[Cite as State v. Patterson, 2017-Ohio-9001.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : BRANDON C. PATTERSON : Case No. 2017CA00153 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2009- CR-0136
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 11, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BRANDON PATTERSON, pro se Prosecuting Attorney Inmate A564-655 Trumbull Correctional Institution By: KRISTINE W. BEARD P.O. Box 901 Assistant Prosecuting Attorney Leavittsburg, Ohio 44430 Appellate Section 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2017CA00153 2
Baldwin, J.
{¶1} Defendant-appellant Brandon Patterson appeals from the July 20, 2017
“Judgment Entry-Re-Sentencing Nunc Pro Tunc As of 6/1/15”. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 11, 2009, the Stark County Grand Jury indicted appellant on one
count of attempted murder in violation of R.C. 2903.02(A) and 2923.02(B), and two counts
of felonious assault in violation of R.C. 2903.11, all containing firearm specifications.
Appellant was also indicted on one count of having weapons while under disability in
violation of R.C. 2923.13(A)(3). The charges arose from the shooting of two individuals
at a party.
{¶3} A jury trial commenced on April 29, 2009. The jury, on May 1, 2009, found
appellant guilty as charged. As memorialized in a Judgment Entry filed on May 19, 2009,
the trial court sentenced appellant to an aggregate term of twenty years in prison.
Appellant filed an appeal. Pursuant to an Opinion filed on June 28, 2010, this Court
affirmed appellant's convictions. State v. Patterson, 5th Dist. Stark No.2009CA00142,
2010–Ohio–2988.
{¶4} On October 29, 2014, appellant filed a “Motion for Correction of Sentence
and Termination Order”, claiming that the sentencing entry did not indicate the order in
which the sentences were to be served and that the trial court failed to impose a sanction
for each offense. By Judgment Entry filed on November 5, 2014, the trial court overruled
the motion. Stark County, Case No. 2017CA00153 3
{¶5} Appellant then filed an appeal. Pursuant to an Opinion filed on May 4, 2015
in State v. Patterson, 5th Dist. Stark No. 2014CA0020, 2015-Ohio-1714, this Court held
that the trial court did not err in denying appellant's Motion to Correct Sentence and
Termination Order. However, this Court found that appellant was entitled to a new
sentencing hearing, limited to the proper imposition of post-release control. While this
Court affirmed the judgment of the trial court, this Court remanded the matter to the trial
court for the proper imposition of post-release control.
{¶6} A re-sentencing hearing was held on May 27, 2015. The trial court, via a
Judgment Entry filed on June 1, 2015, re-sentenced appellant and imposed a mandatory
5 year term of post-release control.
{¶7} Appellant then appealed. Pursuant to an Opinion filed on October 13, 2015
in State v. Patterson, 5th Dist. Stark No. 2015CA00125, 2015-Ohio-4325, this Court
affirmed the judgment of the trial court.
{¶8} Thereafter, on July 20, 2017, the trial court issued a “Judgment Entry Prison
Sentence Imposed Nunc Pro Tunc As of 5/6/2009.” The trial court, in such Judgment
Entry, stated that it “has reviewed its sentencing entry filed on May 19, 2009, and the
attached transcript from the hearing related to that entry. The Court hereby issues the
following nunc pro tunc entry.” On July 20, 2017, the trial court also issued a “Judgment
Entry- Re-Sentencing Nunc Pro Tunc As of 6/1/15.” The trial court, in such Judgment
Entry, stated that it “has reviewed its sentencing entries filed on May 19, 2009 and June
1, 2015. After a review of the entries and transcripts from both hearings, the Court issued
a nunc pro tunc entry regarding its May 19, 2009, entry, this nunc pro tunc entry corrects
the related sentencing entry filed on June 1, 2015.” Stark County, Case No. 2017CA00153 4
{¶9} Appellant now appeals from the July 20, 2017 “Judgment Entry Re-
Sentencing Nunc Pro Tunc As of 6/1/15”, raising the following assignment of error on
appeal:
{¶10} THE TRIAL COURT ERRED WHEN IT ISSUED A NUNC PRO TUNC
ENTRY THAT DOES NOT REFLECT THE RECORD FOR THE ORIGINAL JOURNAL
ENTRY FOR MAY 19, 2009 DUE TO THE TRIAL COURT MAKING SUBSTANTIVE
CHANGES THAT ARE IN DIRECT DISAGREEMENT WITH FIFTH DISTRICT COURT
OF APPEALS AND IS, IN FACT, A NEW JUDGMENT ENTRY VIOLATING
APPELLANT’S SUBSTANTIAL RIGHTS PROTECTED BY DUE PROCESS AND
DOUBLE JEOPARDY CLAUSE UNDER THE UNITED STATES CONSTITUTIONS
(SIC), FIFTH AND FOURTEENTH AMENDMENT (SIC) AND THE OHIO
CONSTITUTION ARTICLE ONE, SECTIONS TEN AND SIXTEEN.
