[Cite as State v. Croskey, 2014-Ohio-2608.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 13CA102
ANTONIO G. CROSKEY

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
                                               Common Pleas, Case No. 2008 CR 0117H


JUDGMENT:                                      Vacated


DATE OF JUDGMENT ENTRY:                         June 16, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JAMES J. MAYER, R.                             EDWIN J. VARGAS
Prosecuting Attorney                           The Vargas Law Firm Co., L.P.A.
Richland County, Ohio                          1956 West 25th Street, Suite 302
                                               Cleveland, Ohio 44113
By: JILL M. COCHRAN
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 13CA102                                                         2

Hoffman, P.J.


       {¶1}   Defendant-appellant Antonio Croskey appeals his sentence entered by the

Richland County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                                 STATEMENT OF THE CASE1

       {¶2}   On April 30, 2008, Appellant entered a plea of guilty to the charges of drug

possession, in violation of R.C. 2925.11, a felony of the second degree; and failure to

comply with the order or signal of a police officer, in violation of R.C. 2921.331, a felony

of the third degree.

       {¶3}   On May 19, 2008, the trial court sentenced Appellant to two years in

prison on the drug possession charge, and three years of community control sanctions

on the failure to comply charge, to be served after release from the prison term. The

May 19, 2008 sentencing entry did not state a prison term for violation of the community

control sanctions. Rather, the sentencing entry left blank the line indicated for a term of

imprisonment for a community control sanction violation.2

       {¶4}   On December 5, 2012, the trial court filed an amended sentencing entry

amending Appellant's sentence to add a stated prison term of two years for violation of

the community control sanctions.

       {¶5}   On October 23, 2013, the trial court conducted a probation violation

hearing finding Appellant a probation violator. The trial court then imposed a prison

sentence of two years as stated in the amended sentencing entry.

       {¶6}   Appellant appeals, assigning as error:

1
  A rendition of the underlying facts is unnecessary for the resolution of this appeal.
2
 A transcript of the sentencing hearing has not been included in the record for this
appeal.
Richland County, Case No. 13CA102                                                        3


      {¶7}    "I. THE TRIAL COURT WAS WITHOUT JURISDICTION AND ABUSED

ITS   DISCRETION       AND    VIOLATED      APPELLANT'S       CONSTITUTIONAL          AND

STATUTORY RIGHT WHEN IT SENTENCED APPELLANT TO PRISON ALTHOUGH

IT NEVER NOTIFIED APPELLANT IN ITS JOURNAL ENTRY WHAT THAT PRISON

[SIC] WOULD BE A SANCTION FOR VIOLATING COMMUNITY CONTROL."

      {¶8}    The trial court's May 19, 2008 Sentencing Entry states,

      {¶9}    "As to Count Two (2): The court has considered the factors in R.C.

2929.13 and sentences the defendant to __3__ years of Community Control* (to begin

upon release from prison on count one) to include the conditions and sanctions listed on

the attached sheet. Violation of community control will lead to a prison term of ____

months/years and 5 years of post release control. ***"

      {¶10} In State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, the Ohio Supreme

Court held,

      {¶11} "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 that the latter exception applied and that

nothing more than a nunc pro tunc entry was invoked. Not so.

      {¶12} "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
Richland County, Case No. 13CA102                                                        4


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.

      {¶13} "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,

2009 WL 1914620, ¶ 24. 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
Richland County, Case No. 13CA102                                                          5


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."

       {¶14} The Ninth District addressed the issue in State v. Clouser, 9th Dist. No.

26060, 2012-Ohio-1711, holding:

       {¶15} "The Ohio Supreme Court recently addressed this issue. In State v.

Carlisle, 131 Ohio St.3d 127, 2011–Ohio–6553, the Court held that a trial court lacks

authority to modify a final criminal sentence even if the sentence has yet to be

executed. Carlisle at ¶ 16. The Court explained that, the stay of an execution of a

sentence does not detract from the sentence's finality as, '[a] criminal sentence is final

upon issuance of a final order' in compliance with Crim.R. 32(C). Id. at ¶ 11. The Court

noted that, to the extent there once existed authority for the proposition that a sentence

could be modified up until the point of execution, those authorities are 'now defunct' as

they 'were premised on a statute that has since been repealed.' Id. at ¶ 13, 15.

Consequently, the Court agreed that the trial court lacked authority to modify Carlisle's

sentence after journalization and remanded the matter to the trial court for execution of

the original sentence. Id. at ¶ 17.

       {¶16} "Much like the trial court in Carlisle, the trial court here attempted to vacate

and modify Clouser's final judgment under the auspices of it not yet having been

executed. The trial court lacked authority to do so. Id. at ¶ 16–17. The court issued

Clouser's final criminal sentence on March 15, 2011, as that sentencing entry complies

with Crim.R. 32(C) and the requirements set forth in State v. Baker, 119 Ohio St.3d 197,

2008–Ohio–3330, syllabus. Clouser's argument that the trial court lacked authority to
Richland County, Case No. 13CA102                                                        6


modify that sentencing entry has merit and his assignment of error is sustained on that

basis."

          {¶17} Based on the above authority, we find the trial court erred in amending the

May 19, 2008 sentencing entry. The sentencing entry was a final sentence in which the

trial court failed to include a prison term for a violation of post release control. The

sentencing entry was not void due to the trial court's failure to do so. Therefore, we find

the trial court's December 5, 2012 amended sentencing entry of no effect. Because the

original May 19, 2008 sentencing entry does not indicate a term of prison for violation of

community control sanctions, we sustain the assignment of error.          The trial court's

imposition of the two year prison sentence in its October 24, 2013 Community Control

Violation Journal Entry is vacated.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur
