State v. Evans , 2022 Ohio 2584 ( 2022 )

[Cite as State v. Evans,
2022-Ohio-2584.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110997
v. :
TIMOTHY EVANS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: July 28, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-652785-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and John F. Hirschauer, Assistant Prosecuting
Attorney, for appellee.
Susan J. Moran, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant Timothy Evans appeals his convictions for
involuntary manslaughter and discharge of a firearm on or near prohibited premises
following a bench trial. He contends that his convictions were not supported by
sufficient evidence and were against the manifest weight of the evidence and that
the trial court failed to properly consider his claim of self-defense, denying him due
process and the right to a fair trial. For the reasons that follow, we dismiss this
appeal.
Factual Background and Procedural History
On October 9, 2020, a Cuyahoga County Grand Jury indicted Evans
on eight counts: one count of aggravated murder in violation of R.C. 2903.01(A)
(Count 1), one count of aggravated murder in violation of R.C. 2903.01(C) (Count
2), one count of murder in violation of R.C. 2903.02(B) (Count 3), two counts of
felonious assault in violation of R.C. 2903.11(A)(2) (Counts 4 and 6), one count of
attempted murder in violation of R.C. 2923.02/2903.02(A) (Count 5), one count of
discharge of a firearm on or near prohibited premises that caused serious physical
harm to a person in violation of R.C. 2923.162(A)(3) (Count 7) and one count of
having a weapon while under a disability in violation of R.C. 2923.13(A)(2)
(Count 8). All of the counts included one-year and three-year firearm specifications.
The charges related to a July 31, 2020 shooting incident in which a fetus died and
her mother was seriously injured. Evans pled not guilty to all charges.
Evans waived his right to a jury trial, and on October 15, 2021, the
case proceeded to a bench trial. At the conclusion of the state’s case, Evans made a
motion for acquittal pursuant to Crim.R. 29. The trial court granted the motion as
to Count 1, in part, deleting the element of prior calculation and design. The trial
court denied the motion as to all other counts. At the conclusion of his case, Evans
renewed his Crim.R. 29 motion. Once again, the trial court denied the motion.
On October 21, 2021, the trial court announced its verdicts. As to
Counts 1 and 2, the trial court found Evans guilty of the lesser-included offense of
involuntary manslaughter, with one-year and three-year firearm specifications. The
trial court also found Evans guilty of discharge of a firearm on or near prohibited
premises that caused serious physical harm to a person with one-year and three-
year firearm specifications (Count 7) and having weapons while under disability
(Count 8, as amended to delete the firearm specifications). The trial court found
Evans not guilty on the remaining counts.
On October 25, 2021, the trial court held the sentencing hearing. At
the sentencing hearing, the trial court sentenced Evans as follows:
[I]t’s my duty to impose a sentence. I’m going to do that at this
time.
The Court finds as to the involuntarily [sic] manslaughter
conviction he’ll be sentenced to 3 years on the gun specification to be
served prior to and consecutive to his sentence of 3 years on the
minimum presumed release date and the maximum 4.5 years under
Reagan Tokes. And that is subject to mandatory Post-Release Control
* * * which in your case would be anywhere from two to five years,
minimum two, max five, but discretionary up to five * * *.
***
On the discharge of a firearm across a public highway, the
sentence of the Court will be the 3-year gun spec and the 3 to 4.5 years
in jail under Reagan Tokes.
Involuntary manslaughter and discharge of firearm will be
served concurrently.
Having weapons under disability, I’ll sentence you to 24 months,
and that will run concurrently with the other two charges that we have
right here. * * * Post-Release Control under the weapons disability is
discretionary up to two years.
On October 25, 2021, the trial court issued a sentencing journal entry
that stated that Evans had been previously found guilty of involuntary manslaughter
(as lesser-included offenses) with one-year and three-year firearm specifications in
Counts 1 and 2, murder with one-year and three-year firearm specifications as
charged in Count 3, attempted murder with one-year and three-year firearm
specifications as charged in Count 5,1 discharge of firearm on or near prohibited
premises with one-year and three-year firearm specifications in Count 7 and having
weapons while under disability in Count 8 (as amended). The sentencing journal
entry stated that Evans had previously been found not guilty of felonious assault as
charged in Counts 4 and 6. With respect to sentencing, the journal entry set forth
sentences on Counts 2, 7 and 8 only, stating in relevant part:
The court imposes a prison sentence at the Lorain Correctional
Institution of 6 year(s). Defendant advised of Reagan Tokes
sentencing. * * * Defendant sentenced to the aggregate minimum
sentence of 3 years and a maximum sentence of 4.5 years as to Count
2. Three-year gun specification to be served prior to and consecutive
to underlying sentence. * * * As a result of the conviction(s) in this case
and the imposition of a prison sentence, and pursuant to R.C.