I
{¶11} Appellant, in his sole assignment of error, argues that the trial court lacked
jurisdiction to file the July 20, 2017 Nunc Pro Tunc Judgment Entry as of 6/1/15 and that
the same improperly made substantial changes to his original sentence.
{¶12} With respect to nunc pro tunc judgment entries, the court in State v. Lester,
130 Ohio St.3d 303, 2011–Ohio–5204, 958 N.E.2d 142 observed as follows at
paragraphs 18-19:
It is well settled that courts possess the authority to correct errors in
judgment entries so that the record speaks the truth. State ex rel. Fogle v.
Steiner (1995), 74 Ohio St.3d 158, 163–164, 656 N.E.2d 1288; Crim.R. 36.
Errors subject to correction by the court include a clerical error, mistake, or Stark County, Case No. 2017CA00153 5
omission that is mechanical in nature and apparent on the record and 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; Crim.R. 36. Nunc pro tunc entries
are used to make the record reflect what the court actually decided and not
what the court might or should have decided or what the court intended to
decide. Miller at ¶ 15; Fogle at 164, 656 N.E.2d 1288.
“Nunc pro tunc” means “now for then” and is commonly defined as
“[h]aving retroactive legal effect through a court's inherent power.” Black's
Law Dictionary (9th Ed.2009) 1174. Therefore, a nunc pro tunc entry by its
very nature applies retrospectively to the judgment it corrects. See, e.g.,
Miller at ¶ 14, 15; Fogle at 163–164, 656 N.E.2d 1288. Appellate courts
throughout the state have consistently applied these principles. See, e.g.,
State v. Harrison, Butler App. Nos. CA2009–10–272 and CA2010–01–019,
2010–Ohio–2709, 2010 WL 2373151, ¶ 24, citing State v. Battle, Summit
App. No. 23404, 2007–Ohio–2475, 2007 WL 1490053, ¶ 6 (“generally, [a]
nunc pro tunc entry relates back to the date of the journal entry it corrects”);
State v. Yeaples (3d Dist.), 180 Ohio App.3d 720, 2009–Ohio–184, 907
N.E.2d 333, ¶ 15 (“A nunc pro tunc entry is the procedure used to correct
clerical errors in a judgment entry, but the entry does not extend the time
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[Cite as State v. Patterson, 2017-Ohio-9001.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : BRANDON C. PATTERSON : Case No. 2017CA00153 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2009- CR-0136
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 11, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BRANDON PATTERSON, pro se Prosecuting Attorney Inmate A564-655 Trumbull Correctional Institution By: KRISTINE W. BEARD P.O. Box 901 Assistant Prosecuting Attorney Leavittsburg, Ohio 44430 Appellate Section 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2017CA00153 2
Baldwin, J.
{¶1} Defendant-appellant Brandon Patterson appeals from the July 20, 2017
“Judgment Entry-Re-Sentencing Nunc Pro Tunc As of 6/1/15”. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 11, 2009, the Stark County Grand Jury indicted appellant on one
count of attempted murder in violation of R.C. 2903.02(A) and 2923.02(B), and two counts
of felonious assault in violation of R.C. 2903.11, all containing firearm specifications.
Appellant was also indicted on one count of having weapons while under disability in
violation of R.C. 2923.13(A)(3). The charges arose from the shooting of two individuals
at a party.
