State v. Aarons , 2021 Ohio 3671 ( 2021 )

[Cite as State v. Aarons, 2021-Ohio-3671.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110313
v. :
RICHARD D. AARONS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: October 14, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-629018-A and CR-19-643581-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Glen Ramdhan, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Richard Aarons appeals his sentences after he
pled guilty to one count of drug possession in Cuyahoga C.P. No. CR-18-629018-A
(“629018”) and pled guilty to one count of involuntary manslaughter, one count of
failure to comply with the order or signal of a police officer and one count of driving
while under the influence of drugs or alcohol in Cuyahoga C.P. No. CR-19-643581-
A (“643581”).
For the reasons that follow, we dismiss this appeal.
Procedural History and Factual Background
On June 18, 2018, a Cuyahoga County Grand Jury indicted Aarons on
three counts of drug possession with forfeiture specifications in 629018. The
charges related to an incident that occurred on or about December 20, 2017.
On October 11, 2019, a Cuyahoga County Grand Jury indicted Aarons
on ten counts in 643581: one count of involuntary manslaughter (Count 1), two
counts of aggravated vehicular homicide (Counts 2 and 3), one count of failure to
comply with order or signal of police officer (Count 4), one count of tampering with
evidence (Count 5), one count of having weapons while under disability (Count 6),
one count of receiving stolen property (Count 7), one count of carrying concealed
weapons (Count 8), and two counts of driving while under the influence of drugs or
alcohol (Counts 9 and 10). The charges arose out of an automobile accident that
resulted in the death of Marvin Thorton on August 30, 2019.
On December 16, 2020, the parties reached a plea agreement. In
629018, Aarons pled guilty to one count of drug possession in violation of R.C.
2925.11(A), a fifth-degree felony, with forfeiture of a scale (Count 1). In 643581,
Aarons pled guilty to one count of involuntary manslaughter in violation of R.C.
2903.04(A), a first-degree felony (Count 1), one count of failure to comply with the
order or signal of a police officer in violation of R.C. 2921.331(B), a third-degree
felony (Count 4), and one count of driving while under the influence of alcohol or
drugs, in violation of R.C. 4511.19(A)(1)(a), an unclassified misdemeanor (Count 9).
In exchange for his guilty pleas, the remaining counts were nolled. The trial court
ordered a presentence investigation report and scheduled the case for sentencing.
On January 25, 2021, the trial court held a sentencing hearing. At the
sentencing hearing, the trial court sentenced Aarons as follows:
In Case Number 643581, involuntary manslaughter, you’re
hereby sentenced to a prison term of six years. Under the Reagan Tokes
law it will be 6 to 11 years because I’m factoring in two years that are
going to run consecutive to the six years on the failure to comply giving
you an aggregate sentence of 8 to 11 years.
The eight years is the minimum. As I indicated earlier, that is
the amount of time that you are presumed to be released; however,
under certain circumstances, the Department of Rehabilitations [sic]
and Corrections [sic] may rebut that presumption and impose
additional time up to the 11 years.
On the driving while under the influence of alcohol, you will
receive credit for time served. I do have to impose the mandatory
minimum fine of $150 [sic].
And in Case Number 629018, you’re hereby sentenced to a
prison term of 12 months. This case will run concurrent to 643581 for
a total prison term of 8 to 11 years with credit for 115 days served.
I’m not imposing any other fines. I will waive court costs, but
you are responsible for the $850 fine. (Transcript at 87-88.)
The trial court also stated that Aarons would be subject to five years of mandatory
postrelease control and explained the consequences of violating postrelease control.
On January 27, 2021, the trial court issued a sentencing journal entry
in 643581 that stated, in relevant part:
Sentence runs concurrent to sentence in CR 629018. * * * The court
imposes a prison sentence at the Lorain Correctional Institution of 8
year(s). The sentence imposed upon defendant is an indefinite
sentence under SB 201 – Reagan Tokes Law. The aggregate minimum
term imposed by the court is 6 years. The maximum term is 11 years.
The court imposes prison terms consecutively * * *. Post release control
is part of this prison sentence for 5 years mandatory for the above
felony(s) under R.C. 2967.28. * * * Costs waived[.] The defendant is
ordered to pay a fine in the sum of $ 850.00.
On February 24, 2021, Aarons filed a notice of appeal. On April 6,
2021, the trial court issued a “corrected” sentencing journal entry “to reflect
sentence per count.” This sentencing journal entry stated, in relevant part:
*Entry is c[o]rrected to reflect sentence per count. * * * Sentence runs
concurrent to sentence in CR 629018. * * * The court imposes a prison
sentence at the Lorain Correctional Institution of 8 year(s). Count 1:
The sentence imposed upon defendant is an indefinite sentence under
SB 201 – Reagan Tokes Law. The aggregate minimum term imposed
by the court is 6 years. The maximum term is 11 years. Count 4: 2 years.
