State v. Berryman , 2012 Ohio 5208 ( 2012 )

[Cite as State v. Berryman, 2012-Ohio-5208.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25081
vs. : T.C. CASE NO. 2004 CR 852
JONATHAN A. BERRYMAN : (Criminal Appeal from the
Common Pleas Court)
Defendant-Appellant :
.........
OPINION
Rendered on the 9th day of November, 2012.
.........
Mathias H. Heck, Jr., Prosecuting Attorney, by Michele D. Phipps, Assistant
Prosecuting Attorney, Atty. Reg. No. 0069829, P.O. Box 972, 301 West Third Street,
Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
Kent J. Depoorter, Atty. Reg. No. 0058487, 7501 Paragon Road, Lower Level, Dayton,
Ohio 45459
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Defendant Jonathan Berryman was indicted in March 2004 on six counts of
rape of a child under ten years of age, R.C. 2907.02(A)(1)(b), which are unclassified felonies.
Pursuant to a plea agreement, Defendant pled guilty to two reduced charges of rape of a child
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under 13 years of age, R.C. 2907.02(A)(1)(b), felonies of the first degree. The State
dismissed the other four counts and agreed to a twenty-year prison sentence, which the trial
court imposed. Defendant appealed, and we affirmed his conviction and sentence. State v.
Berryman, 2d Dist. Montgomery No. 20611, 2005-Ohio-2531. Defendant also filed a
petition for post-conviction relief, which the trial court overruled.
{¶ 2} In January 2012, Defendant filed a motion for re-sentencing on a claim that the
trial court failed to properly impose post-release control. The following month, Defendant
was brought back before the court and was re-sentenced to include a mandatory term of five
years of post-release control. The trial court also advised Defendant of its intent to correct
additional errors in his original judgment of conviction.
{¶ 3} The judgment of conviction incorrectly stated that Defendant was convicted of
two counts of rape of a child under ten, unclassified felonies, when, in fact, Defendant pled
guilty and was convicted of two counts of rape of a child under 13, felonies of the first degree.
The judgment also did not specify that Defendant was convicted on his guilty plea. The
amended judgment of conviction nunc pro tunc not only imposed post-release control, but
also included the manner of Defendant’s conviction and corrected the degree of the offenses
of which he was convicted.
{¶ 4} Defendant appeals raising one assignment of error, claiming that because the
deficiencies of his original judgment of conviction, it was not a final appealable order.
Therefore, Defendant argues he is entitled to directly appeal his conviction and sentence on
the basis of the trial court’s judgment of conviction entered nunc pro tunc.
{¶ 5} Defendant’s assignment of error:
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“DEFENDANT SHOULD BE ALLOWED TO DIRECTLY APPEAL HIS CONVICTION
BECAUSE THE ORIGINAL TERMINATION ENTRY WAS NOT A FINAL,
APPEALABLE ORDER DUE TO THE FACT THAT IT DID NOT MEET THE
REQUIREMENTS SET FORTH BY BAKER AND CRIM.R. 32(C) REGARDING
APPELLANT’S CONVICTION.”
{¶ 6} Criminal Rule 32(C) states:
A judgment of conviction shall set forth the plea, the verdict, or
findings, upon which each conviction is based, and the sentence.
If the defendant is found not guilty or for any other reason is
entitled to be discharged, the court shall render judgment
accordingly. The judge shall sign the judgment and the clerk
shall enter it on the journal. A judgment is effective only when
entered upon the journal by the clerk.
{¶ 7} The Ohio Supreme Court has explained that the purpose of Crim.R. 32(C) is to
ensure that a convicted defendant is on notice regarding the fact that a final judgment has been
entered and the time for filing a notice of appeal has begun to run. State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 10, citing State v. Tripodo, 50 Ohio St.2d 124,
127, 363 N.E.2d 719 (1950); App.R. 4(A). In keeping with that purpose, the Court held that
“[a] judgment of conviction is a final appealable order under R.C. 2505.02 when it 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.” Id. at paragraph one of the syllabus
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(Crim.R. 32(C) explained; State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d
163, modified).
