State v. Vera-Lopez

2024 Ohio 4971

• Court: Ohio Court of Appeals
• Decided: October 15, 2024
• Docket: 2024-A-0021
• Status: Published

Opinion

[Cite as State v. Vera-Lopez, 2024-Ohio-4971.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2024-A-0021

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

NELSON VERA-LOPEZ, Trial Court No. 2023 CR 00050 Defendant-Appellant.

OPINION

Decided: October 15, 2024 Judgment: Reversed and remanded

Colleen M. O’Toole, Ashtabula County Prosecutor, and Mark Majer, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Donald K. Pond, Jr., P.O. Box 0097, Uniontown, OH 44685 (For Defendant-Appellant).

EUGENE A. LUCCI, P.J.

{¶1} Appellant, Nelson Vera-Lopez, appeals the judgment of the Ashtabula

County Court of Common Pleas, convicting him, after entering a plea of guilty, on one

count of Possession of Heroin, a felony of the third degree, and Aggravated Possession

of Drugs, a felony of the fifth degree. At issue is whether Vera-Lopez’s plea was entered

knowingly, intelligently, and voluntarily. We conclude the trial court did not err in advising

Mr. Vera-Lopez of his constitutional and non-constitutional rights and thus his plea of

guilty is valid. We, however, reverse and remand on separate grounds. {¶2} Mr. Vera-Lopez was originally indicted on the following counts: Possession

of Heroin, in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(6)(d), a felony of the

second degree, with a forfeiture specification, pursuant to R.C. 2941.1417(A); Aggravated

Possession of Drugs, in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(1)(a), a felony

of the fifth degree, with a forfeiture specification, pursuant to R.C. 2941.1417(A); and

Possessing Criminal Tools, in violation of R.C. 2923.24(A) and R.C. 2923.24(C), a felony

of the fifth degree.

{¶3} After plea negotiations, Mr. Vera-Lopez entered into a plea agreement,

pleading guilty to an amended count of Possession of Heroin, a felony of the third degree,

including the forfeiture specification, and Aggravated Possession of Drugs, a felony of the

fifth degree, including the forfeiture specification.1 The trial court accepted Mr. Vera-

Lopez’s guilty plea and dismissed the Possession of Criminal Tools charge.

{¶4} The trial court held a sentencing hearing and the parties jointly

recommended community control sanctions to the court. On January 19, 2024, the trial

court sentenced Mr. Vera-Lopez to five years of community control supervision, including

an eight-month community residential sanction in the Ashtabula County Jail. On January

30, 2024, Mr. Vera-Lopez, via counsel, moved the court to modify the final entry on

sentence. He maintained that the eight-month jail term imposed exceeded the maximum

jail sentence of six months authorized by statute. See R.C. 2929.16(A)(2). The motion

was unopposed and, on February 6, 2024, the trial court issued a nunc pro tunc

1. Both parties acknowledge Mr. Vera-Lopez pleaded guilty to an amended count of felony-three Possession of Heroin. The trial court accepted Mr. Vera-Lopez’s plea to the amended felony-three count, and he was sentenced on that count during the sentencing hearing. The trial court’s judgment entry on sentence, however, incorrectly reflects that Mr. Vera-Lopez entered a plea of guilty to Possession of Heroin, “a felony of the fourth degree[.]” (Emphasis sic.) 2

Case No. 2024-A-0021 sentencing entry purporting to correct the error. The trial court subsequently ordered a

six-month jail sentence consistent with R.C. 2929.16(A)(2), keeping intact the remaining

aspects of the previously-imposed sentence. Mr. Vera-Lopez noticed the instant appeal

on February 16, 2024 and assigns the following as error:

{¶5} “The trial court erred by accepting the guilty plea of appellant [Vera-]Lopez.

[Vera-]Lopez entered an unknowing, unintelligent, and involuntary plea.”

{¶6} Under his assigned error, Mr. Vera-Lopez argues the trial court failed to fully

or substantially comply with Crim.R. 11 by not advising him at the plea hearing that

community control supervision could include a potential six-month term of residential

incarceration in jail. Mr. Vera-Lopez contends that the six-month term represents the

maximum sentence he could receive during community control, and the trial court was

consequently required to advise him of the potential term of incarceration. He therefore

claims, by virtue of the trial court’s omission, his plea was not knowingly, intelligently, and

voluntarily entered. We do not agree.

{¶7} Initially, we must address a matter not advanced by either party on appeal.

Specifically, the trial court’s February 6, 2024 “nunc pro tunc” entry represented a

substantive, albeit downward, modification of Mr. Vera-Lopez’s sentence.

{¶8} The “‘purpose of a nunc pro tunc order is to have the judgment of the court

reflect its true action.’” In re Tyler C., 2008-Ohio-2207, ¶ 72 (6th Dist.), quoting McKay

v.McKay, 24 Ohio App.3d 74, 75 (11th Dist. 1985). The power to enter a judgment nunc

pro tunc is restricted to placing upon the record evidence of judicial action which has

actually been taken. State ex rel. Mayer v. Henson, 2002-Ohio-6323, ¶ 14. Moreover, a

nunc pro tunc entry is inappropriate when it reflects a substantive change in the judgment.

