[Cite as State v. Mitchell, 2016-Ohio-5149.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. CT2015-0055
                                                :
 CHARLES A. MITCHELL                            :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
                                                    Court of Common Pleas, Case No.
                                                    CR2006-0187



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             July 25, 2016



APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 D. MICHAEL HADDOX                                  ERIC J. ALLEN
 MUSKINGUM CO. PROSECUTOR                           713 S. Front St.
 GERALD V. ANDERSON II                              Columbus, OH 43206
 27 North Fifth St., P.O. Box 189
 Zanesville, OH 43702-0189


Delaney, J.
Muskingum County, Case No. CT2015-0055
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       {¶1} Appellant Charles A. Mitchell appeals from the October 5, 2015 Journal

Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal.

       {¶3} On July 7, 2006, appellant was charged by indictment with one count of

aggravated burglary, a felony of the first degree pursuant to R.C. 2911.11(A)(2) [Count I];

one count of kidnapping felony of the first degree pursuant to R.C. 2905.01(A)(4) [Count

II]; and four counts of rape, each a felony of the first degree pursuant to R.C.

2907.02(A)(2) [Counts III, IV, V, and VI].         Count II included a sexual-motivation

specification pursuant to R.C. 2941.147 and a sexually-violent predator specification

pursuant to R.C. 2941.148.

       {¶4} The matter proceeded to trial by jury on November 1, 2006. Appellant was

found guilty upon Counts I and II (aggravated burglary and kidnapping) and not guilty

upon the four counts of rape. Appellant was also found not guilty upon the sexual

motivation specification and sexually violent predator specification of Count II.

       {¶5} On December 11, 2006, the trial court sentenced appellant to a stated

prison term of ten years on Count I and a stated prison term of ten years on Count II. The

sentences were ordered to be served consecutively.

       {¶6} Appellant initiated his first direct appeal in State v. Mitchell, 5th Dist.

Muskingum No. CT2006-0090, 2007-Ohio-5519, appeal not allowed, 117 Ohio St.3d

1424, 2008-Ohio-969 [Mitchell I], in which he raised seven assignments of error, including

the jury's verdict was inconsistent; the trial court allowed an “inherently confusing [verdict]
Muskingum County, Case No. CT2015-0055
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form” upon Count II; the trial court erred in allowing testimony of appellant's misdemeanor

criminal history; the trial court erred in dismissing a juror; the verdicts are against the

sufficiency and manifest weight of the evidence; the trial court erred in imposing

consecutive maximum sentences; and the trial court abused its discretion in sentencing.

We overruled each of appellant’s assignments of error and the Ohio Supreme Court

declined review. Id.

       {¶7} Mitchell I was reopened in State v. Mitchell, 5th Dist. Muskingum No.

CT2006-0090, 2009-Ohio-5251, appeal not allowed, 124 Ohio St.3d 1476, 2010-Ohio-

354 [Mitchell II]. In that appeal, appellant raised seven assignments of error, including a

deficient indictment omitting the mens rea; an inconsistent verdict violative of double

jeopardy; manifest weight and sufficiency of the evidence; sentencing upon allied

offenses; ineffective assistance of trial and appellate counsel; insufficient findings for

maximum consecutive prison terms; and cumulative error. We overruled appellant’s

seven assignments of error and affirmed his convictions and sentences; the Ohio

Supreme Court again declined review. Id.

       {¶8} Appellant’s federal habeas corpus action was dismissed. Mitchell v. Smith,

S.D.Ohio No. 2:10-CV-299, 2011 WL 3440093, *1 (Aug. 8, 2011).

       {¶9} In 2015, appellant filed a petition for writ of mandamus asserting his

sentence is void.      We dismissed the complaint because appellant’s allied-offenses

argument is not cognizable in mandamus and appellant failed to comply with R.C.

2969.25. Mitchell v. Muskingum County Common Pleas Court, 5th Dist. Muskingum No.

CT2014-0038, 2015-Ohio-1576.
Muskingum County, Case No. CT2015-0055
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      {¶10} On May 15, 2015, appellant filed a “Motion to Correct Clerical Mistake

Pursuant to Crim.R. 36(A)” arguing that he was found guilty of burglary [R.C.

2911.12(A)(2)] but sentenced upon aggravated burglary [R.C. 2911.11(A)(2)]. Appellant

notes the sentencing entry references R.C. 2911.11. Appellant states, “* * * [he] was not

convicted under the statute which he was indicted, tried, convicted, and sentence (sic).”

