Opinion
No. 107213
04-11-2019
STATE OF OHIO PLAINTIFF-APPELLEE v. DELANTE WRIGHT DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Russell S. Bensing 600 IMG Building 1360 East Ninth Street Cleveland, Ohio 44114 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Ryan J. Bokoch Carson Strang Eben McNair Assistant County Prosecutors The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: REVERSED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-620089-B and CR-17-623869-A BEFORE: Keough, J., Jones, P.J., and Sheehan, J. ATTORNEY FOR APPELLANT Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Ryan J. Bokoch
Carson Strang
Eben McNair
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Delante Wright, appeals from the trial court's nunc pro tunc judgment that modified his sentence from concurrent to consecutive sentences. Because the trial court lacked authority to modify Wright's sentence, we reverse the trial court's judgment and remand for the trial court to reinstate the sentence it originally imposed.
I. Background
{¶2} In August 2017, Wright was indicted in Cuyahoga C.P. No. CR-17-620089 for participating in a criminal gang, having weapons while under disability, improperly handling firearms in a motor vehicle, and carrying concealed weapons. The participating-in-a-criminal-gang charge contained one- and three-year firearms specifications.
{¶3} In December 2017, Wright was indicted in Cuyahoga C.P. No. CR-17-623869 on six counts of drug trafficking, six counts of drug possession, one count of possessing criminal tools, and one count of trafficking in food stamps.
{¶4} In April 2018, the parties reached a plea agreement in both cases. In Cuyahoga C.P. No. CR-17-620089, Wright pleaded guilty to participating in a criminal gang with a one-year firearm specification and having weapons while under disability; the remaining counts and the three-year firearm specification related to the participating-in-a-gang count were dismissed. In Cuyahoga C.P. No. CR-17-623869, Wright pleaded guilty to two counts of drug trafficking, possession of drugs, and trafficking in food stamps. The remaining counts were nolled.
{¶5} On April 30, 2018, at sentencing, the trial court sentenced Wright in Cuyahoga C.P. No. 17-CR-620089, to four years incarceration on the participating-in-a-criminal-gang charge, with the one-year firearm specification to be served prior and consecutive to the four-year sentence. The court sentenced Wright to 12 months on the weapon-under-a-disability conviction, and ordered that the sentences for each count were to run concurrent, for a total of five years.
{¶6} In Cuyahoga C.P. No. CR-17-623869, the trial court sentenced Wright to four years incarceration on each drug trafficking offense, 24 months on the drug possession offense, and six months for trafficking in food stamps. The court ordered that the counts would run concurrent, for a total sentence of four years.
{¶7} The court made no mention at sentencing that the respective sentences in each case would be served consecutive to each other, nor did the court make the required R.C. 2929.14(C)(4) findings to impose consecutive sentences.
{¶8} After the trial court had ordered Wright remanded and transported, defense counsel asked the judge, "[w]ould it be possible if I filed the affidavit of indigency before the end of business today —." The judge responded, "I think the law requires that he had to file it prior to the imposition of the sentence. That was not a concurrent sentence."
{¶9} The trial court's sentencing entry in each case was journalized on April 30, 2018. Nevertheless, on May 2, 2018, the trial court held a second sentencing hearing. The court stated that its "intention at the time [of the April 30 sentencing] was to impose a consecutive sentence * * * so [the court] asked the parties [to] come up here so that I could clarify my intention for the record and correct the journal entries." Later, the court stated, "I am going to impose a consecutive sentence which was the intention — which was my intention and I alluded to that a little bit, but I don't believe I went over it in as much detail as I just went over the time I sentenced him." (Tr. 53.)
{¶10} The trial court stated findings that it indicated would support consecutive sentences. It then imposed the same sentences in each case, but ordered that the five-year sentence in Cuyahoga C.P. CR-17-620089 be served consecutive to the four-year sentence in Cuyahoga C.P. CR-17-623869, for a total of nine years. The court then issued nunc pro tunc entries in each case to reflect that the sentences in the two cases were to be served consecutively.
{¶11} This appeal followed.
II. Law and Analysis
{¶12} In his single assignment of error, Wright contends that the trial court erred in modifying his sentence to impose consecutive sentences, and in making nunc pro tunc journal entries to reflect that modification.
