[Cite as State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705.]




              THE STATE OF OHIO, APPELLEE, v. MILLER, APPELLANT.
           [Cite as State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705.]
Criminal law — Sentencing — Nunc pro tunc — Court may not use a nunc pro
          tunc entry to impose a sanction that the court did not impose as part of the
          sentence — Judgment reversed and cause remanded.
            (No. 2009-1606 — Submitted September 15, 2010 — Decided
                                   November 30, 2010.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                              No. 91543, 2009-Ohio-3307.
                                  __________________
                                SYLLABUS OF THE COURT
          A court may not use a nunc pro tunc entry to impose a sanction that the
                 court did not impose as part of the sentence.
                                  __________________
          O’CONNOR, J.
          {¶ 1} After appellant, Andrew Miller, was indicted on two counts of
felonious assault, the state offered him the opportunity to plead guilty to a single
count of aggravated assault. In discussing the plea agreement with Miller, a
visiting judge informed him that the victim had requested $20,410 in restitution.
Miller’s attorney acknowledged that Miller was aware of the request for
restitution but stated that restitution “was of concern” to Miller. Nevertheless,
after consulting with counsel, Miller eventually pleaded guilty to the reduced
charge.     The visiting judge informed Miller that his sentence would include
community control, court costs, random drug tests, and restitution. Miller stated
that he understood the consequences of his guilty plea.
                              SUPREME COURT OF OHIO




        {¶ 2} Two weeks later, at the sentencing hearing, the visiting judge
sentenced Miller to an 18-month suspended prison sentence, community control,
and drug testing, but the judge did not impose fines. He also failed to impose
restitution either orally or by journal entry.
        {¶ 3} Almost two months later, the state moved the trial court “to
convene a hearing to determine restitution.” The state’s motion asserted that
restitution to the victim in the amount of $20,409.35 was part of the plea
agreement and that it had been “inadvertently omitted from the plea and
sentencing orders.”
        {¶ 4} Two months later, the trial court judge wrote on the motion, “The
court, having been read the transcript of the plea proceedings by [the court
reporter] is satisfied that [Miller] entered his guilty plea with full knowledge of
and agreement to the restitution [amount] of $20,409.35; the court finds that the
order of restitution was inadvertently omitted by the visiting judge at sentencing.
The court therefore amends the sentencing entry to also include [restitution] of
$20,409.35 * * *.”
        {¶ 5} Miller appealed, asserting that the trial court had “abused its
discretion by entering a restitution order after the final sentencing order had been
journalized.” A divided court of appeals affirmed, holding that the trial court has
“continued jurisdiction to correct clerical mistakes.” State v. Miller, Cuyahoga
App. No. 91543, 2009-Ohio-3307, ¶ 16. We granted discretionary review, 124
Ohio St.3d 1447, 2010-Ohio-188, 920 N.E.2d 376, and now reverse.
                                       Analysis
        {¶ 6} In holding that the trial court could impose restitution on Miller
through an “amended journal entry,” the court of appeals concluded that the trial
court retained jurisdiction to include restitution as part of the sentence even
though restitution had not been imposed at sentencing or in the sentencing entry.
Miller, 2009-Ohio-3307, ¶ 10. It was error to do so.



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        {¶ 7} The court of appeals recognized that the trial court had failed to
both advise Miller of the restitution amount at sentencing and include restitution
in the original sentencing entry. Id. But the court of appeals held that the
amendment was permissible. Id.
        {¶ 8} In reaching its conclusion, the appellate court relied on State v.
Middleton, Preble App. No. CA2004-01-003, 2005-Ohio-681. There, the trial
judge had been informed, erroneously, that the burglary count against the
defendant was a third-degree felony. Id. at ¶ 4. In fact, the defendant had been
charged with a second-degree felony. Id. The court sentenced the defendant to
four years’ imprisonment. Id. The court then adjourned the sentencing hearing.
Id. at ¶ 5.
        {¶ 9} Immediately after the hearing, and while the defendant was still
present, the judge was informed of the error, i.e., that the charge was burglary in
the second degree for which the potential prison term was two to eight years. Id.
at ¶ 4. “The court then stated on the record, while appellant was still present in
the courtroom, that it was imposing seven years for the burglary count.” Id. at ¶
5.
        {¶ 10} On appeal, Middleton argued that the trial court could not modify
the sentence after it had orally announced it and had adjourned the sentencing
hearing. Id. at ¶ 8. In rejecting that claim, the court of appeals held that the trial
court did not "modify" an imposed sentence, because the seven-year prison
sentence that Middleton challenged was the only one journalized. Id. at ¶ 9.
        {¶ 11} In dicta, the court of appeals continued, “Nevertheless, we can find
no law preventing the common pleas court from imposing the seven-year sentence
once it became aware at the sentencing hearing that the burglary count was
actually a second-degree felony. Crim.R. 36 states that ‘errors * * * arising from
oversight or omission, may be corrected by the court at any time.’ In this case,
the common pleas court corrected an error it had made when it initially sentenced