Counts 1 and 4 run consecutive to each other. * * * Post release control
is part of this prison sentence for 5 years mandatory for the above
felony(s) under R.C. 2967.28. * * * Costs waived[.] The defendant is
ordered to pay a fine in the sum of $850.00.
On April 7, 2021, the trial court issued a second “corrected”
sentencing journal entry “to reflect [a] maximum term of 9 years.” That sentencing
journal entry stated, in relevant part:
*Entry is corrected to reflect maximum term of 9 years. *Entry is
corrected to reflect sentence per count. * * * Sentence runs concurrent
to sentence in CR 629018. * * * The court imposes a prison sentence
at the Lorain Correctional Institution of 8 year(s). Count 1: The
sentence imposed upon defendant is an indefinite sentence under SB
201 – Reagan Tokes Law. The aggregate minimum term imposed by
the court is 6 years. The maximum term is 9 years. Count 4: 2 years.
Counts 1 and 4 run consecutive to each other. * * * Post release control
is part of this prison sentence for 5 years mandatory for the above
felony(s) under R.C. 2967.28. * * * Costs waived[.] The defendant is
ordered to pay a fine in the sum of $850.00.
On June 11, 2021, the trial court issued a third “corrected” sentencing
journal entry “to reflect changes in sentence as to individual counts.” That
sentencing journal entry stated, in relevant part:
*Entry is corrected to reflect changes in sentence as to individual
counts. * * * Sentence runs concurrent to sentence in CR 629018. * * *
The court imposes a prison sentence at the Lorain Correctional
Institution of 8 year(s). Count 1: 6 years. The sentence imposed upon
defendant is an indefinite sentence under SB 201 – Reagan Tokes Law.
The aggregate minimum term imposed by the court is 6 years. The
maximum term is 9 years. Count 4: 2 years. Count 9: Time served.
Counts 1 and 4 run consecutive to each other and concurrent to
sentence in Case #CR-629018. * * * Post release control is part of this
prison sentence for 5 years mandatory for the above felony(s) under
R.C. 2967.28. * * * Costs waived[.] The defendant is ordered to pay a
fine in the sum of $850.00.
Aarons raises the following four assignments of error for review:
Assignment of Error I: The trial court did not have jurisdiction to
resentence appellant.
Assignment of Error II: Appellant’s sentence is invalid because it was
imposed pursuant to the Reagan Tokes Act Amendments, S.B. 201,
which violates the United States and Ohio Constitutions.
Assignment of Error III: Appellant received ineffective assistance of
counsel in violation of the Sixth Amendment to the United States
Constitution and Section 10, Article I of the Ohio Constitution because
she failed to challenge the constitutionality of the Reagan Tokes Law.
Assignment of Error IV: Appellant’s sentence is contrary to law and
outside the proper sentencing range.
On June 28, 2021, this court ordered, sua sponte, that the record be
supplemented to include the “corrected” sentencing journal entries issued by the
trial court after Aarons filed his notice of appeal.
Law and Analysis
In his first assignment of error, Aarons argues that the trial court’s
January 27, 2021 sentencing journal entry was not a final, appealable order because
it did not include “a separate sentence * * * for each count of conviction” and that
the trial court lacked jurisdiction to issue its subsequent “corrected” sentencing
journal entries on April 6, 2021, April 7, 2021 and June 11, 2021 after his notice of
appeal had been filed. Aarons requests that we remand the case for a resentencing
hearing. The state agrees that the matter should be remanded for a resentencing
hearing. Following careful consideration of the record and applicable law, we find
that we do not have jurisdiction and, therefore, dismiss this appeal.
This court’s jurisdiction is limited to reviewing judgments and orders
that are final. See Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2505.02 and
2505.03. If a judgment or order is not final and appealable, then an appellate court
has no jurisdiction to review the matter and the appeal must be dismissed. See, e.g.,
State v. Tye, 8th Dist. Cuyahoga No. 109879, 2021-Ohio-2765, ¶ 7. A judgment of
conviction is a final order subject to appeal under R.C. 2505.02 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, paragraph
one of the syllabus. A sentencing journal entry that disposes of some, but not all of
the counts of which a defendant is convicted, is not a final, appealable order. Tye at
¶ 5-7, citing State v. Craig, 159 Ohio St.3d 398, 2020-Ohio-455, 151 N.E.3d 574,
¶ 21; see also State v. Jackson, 151 Ohio St.3d 239, 2017-Ohio-7469, 87 N.E.3d 1227,
¶ 11 (“a valid judgment of conviction requires a full resolution of any counts for
which there were convictions”); State ex rel. Davis v. Cuyahoga Cty. Court of
Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2 (sentencing
journal entry is a final, appealable order when it fully resolves all counts for which
there were convictions).
