[Cite as State v. Davis, 2017-Ohio-7830.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 16CA0011
ANTHONY DAVIS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Morrow County Court of
                                               Common Pleas, Case No. 89-CR-3133


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         September 25, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHARLES S. HOWLAND                             ANTHONY DAVIS, PRO SE
Morrow County Prosecuting Attorney             Allen/Oakwood Correctional Institution
DAVID HOMER                                    2338 North West St.
Assistant Prosecuting Attorney                 PO Box 4501-488214
60 East High Street                            Lima, Ohio 45802
Mt. Gilead, Ohio 43338
Morrow County, Case No. 16CA0011                                                             2

Hoffman, J.



          {¶1}   Defendant-appellant Anthony S. Davis appeals the October 11, 2016

judgment of the Morrow County Common Pleas Court denying his motion for the court to

send to the Department of Rehabilitation and Correction a 1990 order suspending further

execution of his sentence. Plaintiff-appellee is the State of Ohio.

                                    STATEMENT OF THE CASE1

          {¶2}   In 1989, Appellant was convicted of aggravated burglary and possession of

criminal tools in the Morrow County Common Pleas Court, and sentenced to a term of

imprisonment of five years to twenty-five years and six months. His convictions and

sentences were affirmed by this Court on direct appeal. State v. Davis, 5th Dist. Morrow

No. CA-720, 1990 WL 79040 (June 7, 1990).

          {¶3}   Appellant filed a petition for post-conviction relief on March 30, 1990, and a

motion for shock probation on April 25, 1990. Following an evidentiary hearing, the trial

court dismissed Appellant’s petition for post-conviction relief on July 23, 1990. The

journal does not reflect a ruling on his motion for shock probation.

          {¶4}   On February 12, 2015, Appellant filed an application for shock probation.

He argued under the law by which he was sentenced in 1989, all of his convictions since

2000 were definite sentences, which had to be served prior to the indefinite sentence he

received in 1989. As he had served his definite sentences, he wanted to be released

from prison because, “Life is just too short.” The trial court summarily denied the motion

on March 23, 2015.



1
    A rendition of the facts is unnecessary for our disposition of this appeal.
Morrow County, Case No. 16CA0011                                                           3


       {¶5}   On September 20, 2016, Appellant moved the court to send to the

Department of Rehabilitation and Correction a 1990 order suspending further execution

of sentence. He argued because he was released on parole in 2000, he must have been

granted shock probation under the old law. The State responded there was never a 1990

order granting him shock probation, and the trial court denied Appellant’s motion on

October 11, 2016.

       {¶6}   Appellant moved the court to reconsider on November 7, 2016. He filed a

document entitled “Defendant’s Reply to State’s Response to Defendant’s Motion for a

Nunc Pro Tunc Entry,” stating he received shock probation in 1990. He also filed a

Statement of the Case pursuant to App. R. 9(C). On March 20, 2017, we remanded this

case to the trial court to settle the record pursuant to App. R. 9(C). The trial court did so

on May 18, 2017, stating there is no judicial release order in the record from Judge Dean

Curl from 1990, or any other time. The court stated from a careful review of the record,

there is no reason to conclude the record as presently constituted is missing a judicial

release record because Appellant was never placed on probation by the court.

       {¶7}   Appellant prosecutes this appeal from the entry of the court denying his

motion to send the Department of Rehabilitation and Correction a 1990 order suspending

his sentence, assigning the following as error:



              I. THE TRIAL COURT ABUSES ITS DISCRETION BY DENYING A

       MOTION FOR A NUNC PRO TUNC ENTRY WHEN THERE IS CLEAR

       AND CONVINCING EVIDENCE THAT AN OMISSION EXIST [SIC]IN THE

       TRIAL COURT RECORD. THE SAME BEING A VIOLATION OF ARTICLE
Morrow County, Case No. 16CA0011                                                           4


       ONE, SECTION SIXTEEN, OF THE OHIO CONSTITUTION AND THE

       FOURTEENTH          AMENDMENT           TO     THE      UNITED       STATES

       CONSTITUTION.