{¶3} A jury trial commenced on April 29, 2009. The jury, on May 1, 2009, found
appellant guilty as charged. As memorialized in a Judgment Entry filed on May 19, 2009,
the trial court sentenced appellant to an aggregate term of twenty years in prison.
Appellant filed an appeal. Pursuant to an Opinion filed on June 28, 2010, this Court
affirmed appellant's convictions. State v. Patterson, 5th Dist. Stark No.2009CA00142,
2010–Ohio–2988.
{¶4} On October 29, 2014, appellant filed a “Motion for Correction of Sentence
and Termination Order”, claiming that the sentencing entry did not indicate the order in
which the sentences were to be served and that the trial court failed to impose a sanction
for each offense. By Judgment Entry filed on November 5, 2014, the trial court overruled
the motion. Stark County, Case No. 2017CA00153 3
{¶5} Appellant then filed an appeal. Pursuant to an Opinion filed on May 4, 2015
in State v. Patterson, 5th Dist. Stark No. 2014CA0020, 2015-Ohio-1714, this Court held
that the trial court did not err in denying appellant's Motion to Correct Sentence and
Termination Order. However, this Court found that appellant was entitled to a new
sentencing hearing, limited to the proper imposition of post-release control. While this
Court affirmed the judgment of the trial court, this Court remanded the matter to the trial
court for the proper imposition of post-release control.
{¶6} A re-sentencing hearing was held on May 27, 2015. The trial court, via a
Judgment Entry filed on June 1, 2015, re-sentenced appellant and imposed a mandatory
5 year term of post-release control.
{¶7} Appellant then appealed. Pursuant to an Opinion filed on October 13, 2015
in State v. Patterson, 5th Dist. Stark No. 2015CA00125, 2015-Ohio-4325, this Court
affirmed the judgment of the trial court.
{¶8} Thereafter, on July 20, 2017, the trial court issued a “Judgment Entry Prison
Sentence Imposed Nunc Pro Tunc As of 5/6/2009.” The trial court, in such Judgment
Entry, stated that it “has reviewed its sentencing entry filed on May 19, 2009, and the
attached transcript from the hearing related to that entry. The Court hereby issues the
following nunc pro tunc entry.” On July 20, 2017, the trial court also issued a “Judgment
Entry- Re-Sentencing Nunc Pro Tunc As of 6/1/15.” The trial court, in such Judgment
Entry, stated that it “has reviewed its sentencing entries filed on May 19, 2009 and June
1, 2015. After a review of the entries and transcripts from both hearings, the Court issued
a nunc pro tunc entry regarding its May 19, 2009, entry, this nunc pro tunc entry corrects
the related sentencing entry filed on June 1, 2015.” Stark County, Case No. 2017CA00153 4
{¶9} Appellant now appeals from the July 20, 2017 “Judgment Entry Re-
Sentencing Nunc Pro Tunc As of 6/1/15”, raising the following assignment of error on
appeal:
{¶10} THE TRIAL COURT ERRED WHEN IT ISSUED A NUNC PRO TUNC
ENTRY THAT DOES NOT REFLECT THE RECORD FOR THE ORIGINAL JOURNAL
ENTRY FOR MAY 19, 2009 DUE TO THE TRIAL COURT MAKING SUBSTANTIVE
CHANGES THAT ARE IN DIRECT DISAGREEMENT WITH FIFTH DISTRICT COURT
OF APPEALS AND IS, IN FACT, A NEW JUDGMENT ENTRY VIOLATING
APPELLANT’S SUBSTANTIAL RIGHTS PROTECTED BY DUE PROCESS AND
DOUBLE JEOPARDY CLAUSE UNDER THE UNITED STATES CONSTITUTIONS
(SIC), FIFTH AND FOURTEENTH AMENDMENT (SIC) AND THE OHIO
CONSTITUTION ARTICLE ONE, SECTIONS TEN AND SIXTEEN.
I
{¶11} Appellant, in his sole assignment of error, argues that the trial court lacked
jurisdiction to file the July 20, 2017 Nunc Pro Tunc Judgment Entry as of 6/1/15 and that
the same improperly made substantial changes to his original sentence.