Case No. 2024-A-0021 State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97, 100 (1996). Put differently, “a nunc

pro tunc order shall not modify a court’s judgment or render a decision on a matter when

none was previously made.” (Citation omitted.) State v. Jama, 2010-Ohio-4739, ¶ 14

(10th Dist.). When a court exceeds its power in entering a nunc pro tunc order, the

resulting nunc pro tunc order is invalid. National Life Ins. Co. v. Kohn, 133 Ohio St. 111,

113-114 (1937).

{¶9} Here, trial counsel for Mr. Vera-Lopez filed a “motion to modify” his sentence

because the maximum, statutory term allowed on a community residential sanction is six

months. See R.C. 2929.16(A)(2). The trial court in this case clearly intended to impose

an eight-month jail term. The downward modification to reflect the proper statutory jail

term was an invalid modification via a nunc pro tunc entry.

{¶10} The trial court imposed a sentence not authorized by statute. This, however,

did not affect the trial court’s subject matter jurisdiction to impose sentence. See State v.

Honzu, 2023-Ohio-2833, ¶ 28 (11th Dist.), quoting State ex rel. Crangle v. Summit Cty.

Common Pleas Court, 2020-Ohio-4871, ¶ 10 (“An argument that the trial court imposed

a sentence not authorized by statute ‘challenges the exercise of jurisdiction and if true

would render [Mr. Honzu’s] sentence voidable, not void.’”). Normally, we would only

consider issues that were raised on appeal. Nonetheless, we have discretion to sua

sponte notice plain error. See State v. Durr, 2012-Ohio-4691, ¶ 26 (4th Dist.) (sua sponte

recognizing plain error when trial court incorrectly stated that portion of offender’s

sentence was mandatory); State v. Slagle, 65 Ohio St.3d 597, 604 (1992) (observing

that Crim.R. 52 “allows the appellate court, at the request of appellate counsel or sua

Case No. 2024-A-0021 sponte, to consider a trial error that was not objected to when that error was a ‘plain

error’”).

{¶11} For a reviewing court to find plain error (1) there must be an error, i.e., “a

deviation from a legal rule,” (2) the error must be plain, i.e., “an ‘obvious’ defect in the trial

proceedings,” and (3) the error must have affected “substantial rights,” i.e., it must have

affected the outcome of the proceedings. (Citations omitted.) State v. Barnes, 2002-Ohio-

68, 27. The deviation from the legal rule relating to nunc pro tunc entries was an obvious

defect. Moreover, the improper entry fundamentally affected the proceedings as the

purported action resulted in an invalid entry. The trial court’s erroneous use of a nunc pro

tunc entry is therefore plain error.The trial court’s exercise of its jurisdiction was contrary

to law. The trial court lacked jurisdiction to modify its final judgment, i.e., a trial court’s

jurisdiction ends once the sentencing entry is final. See State v. Carlisle, 2011-Ohio-

6553, ¶ 1 (“[A]bsent statutory authority, a trial court is generally not empowered to modify

a criminal sentence by reconsidering its own final judgment.”) see also State v. Gilbert,

2014-Ohio-4562, ¶ 8, quoting State v. Lester, 2011-Ohio-5204, paragraph one of the

syllabus. (“Crim.R. 32(C) lists the requirements for a valid final judgment in a criminal

case. It provides that a judgment must set forth the fact of the conviction, the sentence,

the judge’s signature, and the time stamp indicating that the clerk entered the judgment

in the journal. We have said that such a judgment is a ‘final order subject to appeal

under R.C. 2505.02.’”)

{¶12} Even though Mr. Vera-Lopez has served his six-month jail term, the trial

court must conduct a resentencing hearing because the nunc pro tunc entry was invalid.

Post re-hearing, the trial court may also correct the clerical error in its original judgment

Case No. 2024-A-0021 to accurately reflect that Mr. Vera-Lopez pleaded guilty to a felony-three, not a felony-

four, count of Possession of Heroin.

{¶13} With this in mind, Mr. Vera-Lopez perfected his appeal of the original

judgment on sentence within the 30-day window required by rule (the original final order

was entered on January 19, 2024 and the notice of appeal was filed on February 16,

2024). We shall therefore address the merits of his argument relating to the entry of his

plea.

{¶14} Pursuant to Crim.R. 11(C)(2)(c), the constitutional rights of which a

defendant waives as the result of a guilty plea and must be informed are: (1) the right to

a jury trial; (2) the right to confront witnesses against him; (3) compulsory process for

obtaining witnesses in his favor; (4) the right to require the state to prove the defendant’s

guilt beyond a reasonable doubt at trial; and (5) the right a defendant possesses not to

be compelled to testify against himself. State v. Veney, 2008-Ohio-5200, ¶ 19. If the trial

court fails to strictly comply with these requirements, the defendant’s plea is invalid. Id. at

¶ 31.

