[Cite as State v. Sutherly, 2016-Ohio-1574.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-15-34

        v.

CODY J. SUTHERLY,                                          OPINION

        DEFENDANT-APPELLANT.




                            Appeal from Lima Municipal Court
                               Trial Court No. 14CRB3763

                                       Judgment Reversed

                             Date of Decision:   April 18, 2016




APPEARANCES:

        Joseph A. Benavidez for Appellant

        John R. Payne for Appellee
Case No. 1-15-34


ROGERS, J.

       {¶1} Defendant-Appellant, Cody Sutherly, appeals the judgment of the

Lima Municipal Court convicting him of one count of public indecency and

sentencing him to 180 days in jail, 90 of which were suspended, and imposing a

fine and court costs. On appeal, Sutherly argues that the verdict was not supported

by sufficient evidence. Further, he argues that the verdict was against the manifest

weight of the evidence. For the reasons that follow, we reverse the judgment of

the trial court.

       {¶2} On October 27, 2014, a criminal complaint was filed in the Lima

Municipal Court charging Sutherly with one count of public indecency in violation

of R.C. 2907.09(A)(3), a misdemeanor of the first degree. An amended complaint

was filed on November 14, 2014, charging Sutherly with the same crime, but

omitted reference to the degree of misdemeanor being charged.

       {¶3} On December 10, 2014, the case was dismissed without prejudice

because the State had failed to serve Sutherly with the Summons. This dismissal

was vacated, purportedly due to a clerical error, on December 16, 2014.

       {¶4} Sutherly entered a plea of not guilty on December 26, 2014.

       {¶5} The matter proceeded to a jury trial held on August 7, 2015. After

deliberating, the jury found Sutherly guilty of public indecency.         The case

proceeded immediately to sentencing. The trial court sentenced Sutherly to 180


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days in jail, 90 of which were suspended, and imposed a fine of $250 and court

costs.

         {¶6} Sutherly filed this timely appeal, presenting the following assignment

of error for our review.

                                Assignment of Error

         THE JURY ERRED IN FINDING APPELLANT GUILTY AS
         THE VERDICT WAS AGAINST THE MANIFEST WEIGHT
         OF [SIC] EVIDENCE AND THERE WAS INSUFFICIENT
         EVIDENCE TO HAVE FOUND ALL ESSENTIAL
         ELEMENTS OF THE OFFENSE BEYOND A REASONABLE
         DOUBT.

         {¶7} Before we can address the merits of Sutherly’s appeal, we must first

determine if the trial court possessed jurisdiction to vacate its dismissal of the

amended complaint. Although jurisdiction was not raised by anyone in this case,

this court is “bound to raise any jurisdictional questions not raised by the parties.”

Levinsky v. Boardman Twp. Civ. Serv. Comm., 7th Dist. Mahoning No. 04 MA 36,

2004-Ohio-5931, ¶ 26. Accordingly, on February 17, 2016, this court issued an

entry ordering the parties to brief the following two issues: (1) whether the “error,”

which served as the trial court’s basis for vacating the dismissal, was in fact

clerical; and (2) whether the trial court retained jurisdiction to vacate its previous

order.

         {¶8} On February 29, 2016, the State filed a motion to supplement the

appellate record pursuant to App.R. 9(D). In its motion, the State sought to

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include a copy of the original summons, which included a file stamp performed by

the officer charged with servicing the summons, that it argued would clarify the

State’s position. Specifically, the State argued that the “clerical error” was when

the officer file stamped and returned the summons to the clerk’s office for the

reason of being expired on December 1, 2014. The summons was filed in the

clerk’s office on December 2, 2014. However, the time had not expired as of

December 1, 2014. Thus, the State seeks to supplement the record to include a

copy of the original summons to the amended complaint, which shows the file

stamp prepared by the officer. Upon review, the State’s motion to supplement the

record is granted.

        {¶9} The same day, the State filed its supplemental brief addressing the

questions posed by this court.1

        {¶10} “It is well-settled that trial courts lack authority to reconsider their

own valid judgments in criminal cases, with two exceptions: (1) when a void

sentence has been imposed, and (2) when the judgment contains a clerical error.”

State v. Roehrig, 3d Dist. Defiance No. 4-15-15, 2015-Ohio-5187, ¶ 9, citing State

v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 14 and State v. Burton, 12th

Dist. Clermont No. CA2013-09-071, 2014-Ohio-1692, ¶13.




1
 Sutherly did not file a supplemental brief addressing the questions contained in this court’s February 17,
2016 order.