Appellant moved the trial court “to correct its Judgment/Sentencing Entry to reflect the

penalty consistent with the statute [he] was charged with.” Appellant further argued he

was convicted and sentenced upon kidnapping pursuant to R.C. 2905.01(A)(4), but the

jury found him not guilty upon Count II, kidnapping with a sexual motivation. Finally,

appellant argued the amount of court costs was not properly assessed in the

Judgment/Sentencing Entry and moved the court to correct the “clerical mistake” of

omitting the amount of court costs.

      {¶11} On October 5, 2015, the trial court entered a Journal Entry stating:

                    * * *.

                    The Court finds that the Defendant’s motion is correct in so

             much as there is a clerical mistake in the sentencing entry. The

             Revised Code section for Count 1 should be 2911.11(A)(2) and

             Count 2 should be 2905.01(A)(4). These are the section numbers

             used in the indictment as well as the language for these section

             numbers. Additionally the jury instructions reflect the same language

             as the indictment.

                    Therefore the sentencing entry is amended to indicate the

             correct section numbers.
Muskingum County, Case No. CT2015-0055
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               * * *.

         {¶12} Appellant now appeals from the trial court’s Journal Entry of October 5,

2015.1

         {¶13} Appellant raises one assignment of error:

                                ASSIGNMENT OF ERROR

         {¶14} “THE TRIAL COURT ERRED IN AMENDING THE SENTENCING ENTRY

WITHOUT APPELLANT BEING PRESENT.”

                                         ANALYSIS

         {¶15} Appellant argues he was required to be present when the trial court

amended the sentencing entry. We disagree.

         {¶16} Appellant argues on appeal the trial court “amended the sentencing entry

outside of [his] presence and sentenced [him] on incorrect sections, violating his rights,”

and thereby “chang[ed] the identity of the crime” appellant was convicted of.          This

argument is inconsistent with his argument below, in which he acknowledged the

sentencing entry reflects a different section number than that of the offense he was

“indicted, tried, convicted, and sentence (sic)” upon, a clerical error.

         {¶17} The record reflects appellant was charged with, tried upon, convicted of,

and sentenced upon aggravated burglary. Count I of the indictment cites R.C.

2911.11(A)(2) and uses the statutory language.2 Appellant’s proposed jury instructions


1 Appellant has also filed a Request for Issuance of a Writ of Procedendo in this Court in
a separate case, CT2015-0049. In that matter, appellant seeks a writ of procedendo
ordering the trial court to rule upon his motion of May 15, 2015. That matter remains
pending.
2 R.C. 2911.11(A)(2), a felony of the first degree states: “No person, by force, stealth, or

deception, shall trespass in an occupied structure or in a separately secured or separately
occupied portion of an occupied structure, when another person other than an accomplice
Muskingum County, Case No. CT2015-0055
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filed October 30, 2006 reference aggravated burglary and track the language of R.C.

2911.11(A)(2). The jury’s verdict form upon Count I states appellant was found guilty of

“aggravated burglary.”

       {¶18} The trial court’s sentencing entry misstates the Revised Code section for

aggravated burglary. The sentencing entry of December 19, 2006 repeatedly references

the fact that appellant was found guilty upon “aggravated burglary F/1, in violation of ORC

2911.12(A)(2) [sic].”3 The inconsistency of “aggravated burglary F/1” with the cited section

of burglary, a felony of the second degree [R.C. 2911.12(A)(2)], leads us to conclude the

trial court’s citations in the sentencing entry are clerical errors.    Indeed, such was

appellant’s argument below.

       {¶19} Appellant remains “indicted, tried, convicted, and sentence (sic)” upon the

offense of aggravated burglary, a felony of the first degree pursuant to R.C.

2911.11(A)(2). Ohio Crim. R. 36 states, “Clerical 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.” In State v. Clark, 5th Dist. Stark No. 2010CA00006,

2010-Ohio-4649, at ¶ 12, we found a nunc pro tunc entry is the proper means of correcting

a clerical mistake. Id., citing State v. Battle, 9th Dist. Summit No. 23404, 2007-Ohio-2475




of the offender is present, with purpose to commit in the structure or in the separately
secured or separately occupied portion of the structure any criminal offense, if * * * [t]he
offender has a deadly weapon or dangerous ordnance on or about the offender's person
or under the offender's control.”
3 R.C. 2911.12(A)(2), a felony of the second degree, states: “No person, by force, stealth,

or deception, shall * * * [t]respass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure that is a permanent or temporary
habitation of any person when any person other than an accomplice of the offender is
present or likely to be present, with purpose to commit in the habitation any criminal
offense.”
Muskingum County, Case No. CT2015-0055
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and State v. Gruelich, 61 Ohio App.3d 22, 24-25, 572 N.E.2d 132 (9th Dist.1988). A nunc

pro tunc entry or order is limited to memorializing what the trial court actually did at an

earlier point in time, such as correcting a previously issued order that fails to reflect the

trial court's true action. Id., citing State v. Spears, 8th Dist. Cuyahoga No. 94089, 2010-

Ohio-2229, ¶ 10.

