[Cite as State v. Neumann-Boles, 2013-Ohio-3968.]


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

STATE OF OHIO                                             C.A. No.   12CA0069-M

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
RANDY NEUMANN-BOLES                                       COURT OF COMMON PLEAS
                                                          COUNTY OF MEDINA, OHIO
        Appellant                                         CASE No.   09 CR 0069

                                DECISION AND JOURNAL ENTRY

Dated: September 16, 2013



        BELFANCE, Presiding Judge.

        {¶1}    Defendant-Appellant Randy Neumann-Boles appeals from her resentencing in the

Medina County Court of Common Pleas. For the reasons set forth below, we vacate the August

10, 2012 entry that is the subject of this appeal.

                                                     I.

        {¶2}    This Court related much of the background of this matter in a prior appeal:

        On September 16, 2008, Ms. Neumann-Boles was driving under the influence of
        alcohol in violation of R.C. 4511.19(A)(1)(a) when she caused the vehicle she
        was driving to swerve from the eastbound lane of State Route 18 and collide with
        a vehicle being driven in the westbound lane. Both Ms. Neumann-Boles and the
        other driver were seriously injured in the collision.

        As a result of the collision, Ms. Neumann-Boles was charged with one count of
        aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), and one count
        of aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(b). Pursuant to
        the enhancement provisions of R.C. 2903.08(B)(1)(a) and R.C. 2903.08(C)(2)
        respectively, the violation of R.C. 2903.08(A)(1)(a) was charged as a second-
        degree felony and the violation of R.C. 2903 .08(A)(2)(b) was charged as a third-
        degree felony. The indictment for both counts alleged that at the time of the
        offense, Ms. Neumann-Boles was “under a driving suspension imposed under
        Chapter 4510 or any other provision of the Ohio Revised Code, or any
                                                2


       substantial[ly] equivalent current or former law of another state[.]” See R.C.
       2903.08(B)(1)(a), (C)(2), (G). The matter proceeded to a bench trial and the trial
       court found Ms. Neumann-Boles guilty of both counts. The trial court concluded
       the offenses were allied, and the State elected to have Ms. Neumann-Boles
       sentenced for the violation of R.C. 2903.08(A)(1)(a) as a second-degree felony.
       The trial court sentenced Ms. Neumann-Boles to seven years in prison.

State v. Neumann-Boles, 9th Dist. Medina No. 10CA0013-M, 2011-Ohio-6684, ¶ 2-3.

       {¶3}    Ms. Neumann-Boles appealed asserting that there was insufficient evidence

presented by the State to establish the element that enhanced the penalty of her offenses. See id.

at ¶ 4. This Court concluded that “the State failed to produce sufficient evidence of the fact

which would elevate Ms. Neumann–Boles’ conviction [from a third-degree felony] to a second-

degree felony.” Id. at ¶ 9. We “agree[d] that Ms. Neumann–Boles could not be convicted of a

second-degree felony based upon the evidence presented at trial.” Id. at ¶ 10. This Court noted

that, “[g]enerally, a violation of R.C. 2903.08(A)(1)(a), absent a demonstration of facts leading

to a penalty enhancement, is a felony of the third degree.” Id. “Consequently, we remand[ed the

matter] to the trial court with instructions that the trial court enter a conviction against Ms.

Neumann–Boles for a third-degree felony violation of R.C. 2903.08(A)(1)(a) and that she be

sentenced accordingly.” Id.

       {¶4}    On May 25, 2012, a resentencing hearing was held at which the trial court

acknowledged this Court’s remand instructions. Accordingly, at the hearing, the trial court

sentenced Ms. Neumann-Boles to 60 months in prison for a third-degree felony violation of R.C.

2903.08(A)(1)(a). However, the trial court’s June 5, 2012 sentencing entry contains several

typographical errors that do not reflect what occurred at the sentencing hearing. The entry states

that Ms. Neumann-Boles was found guilty of a second-degree felony, that she was convicted of a

second-degree felony, and thereafter imposes a sentence for a second-degree felony.
                                                3


       {¶5}    On June 11, 2012, Ms. Neumann-Boles filed a motion to vacate her sentence

asserting that, because of our remand instructions, the trial court lacked jurisdiction to sentence

Ms. Neumann-Boles for a second-degree felony.           The trial court held a hearing on Ms.

Neumann-Boles’ motion on July 20, 2012. At the hearing, the trial court determined Ms.

Neumann-Boles should be resentenced and proceeded to do so. The trial court did not vacate its

prior entry and issued a new sentencing entry journalized August 10, 2012, which still recited

that Ms. Neumann-Boles was found guilty and convicted of a second-degree felony and appears

to improperly refer to count one as count two in discussing the State’s election with respect to

merger. However, the entry does appear to sentence Ms. Neumann-Boles for a third-degree

felony and orders Ms. Neumann-Boles to serve 60 months in prison. Ms. Neumann-Boles has

appealed from this entry raising four assignments of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT INCORRECTLY ENTERED A JUDGMENT OF
       CONVICTION, AND SENTENCED APPELLANT FOR SECOND[-] DEGREE
       FELONY.

