[Cite as State v. Dotson, 2013-Ohio-3716.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
JERRY DOTSON, JR.                            :       Case No. 2013CA00024
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No. 2012-
                                                     CR-1216



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    August 26, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

RONALD MARK CALDWELL                                 KRISTINA R. POWERS
Assistant Prosecuting Attorney                       Stark County Public Defender's
Appellate Section                                    Office
110 Central Plaza South, Suite 510                   201 Cleveland Avenue S.W.
Canton, OH 44702                                     Suite 104
                                                     Canton, OH 44702
Stark County, Case No. 2013CA00024                                                     2



Baldwin, J.

      {¶1}    Appellant Jerry Dotson, Jr., appeals a judgment of the Stark County

Common Pleas Court revoking his probation and imposing a sentence of seventeen

months incarceration. Appellee is the State of Ohio.

                             STATEMENT OF FACTS AND CASE

      {¶2}    In 2012, appellant was indicted by the Stark County Grand Jury with one

count of possession of cocaine (R.C. 2925.11(C)(4)(b)), as a fourth degree felony, and

one count of operating a motor vehicle under the influence. Appellant entered a plea of

guilty to the charges on September 19, 2012.        The guilty plea form stated at the

beginning that the offense of possession of cocaine was a fourth degree felony;

however, the form later designated the offense as a fifth degree felony. The judgment

memorializing the guilty plea and ordering a presentence investigation also classified

the offense as a fifth degree felony.

      {¶3}    The trial court conducted a sentencing hearing on the possession of

cocaine charge on October 12, 2012. The judgment entry of sentencing, filed October

19, 2012, stated that the offense was a fifth degree felony, imposed a three-year term of

community control, and stated that violation of the conditions of community control could

lead to a prison term of eleven months.

      {¶4}    The trial court conducted a probation revocation hearing on December 10,

2012. Appellant stipulated to the violation. The trial court informed appellant that he

could be sentenced to a term of imprisonment of seventeen months.          The following

colloquy then occurred:

      {¶5}    “THE DEFENDANT: Ah, just about the F5 situation.
Stark County, Case No. 2013CA00024                                                        3


      {¶6}    “But, I’d rather just go ahead and get it out of the way today. So I ain’t

gonna waste your time.

      {¶7}    “THE COURT: All right, sir.

      {¶8}    “Well, I am certainly willing to, to look at anything that, ah you want me to,

to look at.

      {¶9}    “Ah, but my notes indicate that it was a, an F4, and that I had reserved,

ah, 17 months. Or to use the vernacular, had 17 months hanging over your head.

      {¶10}   “Ah, if you feel that is an error, that it was 11 months, what I can do is I

can talk with the court reporter, I can look at what the court reporter’s notes have, ah,

the transcript.

      {¶11}   “And if it was 11 months, if my notes are in error, I will certainly go with

that 11 months. And, I, I can make a mistake, obviously.

      {¶12}   “The notes that I have say 17 months.

      {¶13}   “So I’ll do whatever you want to do. If we want to go forward, ah, today

with the 17 months, we can do that. If you want time, I’m going to be running some

criminal pretrials on Wednesday, we can come back on Wednesday. I’m – this is very

important to you, Mr. Dotson.

      {¶14}   “I understand the difference between six months and that, that’s an

important thing.

      {¶15}   “So, I will do whatever you and your client want to do, Miss Powers?

      {¶16}   “I’m gonna turn off the microphones so that you can talk freely with Miss

Powers, Mr. Dotson.

      {¶17}   “MS. POWERS: He wishes to proceed at this time, Your Honor.
Stark County, Case No. 2013CA00024                                                     4


     {¶18}     “THE COURT: Very well. We’re going on the 17 months prison term?

     {¶19}     “MS. POWER: Yes, sir.”

     {¶20}     Tr. 13-15.

     {¶21}     On December 14, 2012, the trial court filed a judgment entry of revocation

and sentence, imposing a seventeen month sentence. On the same day, the court filed

a nunc pro tunc judgment entry correcting the October 19, 2012, sentencing entry to

designate the offense as a fourth degree felony and reserving a seventeen month

prison term.

     {¶22}     Appellant assigns a single error on appeal:

     {¶23}     “THE TRIAL COURT COMMITTED ERROR BY IMPOSING A PRISON

TERM IN EXCESS OF THE PRISON TERM RESERVED AT SENTENCING.”

     {¶24}     We note that while appellant has provided this Court with a transcript of

the revocation hearing held on December 10, 2012, appellant did not request a

transcript of the October 12, 2012, sentencing hearing.

     {¶25}     This Court has previously held that where a nunc pro tunc entry is used to

correct a sentencing entry to reflect what actually occurred at the sentencing hearing,

the change in the sentence, even if the sentence is increased, is not barred by double

jeopardy:

     {¶26}     “Double jeopardy bars a trial court from modifying a sentence by

increasing it after execution of that sentence has commenced. State v. Ballard (1991),

77 Ohio App.3d 595, 597, 602 N.E.2d 1234. However, Crim.R. 36 states “[c]lerical

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 nunc
Stark County, Case No. 2013CA00024                                                      5

pro tunc entry may be used to correct a sentencing entry to reflect the sentences the

trial court actually imposed on a defendant at the sentencing hearing and does not

constitute an increase of the sentence. State v. Stevens (Aug. 2, 1995), Summit No.

16998, unreported, 1995 WL 464721; Dean v. Maxwell (1963), 174 Ohio St. 193, 187

N.E.2d 884. Appellant's constitutional right to be free from double jeopardy was not

violated by the nunc pro tunc entry which merely corrects a judgment entry to

correspond to the sentence imposed at the sentencing hearing.” State v. Francis, 5th

Dist. Guernsey No. 98CA13, 2000 WL 93682, *14 (January 25, 2000).

      {¶27}   In the instant case, the trial court’s notes reflected that seventeen months

was the term reserved at the sentencing hearing; however, the entry reflected eleven

months.   Appellant declined a short continuance to allow the court to check the

transcript of the sentencing hearing, and appellant has not provided this court with a

transcript of that hearing on appeal. In the absence of a transcript, we cannot find that

the nunc pro tunc entry fails to merely correct the judgment entry to correspond to the

sentence imposed at the sentencing hearing.          The duty to provide a transcript

demonstrating error falls upon the appellant, and when portions of the transcript

necessary for resolution of assigned errors are omitted from the record, this Court has

nothing to pass upon, and therefore must presume validity of the lower court's

proceedings and affirm.    Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 400

N.E.2d 384 (1980).
Stark County, Case No. 2013CA00024                                                6


      {¶28}   The assignment of error is overruled. The judgment of the Stark County

Common Pleas Court is affirmed. Costs assessed to appellant.


By: Baldwin, J.

Gwin, P. J. and

Wise, J. concur.




                                      HON. CRAIG R. BALDWIN



                                      HON. W. SCOTT GWIN



                                      HON. JOHN W. WISE




CRB/rad
[Cite as State v. Dotson, 2013-Ohio-3716.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :
                                                :
        Plaintiff - Appellee                    :
                                                :
-vs-                                            :      JUDGMENT ENTRY
                                                :
JERRY DOTSON, JR.                               :
                                                :
        Defendant - Appellant                   :      CASE NO. 2013CA00024


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs

assessed to appellant.




                                             HON. CRAIG R. BALDWIN



                                             HON. W. SCOTT GWIN



                                             HON. JOHN W. WISE
