[Cite as State v. Davis, 2011-Ohio-2526.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95440




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     JAMES A. DAVIS
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                            Case No. CR-428529

     BEFORE: Celebrezze, P.J., Cooney, J., and Rocco, J.

    RELEASED AND JOURNALIZED:              May 26, 2011
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ALSO LISTED:

James A. Davis
Inmate No. 444-458
P.O. Box 8107
Richland Correctional Institution
Mansfield, Ohio 44901


FRANK D. CELEBREZZE, JR., P.J.:
      {¶ 1} James A. Davis (“appellant”) appeals from the trial court’s

judgment granting the state’s motion for nunc pro tunc entry filed on June 25,

2010. Finding no merit to the appeal, we affirm.

      {¶ 2} On September 22, 2002, appellant was charged with one count of

aggravated murder, a first degree felony in violation of R.C. 2903.01, with

one- and three-year firearm specifications; and one count of tampering with

evidence in violation of R.C. 2921.12.

      {¶ 3} On April 17, 2003, appellant entered a plea of guilty to the

amended charge of murder in violation of R.C. 2903.02. Pursuant to the plea

agreement, the firearm specifications and the tampering with evidence

charges were dismissed by the state in exchange for appellant’s guilty plea.

On April 28, 2003, appellant was sentenced to life in prison with the

eligibility for parole after 15 years.    The trial court did not mention

postrelease control at the sentencing hearing; however, the sentencing

journal entry filed on April 30, 2003 included postrelease control sanctions.

The 2003 sentencing journal entry stated, in pertinent part:

      {¶ 4} “THE COURT IMPOSES A PRISON TERM AT LORAIN

CORRECTIONAL INSTITUTION OF 15 YEARS TO LIFE. CREDIT FOR

TIME SERVED. POSTRELEASE CONTROL IS A PART OF THIS PRISON

SENTENCE FOR THE MAXIMUM PERIOD ALLOWED FOR THE ABOVE

FELONY UNDER R.C. 2967.28.”
      {¶ 5} On July 22, 2003, appellant moved for a delayed appeal, which

this court granted on September 5, 2003. 1      Although this court initially

appointed counsel, that counsel withdrew, and this court directed appellant to

proceed pro se. He failed to file a brief, and this court dismissed the appeal

on February 12, 2004.

      {¶ 6} Also on July 22, 2003, appellant filed a postconviction relief

petition, which the trial court denied on August 14, 2003.       He moved to

withdraw his guilty plea on June 23, 2004, and the trial court denied that

motion on November 9, 2004. On September 7, 2005, appellant again moved

for a delayed appeal, which this court denied in October 2005. On July 13,

2009, he filed a motion to “revise/correct” the sentencing journal entry, which

the trial court denied on July 21, 2009.

      {¶ 7} On August 24, 2009, appellant filed a petition for a writ of

mandamus to compel the trial court to issue a final, appealable order in the

underlying case. State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas,

Cuyahoga App. No. 93814, 2010-Ohio-1066, ¶3-4, affirmed, 127 Ohio St.3d 29,

2010-Ohio-4728, 936 N.E.2d 41 (Supreme Court affirmed this court’s denial of

the writ of mandamus). Appellant submitted that, because the trial court’s

sentencing journal entry did not reiterate the resolution of deleted

specifications and a nolled count and because it improperly included an order


      1   Cuyahoga App. No. 83188.
of postrelease control, the sentencing journal entry is void and does not

constitute a final, appealable order; thus, he has a right to a new, correct

sentencing journal entry that would be a final, appealable order. This court

denied appellant’s petition on the grounds that appellant had no right to a

journal entry stating the means of exoneration for the other count and

specifications; and mandamus was not an appropriate procedure for

correcting an error in the imposition of postrelease control.     Appellant

appealed the mandamus action to the Ohio Supreme Court.

