State v. Bradley

2013 Ohio 5032

Opinion

[Cite as State v. Bradley, 2013-Ohio-5032.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99673

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ALBERT J. BRADLEY DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-559416

BEFORE: Celebrezze, P.J., Keough, J., and Kilbane, J.

RELEASED AND JOURNALIZED: November 14, 2013 ATTORNEY FOR APPELLANT

Adam M. Van Ho Burdon and Merlitti 137 South Main Street Suite 201 Akron, Ohio 44308

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Kerry A. Sowul Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Appellant, Albert J. Bradley, brings the instant appeal from his conviction for

domestic violence. He claims that trial counsel was constitutionally ineffective,

requiring this court to vacate his conviction and remand for a new trial. This court,

however, lacks jurisdiction over the present appeal, and therefore, it must be dismissed.

I. Factual and Procedural History

{¶2} Appellant was indicted on two counts of felonious assault and one count of

domestic violence stemming from a fight with his brother, Ronald Bradley, on February

1, 2012. The counts of felonious assault were tried to a jury, while appellant elected to

have the count of domestic violence tried to the judge. The jury found appellant not

guilty of both counts of felonious assault, but the trial court found appellant guilty of

violating R.C. 2919.25(A), domestic violence, a fourth-degree felony. Appellant was

sentenced to time served for this conviction.

{¶3} At the sentencing hearing on October 5, 2012, the trial court explained to

appellant that he had the right to appeal, but did not inform appellant, who was found to

be indigent by the trial court, about his right to have counsel appointed if he could not

afford an attorney and did not inform appellant that he had the right to a transcript at the

state’s expense. Therefore, the trial court did not comply with Crim.R. 32(B). Three

weeks after the date of sentencing, the trial court appointed appellate counsel. Then, on

March 6, 2013, the trial court entered a nunc pro tunc entry modifying the October 5, 2012 order only to add “Court assigns attorney Adam Van Ho for appeal.” Appellant

then filed a notice of appeal on March 20, 2013.

II. Law and Analysis

{¶4} In the present appeal, appellant claims trial counsel was ineffective.

However, this court does not have jurisdiction to determine the issues raised.

{¶5} The trial court’s March 6, 2013 nunc pro tunc entry improperly attempts to

correct the court’s failure to comply with Crim.R. 32(B)(3) regarding appellate rights.

Those rights were not properly addressed at the October 5, 2012 sentencing hearing.

Therefore, a nunc pro tunc entry cannot be used to correct that error. See State v.

Melton, 8th Dist. Cuyahoga No. 93299, 2010-Ohio-4476, ¶ 21. The use of a nunc pro

tunc order is limited to correcting clerical mistakes in an entry so that it may properly

reflect what actually took place. State v. McIntyre, 2d Dist. Montgomery No. 25502,

2013-Ohio-3281, ¶ 5 (“It is well settled that a nunc pro tunc entry can be used only to

reflect what a court actually decided, not what it might have decided or should have

decided”). As a result, the nunc pro tunc order is void. Id.

{¶6} Further, “a nunc pro tunc entry cannot operate to extend the period within

which an appeal may be prosecuted, especially where the appeal grows out of the original

order rather than the nunc pro tunc entry.” State v. Shinkle, 27 Ohio App.3d 54, 56, 499

N.E.2d 402 (12th Dist.1986).

{¶7} This appeal from the October 5, 2012 entry of sentence is untimely and must

be dismissed for lack of jurisdiction. Cleveland v. Zakaib, 8th Dist. Cuyahoga Nos. 76928, 76929, and 76930, 2000 Ohio App. LEXIS 4756 (Oct. 12, 2000); App.R. 4(A).

Seeking leave to file a delayed appeal is the proper remedy. See App.R. 5.

{¶8} Accordingly, the appeal is dismissed.

It is ordered that appellee recover of appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and MARY EILEEN KILBANE, J., CONCUR