Furthermore, “[a] ‘blanket sentence’ is not a valid sentence. A trial
court must impose a separate sentence on each count individually.” State v. Taylor,
8th Dist. Cuyahoga No. 108029, 2019-Ohio-4352, ¶ 8, citing State v. Goode, 8th
Dist. Cuyahoga Nos. 106795 and 107436, 2018-Ohio-3594, ¶ 6; see also State v.
Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9 (“Instead of
considering multiple offenses as a whole and imposing one, overarching sentence to
encompass the entirety of the offenses * * * a judge sentencing a defendant pursuant
to Ohio law must consider each offense individually and impose a separate sentence
for each offense.”); State v. Reed, 8th Dist. Cuyahoga Nos. 108544, 108629, and
108630, 2020-Ohio-1610, ¶ 11 (“Blanket sentences do not present final, appealable
orders; there must be a separate sentence for each count.”); State v. Goodson, 8th
Dist. Cuyahoga No. 108973, 2020-Ohio-3723, ¶ 8 (concluding that there was no
final, appealable order because the trial court’s sentencing journal entry was not a
final judgment of conviction where “it lacked a sentence for each count”).
The trial court’s January 27, 2021 sentencing journal entry did not
impose separate sentences on each of the counts of which Aarons was convicted.
Accordingly, the trial court’s January 27, 2021 sentencing entry was not a final
judgment of conviction and, therefore, was not a final, appealable order.
Apparently recognizing the deficiencies in its January 27, 2021
sentencing journal entry, the trial court issued a series of sentencing journal entries,
purporting to “correct” its January 27, 2021 sentencing journal entry after Aarons
filed his notice of appeal.
Although a court “speaks through its journal entries,” clerical errors
may be corrected “in order to conform to the transcript of the proceedings.” State
v. Lugo, 8th Dist. Cuyahoga No. 103893, 2016-Ohio-2647, ¶ 3, citing State v.
Steinke, 8th Dist. Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 47, and Crim.R. 36.
Crim.R. 36 states: “Clerical mistakes in judgments, orders, or other parts of the
record, and errors in the record arising from oversight or omission, may be corrected
by the court at any time.” A “[c]lerical mistake” is “‘“a mistake or omission,
mechanical in nature and apparent on the record, which does not involve a legal
decision or judgment.’”” State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940
N.E.2d 924, ¶ 15, quoting State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-
Ohio-5795, 856 N.E.2d 263, ¶ 19, quoting State v. Brown, 136 Ohio App.3d 816,
819-820, 737 N.E.2d 1057 (3d Dist.2000). A nunc pro tunc entry is a means by
which a court can correct a clerical mistake in an order it previously entered that
fails to reflect the court’s true action. State v. Chislton, 8th Dist. Cuyahoga No.
108840, 2021-Ohio-697, ¶ 15.
Citing State v. Hearn, 4th Dist. Washington No. 20CA7, 2021-Ohio-
594, Aarons asserts that the trial court lacked jurisdiction to issue its purported nunc
pro tunc sentencing journal entries while his appeal was pending without a remand
order from this court. We agree.
‘“[O]nce an appeal is perfected, the trial court is divested of
jurisdiction over matters that are inconsistent with the reviewing court’s jurisdiction
to reverse, modify, or affirm the judgment.’” State ex rel. Electronic Classroom of
Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-
Ohio-626, 950 N.E.2d 149, ¶ 13, quoting State ex rel. Rock v. School Emps.
Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8; see also
State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 8
(“‘An appeal is perfected upon the filing of a written notice of appeal. * * * Once a
case has been appealed, the trial court loses jurisdiction except to take action in aid
of the appeal.’”), quoting In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d
1207, ¶ 9. This rule applies even where the appellate court ultimately determines
that the order appealed from was not a final, appealable order and later dismisses
the appeal for lack of jurisdiction. State ex rel. Elec. Classroom of Tomorrow at
¶ 15-16. Thus, generally, the timely filing of a notice of appeal precludes a trial court
from issuing further orders affecting matters at issue in the appeal. Where a trial
court enters an order without jurisdiction, its order is void and a nullity. State v.
