[Cite as State v. Sutherly, 2016-Ohio-1574.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-15-34
v.
CODY J. SUTHERLY, OPINION
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court Trial Court No. 14CRB3763
Judgment Reversed
Date of Decision: April 18, 2016
APPEARANCES:
Joseph A. Benavidez for Appellant
John R. Payne for Appellee Case No. 1-15-34
ROGERS, J.
{¶1} Defendant-Appellant, Cody Sutherly, appeals the judgment of the
Lima Municipal Court convicting him of one count of public indecency and
sentencing him to 180 days in jail, 90 of which were suspended, and imposing a
fine and court costs. On appeal, Sutherly argues that the verdict was not supported
by sufficient evidence. Further, he argues that the verdict was against the manifest
weight of the evidence. For the reasons that follow, we reverse the judgment of
the trial court.
{¶2} On October 27, 2014, a criminal complaint was filed in the Lima
Municipal Court charging Sutherly with one count of public indecency in violation
of R.C. 2907.09(A)(3), a misdemeanor of the first degree. An amended complaint
was filed on November 14, 2014, charging Sutherly with the same crime, but
omitted reference to the degree of misdemeanor being charged.
{¶3} On December 10, 2014, the case was dismissed without prejudice
because the State had failed to serve Sutherly with the Summons. This dismissal
was vacated, purportedly due to a clerical error, on December 16, 2014.
{¶4} Sutherly entered a plea of not guilty on December 26, 2014.
{¶5} The matter proceeded to a jury trial held on August 7, 2015. After
deliberating, the jury found Sutherly guilty of public indecency. The case
proceeded immediately to sentencing. The trial court sentenced Sutherly to 180
-2- Case No. 1-15-34
days in jail, 90 of which were suspended, and imposed a fine of $250 and court
costs.
{¶6} Sutherly filed this timely appeal, presenting the following assignment
of error for our review.
Assignment of Error
THE JURY ERRED IN FINDING APPELLANT GUILTY AS THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF [SIC] EVIDENCE AND THERE WAS INSUFFICIENT EVIDENCE TO HAVE FOUND ALL ESSENTIAL ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT.
{¶7} Before we can address the merits of Sutherly’s appeal, we must first
determine if the trial court possessed jurisdiction to vacate its dismissal of the
amended complaint. Although jurisdiction was not raised by anyone in this case,
this court is “bound to raise any jurisdictional questions not raised by the parties.”
Levinsky v. Boardman Twp. Civ. Serv. Comm., 7th Dist. Mahoning No. 04 MA 36,
2004-Ohio-5931, ¶ 26. Accordingly, on February 17, 2016, this court issued an
entry ordering the parties to brief the following two issues: (1) whether the “error,”
which served as the trial court’s basis for vacating the dismissal, was in fact
clerical; and (2) whether the trial court retained jurisdiction to vacate its previous
order.
{¶8} On February 29, 2016, the State filed a motion to supplement the
appellate record pursuant to App.R. 9(D). In its motion, the State sought to
-3- Case No. 1-15-34
include a copy of the original summons, which included a file stamp performed by
the officer charged with servicing the summons, that it argued would clarify the
State’s position. Specifically, the State argued that the “clerical error” was when
the officer file stamped and returned the summons to the clerk’s office for the
reason of being expired on December 1, 2014. The summons was filed in the
clerk’s office on December 2, 2014. However, the time had not expired as of
December 1, 2014. Thus, the State seeks to supplement the record to include a
copy of the original summons to the amended complaint, which shows the file
stamp prepared by the officer. Upon review, the State’s motion to supplement the
record is granted.
{¶9} The same day, the State filed its supplemental brief addressing the
questions posed by this court.1
{¶10} “It is well-settled that trial courts lack authority to reconsider their
own valid judgments in criminal cases, with two exceptions: (1) when a void
sentence has been imposed, and (2) when the judgment contains a clerical error.”
State v. Roehrig, 3d Dist. Defiance No. 4-15-15, 2015-Ohio-5187, ¶ 9, citing State
v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 14 and State v. Burton, 12th
Dist. Clermont No. CA2013-09-071, 2014-Ohio-1692, ¶13.