{¶12} With respect to nunc pro tunc judgment entries, the court in State v. Lester,
130 Ohio St.3d 303, 2011–Ohio–5204, 958 N.E.2d 142 observed as follows at
paragraphs 18-19:
It is well settled that courts possess the authority to correct errors in
judgment entries so that the record speaks the truth. State ex rel. Fogle v.
Steiner (1995), 74 Ohio St.3d 158, 163–164, 656 N.E.2d 1288; Crim.R. 36.
Errors subject to correction by the court include a clerical error, mistake, or Stark County, Case No. 2017CA00153 5
omission that is mechanical in nature and apparent on the record and 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; Crim.R. 36. Nunc pro tunc entries
are used to make the record reflect what the court actually decided and not
what the court might or should have decided or what the court intended to
decide. Miller at ¶ 15; Fogle at 164, 656 N.E.2d 1288.
“Nunc pro tunc” means “now for then” and is commonly defined as
“[h]aving retroactive legal effect through a court's inherent power.” Black's
Law Dictionary (9th Ed.2009) 1174. Therefore, a nunc pro tunc entry by its
very nature applies retrospectively to the judgment it corrects. See, e.g.,
Miller at ¶ 14, 15; Fogle at 163–164, 656 N.E.2d 1288. Appellate courts
throughout the state have consistently applied these principles. See, e.g.,
State v. Harrison, Butler App. Nos. CA2009–10–272 and CA2010–01–019,
2010–Ohio–2709, 2010 WL 2373151, ¶ 24, citing State v. Battle, Summit
App. No. 23404, 2007–Ohio–2475, 2007 WL 1490053, ¶ 6 (“generally, [a]
nunc pro tunc entry relates back to the date of the journal entry it corrects”);
State v. Yeaples (3d Dist.), 180 Ohio App.3d 720, 2009–Ohio–184, 907
N.E.2d 333, ¶ 15 (“A nunc pro tunc entry is the procedure used to correct
clerical errors in a judgment entry, but the entry does not extend the time
within which to file an appeal, as it relates back to the original judgment
entry”); State v. Breedlove (1st Dist.1988), 46 Ohio App.3d 78, 81, 546
N.E.2d 420, quoting Natl. Life Ins. Co. v. Kohn (1937), 133 Ohio St. 111,
113, 10 O.O. 122, 11 N.E.2d 1020 (“ ‘The power to make nunc pro tunc Stark County, Case No. 2017CA00153 6
entries is restricted ordinarily to the subsequent recording of judicial action
previously and actually taken. It is a simple device by which a court may
make its journal speak the truth.’ It ‘speaks the truth’ by correcting a judicial
record that fails to show an order or a judgment of the court because the
order or judgment was not recorded at all in the first instance”).
{¶13} In the case sub judice, the trial court stated as follows on the record in
sentencing appellant on May 6, 2009:
{¶14} For that attempted murder the Court is sentencing you to ten years in prison.
With regard to the gun specification, three years.
{¶15} Now, as it relates to the felonious assault for the same victim, it arose out
of the same conduct technically because there were two shots. There could be a separate
sentence for this, but the Court is going to make the sentence concurrent as it relates to
that felonious assault of three years for the felonious assault and three years for the gun
spec to be merged with the attempted murder.
{¶16} With regard to the second victim, the felonious assault sentence will be
three years. The gun spec, three years consecutive to that time and that sentence will
be consecutive to the attempted murder sentence, and with regard to the firearm
specification - - or excuse me - - the weapon under disability one year.
{¶17} The total sentence is 20 years…
{¶18} Transcript from May 6, 2009 sentencing hearing at 6-7.
{¶19} The trial court, in its May 19, 2009 Judgment Entry, stated, in relevant part,
as follows: Stark County, Case No. 2017CA00153 7
{¶20} IT IS THEREFORE ORDERED that the defendant shall serve a prison term
of ten (10) years on the charge of Attempt to Commit an Offense (Murder), 1 ct.[R.C.