Williamson, 8th Dist. Cuyahoga Nos. 100563 and 101115, 2014-Ohio-3909, ¶ 18,
citing State v. Abboud, 8th Dist. Cuyahoga Nos. 87660 and 88078, 2006-Ohio-
6587, ¶ 13.
In Hearn, the trial court’s original sentencing journal entry sentenced
appellant to a blanket term of 14 years with a “maximum possible sentence” of
17 1/2 years, rather than sentencing the appellant to seven years on each of two
counts, as imposed at the sentencing hearing. Hearn, 2021-Ohio-594, at ¶ 3-4.
After the appellant filed his notice of appeal, the trial court issued a series of nunc
pro tunc entries attempting to correct the error. Id. at ¶ 6-7.
In considering whether the trial court had jurisdiction to issue the
nunc pro tunc entries after the appellant had filed his notice of appeal, the Fourth
District noted that “[o]ther Ohio appellate courts have determined that, although
Crim.R. 36 permits a nunc pro tunc entry to be filed ‘at any time,’ a notice of appeal
will divest a trial court of jurisdiction to do so.” Id. at ¶ 11-13 (citing cases from the
Second, Third, Sixth, Ninth, Eleventh and Twelfth Districts). But see State v.
Anderson, 10th Dist. Franklin No. 11AP-236, 2011-Ohio-6667, ¶ 18-21 (trial court
had jurisdiction to issue nunc pro tunc entry to correct “clerical error” that did not
change appellant’s aggregate sentence even after notice of appeal filed); State v.
Wilson, 2d Dist. Montgomery No. 24352, 2011-Ohio-5990, ¶ 14-17 (trial court’s
correction of a clerical error while appeal was pending to recognize that defendant’s
crime was an aggravated first-degree felony rather than an ordinary first-degree
felony was permitted where it “did not interfere with” appellate jurisdiction).
The Fourth District ultimately held that the trial court’s amended
sentencing entries were inconsistent with the appellate court’s jurisdiction to
reverse, modify or affirm the trial court’s judgment and were, therefore, “legal
nullities.” Hearn at ¶ 15. We believe a similar conclusion is warranted in this case.
See also State v. Ward, 187 Ohio App.3d 384, 391, 2010-Ohio-1794, 932 N.E.2d 374,
¶ 45 (2d Dist.) (trial court was divested of jurisdiction to issue a nunc pro tunc entry
to correct a mistake in its judgment entry that was “assigned as error” on appeal);
State v. Schrader, 12th Dist. Fayette Nos. CA2019-12-025 and CA2019-12-026,
2020-Ohio-3925, ¶ 9 (same); cf. Johnston Coca-Cola Bottling Co. v. Hamilton Cty.
Bd. of Revision, 149 Ohio St.3d 155, 2017-Ohio-870, 73 N.E.3d 503, ¶ 39 (Board of
Tax Appeals lacked jurisdiction to enter a nunc pro tunc order under Ohio
Adm.Code 5717-1-20 to correct error in its decision after an appeal had been filed
with the Ohio Supreme Court “because allowing the [Board of Tax Appeals] to
correct a decision that is on appeal would be inconsistent with this court’s authority
to review the decision”), citing State ex rel. Special Prosecutors v. Judges, Court of
Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978), and State v. Smith, 2d
Dist. Greene No. 2010 CA-63, 2011-Ohio-5986, ¶ 7 (“Although a court generally may
issue a nunc pro tunc entry [at] any time, * * * a notice of appeal divests a trial court
of jurisdiction to do so.”).
In this case, the trial court’s “corrected” April 6, 2021, April 7, 2021
and June 11, 2021 sentencing journal entries directly related to and affected matters
assigned as error on appeal and were, therefore, inconsistent with this court’s
jurisdiction to reverse, modify or affirm the trial court’s judgment. Accordingly, the
trial court lacked jurisdiction to issue its “corrected” entries while Aarons’ appeal
was pending and those “corrected” entries are void. See, e.g., Williamson, 2014-
Ohio-3909, at ¶ 18; see also Schrader at ¶ 11 (because trial court lacked jurisdiction
to file amended sentencing entries while appeal was pending, trial court’s amended
sentencing entries had “no legal effect”); Ward, 187 Ohio App.3d 384, 391, 2010-
Ohio-1794, 932 N.E.2d 374, at ¶ 45 (trial court’s nunc pro tunc entry, entered after
trial court was divested of jurisdiction to correct error due to pending appeal, was a
“nullity”).
Further, even if the trial court retained jurisdiction to issue its
“corrected” sentencing journal entries while Aarons’ appeal was pending, we would
still lack jurisdiction to consider Aarons’ appeal because the only one of the trial
court’s “corrected” sentencing journal entries that included a separate sentence on
all three counts — its June 11, 2021 “corrected” sentencing journal entry — was not
a proper nunc pro tunc journal entry.