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appellant for a third-degree felony instead of the second-degree felony of which
appellant was convicted. The court’s mistake was due to a clerical error in the
pre-sentence investigation report. Appellant was fully aware that he had pled
guilty to and was convicted of a second-degree felony. In a written waiver,
appellant had previously acknowledged that the maximum penalty for the
burglary charge, a second-degree felony, was eight years. We find no error by
the common pleas court in immediately correcting a mistake arising from an
oversight that occurred at the sentencing hearing.” Id. at ¶ 10.
       {¶ 12} Unlike the court of appeals in this matter, we do not find
Middleton dispositive here.     Foremost, as the court of appeals in Middleton
observed, the axiomatic rule is that a court speaks through its journal entries.
Middleton, 2005-Ohio-681, ¶ 9. See, e.g., Gaskins v. Shiplevy (1996), 76 Ohio
St.3d 380, 382, 667 N.E.2d 1194. Thus, in Middleton, there was no reversible
error, because the court’s journal entry was consistent with the sentence that was
imposed on the appellant. That sentence was never modified, and it was upheld
on that basis.
       {¶ 13} But the case before us is wholly distinguishable from Middleton. It
is not the original journal entry that is at issue here, but rather, a substantially
altered one. In fact, we are presented with a journal entry that was modified
several months after the visiting judge had pronounced sentence and after he had
issued the journal entry memorializing that sentence. Moreover, it was modified
based on the trial judge’s review of transcripts of hearings in which she did not
participate. Thus, Middleton does not control or persuade.
       {¶ 14} Moreover, a trial court lacks the authority to reconsider its own
valid, final judgment in a criminal case, with two exceptions: (1) when a void
sentence has been imposed and (2) when the judgment contains a clerical error.
State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856
N.E.2d 263, ¶ 19, citing Crim.R. 36. The court of appeals in this case suggested



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that the latter exception applied and that nothing more than a nunc pro tunc entry
was invoked. Not so.
       {¶ 15} 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.’ ” Cruzado, 111 Ohio St.3d 353, 2006-Ohio-5795, 856
N.E.2d 263, ¶ 19, quoting State v. Brown (2000), 136 Ohio App.3d 816, 819-820,
737 N.E.2d 1057. “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, 111 Ohio St.3d 353,
2006-Ohio-5795, 856 N.E.2d 263, ¶ 19, quoting State ex rel. Mayer v. Henson, 97
Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 14, quoting State ex rel.
Fogle v. Steiner (1995), 74 Ohio St.3d 158, 164, 656 N.E.2d 1288. The amended
journal entry in this case may reflect what the trial court should have decided at
sentencing.   It does not reflect what the trial court did decide but recorded
improperly. Thus, the use of the nunc pro tunc entry to impose restitution upon
Miller was improper because it does not reflect the events that actually occurred
at the sentencing hearing.
       {¶ 16} Notably, the determination of restitution entails a substantive legal
decision or judgment and is not merely a mechanical part of a judgment.
Restitution is a financial sanction, based on a victim’s economic loss, that is
imposed by a judge as part of a felony sentence. See R.C. 2929.18(A)(1). See
also State v. Danison, 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d 444,
syllabus. It is not an order that is so “mechanical in nature” that its omission can
be corrected as if it were a clerical mistake. Londrico v. Delores C. Knowlton,
Inc. (1993), 88 Ohio App.3d 282, 285, 623 N.E.2d 723. As the dissenting judge
stated, a nunc pro tunc order cannot cure the failure of a judge to impose
restitution in the first instance at sentencing. Miller, 2009-Ohio-3307, ¶ 24.



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Accord Caprita v. Caprita (1945), 145 Ohio St. 5, 30 O.O. 238, 60 N.E.2d 483,
paragraph two of the syllabus (a nunc pro tunc entry corrects a judicial record that
fails to show a correct order or judgment of the court because the order or
judgment was not recorded properly in the first place). We agree and therefore
hold that a court may not use a nunc pro tunc entry to impose a sanction that the
court did not impose as part of the sentence.
       {¶ 17} We need go no further. The trial court improperly used a nunc pro
tunc entry to impose a sanction on Miller that was not imposed by the visiting
judge at sentencing. It was error to do so, and the court of appeals erred in
affirming the order. We therefore reverse its decision and remand the cause to the
trial court to vacate the nunc pro tunc order and the order of restitution.
                                                                   Judgment reversed
                                                                and cause remanded.
       BROWN, C.J.,       and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
                               __________________
       Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellant.
                            ______________________




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