{¶15} The non-constitutional rights of which a defendant must be informed are:

(1) the nature of the charges; (2) the maximum penalty involved, which includes, if applicable, an advisement on post- release control; (3) if applicable, that the defendant is not eligible for probation or the imposition of community control sanctions; and (4) that after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing.” State v. Haudenschild, 2024-Ohio-407, ¶ 33 (5th Dist.), citing Crim.R. 11(C)(2)(a). A court need only substantially comply with the non-constitutional notifications to satisfy Crim.R.11(C)(2)(a).

State v. Nero, 56 Ohio St.3d 106, 108 (1990).

Case No. 2024-A-0021 {¶16} The Supreme Court has clarified this standard, requiring that three

questions be answered: “(1) has the trial court complied with the relevant provision of the

rule? (2) if the court has not complied fully with the rule, is the purported failure of a type

that excuses a defendant from the burden of demonstrating prejudice? and (3) if a

showing of prejudice is required, has the defendant met that burden?” State v. Dangler,

2020-Ohio-2765, ¶ 17.

{¶17} Given the language of Crim.R. 11(C)(2)(a), the advisements relate not to

rights unto themselves, but to facts, statutory or otherwise, that a defendant will be

subject, to the extent he or she knowingly, voluntarily, and intelligently understands these

matters as they relate to his or her case.

{¶18} In this matter, there is no question that the trial court strictly complied with

the constitutional components of Crim.R. 11. Mr. Vera-Lopez seizes on the trial court’s

failure to expressly notify him that a six-month jail term could be part of a community-

control sanction. We conclude that Mr. Vera-Lopez’s argument is an attempt to judicially

engraft an additional notification into Crim.R. 11(C)(2)(a) that is not a substantive

requirement.

{¶19} At the plea hearing, the trial court asked Mr. Vera-Lopez whether it was his

understanding and intention to enter a guilty plea to Possession of Heroin, a third-degree

felony with the forfeiture specification, and Aggravated Possession of Drugs, a fifth-

degree felony with a forfeiture specification. Mr. Vera-Lopez stated the trial court’s

recitation reflected his understanding and intention. The trial court also advised Mr. Vera-

Lopez that the third-degree felony is punishable by up to 36 months incarceration in a

prison and the fifth-degree felony is punishable by up to 12 months incarceration in prison.

Case No. 2024-A-0021 The trial court further advised Mr. Vera-Lopez it could sentence him consecutively for a

maximum term of 48 months in prison. Mr. Vera-Lopez acknowledged these advisements

and asserted it was his understanding and intention to enter the plea.

{¶20} Furthermore, after making the advisements, the trial court asked Mr. Vera-

Lopez whether his attorneys discussed with him the possible penalties that it could

impose. He acknowledged on record his attorneys did so. The trial court then asked one

of Mr. Vera-Lopez’s attorneys whether she was satisfied that he was entering the plea

knowingly, intelligently, and voluntarily. His attorney answered in the affirmative.

{¶21} In addition to advising Mr. Vera-Lopez of the maximum penalty he could

receive, the trial court informed him of the nature and extent of post-release control.

During this aspect of the colloquy, the trial court stated post-release control would be

relevant if the court elected to sentence Mr. Vera-Lopez to prison. Mr. Vera-Lopez stated

that he understood the mechanics of post-release control and, in so doing, again

acknowledged he could go to prison by entering the plea.

{¶22} The trial court recognized Mr. Vera-Lopez was eligible for community

control sanctions. It also emphasized that, even though the state and defense had

recommended community control, it was not bound by any sentencing recommendation.

The court categorically stated that it is “free to impose whatever sentence [it] believe[d]

to be appropriate up to the maximum sentence permitted by law.” Mr. Vera-Lopez stated

he understood the court was not bound by any sentencing recommendation.

{¶23} During the plea colloquy, the trial court clearly and unequivocally advised

Mr. Vera-Lopez of the maximum penalty. The trial court also underscored it was not

obligated to follow any sentencing recommendation, even if it was a joint

Case No. 2024-A-0021 recommendation. We discern no error in the trial court’s advisements during the plea

colloquy. Indeed, the trial court not only complied with Crim.R. 11(C)(2)(a), it strictly

complied with the rule.

{¶24} Simply because the trial court did not advise Mr. Vera-Lopez of the

possibility of the community residential sanction of a jail term of six months does not imply

it failed to advise him of the maximum penalty it could impose in light of the crimes to

which he pleaded. The court met its burden during the plea colloquy. It was not required

to explore every conceivable nuance of the statutory sentencing scheme to comply with

Crim.R. 11(C)(2)(a) and its requirement that a defendant be informed of the maximum

penalty involved. It did so.

{¶25} Appellant’s assignment of error lacks merit.

{¶26} Because the trial court’s sentencing entry improperly reflects the jail term

Mr. Vera-Lopez could serve and the nunc pro tunc entry is invalid, the matter must be

remanded to the trial court for re-sentencing to accurately depict the amount of jail-time

Mr. Vera-Lopez could (and did) serve in this matter.

{¶27} The judgment of the Ashtabula County Court of Common Pleas is reversed

and remanded.

MATT LYNCH, J.,

JOHN J. EKLUND, J.,

concur.

Case No. 2024-A-0021