2923.02(A)] [R.C. 2903.02(B)] (F1) (With Firearm Specification) as contained in Count
One, and
{¶21} IT IS FURTHER ORDERED that the defendant shall serve the sentence in
count one consecutive to and subsequent to a determinate term of three (3) years actual
incarceration for the specification that defendant had a firearm, and
{¶22} IT IS FURTHER ORDERED that the defendant shall serve a prison term of
three (3) years on the charge of Felonious Assault, 1 Ct. [R.C. 2903.11(A)(2)](F2) (With
Firearm Specification) as contained in Count Three, and
{¶23} IT IS FURTHER ORDERED that the defendant shall serve the sentence in
count three consecutive to and subsequent to a determinate term of three (3) years actual
incarceration for the specification that the defendant had a firearm, and
{¶24} IT IS FURTHER ORDERED that the defendant shall serve a prison term of
one (1) year on the charge of Having Weapons While Under Disability, 1 Ct. [R.C.
2923.13(A)(3)](F3) as contained in count four, and
{¶25} IT IS FURTHER ORDERED that this defendant shall serve all the above
sentences consecutively for a total of twenty (20) years of incarceration, ***
{¶26} As noted by appellee, the trial court’s May 19, 2009 Judgment Entry did not
state that the three years imposed for the second count of felonious assault was to run
concurrently to count one or state that the three year sentence for the firearm
specifications in counts one and two would merge for sentencing purposes. After this
Court remanded the matter for resentencing for the proper imposition of post-release Stark County, Case No. 2017CA00153 8
control, the trial court, in its June 1, 2015 Judgment Entry, incorrectly stated that count
two (felonious assault) and three (felonious assault) merged for sentencing purposes
when it ordered that the three year sentences for the firearm specifications in the two
counts merged.
{¶27} Subsequently, the trial court, on July 20, 2017, issued two Nunc Pro Entries
to properly reflect what occurred on the record at appellant’s sentencing on May 6, 2009.
{¶28} The Nunc Pro Tunc Entry filed July 20, 2017 properly states as follows:
{¶29} IT IS THEREFORE ORDERED that the defendant shall serve a prison term
of ten (10) years on the charge of Attempt to Commit an Offense (Murder), 1 Ct. [R.C.
2923.02(A)][R.C. 2903.02(B)](F1) (With Firearm Specification) as contained in Count
One; and
{¶30} IT IS FURTHER ORDERED that the defendant shall serve the prison term
in Count One consecutive to and subsequent to a determinative three (3) years actual
incarceration for the specification that the defendant had a firearm, and
{¶31} IT IS FURTHER ORDERED that the defendant shall serve a prison term of
three (3) years on the charge of Felonious Assault, 1 Ct. [R.C. 2903.11(A)(2)](F2)(With a
firearm specification) as contained in Count Two, and
{¶32} IT IS FURTHER ORDERED that the specification to Count Two that the
defendant had a firearm shall merge into the specification to Count One that defendant
had a firearm, and
{¶33} IT IS FURTHER ORDERED that the defendant serve a prison term of three
(3) years on the charge of Felonious Assault, 1 Ct.[R.C. 2903.11(A)(2)](F2) (With Firearm
Specification) as contained in Count Three, and Stark County, Case No. 2017CA00153 9
{¶34} IT IS FURTHER ORDERED that the defendant shall serve the prison term
for Count Three consecutive to and subsequent to a determinate term of three (3) years
actual incarceration for the specification that the defendant had a firearm, and
{¶35} IT IS FURTHER ORDERED that the defendant shall serve a prison term of
one (1) year on the charge of Having Weapons While Under Disability, 1 Ct. [R.C.
2933.13(a)(3)](F3) as contained in Count Four, and
{¶36} IT IS FURTHER ORDERED THAT this defendant shall serve the prison
term for Count One and its accompanying specification concurrently with the prison term
for Count Two, but consecutively with the prison terms for Count Three and its
accompanying specifications, and consecutively with the prison term for Count Four.
Further, the prison terms for Count Three, and its accompanying specification, and the
prison term for Count Four shall be served consecutively with each other, for a total prison
term of 20 years***
{¶37} We find that the trial court had jurisdiction to correct the clerical errors in its
Judgment Entries to reflect what actually occurred at the sentencing hearing on May 27,
2015 and that the Nunc Pro Tunc Judgment Entries did not make substantive changes to
appellant’s sentence.
{¶38} Appellant’s sole assignment of error is, therefore, overruled. Stark County, Case No. 2017CA00153 10
{¶39} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Gwin, P.J. and
John Wise, J. concur.