[Cite as State v. Andrasak, 194 Ohio App.3d 838, 2011-Ohio-3425.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

THE STATE OF OHIO,                                        C.A. No.   10CA0050-M

        Appellee,

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
ANDRASAK,                                                 COURT OF COMMON PLEAS
                                                          COUNTY OF MEDINA, OHIO
        Appellant.                                        CASE No.   09-CR-0403

                                DECISION AND JOURNAL ENTRY

Dated: July 11, 2011

        Dean Holman, Medina County Prosecuting Attorney, and Russell A. Hopkins,

Assistant Prosecuting Attorney, for appellee.

        Joseph F. Salzgeber, for appellant.



        MOORE, Judge.

        {¶1}    Appellant, Cheryl L. Andrasak, appeals from the judgment of the Medina County

Court of Common Pleas, which ordered as a condition of community control that she have no

contact with her husband or son. This court affirms in part and reverses in part.

        {¶2}    On September 24, 2009, the Medina County Grand Jury indicted Andrasak on one

count of permitting drug abuse in violation of R.C. 2925.13(B), a felony of the fifth degree, and

one count of trafficking in drugs in violation of R.C. 2923.03(A)(2), 2925.03(A)(1), and

2925.03(C)(1)(a), a felony of the fourth degree.

        {¶3}    On February 10, 2010, Andrasak pleaded guilty to both counts, and the court

ordered a presentence investigation. On March 22, 2010, the trial court sentenced her to five
                                                  2


years of community control, during which she was to have no contact with her codefendants, as

well as 180 days in the county jail and a six-month driver’s license suspension.

       {¶4}       Andrasak timely filed a notice of appeal. She has raised one assignment of error

for our review.

                          The trial court abused its discretion and committed plain error
                  affecting the substantial rights of [Andrasak] by imposing, as part of her
                  five-year sentence of community control or probation, the conditions that
                  [she] have no contact with her son and her husband contrary to her
                  fundamental constitutional rights.

       {¶5}       In her assignment of error, Andrasak contends that the trial court abused its

discretion and committed plain error by ordering that she have no contact with her husband and

son during a five-year term of community control. We agree in part.

       {¶6}       During the March 22, 2010 sentencing hearing, the trial court told Andrasak,

“[Y]ou’re to have no contact with Howard Williams and Eric Hanning while you’re on

probation.” In its sentencing entry filed on March 25, 2010, the trial court wrote that Andrasak

was to have “no contact with codefendants.” On April 6, 2010, the trial court filed a nunc pro

tunc entry, which stated that Andrasak was to have “no contact with co-defendants, Howard

Williams, Jr., Eric Hanning and Nathaniel Andrasak.”

                                              Husband

       {¶7}       When the court told Andrasak at sentencing that she was to have no contact with

her husband, Eric Hanning, she did not object. “An appellate court need not consider an error

which a party complaining of the trial court’s judgment could have called, but did not call, to the

trial court's attention at a time when such error could have been avoided or corrected by the trial

court.” State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of the syllabus. Therefore,

she forfeited these issues. Forfeiture of her constitutional argument does not, however, foreclose
                                               3


Andrasak’s plain-error argument. Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the court.”

Plain error is only to be noticed “under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus.

“This Court will apply Crim.R. 52(B) only if it appears on the face of the record that an error

was committed, and the result of the trial clearly would have been different but for the alleged

error.” State v. Dent, 9th Dist. No. 20907, 2002-Ohio-4522, at ¶ 6, citing State v. Bock (1984),

16 Ohio App.3d 146, 150.

       {¶8}   We recognize that marriage is one of the basic civil and fundamental rights of

man, Skinner v. Oklahoma (1942), 316 U.S. 535, 541, and we do not readily support forced

separation of spouses.   But see, e.g., State v. Conkle (1998), 129 Ohio App.3d 177, 179

(upholding a three-year no-contact order between spouses when a wife was the victim of

domestic violence at the hands of her husband). With respect to Hanning, however, there is no

evidence in the record that he and Andrasak are married. The only reference to a relationship

between the two found in the record is contained in the state’s “answer to defendant’s demand

for discovery.” A summary provided in the state’s discovery response identified Hanning as

Andrasak’s boyfriend. It is conceivable that the presentence investigation upon which the court

relied in sentencing her contains a reference to the couple’s being married. However, neither the

state nor Andrasak made the presentence investigation part of the record. Additionally, Hanning

and Andrasak do not bear the same last name. This fact is hardly dispositive, but it is more

understandable that the trial court might not have assumed or suspected a familial relationship.