                                 ASSIGNMENT OF ERROR II

       IN THE JULY 20, 2012, RE-SENTENCING HEARING, THE TRIAL COURT
       FAILED TO MAKE SPECIFIC FINDINGS OF FACT TO SUPPORT THE
       IMPOSITION OF THE MAXIMUM SENTENCE.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT’S IMPOSITION OF THE MAXIMUM TERM OF
       IMPRISONMENT IS NOT SUPPORTED BY THE RECORD.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT COMPLETELY FAILED TO CONSIDER
       APPELLANT’S PROPORTIONALITY ARGUMENT AT SENTENCING.
                                                4


       {¶6}    In her four assignments of error, Ms. Neumann-Boles raises challenges to the trial

court’s July 20, 2012 resentencing hearing and August 10, 2012 sentencing entry. However,

because we determine that the August 10, 2012 entry was entered without authority, we vacate it

and are unable to address Ms. Neumann-Boles’ assignments of error which pertain solely to the

resentencing hearing and the ensuing improper sentencing entry.

       {¶7}    “R.C. 2505.02 sets forth the conditions under which an order is final and may be

reviewed, affirmed, or modified, with or without retrial. Crim.R. 32(C) specifies the substantive

requirements that are to be included within a judgment of conviction that make it final for

purposes of appeal.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶ 17. On its face, the

June 5, 2012 sentencing entry complies with the requirements of Crim.R. 32(C) and is final. See

Crim.R. 32(C); Lester at paragraph one of the syllabus (interpreting Crim.R. 32(C)). “[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 v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 14.

       {¶8}    In her motion to vacate, Ms. Neumann-Boles asserted that the June 5, 2012 entry

should be vacated as void because the entry exceeded the trial court’s jurisdiction on remand by

convicting and sentencing Ms. Neumann-Boles on a second-degree felony when this Court

ordered that she be convicted and sentenced for a third-degree felony. The motion to vacate,

however, fails to take into account the fact that the actual resentencing hearing conducted by the

trial court in May 2012 followed our remand, and, thus, was within the bounds of its jurisdiction.

The trial court, on more than one occasion, at the May 2012 sentencing hearing referred to our

prior opinion and remand instructions. It noted that we had concluded that “Ms. Boles could not

be convicted of a second[-]degree felony based on evidence at the trial[.]” Thus, it stated that we
                                                  5


charged it with “enter[ing] a conviction against Ms. Boles for a third[-]degree felony, a violation

of Revised Code Section 2903.08(A)(1)(a) and * * * sentenc[ing her] accordingly.” Later, at the

same hearing, the trial court stated that “[t]his is a felony of the third degree. As instructed by

the Ninth District, the Court is going to sentence her on this felony of the third degree.”

Moreover, the sentence actually imposed by the trial court at the May 2012 sentencing hearing

and in the June 2012 entry is within the range for a third-degree felony. See R.C. 2929.14(A)(3).

Thus, it is very clear that the trial court was convicting Ms. Neumann-Boles of a third-degree

felony.

          {¶9}   Accordingly, we cannot say that the June 5, 2012 sentencing entry was void;

instead, the entry appears to contain clerical errors that could be corrected via Crim.R. 36 and a

nunc pro tunc entry. “[T]rial courts * * * retain continuing jurisdiction to correct clerical errors

in judgments by nunc pro tunc entry to reflect what the court actually decided.” (Internal

quotations and citations omitted.) State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 13;

see also State v. Berryman, 2d Dist. Montgomery No. 25081, 2012-Ohio-5208, ¶ 12; State v.

Brown, 1st Dist. Nos. C-100309, C-100310, 2011-Ohio-1029, ¶ 15; State v. Williams, 6th Dist.

Lucas No. L-02-1394, 2004-Ohio-466, ¶ 6-9. At the sentencing hearing in May 2012, the trial

court actually decided to convict Ms. Neumann-Boles of a third-degree felony. It is very clear

from the sentencing hearing that the trial court was sentencing Ms. Neumann-Boles to a felony

of the third degree. Thus, this is not a case in which this Court questions what the trial court

intended. It is clear that the June 2012 sentencing entry does not reflect what the trial court

decided.

          {¶10} Thus, while the trial court had jurisdiction to correct the typographical errors in

the June 2012 sentencing entry via a nunc pro tunc entry, see id., because the June 2012 final
                                                 6


judgment was not void, the trial court did not have authority to resentence Ms. Neumann-Boles

and enter an entirely new sentencing entry. See Miller at ¶ 14. Accordingly, the trial court’s

August 10, 2012 sentencing entry is vacated, and the trial court is instructed to correct the June 5,

2012 sentencing entry via a nunc pro tunc entry.

                                                III.

       {¶11} The August 10, 2012 judgment entry of the Medina County Court of Common

Pleas is vacated.

                                                                                 Judgment vacated.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
                                       7




WHITMORE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

GREGORY SCOTT ROBEY, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