{¶ 8} Defendant’s argument that his original judgment of conviction was not a final
appealable order because it failed to state the manner of his conviction must fail, because the
Ohio Supreme Court has rejected that precise claim. Lester, at ¶ 12.
{¶ 9} We next turn to Defendant’s argument that when the trial court corrected the
degree of the offenses nunc pro tunc, “the offense for which Appellant was originally
convicted was completely changed.” That is simply not true.
{¶ 10} The record before us provides an abundance of evidence that Defendant was
fully aware that he had been convicted of two counts of rape of a child under 13, felonies of
the first degree. For example, Defendant was sentenced for first-degree felonies, not
unclassified felonies. Additionally, in his September 9, 2004 pro se petition for
post-conviction relief, Defendant accurately stated that although he had been indicted for rape
of a child under ten, he had been convicted of rape of a child under 13. Moreover, our
decision in Defendant’s direct appeal also clearly demonstrates that Defendant was convicted
of two counts of rape of a child under thirteen, felonies of the first degree. Berryman, supra,
at ¶ 1. Finally, had Defendant been convicted of unclassified felonies, rather than first-degree
felonies, he would not have been eligible for post-release control. State v. Clark, 119 Ohio
St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36.
{¶ 11} In other words, there is no doubt that Defendant was on notice that a final
judgment was entered and when a notice of appeal needed to be filed, in fulfillment of the
purpose of Crim.R. 32(C).
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{¶ 12} We have previously held that a nunc pro tunc judgment is an appropriate
means of correcting a judgment that misstates the degree of the defendant’s offense, when the
nunc pro tunc judgment neither elevated the degree of the offense nor altered the defendant’s
sentence. State v. Wilson, 2d Dist. Montgomery No. 24352, 2011-Ohio-5990. Accord, State
v. Boles, 2d Dist. Montgomery No. 23037, 2011-Ohio-3720 (remanded for trial court to enter
nunc pro tunc judgment reflecting that Boles had been convicted of rape, but not forcible
rape). Such a correction is properly made by a nunc pro tunc entry because it “is mechanical
in nature and apparent on the record and does not involve a legal decision or judgment.”
Lester, at ¶ 18, citing State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶
15.
{¶ 13} Courts possess inherent authority to correct clerical errors in judgment entries
so that the record speaks the truth. Id. at ¶ 18, citing State ex rel. Fogle v. Steiner, 74 Ohio
St.3d 158, 163-164, 656 N.E.2d 1288 (1995); Crim.R. 36 (“Clerical errors in judgment,
orders, or other parts of the record, and error in the record arising from oversight or omission,
may be corrected by the court at any time.”) A nunc pro tunc entry is an appropriate vehicle
by which a trial court may correct a judgment of conviction that contains errors caused by
oversight or omission. State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, ¶
17. Such an entry is to be used to reflect what a trial court actually did, not what the court
might or should have done. Id., citing State ex rel. Mayer v. Hensen, 97 Ohio St.3d 276,
2001-Ohio-6323, 779 N.E.2d 223, ¶ 14.
{¶ 14} In this case the trial court’s nunc pro tunc judgment of conviction was entered
in order to accurately reflect what the trial court actually did, that is, convict Defendant
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pursuant to his guilty plea of two counts of rape of a child under 13, felonies of the first
degree. The entry also specified that Defendant is subject to the mandatory term of
post-release control. These are proper uses of a nunc pro tunc entry, and such an entry was
an appropriate means of correcting the errors in the original judgment of conviction.
{¶ 15} Finally, we point out that a nunc pro tunc entry issued to correct a clerical error
in a judgment of conviction is not a new final order from which a new appeal may be taken.
Lester, at paragraph two of the syllabus. Therefore, regardless of the clerical errors in
Defendant’s original judgment of conviction, he is not entitled to a new direct appeal taken
from the nunc pro tunc entry correcting those errors.
{¶ 16} Defendant’s assignment of error is overruled. The judgment of the trial court
will be affirmed.
Donovan, J., And Hall, J., concur.
Copies mailed to:
Michele D. Phipps, Esq.
Kent J. Depoorter, Esq.
Hon. Mary Lynn Wiseman