              II. THE TRIAL COURT ABUSES ITS DISCRETION WHEN IT

       AGREE’S [SIC]THAT A SENTENCE WAS SUSPENDED ONCE BUT

       REFUSES TO CORRECT THAT OMISSION IN THE TRIAL COURT

       RECORD.        THE SAME BEING A VIOLATION OF ARTICLE ONE,

       SECTION SIXTEEN, OF THE OHIO CONSTITUTION AND THE

       FOURTEENTH          AMENDMENT           TO     THE      UNITED       STATES

       CONSTITUTION.

              III. THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE

       APPELLANT, IN RECONSIDERING IT’S [SIC] OWN VALID, FINAL

       JUDGMENT. THE SAME BEING A VIOLATION OF ARTICLE(S) ONE

       AND FOUR, SECTION(S) SIXTEEN AND EIGHTEEN, OF THE OHIO

       CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE

       UNITED STATES CONSTITUTION.



                                                 I.

       {¶8}   In his first assignment of error, Appellant argues the court erred in denying

his motion for a nunc pro tunc entry.

       {¶9}   A nunc pro tunc entry is limited to memorializing what the trial court actually

did at an earlier point in time, such as correcting a previously issued order which fails to

reflect the trial court's true action. State v. Clark, 5th Dist. Stark No. 2010CA00006. 2010-
Morrow County, Case No. 16CA0011                                                         5


Ohio-4649, ¶ 12. Contra to Appellant’s argument, there is no evidence in the record to

demonstrate that in 1990, Judge Curl granted his motion for shock probation. The trial

court accordingly did not err in overruling his motion to send a nunc pro tunc entry

suspending his 1989 sentence to the Department of Rehabilitation and Correction.

      {¶10} The first assignment of error is overruled.

                                                II.

      {¶11} In his second assignment of error, Appellant argues the court erred in failing

to correct the record to demonstrate his sentence was suspended in 1990 because the

court agrees the sentence was previously suspended.

      {¶12} Although the trial court recognized Appellant had been released from prison

by the parole board, the trial court did not recognize that Judge Curl had released

Appellant in 1990 pursuant to Appellant’s motion for shock probation. The record before

this Court does not demonstrate Appellant was released from prison by order of the

Morrow County Common Pleas Court.

      {¶13} The second assignment of error is overruled.

                                               III.

      {¶14} Appellant argues the trial court erred in reconsidering its own March 3, 2015

final judgment overruling Appellant’s motion for shock probation. He argues the trial court

agreed with the argument of the State, and the State acknowledged Appellant had been

previously released from prison in its response to Appellant’s February 12, 2015 motion

for shock probation.

      {¶15} The trial court’s March 3, 2015 judgment states in pertinent part:
Morrow County, Case No. 16CA0011                                                     6


             The State responded to the Application for Shock Probation on

      February 19, 2015, indicating that the Defendant is ineligible for Shock

      Probation and his option is to seek release through the Parole Board. Due

      to the nature of the Convictions, the court is inclined to agree with the

      analysis by the State, and at this juncture DENIES summarily, without

      hearing, the Application for Shock Probation.

      Judgment, March 3, 2015.



      {¶16} As discussed in Appellant’s second assignment of error, while neither the

State nor the court dispute Appellant was at some point in time released from prison by

action of the parole board, the record does not demonstrate Appellant’s sentence was

suspended by the Morrow County Common Pleas Court. The trial court’s judgment

denying Appellant’s request for a nunc pro tunc order suspending his sentence in 1990

to be sent to the Department of Rehabilitation and Correction does not constitute a

reconsideration of its March 3, 2015 order denying his motion for shock probation.

      {¶17} The third assignment of error is overruled.
Morrow County, Case No. 16CA0011                                                7


      {¶18} The judgment of the Morrow County Common Pleas Court is affirmed.



By: Hoffman, J.

Delaney, J. and

Wise, Earle, J. concur