1 Sutherly did not file a supplemental brief addressing the questions contained in this court’s February 17, 2016 order.
-4- Case No. 1-15-34
{¶11} Crim.R. 36 grants trial courts the power to correct clerical mistakes
in a judgment sua sponte. A clerical error or mistake has been defined as “a
mistake or omission, mechanical in nature and apparent on the record, which does
not involve a legal decision or judgment.” State v. Lester, 130 Ohio St.3d 303,
2011-Ohio-5204, ¶ 18. Importantly, “While courts have inherent authority to
correct clerical errors in judgment entries so that the record speaks the truth, nunc
pro tunc entries are limited in proper use to reflecting what the court actually
decided, and not what the court might or should have decided or what the court
intended to decide.” (Emphasis sic) State v. Waltz, 12th Dist. Clermont No.
CA2013-10-077, 2014-Ohio-2474, ¶ 16, citing Lester at ¶ 18.
{¶12} Clerical errors are not limited to mistakes made by a clerk. Rather,
“[t]he phrase merely describes the type of error identified with mistakes in
transcription, alteration or omission of any papers and documents which are
traditionally or customarily handled or controlled by clerks but which papers or
documents may be handled by others.” Oliva v. Maurer, 8th Dist. Cuyahoga No.
60298, 1991 WL 68857, *1 (May 2, 1991). “A decision as to whether the file
stamp date on a document is incorrect would certainly fall under Civ.R. 60(A).”
State v. Miller, 4th Dist. Ross Nos. 99CA2506, 00CA2539, 2000 WL 1273467, *2
(Aug. 31, 2000) (analyzing whether the incorrect date on the file stamp constituted
a clerical error).
-5- Case No. 1-15-34
{¶13} The December 10, 2014 dismissal, in this case, was a valid judgment.
It did not involve Sutherly’s sentence. Therefore, the only way the trial court
could reconsider its decision was if there was a clerical error contained in the
dismissal. The State argues that the officer’s return of the summons as being
expired constituted a clerical error. We are not persuaded.
{¶14} Although the officer may have made a mistake by returning the
summons as expired when, in reality, it was not expired, there is no possible way
to interpret this mistake as a clerical error for the purposes of Crim.R. 36.
Corrections made under either Crim.R. 36 or Civ.R. 60(A) are appropriate so that
the record speaks the truth. Therefore, in one case, a nunc pro tunc entry was
appropriate to correct the filing date of a petition for post-conviction relief
originally found to have been untimely filed. See Miller at *2. In Miller, the
petition was received by the clerk’s office on August 2, but was file stamped on
August 3. Id. at *1. This caused the defendant’s petition to be untimely, and
therefore his Civ.R. 60(A) motion should have been granted. Id.
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[Cite as State v. Sutherly, 2016-Ohio-1574.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-15-34
v.
CODY J. SUTHERLY, OPINION
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court Trial Court No. 14CRB3763
Judgment Reversed
Date of Decision: April 18, 2016
APPEARANCES:
Joseph A. Benavidez for Appellant
John R. Payne for Appellee Case No. 1-15-34
ROGERS, J.
{¶1} Defendant-Appellant, Cody Sutherly, appeals the judgment of the
Lima Municipal Court convicting him of one count of public indecency and
sentencing him to 180 days in jail, 90 of which were suspended, and imposing a
fine and court costs. On appeal, Sutherly argues that the verdict was not supported
by sufficient evidence. Further, he argues that the verdict was against the manifest
weight of the evidence. For the reasons that follow, we reverse the judgment of
the trial court.
{¶2} On October 27, 2014, a criminal complaint was filed in the Lima
Municipal Court charging Sutherly with one count of public indecency in violation
of R.C. 2907.09(A)(3), a misdemeanor of the first degree. An amended complaint
was filed on November 14, 2014, charging Sutherly with the same crime, but
omitted reference to the degree of misdemeanor being charged.