       {¶20} A clerical error or mistake refers to “‘a mistake or omission, mechanical in

nature and apparent on the record, which does not involve a legal decision or judgment.’”

State ex rel. Zaleski v. Cruzado, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263,

¶ 19, quoting State v. Brown, 136 Ohio App.3d 816, 819–820, 737 N.E.2d 1057 (3rd

Dist.2000). “Although courts possess inherent authority to correct clerical 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.’” Cruzado, supra, 2006-Ohio-5795 at ¶ 19, quoting State ex rel. Mayer v.

Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 14, and State ex rel.

Fogle v. Steiner, 74 Ohio St.3d 158, 164, 656 N.E.2d 1288 (1995).

       {¶21} In the instant case, we conclude the trial court’s references to R.C.

2911.12(A)(2) were clerical errors properly corrected by the trial court’s entry of October

5, 2015.

       {¶22} Appellant argues, though, he is subject to a maximum eight-year term for

burglary instead of the ten-year term for aggravated burglary. This is not a case in which

the trial court increased appellant’s sentence by means of a nunc pro tunc entry. See,

State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924 [court cannot use

nunc pro tunc entry to impose sanction not imposed as part of original sentence].
Muskingum County, Case No. CT2015-0055
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Appellant’s original sentence was, and remains, ten years upon aggravated burglary. The

amended journal entry in this case reflects what the trial court imposed at sentencing.4

       {¶23} Appellant’s presence was not required by the trial court’s amendment of

the entry. Defendants do have the right to be present at all critical stages of a trial,

including sentencing. State v. Hill, 73 Ohio St.3d 433, 1995-Ohio-287, 653 N.E.2d 271.

However, that right is not absolute. Id. at 444. Often courts have found that while it was

an error for the defendant to have not been present, it was a harmless error. The

distinction to be made is whether the proceeding is so critical that the defendant's

absence results in a prejudicial error, thereby thwarting a fair and just hearing. State v.

White, 82 Ohio St.3d 16, 26, 693 N.E.2d 772 (1998). In this case, the amendment of the

sentencing entry resulted merely in correction of the statute number cited; no

substantive change to appellant’s sentence was made. Appellant has not demonstrated

prejudice, nor do we find any in this record.

       {¶24} The trial court did not err in its entry of October 5, 2015. Citation of the

statute number in the sentencing entry is a mechanical part of the judgment, so

“mechanical in nature” that its omission can be corrected as if it were a clerical mistake.


4 Appellant has not provided a transcript of the sentencing hearing of December 11,
2006. In Knapp v. Edwards Laboratories the Ohio Supreme Court stated: “The duty to
provide a transcript for appellate review falls upon the appellant. This is necessarily so
because an appellant bears the burden of showing error by reference to matters in the
record.” 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). We find nothing in the record
to support appellant’s contention that he was sentenced upon a different offense than
that which he was convicted of. Without a transcript, we must presume the regularity of
the trial court’s proceedings. State v. Ellis, 5th Dist. No. 11-COA-015, 2011-Ohio-5646,
*2. App.R. 9(B) also provides in part “ * * *[w]hen portions of the transcript necessary
for resolution of assigned errors are omitted from the record, the reviewing court has
nothing to pass upon and thus, as to those assigned errors, the court has no choice but
to presume the validity of the lower court’s proceedings, and affirm.”
Muskingum County, Case No. CT2015-0055
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Miller, supra, 2010-Ohio-5705 at ¶ 16, citing Londrico v. Delores C. Knowlton, Inc., 88

Ohio App.3d 282, 285, 623 N.E.2d 723 (9th Dist.1993).

       {¶25} Appellant’s sole assignment of error is overruled.

                                    CONCLUSION

       {¶26} Appellant’s sole assignment of error is overruled and the judgment of the

Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J. and

Farmer, P.J.

Baldwin, J., concur.
