State v. Evans

2015 Ohio 3649

Opinion

[Cite as State v. Evans, 2015-Ohio-3649.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

State of Ohio, : : Plaintiff-Appellee, : Case No. 15CA15 : v. : : Dion M. Evans, : : ENTRY Defendant-Appellant. : : RELEASED: 9/3/2015

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McFARLAND, A.J.

{¶1} After reviewing the notice of appeal filed in this matter, we issued an order

directing Appellant Dion M. Evans to file a memorandum addressing whether the entry

appealed from is a final appealable order. Evans has filed a memorandum arguing that

the trial court’s order is a final appealable order because it denies his motion to vacate a

void nunc pro tunc order. After reviewing the memorandum and the relevant law, we

hereby allow this appeal to proceed.

{¶2} The trial court’s nunc pro tunc order was issued pursuant to our decision

in State v. Evans, 4th Dist. Pickaway App. No. 10CA33, 2011-Ohio-4630. In Evans, we

found that the trial court properly informed Evans at the sentencing hearing that he

would be subject to postrelease control for a mandatory period of three years and that if

he violated that control, the parole board may impose a prison term of up to one-half of

the original prison term. However, the judgment of conviction repeated only part of that.

The entry stated that Evans had been notified that he is subject to a period of Pickaway App. No. 15CA15 2

postrelease control of three years, but the entry did not include the statement that the

parole board could impose additional prison time of up to one-half of his original

sentence. Evans at ¶6 - ¶8. We held that R.C. 2929.191 provided a procedure by which

the trial court could correct this error without conducting a de novo hearing and we

remanded the case for a correction pursuant to R.C. 2929.191.

{¶3} The trial court issued a nunc pro tunc entry on September 12, 2011. The

entry corrected the error by stating that the parole board can impose additional prison

time of up to one-half of the original sentence. The nunc pro tunc entry did not include

any other aspect of the original judgment of conviction, but stated, “All other aspects of

the November 22, 2006, Entry remains as written.” See Nunc Pro Tunc Entry of

Sentence on Jury Verdict Judgment Entry of Sentencing, September 12, 2011.

{¶4} On April 3, 2015, Evans filed a motion to vacate the nunc pro tunc order

on several grounds, including the argument that the nunc pro tunc entry failed to comply

with Crim.R. 32(C) and RC. 2505.02 and is void for failing to have finality. The trial

court denied his motion and this appeal followed.

{¶5} In State v. Adkins, 4th Dist. Lawrence App. No. 14CA29, 2015-Ohio-2830,

we held that an order denying a challenge to a sentencing entry issued pursuant to R.C.

2929.191 is final appealable order because the proceeding set forth in R.C. 2929.191 is

a “special proceeding” that affects a “substantial right” to have the trial court issue a

judgment entry of conviction in a criminal case. Adkins at ¶ 25. We find that Evans’s

April 2015 motion challenged the finality of the nunc pro tunc entry and was a request to

correct a judgment of conviction made pursuant to R.C. 2929.191. Thus, the trial court’s Pickaway App. No. 15CA15 3

denial of his motion is a final appealable order. Id.; State v. Terry, 2nd Dist. Darke App.

No. 09CA0005, 2010-Ohio-5391 (holding that a trial court’s entry denying a defendant’s

request for resentencing hearing under R.C. 2929.191 was a final, appealable order

under R.C. 2505.02(B)(2)).

{¶6} Therefore we allow this appeal to proceed.

{¶7} The clerk shall serve a copy of this order on all counsel of record at their

last known addresses by ordinary mail. The clerk shall serve appellant by certified mail,

return receipt requested. If returned unserved, the clerk shall serve appellant by

ordinary mail. IT IS SO ORDERED.

Hoover, P.J., & Abele, J.: Concur.

FOR THE COURT

_____________________________ Matthew W. McFarland Administrative Judge