{¶3} On December 10, 2014, the case was dismissed without prejudice
because the State had failed to serve Sutherly with the Summons. This dismissal
was vacated, purportedly due to a clerical error, on December 16, 2014.
{¶4} Sutherly entered a plea of not guilty on December 26, 2014.
{¶5} The matter proceeded to a jury trial held on August 7, 2015. After
deliberating, the jury found Sutherly guilty of public indecency. The case
proceeded immediately to sentencing. The trial court sentenced Sutherly to 180
-2- Case No. 1-15-34
days in jail, 90 of which were suspended, and imposed a fine of $250 and court
costs.
{¶6} Sutherly filed this timely appeal, presenting the following assignment
of error for our review.
Assignment of Error
THE JURY ERRED IN FINDING APPELLANT GUILTY AS THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF [SIC] EVIDENCE AND THERE WAS INSUFFICIENT EVIDENCE TO HAVE FOUND ALL ESSENTIAL ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT.
{¶7} Before we can address the merits of Sutherly’s appeal, we must first
determine if the trial court possessed jurisdiction to vacate its dismissal of the
amended complaint. Although jurisdiction was not raised by anyone in this case,
this court is “bound to raise any jurisdictional questions not raised by the parties.”
Levinsky v. Boardman Twp. Civ. Serv. Comm., 7th Dist. Mahoning No. 04 MA 36,
2004-Ohio-5931, ¶ 26. Accordingly, on February 17, 2016, this court issued an
entry ordering the parties to brief the following two issues: (1) whether the “error,”
which served as the trial court’s basis for vacating the dismissal, was in fact
clerical; and (2) whether the trial court retained jurisdiction to vacate its previous
order.
{¶8} On February 29, 2016, the State filed a motion to supplement the
appellate record pursuant to App.R. 9(D). In its motion, the State sought to
-3- Case No. 1-15-34
include a copy of the original summons, which included a file stamp performed by
the officer charged with servicing the summons, that it argued would clarify the
State’s position. Specifically, the State argued that the “clerical error” was when
the officer file stamped and returned the summons to the clerk’s office for the
reason of being expired on December 1, 2014. The summons was filed in the
clerk’s office on December 2, 2014. However, the time had not expired as of
December 1, 2014. Thus, the State seeks to supplement the record to include a
copy of the original summons to the amended complaint, which shows the file
stamp prepared by the officer. Upon review, the State’s motion to supplement the
record is granted.
{¶9} The same day, the State filed its supplemental brief addressing the
questions posed by this court.1
{¶10} “It is well-settled that trial courts lack authority to reconsider their
own valid judgments in criminal cases, with two exceptions: (1) when a void
sentence has been imposed, and (2) when the judgment contains a clerical error.”
State v. Roehrig, 3d Dist. Defiance No. 4-15-15, 2015-Ohio-5187, ¶ 9, citing State
v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 14 and State v. Burton, 12th
Dist. Clermont No. CA2013-09-071, 2014-Ohio-1692, ¶13.
1 Sutherly did not file a supplemental brief addressing the questions contained in this court’s February 17, 2016 order.
-4- Case No. 1-15-34
{¶11} Crim.R. 36 grants trial courts the power to correct clerical mistakes
in a judgment sua sponte. A clerical error or mistake has been defined as “a
mistake or omission, mechanical in nature and apparent on the record, which does
not involve a legal decision or judgment.” State v. Lester, 130 Ohio St.3d 303,
2011-Ohio-5204, ¶ 18. Importantly, “While courts have inherent authority to
correct clerical errors in judgment entries so that the record speaks the truth, nunc
pro tunc entries are limited in proper use to reflecting what the court actually
decided, and not what the court might or should have decided or what the court
intended to decide.” (Emphasis sic) State v. Waltz, 12th Dist. Clermont No.
CA2013-10-077, 2014-Ohio-2474, ¶ 16, citing Lester at ¶ 18.
{¶12} Clerical errors are not limited to mistakes made by a clerk. Rather,
“[t]he phrase merely describes the type of error identified with mistakes in
transcription, alteration or omission of any papers and documents which are
traditionally or customarily handled or controlled by clerks but which papers or
documents may be handled by others.” Oliva v. Maurer, 8th Dist. Cuyahoga No.