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       {¶11} Crim.R. 36 grants trial courts the power to correct clerical mistakes

in a judgment sua sponte. A clerical error or mistake has been defined as “a

mistake or omission, mechanical in nature and apparent on the record, which does

not involve a legal decision or judgment.” State v. Lester, 130 Ohio St.3d 303,

2011-Ohio-5204, ¶ 18. Importantly, “While courts have 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, and not what the court might or should have decided or what the court

intended to decide.” (Emphasis sic) State v. Waltz, 12th Dist. Clermont No.

CA2013-10-077, 2014-Ohio-2474, ¶ 16, citing Lester at ¶ 18.

       {¶12} Clerical errors are not limited to mistakes made by a clerk. Rather,

“[t]he phrase merely describes the type of error identified with mistakes in

transcription, alteration or omission of any papers and documents which are

traditionally or customarily handled or controlled by clerks but which papers or

documents may be handled by others.” Oliva v. Maurer, 8th Dist. Cuyahoga No.

60298, 1991 WL 68857, *1 (May 2, 1991). “A decision as to whether the file

stamp date on a document is incorrect would certainly fall under Civ.R. 60(A).”

State v. Miller, 4th Dist. Ross Nos. 99CA2506, 00CA2539, 2000 WL 1273467, *2

(Aug. 31, 2000) (analyzing whether the incorrect date on the file stamp constituted

a clerical error).


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      {¶13} The December 10, 2014 dismissal, in this case, was a valid judgment.

It did not involve Sutherly’s sentence. Therefore, the only way the trial court

could reconsider its decision was if there was a clerical error contained in the

dismissal. The State argues that the officer’s return of the summons as being

expired constituted a clerical error. We are not persuaded.

      {¶14} Although the officer may have made a mistake by returning the

summons as expired when, in reality, it was not expired, there is no possible way

to interpret this mistake as a clerical error for the purposes of Crim.R. 36.

Corrections made under either Crim.R. 36 or Civ.R. 60(A) are appropriate so that

the record speaks the truth. Therefore, in one case, a nunc pro tunc entry was

appropriate to correct the filing date of a petition for post-conviction relief

originally found to have been untimely filed. See Miller at *2.      In Miller, the

petition was received by the clerk’s office on August 2, but was file stamped on

August 3. Id. at *1. This caused the defendant’s petition to be untimely, and

therefore his Civ.R. 60(A) motion should have been granted. Id. at *3.

      {¶15} On the date the officer file stamped the summons as being “returned

unserved,” Sutherly had yet to be served with the summons.          There was no

inaccuracy in that respect. In regard to clerical errors, courts are most concerned

with having the record accurately reflect what actually occurred. Here, there is

nothing in the record to suggest that the officer inadvertently returned the


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summons for failure to serve Sutherly when he or she had, in fact, served Sutherly.

Rather, the face of the summons clearly shows that Sutherly was not served at the

time the summons was returned. Although the servicing officer was incorrect with

his or her conclusion that the time for service had expired, this does not change the

fact that the summons was returned as being unserved. Nunc pro tunc entries are

only appropriate to correct the record so that it speaks the truth. In this case, the

summons speaks the truth because Sutherly had not been served when it was

returned.

       {¶16} Irrespective of our finding that the mistake in this case did not

constitute a clerical error, the State argues that the trial court retained jurisdiction

because the court’s original dismissal was a voidable judgment.             Assuming,

arguendo, that the State is correct in its opinion that the original dismissal was

voidable, this does not change the outcome of this case. A voidable judgment

remains a binding legal judgment unless the party seeking to invalidate the

judgment takes the proper steps to do so. See State v. Holcomb, 184 Ohio App.3d

577, 2009-Ohio-3187, ¶ 7 (9th Dist.), quoting Tari v. State, 117 Ohio St. 481, 493-

494 (1927). In this case, no motion or appeal was filed by the State attacking the

validity of the dismissal. Rather, the trial court, sua sponte, vacated its earlier

dismissal. Thus, we find that the dismissal remains a final judgment in this case.




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        {¶17} Further, this court has recently found that a trial court lacks

jurisdiction to reopen a case, sua sponte, which was previously dismissed. See

E.H v. T.S., 3d Dist. Hardin No. 6-15-07, 2015-Ohio-5444, ¶ 5. We see no reason

to find otherwise in this case. Thus, the trial court lacked jurisdiction to vacate its

previous dismissal. As a result, Sutherly’s conviction and sentence are rendered

void.

        {¶18} Given our resolution of the case, Sutherly’s assignment of error is

rendered moot. App.R. 12(A)(1)(c).

        {¶19} Having found error prejudicial to Sutherly, we reverse Sutherly’s

conviction and sentence.

                                                                 Judgment Reversed

WILLAMOWSKI, J., concurs in judgment only.

SHAW, P.J., dissents.

/jlr




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