State v. Kendrick , 2012 Ohio 504 ( 2012 )

[Cite as State v. Kendrick, 2012-Ohio-504.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 24626
:
v. : Trial Court Case No. 03-CR-4234
:
SHAUN D. KENDRICK, SR. :
: (Criminal Appeal from
Defendant-Appellant : (Common Pleas Court)
:
...........
OPINION
Rendered on the 10th day of February, 2012.
...........
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, 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
SHAUN D. KENDRICK, SR., #A489-082, Pickaway Correctional Institution, Post Office
Box 209, Orient, Ohio 43146
Defendant-Appellant, pro se
.............
KLINE, J. (sitting by assignment)
{¶ 1} Shaun D. Kendrick, Sr., appeals the denial of his Motion to Dismiss and Vacate
Conviction Pursuant to R.C. 2505.02 & Crim.R. 32(A)(C). Kendrick argues that the trial
court’s termination entry was not a final appealable order, and, therefore, he is entitled to an
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evidentiary hearing on why his case should not be dismissed. Because the proper remedy of
the error in this case is not a new hearing or dismissal, we disagree. Accordingly, we affirm
the judgment of the trial court.
I.
{¶ 2} On January 26, 2005, Kendrick accepted a plea deal and pled guilty to seven
counts of rape. “Six of those convictions were for rapes that had occurred prior to the July 1,
1996 effective date of the Senate Bill 2 sentencing laws, and the other one took place after that
date. The trial court sentenced Kendrick to five consecutive, indeterminate sentences of 10 to
25 years and one concurrent sentence of 10 to 25 years for the pre-S.B. 2 rapes. The court
also ordered a consecutive 10-year term for the post-S.B. 2 rape. We affirmed Kendrick’s
convictions and sentence. State v. Kendrick, Montgomery App. 20965, 2006-Ohio-311[hereinafter ‘Kendrick I’].” State v. Kendrick, Montgomery App. No. 21790,
2007-Ohio-6136, at ¶2 (hereinafter “Kendrick II”).
{¶ 3} The Supreme Court of Ohio reversed Kendrick's post-S.B. 2 sentence following
our decision in Kendrick I. See In re Ohio Sentencing Cases, 109 Ohio St.3d 411,
2006-Ohio-2394, at ¶19. The case was remanded for re-sentencing in line with State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856. See Kendrick II at ¶3.
{¶ 4} The trial court re-sentenced Kendrick on remand to ten years on the post-S.B. 2
count, and, in August 2006, the trial court issued a new termination entry (hereinafter the
“Resentencing Entry”). The court ordered Kendrick to serve that sentence consecutive to his
other six sentences. Kendrick appealed following the resentencing hearing, and we affirmed
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the trial court’s decision. See Kendrick II at ¶19. The Supreme Court of Ohio declined to
review our decision in Kendrick II. See State v. Kendrick, 117 Ohio St.3d 1441 (Table),
2008-Ohio-1279.
{¶ 5} On January 20, 2011, Kendrick filed a “Motion to Dismiss and Vacate
Conviction Pursuant to R.C. 2505.02 & Crim.R. 32(A)(C).” In his motion, Kendrick argued
that the trial court’s Resentencing Entry was not a final appealable order. Kendrick asserted
that, because there was no final appealable order properly sentencing him, the trial court
should hold an evidentiary hearing and discharge Kendrick. The trial court denied
Kendrick’s motion.
{¶ 6} Kendrick appeals and asserts the following assignment of error:
{¶ 7} “THE TRIAL COURT ERRED IN NOT ISSUING A FINAL APPEALLABLE
[sic] ORDER VIOLATING THE SIXTH & FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE 1, §16 TO THE OHIO
CONSTITUTION.”
II.
{¶ 8} In his sole assignment of error, Kendrick argues that the trial court’s
Resentencing Entry does not meet the requirements of a final appealable order, and, therefore,
he is entitled to a hearing on why his case should not be dismissed.
{¶ 9} Crim.R. 32(C) provides, in relevant part, as follows: “A judgment of conviction
shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the
sentence. * * * The judge shall sign the judgment and the clerk shall enter it on the journal.
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A judgment is effective only when entered on the journal by the clerk.”
{¶ 10} Thus, “[a] judgment of conviction is a final appealable order under R.C.
2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon
which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on
the journal by the clerk of court.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330,
syllabus.
{¶ 11} Kendrick asserts that the Resentencing Entry is not a final appealable order
because it fails to set forth the manner of Kendrick’s conviction. That is, the entry does not
indicate that Kendrick pled guilty to the crimes for which he was convicted. The State
concedes the error in the Resentencing Entry. Kendrick notes that it has been six years since
his original sentence and five years since the Resentencing Entry. According to Kendrick, the
trial court has failed to impose his sentence without unnecessary delay, and, therefore, he
claims he is entitled to an evidentiary hearing on why his case should not be dismissed.
Kendrick’s argument is misplaced because dismissal is not the proper remedy for the trial
court’s error.
{¶ 12} A nunc pro tunc entry is the proper method for correcting clerical errors such as
the error in this case. “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.” Crim.R. 36. “A nunc pro tunc entry is often used to correct a sentencing entry
that, because of a mere oversight or omission, does not comply with Crim.R. 32(C).” State ex
rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, at ¶17 (citations omitted).
“Consistent with the treatment of Crim.R. 32(C) errors as clerical mistakes that can be
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remedied by a nunc pro tunc entry, [the Supreme Court of Ohio has] expressly held that ‘the
remedy for a failure to comply with Crim.R. 32(C) is a revised sentencing entry rather than a
new hearing.’” Id. at ¶18, quoting State ex rel. Alicea v. Krichbaum, 126 Ohio St.3d 194,
2010-Ohio-3234, at ¶2. And “the technical failure to comply with Crim.R. 32(C) by not
including the manner of conviction * * * is not a violation of a statutorily mandated term, so it
does not render the judgment a nullity.” Burge at ¶19 (emphasis sic) (citations omitted).
Also see State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204.
{¶ 13} Thus, the trial court properly denied Kendrick’s motion because Kendrick
sought relief that was unavailable to him. That is, Kendrick sought an evidentiary hearing on
why his case should not be dismissed. The proper remedy, however, for a trial court’s failure
to set forth the manner of a defendant’s conviction in a judgment entry is to issue a nunc pro
tunc entry that corrects the error.1
{¶ 14} Accordingly, we overrule Kendrick’s sole assignment of error, and we will
affirm the judgment of the trial court.
............
GRADY, P.J., and FAIN, J., concur.
(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck
1
We note that the trial court issued a nunc pro tunc entry reflecting Kendrick’s plea of guilty on September 20, 2011.
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Carley J. Ingram
Shaun D. Kendrick, Sr.
Hon. Michael Tucker