2967.28(F)(4)(c), the defendant will/may be subject to a period of post-
release control of: a mandatory minimum 2 years, up to a maximum of
5 years. * * * Defendant sentenced to the minimum sentence of 3 years
and a maximum sentence of 4.5 years as to Count 7. Three-year gun
specification to be served prior to and consecutive to underlying
1 As indicated above, the trial court’s statements in the October 25, 2021 sentencing
journal entry that Evans had been previously found guilty of murder and attempted
murder in Counts 3 and 5 were incorrect.
sentence. Defendant will/may be subject to a period of post-release
control of: a mandatory minimum 2 years, up to a maximum of 5 years
as to this Count. Defendant is sentenced to 24 months as to Count 8.
The defendant will/may be subject to a period of post-release control
of: up to 2 years at the discretion of the Parole Board as to Count 8.
Counts 7 and 8 to be served concurrently to Count 2. * * *
On November 9, 2021, Evans filed a notice of appeal, raising the
following three assignments of error for review:
1. The trial court erred by denying appellant’s motion for acquittal
pursuant to Crim.R. 29 when the state failed to submit sufficient
evidence for the essential elements of the crimes charged
denying the appellant due process.
2. Appellant’s convictions are against the manifest weight of the
evidence.
3. The trial court failed to properly consider Mr. Evans’ claim of
self-defense denying him due process and the right to a fair trial.
On January 28, 2022, the trial court issued a second sentencing
journal entry “to clarify verdict and sentencing of defendant.” This sentencing
journal entry corrected the trial court’s prior journal entry and stated that Evans was
found not guilty of murder as charged in Count 3 and not guilty of attempted murder
as charged in Count 5. Once again, with respect to sentencing, the journal entry
stated, in relevant part:
The court imposes a prison sentence at the Lorain Correctional
Institution of 6 year(s). Defendant advised of Reagan Tokes
sentencing. * * * Defendant sentenced to the aggregate minimum
sentence of 3 years and a maximum sentence of 4.5 years as to Count
2. Three-year gun specification to be served prior to and consecutive
to underlying sentence. * * * As a result of the conviction(s) in this case
and the imposition of a prison sentence, and pursuant to R.C.
2967.28(F)(4)(c), the defendant will/may be subject to a period of post-
release control of: a mandatory minimum 2 years, up to a maximum of
5 years. * * * Defendant sentenced to the minimum sentence of 3 years
and a maximum sentence of 4.5 years as to Count 7. Three-year gun
specification to be served prior to and consecutive to underlying
sentence. Defendant will/may be subject to a period of post-release
control of: a mandatory minimum 2 years, up to a maximum of 5 years
as to this Count. Defendant is sentenced to 24 months as to Count 8.
The defendant will/may be subject to a period of post-release control
of: up to 2 years at the discretion of the Parole Board as to Count 8.
Counts 7 and 8 to be served concurrently to Count 2. * * *
No sentence was imposed on Count 1.
On May 17, 2022, this court, sua sponte, issued an order, directing the
parties to “show cause that the trial court’s sentencing journal entry constitutes a
final appealable order per R.C. 2505.02.” The court explained:
The transcript demonstrates that the appellant was found guilty of the
lesser included offense of involuntary manslaughter (R.C. 2903.04)
with regard to count one and count two of the indictment. See Tr. 785
- 786. However, the trial court’s original sentencing journal entry of
10/25/21, and amended sentencing journal entry of 1/28/22, fail to
demonstrate the imposition of any sentence with regard to count 1. In
addition, there is no indication that count 1 and count 2 were
determined to be allied offenses of similar import for the purpose of
sentencing. Briefs to be filed by 5/25/22.
Neither party filed a brief in response to the court’s order. Instead,
on May 26, 2022, the trial court issued a third sentencing journal entry, stating that
“[a]t the request of the court of appeals, this entry serves to clarify verdict and
sentencing of defendant.”2 In its May 26, 2022 sentencing journal entry, the trial
court “clarif[ied]” its prior sentencing journal entry, indicating that Counts 1 and 2
2 Although the trial court asserts, in its May 26, 2022 sentencing journal entry, that
the order was issued “at the request of the court of appeals,” this court made no such
request of the trial court.
“merge for sentencing purposes” and then set forth sentences on both Counts 1 and
2. That entry stated, in relevant part:
The court imposes a prison sentence at the Lorain Correctional
Institution of 6 year(s). Defendant advised of Reagan Tokes
sentencing. Counts 1 and 2 merge for sentencing purposes. * * *
Defendant sentenced to the aggregate minimum sentence of 3 years
and a maximum sentence of 4.5 years as to Count 2. Three-year gun
specification to be served prior to and consecutive to underlying
sentence. The court imposes a prison sentence at the Lorain
Correctional Institution of the aggregate minimum sentence of 3
years and a maximum sentence of 4.5 years as to Count 1. * * * As a
result of the conviction(s) in this case and the imposition of a prison
sentence, and pursuant to R.C. 2967.28(F)(4)(c), the defendant
will/may be subject to a period of post-release control of: a mandatory
minimum 2 years, up to a maximum of 5 years. * * * Defendant
sentenced to the minimum sentence of 3 years and a maximum
sentence of 4.5 years as to Count 7. Three-year gun specification to be
served prior to and consecutive to underlying sentence. Defendant
will/may be subject to a period of post-release control of: a mandatory
minimum 2 years, up to a maximum of 5 years as to this Count.