      {¶ 8} On June 25, 2010, in the midst of briefing appellant’s mandamus

action before the Ohio Supreme Court, the state filed a motion for nunc pro

tunc entry in the trial court. The state requested a correction to the 2003

sentencing journal entry to remove the improper imposition of postrelease

control.   The trial court granted the state’s motion and removed the

postrelease control language from appellant’s sentencing journal entry. The

trial court’s nunc pro tunc journal entry, states as follows:

      {¶ 9} “AFTER REVIEWING THE TRANSCRIPT OF THE PLEA AND

SENTENCING HEARING IN THIS CASE, PLAINTIFF’S MOTION FOR

NUNC PRO TUNC ENTRY IS GRANTED. THE FOLLOWING NUNC PRO

TUNC ENTRY PURSUANT TO CRIM.R. 36 SHALL RELATE BACK TO

THE SENTENCING JOURNAL ENTRY OF APRIL 30, 2003 * * *.”

      {¶ 10} This timely appeal followed.
                             Law and Analysis

                            Postrelease Control

      {¶ 11} In his sole assignment of error, appellant contends that the trial

court improperly granted the state’s motion for nunc pro tunc entry without

holding a de novo sentencing hearing.      He specifically argues that he is

entitled to a de novo sentencing hearing because the trial court has never

issued a legally valid sentence in his underlying case. Appellant’s argument

lacks merit.

      {¶ 12} Initially, we note that appellant’s sentence is not void in this

matter merely because the trial court included a postrelease control provision

in his sentencing journal entry.    Neither party disputes the fact that an

individual who is sentenced for murder is not subject to postrelease control

because murder is a special felony.      A review of appellant’s sentencing

journal entry reveals that the trial court did not impose a specific term of

postrelease control.   Rather, the trial court stated that appellant was

“subject to postrelease control for the maximum period allowed for the above

felony under R.C. 2967.28.” Because R.C. 2967.28 does not provide for the

imposition of postrelease control for the special felony of murder, the

sentencing journal entry does not impose a term of postrelease control. See

State v. Gordon, Summit App. No. 25370, 2010-Ohio-6308.
      {¶ 13} Accordingly, we do not find that the sentencing journal entry is

void because it limits postrelease control to what is authorized under R.C.

2967.28 and, therefore, does not actually impose any term of postrelease

control. State v. Austin, Cuyahoga App. No. 93028, 2009-Ohio-6108, ¶7.

      {¶ 14} Nevertheless, appellant’s argument that he is entitled to a de

novo sentencing hearing is now moot under State v. Fischer, 128 Ohio St.3d

92, 2010-Ohio-6238, 942 N.E.2d 332, which states that a de novo hearing to

which an offender was entitled under State v. Bezak, 114 Ohio St.3d 94,

2007-Ohio-3250, 868 N.E.2d 961, is now limited to proper imposition of

postrelease control. Therefore, had appellant’s sentence been somehow void,

it would have only been void in relation to the court’s imposition of

postrelease control. Pursuant to Fischer, appellant’s only available remedy

would have been to strike the postrelease control language from the record,

which is what occurred in this case.

      {¶ 15} In the case at bar, the state’s motion for nunc pro tunc entry was

appropriate under Crim.R. 36, which 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.” A trial

court may use a nunc pro tunc entry to correct mistakes in judgments, orders,

and other parts of the record so the record speaks the truth. State v. Spears,

Cuyahoga App. No. 94089, 2010-Ohio-2229, at ¶1.
      {¶ 16} Here, a review of the trial transcript indicates that appellant was

never informed at the time of his plea or at his April 28, 2003 sentencing

hearing that postrelease control was going to be imposed. It is clear from the

record that the trial court made a clerical error by including postrelease

control in the sentencing journal entry issued on April 30, 2003.           The

amended sentencing journal entry reflects the truth of what actually

happened.    Therefore, the trial court did not err in granting the state’s

motion for nunc pro tunc entry.

      {¶ 17} Appellant’s sole assignment of error is without merit and is

overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
KENNETH A. ROCCO, J., CONCUR