{¶13} Under R.C. 2929.41(A), prison sentences are presumed to run concurrently unless otherwise stated. State v. Quinones, 8th Dist. Cuyahoga No. 83720, 2004-Ohio-4485, ¶ 26, rev'd on other grounds, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 20. Thus, a defendant's sentences are presumed to run concurrently as a matter of law if the trial court's sentencing entry is silent as to whether the sentences are to be served consecutively or concurrently. State v. Hall, 9th Dist. Summit No. 27942, 2016-Ohio-909, ¶ 6; State v. Marbury, 10th Dist. Franklin No. 03AP-233, 2004-Ohio-3373, ¶ 68.
{¶14} Here, as a matter of law, the April 30, 2018 sentencing entries imposed concurrent sentences. The trial court's journal entries of the April 30, 2018 sentencing do not indicate that the sentences in the two cases are to be served consecutively. Nor did the trial court state at sentencing that the sentences were to run consecutively or make the findings required by R.C. 2929.14(C)(4) to impose consecutive sentences.
{¶15} The trial court's single statement made after sentencing was completed that "[t]hat was not a concurrent sentence" does not demonstrate that the trial court imposed consecutive sentences at sentencing. It may suggest, as the court stated at resentencing, that the court intended to impose consecutive sentences on April 30, 2018 when it sentenced Wright. The court did not do so, however. And even if we were to conclude that the statement somehow creates an ambiguity as to whether the trial court imposed concurrent or consecutive sentences, any sentencing ambiguities are resolved in favor of the defendant. Quinones, 2004-Ohio-4485 at ¶ 16; State v. Carr, 167 Ohio App.3d 223, 2006-Ohio-3073, 854 N.E.2d 571 ¶ 4 (3d Dist.). ("If a sentencing is ambiguous as to whether a sentence should be served concurrently or consecutively, the ambiguity must be resolved in favor of the defendant and the sentence must be served concurrently."); Hamilton v. Adkins, 10 Ohio App.3d 217, 461 N.E.2d 319, (12th Dist.1983), syllabus (where there is ambiguity as to whether the sentences are to be served concurrently or consecutively, the defendant is entitled to have the language construed in his favor so that the sentences may be served concurrently).
{¶16} Because the April 30, 2018 sentencing entries were final judgments, the trial court lacked jurisdiction to resentence Wright to impose consecutive sentences. "A trial court has no authority to reconsider its own final determinations." State v. Wilson, 8th Dist. Cuyahoga No. 105535, 2017-Ohio-8068, ¶ 24, citing State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671. A sentence is final upon issuance of a final order. Id., citing Carlisle at ¶ 11. An entry constitutes a final order of sentence when "the judgment entry sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) the time stamp indicating the entry upon the journal by the clerk." State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 14; Crim.R. 32.
{¶17} There is no dispute that the trial court's April 30, 2018 sentencing entries in the two cases complied with these requirements. Thus, they were final judgments and the trial court accordingly had no jurisdiction to resentence Wright to modify his sentence to impose consecutive sentences.
{¶18} Moreover, the trial court's use of nunc pro tunc entries to modify Wright's sentence was improper. At resentencing, the trial court stated that because it was her "intention" to impose consecutive sentences at the initial sentencing, she wanted to "clarify her intention for the record" and "correct the journal entries." That is not the purpose of a nunc pro tunc entry, however. As explained by the Ohio Supreme Court, "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 or what the court intended to decide." State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164, 656 N.E.2d 1288 (1995). Likewise, as this court has stated, "[the] function of nunc pro tunc is not to change, modify, or correct erroneous judgments, but merely to have the record speak the truth." State v. Fontanez, 8th Dist. Cuyahoga No. 106226, 2018-Ohio-2843, ¶ 15; Scaglione v. Saridakis, 8th Dist. Cuyahoga No. 91490, 2009-Ohio-4702, ¶ 9 (a nunc pro tunc order's "proper use is limited to what the trial court actually did decide.").
{¶19} Here, the nunc pro tunc entries do not reflect what happened at the sentencing hearing on April 30, 2018. Although they may reflect what the trial court wanted or intended to do, they may not be used for that purpose. Accordingly, the entries are void.
{¶20} We sustain the assignment of error. We reverse the trial court's nunc pro tunc judgments rendered on May 2, 2018, and remand for the trial court to reinstate the sentencing entries issued on April 30, 2018, which impose concurrent sentences.
{¶21} Judgment reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court to reinstate original sentencing entries.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
KATHLEEN ANN KEOUGH, JUDGE LARRY A. JONES, SR., P.J., and
MICHELLE J. SHEEHAN, J., CONCUR