60298, 1991 WL 68857, *1 (May 2, 1991). “A decision as to whether the file
stamp date on a document is incorrect would certainly fall under Civ.R. 60(A).”
State v. Miller, 4th Dist. Ross Nos. 99CA2506, 00CA2539, 2000 WL 1273467, *2
(Aug. 31, 2000) (analyzing whether the incorrect date on the file stamp constituted
a clerical error).
-5- Case No. 1-15-34
{¶13} The December 10, 2014 dismissal, in this case, was a valid judgment.
It did not involve Sutherly’s sentence. Therefore, the only way the trial court
could reconsider its decision was if there was a clerical error contained in the
dismissal. The State argues that the officer’s return of the summons as being
expired constituted a clerical error. We are not persuaded.
{¶14} Although the officer may have made a mistake by returning the
summons as expired when, in reality, it was not expired, there is no possible way
to interpret this mistake as a clerical error for the purposes of Crim.R. 36.
Corrections made under either Crim.R. 36 or Civ.R. 60(A) are appropriate so that
the record speaks the truth. Therefore, in one case, a nunc pro tunc entry was
appropriate to correct the filing date of a petition for post-conviction relief
originally found to have been untimely filed. See Miller at *2. In Miller, the
petition was received by the clerk’s office on August 2, but was file stamped on
August 3. Id. at *1. This caused the defendant’s petition to be untimely, and
therefore his Civ.R. 60(A) motion should have been granted. Id. at *3.
{¶15} On the date the officer file stamped the summons as being “returned
unserved,” Sutherly had yet to be served with the summons. There was no
inaccuracy in that respect. In regard to clerical errors, courts are most concerned
with having the record accurately reflect what actually occurred. Here, there is
nothing in the record to suggest that the officer inadvertently returned the
-6- Case No. 1-15-34
summons for failure to serve Sutherly when he or she had, in fact, served Sutherly.
Rather, the face of the summons clearly shows that Sutherly was not served at the
time the summons was returned. Although the servicing officer was incorrect with
his or her conclusion that the time for service had expired, this does not change the
fact that the summons was returned as being unserved. Nunc pro tunc entries are
only appropriate to correct the record so that it speaks the truth. In this case, the
summons speaks the truth because Sutherly had not been served when it was
returned.
{¶16} Irrespective of our finding that the mistake in this case did not
constitute a clerical error, the State argues that the trial court retained jurisdiction
because the court’s original dismissal was a voidable judgment. Assuming,
arguendo, that the State is correct in its opinion that the original dismissal was
voidable, this does not change the outcome of this case. A voidable judgment
remains a binding legal judgment unless the party seeking to invalidate the
judgment takes the proper steps to do so. See State v. Holcomb, 184 Ohio App.3d
577, 2009-Ohio-3187, ¶ 7 (9th Dist.), quoting Tari v. State, 117 Ohio St. 481, 493-
494 (1927). In this case, no motion or appeal was filed by the State attacking the
validity of the dismissal. Rather, the trial court, sua sponte, vacated its earlier
dismissal. Thus, we find that the dismissal remains a final judgment in this case.
-7- Case No. 1-15-34
{¶17} Further, this court has recently found that a trial court lacks
jurisdiction to reopen a case, sua sponte, which was previously dismissed. See
E.H v. T.S., 3d Dist. Hardin No. 6-15-07, 2015-Ohio-5444, ¶ 5. We see no reason
to find otherwise in this case. Thus, the trial court lacked jurisdiction to vacate its
previous dismissal. As a result, Sutherly’s conviction and sentence are rendered
void.
{¶18} Given our resolution of the case, Sutherly’s assignment of error is
rendered moot. App.R. 12(A)(1)(c).
{¶19} Having found error prejudicial to Sutherly, we reverse Sutherly’s
conviction and sentence.
WILLAMOWSKI, J., concurs in judgment only.
SHAW, P.J., dissents.
/jlr
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