Because the marital status of Andrasak and Hanning is not in the record before us, we cannot say

that an error was committed. Dent, 2002-Ohio-4522, at ¶ 6. Therefore, on the state of the
                                                 4


record, Andrasak has failed to demonstrate plain error with respect to the no-contact order with

Eric Hanning.

                                                Son

       {¶9}     The United States Supreme Court has “recognized on numerous occasions that the

relationship between parent and child is constitutionally protected.” Quilloin v. Walcott (1978),

434 U.S. 246, 255. The Supreme Court of Ohio has similarly recognized the importance of the

relationship between parent and child. In re Murray (1990), 52 Ohio St.3d 155, 157. Our

resolution of the assignment of error with respect to Andrasak’s son, Nathaniel Andrasak, does

not, however, turn on the constitutional importance of the mother-son relationship.

       {¶10} Instead, we note the discrepancy between the sentencing transcript, which does

not mention her son, the sentencing journal entry, which refers only to “co-defendants,” and the

nunc pro tunc sentencing entry in which Nathaniel’s name finally appears along with the two

codefendants whom the trial court specifically mentioned during the sentencing hearing. The

trial court’s procedure in this respect raises two concerns: (1) a defendant’s right to be present at

sentencing and (2) the proper use of a nunc pro tunc entry.

       {¶11} “Crim.R. 43(A) requires that a criminal defendant be present for sentencing.

‘When a sentence pronounced in open court is subsequently modified and the judgment entry

reflects the modification, the modification must have been made in the defendant’s presence.’ ”

State v. Mullens, 9th Dist. No. 23758, 2007-Ohio-5678, at ¶ 7, quoting State v. Hodges (June 22,

2001), 1st Dist. No. C-990516. As previously noted, during the sentencing hearing the trial court

informed Andrasak that she was to have no contact with Howard Williams and Eric Hanning

while subject to community control. The nunc pro tunc entry included a modification, the

addition of her son’s name. The trial court did not hold a hearing for this modification, and there
                                                5


was no opportunity for Andrasak to object to the modification. Accordingly, the trial court

sentenced Andrasak outside her presence.

       {¶12} Moreover, the sentence modification presents an inappropriate use of a nunc pro

tunc entry. A trial court may properly issue a nunc pro tunc entry “as an exercise of its inherent

power, to make its record speak the truth.” State v. Greulich (1988), 61 Ohio App.3d 22, 24. “It

is used to record that which the trial court did, but which has not been recorded.” Id. The proper

use of such an entry, therefore, is to reflect only ‘what the court actually decided, not what the

court might or should have decided.’” State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,

2006-Ohio-5795, at ¶ 19, quoting State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-

6323, at ¶ 14. In this case, what the court actually decided was stated during the sentencing

hearing, namely that Andrasak was to have no contact with Howard Williams and Eric Hanning.

The nunc pro tunc entry that added her son’s name to the no-contact list was not proper because

it did not accurately reflect what the court decided. Because a nunc pro tunc entry may not be

used to reflect what the court believes it should have decided, the addition of Nathaniel

Andrasak’s name to the no-contact list was improper.

       {¶13} Accordingly, Andrasak’s assignment of error is overruled with respect to Eric

Hanning and sustained with respect to Nathaniel Andrasak.

       {¶14} The judgment of the Medina County Court of Common Pleas is affirmed in part

and reversed in part, and the cause is remanded for further proceedings consistent with this

opinion.

                                                                       Judgment affirmed in part
                                                                            and reversed in part,
                                                                           and cause remanded.
                                                                     _______________________
                                                6


       BELFANCE, P.J., concurs.

       CARR, J., concurs in judgment only.

       CARR, Judge, concurring in judgment only.

       {¶15} I concur in the majority’s judgment but I am compelled to write separately to

emphasize our concerns regarding the imposition of a condition of probation that may infringe

on a married couple’s fundamental right to companionship with one another. Under the specific

facts of this case, however, I agree that this court has no choice but to affirm in part, given the

lack of evidence in the record that Andrasak and Hanning are married.

       {¶16} While Andrasak may have other remedies, such as postconviction relief, she has

no grounds for relief on direct appeal in the absence of any evidence that Hanning is her

husband.