Proper use of a nunc pro tunc entry is limited to correcting a clerical
error in a judgment or order so that the record reflects what the court actually did
or decided. See, e.g., Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,
at ¶ 18; State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164, 656 N.E.2d 1288 (1995);
Chislton, 2021-Ohio-697, at ¶ 21; State v. Wright, 8th Dist. Cuyahoga No. 107213,
2019-Ohio-1361, ¶ 18. A nunc pro tunc entry cannot be used to supply omitted
action or to indicate what the court might or should have done or intended to do.
See, e.g., State v. Williams, 8th Dist. Cuyahoga No. 109091, 2020-Ohio-4467, ¶ 28;
State v. Abner, 8th Dist. Cuyahoga No. 81023, 2002-Ohio-6504, ¶ 22; see also
Chislton, 2021-Ohio-697, at ¶ 18 (“A nunc pro tunc entry may be used only to reflect
what actually happened. A nunc pro tunc entry may not be used to ‘change, modify,
or correct erroneous judgments.’”), quoting Wright at ¶ 18. Thus, while a nunc pro
tunc entry can be used to correct a sentencing entry to reflect the sentence the trial
court actually imposed upon a defendant at a sentencing hearing, it cannot be used
to “resentence” a defendant or to “impose a sanction that the court did not impose
as part of the sentence” at the sentencing hearing. See, e.g., State v. Smith, 8th Dist.
Cuyahoga No. 109963, 2021-Ohio-3099, ¶ 14; State v. Spears, 8th Dist. Cuyahoga
No. 94089, 2010-Ohio-2229, ¶ 10; Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940
N.E.2d 924, at ¶ 16; State v. Kirby, 9th Dist. Summit No. 27060, 2014-Ohio-5643,
¶ 35. ‘“When a court exceeds its power in entering a nunc pro tunc order, the
resulting nunc pro tunc order is invalid.’” State v. Walter, 8th Dist. Cuyahoga No.
104443, 2017-Ohio-466, ¶ 5, quoting State v. Senz, 9th Dist. Wayne No. 02CA0016,
2002-Ohio-6464, ¶ 12.
The trial court’s June 11, 2021 sentencing journal entry imposed a six-
year sentence on Count 1, imposed a two-year sentence on Count 4, sentenced
Aarons to time served on Count 9 and set forth a “maximum” sentence of nine years.
However, that “corrected” sentencing journal entry did not reflect what actually
occurred at the sentencing hearing. At the sentencing hearing, the trial court
imposed a maximum sentence of 11 years, not nine years. And although the trial
court informed Aarons at the sentencing hearing that he would “receive credit” on
Count 9 “for time served,” the trial court did not, in fact, impose a sentence of time
served on Count 9 at the sentencing hearing.1
As stated above, a nunc pro tunc order cannot be used to “correct” a
judgment to reflect what the court might have done, should have done or intended
to do. Its proper use is limited to implementing what the trial court actually did.
“The trial court could not nunc what it did not first tunc.” Williamson, 2014-Ohio-
3909, at ¶ 16.
Accordingly, the trial court’s June 11, 2021 “corrected” sentencing
journal entry is invalid and does not give rise to a final judgment of conviction or a
final, appealable order. We, therefore, dismiss Aarons’ appeal in 643581 for lack of
jurisdiction.
Because Aarons’ assignments of error relate exclusively to 643581, we
also dismiss his appeal in 629018.
1 We note that the trial court’s April 6, 2021 and April 7, 2021 “corrected”
sentencing journal entries, likewise, were not proper nunc pro tunc entries because they
did not reflect what actually occurred at the sentencing hearing. In addition, although
consecutive sentence findings under R.C. 2929.14(C)(4) were not necessary for the
imposition of consecutive sentences on Counts 1 and 4 in light of R.C. 2921.331(D), we
note that the trial court’s original sentencing journal entry and each of its “corrected”
sentencing journal entries included consecutive sentence findings under R.C.
2929.14(C)(4) that were not made at the sentencing hearing.
Appeal dismissed.
It is ordered that appellee recover from appellant the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure
_________________________
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR.*, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
* Judge Larry A. Jones, Sr., concurred in this Journal Entry and Opinion prior to
his death on October 7, 2021.
(The Ohio Constitution requires the concurrence of at least two judges when
rendering a decision of a court of appeals. Therefore, this announcement of decision
is in compliance with constitutional requirements. See State v. Pembaur (1982), 69
Ohio St.2d 110.)