECUTIVE TO COUNT ONE * * *.

(Emphasis added.)
       {¶ 6} This court affirmed the judgment of the trial court on December 5, 2000.
State v. Dixon, 10th Dist. No. 98AP-626 (Dec. 5, 2000.) Appellant filed an application to
reopen the appeal on December 28, 2000. The application was denied on February 1,
2001. State v. Dixon, 10th Dist. No. 98AP-626 (Feb. 1, 2000), application to reopen
denied.
       {¶ 7} On October 15, 2015, appellant filed a motion in the trial court captioned
"Motion for Re-Sentencing," asserting that the filing of the August 2, 2000 "Corrected
Entry" without a hearing had violated his right to be present at any stage of a criminal
proceeding under Crim. R. 43(A). According to appellant, the entry did not present "a
clerical issue [requiring] correction of the record," and the trial court had "actually
attempted to change the sentence of Defendant in regards to the firearm specifications."
(Emphasis deleted.) (Motion for Re-Sentencing, 2.) Appellant argued that he "was
entitled to be present at every critical stage of his sentencing, or any correction of his
sentencing." (Motion for Re-Sentencing, 1.) Accordingly, he requested that the court
sustain his motion and "allow [him] to be present" at a resentencing proceeding. (Motion
for Re-Sentencing, 1.)
       {¶ 8} On October 27, 2015, the trial court filed an entry overruling appellant's
motion. The entry addressed appellant's arguments only by stating the following:
              In his motion, Defendant takes issue with a corrected entry,
              filed on August 2, 2000, correcting a clerical error.

              Defendant has waited more than 15 years to file this motion.

              Said Motion is hereby OVERRULED.

(Emphasis sic.)
       {¶ 9} On November 12, 2015, appellant filed a notice of appeal. He asserts the
following as the sole assignment of error:
No. 15AP-1037                                                                               4

               Did the Trial court err by failing to hold a Hearing pursuant to
               Crim. R. 43(A) when the trial court Re-Sentenced defendant
               without defendant being present?

       {¶ 10} The appeal presents the same arguments that appellant made before the
trial court, asserting that his constitutional right to be present at all stages of a criminal
proceeding was violated when he was resentenced by the "Corrected Entry" without a
hearing. Moreover, he asserts that the 16-year lapse of time after the filing of the entry
should not preclude him from relief because he was not previously aware of the
"Corrected Entry." (Appellant's Brief.)
       {¶ 11} In response, the state argues that the trial court correctly overruled the
motion because the "Corrected Entry" merely corrected a clerical error. The state asserts
that appellant cannot show how the entry changed his sentence, and that res judicata
applies because this court affirmed the original appeal four months after the trial court
filed the "Corrected Entry." (Appellee's Brief.)
       {¶ 12} Our analysis begins with the law applicable to appellant's motion, as he cites
no procedural mechanism for filing it, and the trial court cited no law as grounds for
overruling it. Based on its timing, the arguments it raises, and the relief sought,
appellant's motion meets the definition of a petition for postconviction relief under R.C.
2953.21(A)(1). State v. Reynolds, 79 Ohio St.3d 158, 160 (1997) (construing a "Motion to
Correct or Vacate Sentence" as a motion filed under R.C. 2953.21(A)(1) because "despite
its caption, [it] meets the definition of a motion for postconviction relief"). The statute
states that:
               Any person who has been convicted of a criminal offense * * *
               and who claims that there was such a denial or infringement
               of the person’s rights as to render the judgment void or
               voidable under the Ohio Constitution or the Constitution of
               the United States * * * may file a petition in the court that
               imposed sentence, stating the grounds for relief relied upon,
               and asking the court to vacate or set aside the judgment or
               sentence or to grant other appropriate relief. The petitioner
               may file a supporting affidavit and other documentary
               evidence in support of the claim for relief.

R.C. 2953.21(A)(1).
No. 15AP-1037                                                                                5

       {¶ 13} Applying the statute to the motion before it, the Supreme Court of Ohio held
that "where a criminal defendant, subsequent to his or her direct appeal, files a motion
seeking vacation or correction of his or her sentence on the basis that his or her
constitutional rights have been violated, such a motion is a petition for postconviction
relief as defined in R.C. 2953.21." Reynolds at 160. Similarly, appellant filed the motion
after his direct appeal, and the relief he seeks, to be present at resentencing, necessarily
requires the vacation or correction of the sentence set forth in the trial court's "Corrected
Entry." Furthermore, appellant seeks this relief under Crim.R. 43(A), which requires that
a defendant "be physically present at every stage of the criminal proceeding and trial,
including * * * the imposition of sentence." The rule codifies a fundamental right
guaranteed by the Ohio Constitution, Article I, Section 10, and the Due Process Clause of
the Fourteenth Amendment to the United States Constitution. See, e.g., Kentucky v.
Stincer, 482 U.S. 730, 745 (1987) (observing that due process "guarantee[s] the right to be
present at any stage of the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure"). Accordingly, we construe
appellant's motion as a petition for postconviction relief filed under R.C. 2953.21(A)(1)(a),
and will apply an abuse of discretion standard to the trial court's denial of his request for a
resentencing hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58.
       {¶ 14} The postconviction relief statute allows only a limited time to file a petition
for postconviction relief, which "shall be filed no later than three hundred sixty-five days
after the date on which the trial transcript is filed in the court of appeals in the direct
appeal of the judgment of conviction or adjudication" challenged by the petition. R.C.
2953.21(A)(2). This restriction is jurisdictional, as "a court may not entertain a petition
filed after the expiration of" that time period, "or a second petition or successive petitions
for similar relief" by the petitioner. R.C. 2953.23(A). There are only two exceptions under
which a court may hear an untimely or successive petition. First, the petitioner must show
that either he "was unavoidably prevented from discovery of the facts upon which [he]
must rely to present the claim for relief," or that his claim is based on a retroactively
applicable federal or state right recognized by the United States Supreme Court since
filing an earlier petition. R.C. 2953.23(A)(1). Under the second exception, DNA testing
No. 15AP-1037                                                                                6

