[Cite as State v. McIntyre, 2013-Ohio-3281.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :     Appellate Case No. 25502
          Plaintiff-Appellee                       :
                                                   :     Trial Court Case No. 1980-CR-871
 v.                                                :
                                                   :
 ELZIE McINTYRE, JR.                               :     (Criminal Appeal from
                                                   :     (Common Pleas Court)
          Defendant-Appellant                      :
                                                   :
                                               ...........

                                               OPINION

                                Rendered on the 26th day of July, 2013.

                                               ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

STEVEN T. PIERSON, Atty. Reg. #0002659, 7051 Clyo Road, Centerville, Ohio 45459
     Attorney for Defendant-Appellant

                                               .............

HALL, J.,

        {¶ 1}     Elzie McIntyre appeals from the denial of his August 28, 2012 motion to dismiss

the nunc pro tunc “Amended Entry and Order of Conditional Release” filed by the trial court on
June 24, 1981.

       {¶ 2}      In his sole assignment of error, McIntyre contends the trial court lacked

jurisdiction to issue the 1981 nunc pro tunc entry. He asserts that the trial court improperly used

the nunc pro tunc device to modify a prior judgment entry that disposed of his case with finality.

       {¶ 3}      The facts underlying the present appeal are relatively simple. McIntyre was

indicted for murder and other crimes in 1980. Following a December 1980 bench trial, he was

found not guilty by reason of insanity. At various times, he was committed to the Dayton

Forensic Hospital and the Dayton VA medical center. On June 17, 1981, the trial court filed a

judgment entry that dismissed the case and ordered McIntyre “immediately discharged.” Seven

days later, the trial court filed a nunc pro tunc “Amended Entry and Order of Conditional

Release.”1 Like the prior entry, the nunc pro tunc entry found that McIntyre no longer qualified

as a mentally ill person subject to hospitalization. The nunc pro tunc entry also referenced an

evidentiary hearing that had been held on June 17, 1981, the date of the termination entry. In the

nunc pro tunc entry, the trial court found that based on the evidence that had been presented,

McIntyre was entitled to conditional release subject to periodic mental-health monitoring,

medication, and counseling. McIntyre apparently has abided by these conditions for more than

thirty years with court-ordered reviews every two years.

       {¶ 4}     On August 28, 2012, McIntyre filed his motion to dismiss the 1981 nunc pro tunc

entry ordering his conditional release. (Doc. #111). He argued that finality attached to the June

17, 1981 termination entry, which ordered him released. He further argued that the trial court’s

June 24, 1981 nunc pro tunc entry was invalid because it altered a final judgment. The State

opposed the motion, arguing that it was impossible to tell—more than thirty years later and

         1
         Copies of both entries are attached to the State’s memorandum opposing McIntyre’s motion to dismiss. (See Doc. #114).
                                                                                                   3


without a transcript of the June 17, 1981 hearing—whether the nunc pro tunc entry improperly

modified the original judgment or whether it simply recorded what the trial court actually had

decided during the hearing but inadvertently had omitted from the termination entry. (Doc. #114).

In other words, absent a transcript reflecting what had been decided on June 17, 1981, the State

claimed McIntyre could not demonstrate misuse of the nunc pro tunc process. The trial court

apparently agreed with the State and overruled McIntyre’s motion. (Doc. #120).

       {¶ 5}     On appeal, McIntyre repeats his refrain that the trial court misused the nunc pro

tunc process to change the termination entry by adding conditions to his release. It is well settled

that a nunc pro tunc entry can be used only to reflect what a court actually decided, not what it

might have decided or should have decided. State v. Miller, 127 Ohio St.3d 407,

2010-Ohio-5705, 940 N.E.2d 924, ¶ 15. Stated differently, a nunc pro tunc entry may be used to

“reflect what the trial court did decide but recorded improperly.” Id. An improper nunc pro tunc

entry is void.     Plymouth Park Tax Services v. Papa, 6th Dist. Lucas No. L-08-1277,

2009-Ohio-3224, ¶18, citing Natl. Life Ins. Co. v Kohn, 133 Ohio St. 111, 11 N.E.2d 1020

(1937), paragraph three of the syllabus.

       {¶ 6}     The problem here is that we have no way of knowing what the trial court actually

decided on June 17, 1981. More than thirty years have elapsed since that hearing, and we do not

have a transcript of the proceeding. It could be that the trial court decided to release McIntyre

from confinement with conditions but inadvertently omitted those conditions from its June 17,

1981 entry. If so, the trial court’s use of a nunc pro tunc entry a week later to record those

conditions and make the record “speak the truth” would be proper. Absent a transcript of the June

17, 1981 hearing that preceded the termination entry and the nunc pro tunc entry, McIntyre
                                                                                             4


cannot demonstrate a misuse of the nunc pro tunc process. As the appealing party, he bears the

burden of demonstrating error. Based on the record before us, he has failed to do so.

       {¶ 7}    McIntyre’s assignment of error is overruled, and the judgment of the

Montgomery County Common Pleas Court is affirmed.

                                         .............



FAIN, P.J., and WELBAUM, J., concur.



Copies mailed to:

Mathias H. Heck
Andrew T. French
Steven T. Pierson
Hon. Gregory F. Singer