Defendant is sentenced to 24 months as to Count 8. The defendant
will/may be subject to a period of post-release control of: up to 2 years
at the discretion of the Parole Board as to Count 8. Counts 1, 2, 7 and
8 to be served concurrently. * * *
(Emphasis added.)
Law and Analysis
As an initial matter, we must first consider whether we have
jurisdiction to hear this appeal. Our appellate jurisdiction is limited to reviewing
judgments and orders that are final, appealable orders. See Article IV, Section
3(B)(2), Ohio Constitution; R.C. 2953.02; 2505.02; 2505.03. This court has a duty
to examine, sua sponte, potential deficiencies in jurisdiction. See, e.g., State v.
Goodson, 8th Dist. Cuyahoga No. 108973, 2020-Ohio-3723, ¶ 7; Cleveland v. Fano,
8th Dist. Cuyahoga No. 106135, 2018-Ohio-1407, ¶ 3; Scheel v. Rock Ohio Caesars
Cleveland, L.L.C., 8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174, ¶ 7; Arch Bay
Holdings, L.L.C., v. Goler, 8th Dist. Cuyahoga No. 102455, 2015-Ohio-3036, ¶ 9. 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
County 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); Goodson at ¶ 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 October 25, 2021 sentencing journal entry did not set
forth sentences on each of the counts of which Evans was convicted, i.e., no sentence
was set forth on Count 1. Accordingly, the trial court’s October 25, 2021 sentencing
entry was not a final judgment of conviction and, therefore, was not a final,
appealable order.
Apparently recognizing the deficiencies in its October 25, 2021
sentencing journal entry, the trial court purported to correct its October 25, 2021
sentencing journal entry after Evans 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.” See,
e.g., 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; see also Crim.R.
36 (“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.
After careful consideration, we find that we do not have jurisdiction
to consider this appeal. Even if the trial court had jurisdiction — in the absence of a
remand by this court — to issue its corrected sentencing journal entry while Evans’
appeal was pending,3 the May 26, 2022 sentencing journal entry was not a proper
nunc pro tunc order.
As this court explained in Aarons:
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, 1995-Ohio-278, 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.,
3 See, e.g., State v. Clausing, 8th Dist. Cuyahoga No. 110776, 2022-Ohio-1762,
¶ 10-12, citing State v. Aarons, 8th Dist. Cuyahoga No. 110313, 2021-Ohio-3671, ¶ 20, 24
(where trial court’s corrected sentencing journal entries directly related to and affected
matters assigned as error on appeal and were, therefore, inconsistent with appellate
court’s jurisdiction to reverse, modify or affirm the trial court’s judgment, the trial court
lacked jurisdiction to issue its corrected entries while appeal was pending, and those
corrected entries were void), State v. Schrader, 12th Dist. Fayette Nos. CA2019-12-025
and CA2019-12-026, 2020-Ohio-3925, ¶ 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”), and State v. Ward, 187 Ohio App.3d 384, 2010-Ohio-1794,
932 N.E.2d 374, ¶ 45 (2d Dist.) (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”).
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.
Aarons, 2021-Ohio-3671, at ¶ 26.
The trial court’s May 26, 2021 sentencing journal entry states that
“Counts 1 and 2 merge for sentencing purposes,” imposes sentences on Counts 1 and
2 and states that the sentences on Counts 1 and 2 (and the sentences imposed on all
other counts) are to be served concurrently. Imposing sentences on both Counts 1
and 2 is inconsistent with a finding that the two counts merge for sentencing.
However, more significantly, the May 26, 2021 sentencing journal entry does not
reflect what actually occurred at the sentencing hearing. There is no indication in
the transcript from the sentencing hearing that the trial court made a finding at the
sentencing hearing that Counts 1 and 2 merged for sentencing. As noted above, at
the sentencing hearing, the trial court simply stated: “The Court finds as to the
involuntarily [sic] manslaughter conviction he’ll be sentenced to 3 years on the gun
specification to be served prior to and consecutive to his sentence of 3 years on the
minimum presumed release date and the maximum 4.5 years under Reagan Tokes.”
There is likewise no indication in the record that the state made an election
regarding the count on which Evans should be sentenced.
As stated above, a nunc pro tunc order cannot be used to “correct” a
judgment to reflect what the trial 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.” State v.
Williamson, 8th Dist. Cuyahoga Nos. 100563 and 101115, 2014-Ohio-3909, ¶ 16.
Accordingly, the trial court’s May 26, 2022 “clarif[ied]” sentencing
journal entry is invalid, and neither the trial court’s October 25, 2021 sentencing
journal entry nor the trial court’s May 26, 2022 sentencing journal entry gives rise
to a final judgment of conviction or a final, appealable order. We, therefore, dismiss
Evans’ appeal for lack of jurisdiction.
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, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
EILEEN T. GALLAGHER, J., CONCUR