results must "establish, by clear and convincing evidence" the petitioner's "actual
innocence" of the felony for which he was convicted. R.C. 2953(A)(2).
       {¶ 15} In this case, the final portion of the trial transcript for appellant's direct
appeal was filed on July 6, 1998. His first motion for postconviction relief was filed on
December 22, 1998, and was timely under the statute. The October 15, 2015 "Motion" that
is the subject of this appeal was therefore a "successive" petition under R.C. 2953.23(A).
Appellant obviously filed it outside of the time period that had expired on July 5, 1999, 16
years earlier. Thus, to fall within the jurisdiction of the trial court, one of the exceptions
under R.C. 2953.23(A) must apply. Appellant identifies no new constitutional right
recognized since he filed the first petition. Nor does he make an "actual innocence"
challenge to his conviction based on DNA evidence.
       {¶ 16} However, appellant "was unavoidably prevented from discovery of the facts
upon which" his claim for relief relies because the action he challenges, the filing of the
"Corrected Entry" on August 2, 2000, did not occur until 13 months after the expiration of
the limitations period defined by the statute. R.C. 2953.23(A)(1). There was no way for
appellant to file a petition contesting an action that the trial court had not yet taken. For
this reason, the one-year time limit did not apply, and the trial court had jurisdiction over
the petition. For the same reason, it was an abuse of discretion for the trial court to
summarily overrule it as untimely.
       {¶ 17} Even if the jurisdictional bar had applied, however, "a trial court retains
jurisdiction to correct its void judgments." State v. Fields, 183 Ohio App.3d 647, 650,
2009-Ohio-4187, ¶ 10 (1st Dist.), citing State ex rel. Cruzado v. Zaleski, 111 Ohio St. 353,
2006-Ohio-5795. In Fields, the defendant filed an untimely petition for postconviction
relief, seeking to withdraw his guilty plea for possession of cocaine on the grounds that the
trial court had failed to notify him that a statutorily mandated fine would accompany the
conviction. Id. at ¶ 3. The First Appellate District agreed with the trial court that it had
lacked jurisdiction under R.C. 2953.23 because the petition was untimely, but vacated the
sentence and remanded the case for resentencing because the failure to include the fine in
the sentence rendered it void. Id. Here, too, the trial court had jurisdiction to examine
appellant's sentence, determine if it was void and, if so, make any necessary corrections.
No. 15AP-1037                                                                               7

       {¶ 18} The same principle applies to the "Corrected Entry" filed on August 2, 2000,
when the trial court attempted to correct an error in appellant's original sentence.
However, any such effort had to respect appellant's constitutional rights. For the following
reasons, we conclude that by filing the "Corrected Entry" without a resentencing hearing,
the trial court failed to do so.
       {¶ 19} Typically, "trial courts lack authority to reconsider their own valid final
judgments in criminal cases." State ex rel. White v. Junkin, 80 Ohio St.3d 335, 338
(1997). However, there are "two exceptions under which the trial court retains continuing
jurisdiction." Cruzado at ¶ 19, citing State v. Garretson, 140 Ohio App.3d 554, 560 (12th
Dist.2000). First, as mentioned above, "a trial court is authorized to correct a void
sentence." Id. Second, Crim.R. 36 allows the correction of "clerical errors in judgments."
Id. Specifically, the rule states 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." Thus, the rule's exception was presumably what the
trial court referred to when, in its entry overruling appellant's motion, it described the
"Corrected Entry" as "correcting a clerical error" in appellant's original sentence. The
state, too, has taken this position in its brief.
       {¶ 20} However, a "clerical mistake" correctable under Crim.R. 36 " 'refers to a
mistake or omission, mechanical in nature and apparent on the record, which does not
involve a legal decision or judgment.' " Cruzado at ¶ 19, quoting State v. Brown, 136 Ohio
App.3d 816, 819-20 (3d Dist.2000). Such "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. Mayer v. Henson, 97 Ohio
St.3d 276, 2002-Ohio-6323, ¶ 14, quoting State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158,
164 (1995).
       {¶ 21} Contrary to the trial court's conclusion and the state's position, the
"Corrected Entry" did not fix a clerical error. Rather, it was based on a legal decision by
the trial court to change appellant's original sentence to conform to the law. The original
sentence specified that the two firearm specifications were to "run concurrent to each
count and merge with each other." However, the 1998 version of R.C. 2929.14(E)(1) did
not give the trial court the authority to order the prison term for a firearm specification to
No. 15AP-1037                                                                                        8

run concurrently with another sentence. Instead, it required that any "mandatory prison
term" for a firearm specification had to be served "consecutively to and prior to the prison
term imposed for the underlying felony * * * and consecutively to any other prison term or
mandatory prison term previously or subsequently imposed upon the offender." The
"Corrected Entry," which specified that all prison terms–for the firearm specification,
Counts 1 and 2–were all to run consecutively, appears to be an effort to bring appellant's
sentence into compliance with the statute.2 The "Criminal Sentencing Sheet" in the record
also reflects that, at the time of the original sentencing, the trial court intended for any
firearm specification term to run concurrently with the underlying offenses. Thus, the
"Corrected Entry" did not reflect "what the court actually decided," but the sentence that
the trial court should have imposed. State ex rel. Mayer at ¶ 14. The change was not a
simple clerical fix that could "be corrected by the court at any time" by filing a nunc pro
tunc entry under Crim.R. 36.
       {¶ 22} The state also argues that appellant "provides no support for his claim that
the sentence changed in any way," but the change is apparent from the face of the entries.
(Appellee's Brief, 2.) Crucially, the "Corrected Entry" had the effect of adding three years
to appellant's sentence, as it altered the previously concurrent prison term for the firearm
specification to a term running consecutively to the other terms. The record does not
reflect that appellant was brought before the trial court or that the trial court held a
hearing before it filed the "Corrected Entry," which had the effect of creating an additional
burden to appellant's liberty interests that was not present in his original sentence. A
"defendant must be physically present at every stage of the criminal proceeding and trial,
including * * * the imposition of sentence," under Crim.R. 43(A)(1) and elementary
principles of due process. Ohio Constitution, Article I, Section 10; Fourteenth
Amendment to the U.S. Constitution; Kentucky at 745. We have previously recognized
that "if the sentence set forth in the judgment entry differs from that pronounced in the
defendant's presence, the judgment entry is invalid." State v. Elson, 10th Dist. No. 13AP-
554, 2014-Ohio-2498, ¶ 56, citing State v. Carpenter, 1st Dist. No. C-950889 (Oct. 9,


2 In addition to running consecutively, the 1998 version of R.C. 2929.14(E)(1) required that the prison
term for the firearm specification run "prior to the prison term imposed for the underlying felony."
However, the "Corrected Entry" did not specify that the term for the firearm specification ran prior to
Count 1.
No. 15AP-1037                                                                               9

1996) (vacating sentence and remanding for resentencing where the trial court imposed
no sentence for a felonious assault conviction in the defendant's presence at the
sentencing hearing, but later "imposed a three-year sentence" for the conviction by
judgment entry). See also State v. Railey, 1st Dist. No. C-120029, 2012-Ohio-4233
(vacating sentence and remanding for resentencing because "the trial court, in violation
of the due-process right embodied in Crim.R. 43, effectively modified [defendant's]
sentence from the 12 months pronounced in open court to the 18 months reflected in the
January 2012 judgment of conviction and the March 2012 nunc pro tunc entry"). In
substance, the sentence described in the "Corrected Entry" may have comported with the
law, but the same cannot be said for the procedure the trial court used to impose it.
       {¶ 23} In its final argument, the state asserts that the doctrine of res judicata
precludes appellant from challenging his sentence, pointing to the affirmance of the
original appeal and the 15-year delay between the filing of the "Corrected Entry" and the
motion for resentencing. However, a void sentence "is not precluded from appellate
review by principles of res judicata, and may be reviewed at any time, on direct appeal or
by collateral attack." State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one
of the syllabus. We share the state's concern regarding the length of time that it took for
appellant to file the motion. It is not clear when appellant actually learned of the filing of
the "Corrected Entry," but the filing was a matter of public record. Nevertheless, because a
void judgment "may be reviewed at any time," the delay is irrelevant. Id.
       {¶ 24} For the foregoing reasons, we conclude that the trial court erred by not
holding a resentencing hearing before filing the "Corrected Entry" and, as a consequence,
when it overruled appellant's motion for a resentencing hearing. Accordingly, we sustain
appellant's sole assignment of error. The original sentence of April 24, 1998 is vacated, as
is the "Corrected Entry" of August 2, 2000. This case is remanded to the trial court for
resentencing in the presence of appellant, in accordance with Crim.R. 43(A)(1). All
relevant constitutional guarantees apply, including appellant's right to counsel at
sentencing. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972).
                                                      Judgment vacated; cause remanded.
                             TYACK and BROWN, JJ., concur.
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