Opinion
C.A. 29681 29682
06-30-2021
STATE OF OHIO Appellee v. SAFAA A. AL-ZERJAWI Appellant
NEIL P. AGARWAL, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 06 07 2714
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
LYNNE S. CALLAHAN JUDGE.
{¶1} Appellant, Safaa Al-Zerj awi, appeals an order that amended his order of conviction and sentence and an order that denied a subsequent motion to vacate. This Court affirms.
I.
{¶2} In 2007, Mr. Al-Zerjawi pleaded guilty to numerous offenses, including two counts of attempted murder that were each accompanied by a firearm specification. The trial court's sentencing order, which was journalized on February 8, 2007, sentenced Mr. Al-Zerjawi on counts one and two "for a definite period of Five (5) Years on two counts, which are not a mandatory term pursuant to [R.C.] 2929.13(F), 2929.14(D)(3), or 2925.01, for punishment of the crime of ATTEMPTED MURDER[.]" The trial court also sentenced him to mandatory seven-year prison terms for each of the accompanying firearm specifications. Explaining how Mr. Al-Zerjawi's prison terms would be served, the trial court wrote:
IT IS FURTHER ORDERED that the 7-years mandatory sentence imposed in this case for the FIREARM SPECIFICATION ONE TO COUNT ONE be served CONSECUTIVELY and not concurrently with sentences imposed in Counts 1 and 2.
IT IS FURTHER ORDERED that the sentence imposed in Counts 1, 5, 7, 8, 9, 10, 11, and 14 be served CONCURRENTLY and not consecutively with each other.
Mr. Al-Zerjawi did not file a direct appeal.
{¶3} On February 18, 2015, Mr. Al-Zerjawi filed a motion for judicial release. By that time, a successor judge had taken the bench. The trial court denied Mr. Al-Zerjawi's motion on March 19, 2015. Shortly thereafter, the trial court sua sponte "amended" the sentencing order by adding the following language: "IT IS FURTHER ORDERED that the sentences imposed in Counts 1 and 2 be served CONSECUTIVELY and not concurrently with each other, for a total prison term of 17 years." Mr. Al-Zerjawi moved the trial court to vacate the amended order on October 17, 2019, arguing that the amendment was not a nunc pro tunc correction and, consequently, that the trial court lacked jurisdiction to modify his sentence. Another successor judge had taken the bench by the time Mr. Al-Zerjawi filed that motion. On February 10, 2020, the trial court denied the motion to vacate, concluding that the amended order "reflected the true action of the [c]ourt and was not a modification."
{¶4} Mr. Al-Zerjawi appealed the trial court's order that denied his motion to vacate and requested leave to file a delayed appeal from the 2015 amended order. This Court granted him leave to appeal and consolidated his two appeals.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ISSUING A NUNC PRO TUNC SENTENCING JOURNAL ENTRY.
{¶5} In his only assignment of error, Mr. Al-Zerjawi argues that the trial court erred by modifying his sentence in the 2015 amended order. Consequently, with respect to his delayed appeal from that order, Mr. Al-Zerjawi maintains that the amended order should be vacated.
Mr. Al-Zerjawi also argues that this Court should reverse the trial court's decision that denied his motion to vacate the amended order.
{¶6} A trial court loses the authority to amend or modify a sentence once the sentence has been executed-or, in other words, once the defendant has been delivered to the institution where the sentence will be served. State v. Carr, 167 Ohio App.3d 223, 2006-Ohio-3073, ¶ 3 (3d Dist). A sentence that has been executed can only be modified when the sentence itself is void or when a clerical error is present. State v. Bellamy, 181 Ohio App.3d 210, 2009-Ohio-888, ¶ 10 (2d Dist.). See also State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 23, overruled on other grounds, State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, ¶ 5, 18. In this case, the parties do not contend that the 2007 sentencing order was void. Our analysis, therefore, turns on whether the amendment made in 2015 corrected a clerical error.
{¶7} Although the trial court did not specify that the amended order set forth an amendment nunc pro tunc, it appears that the trial court intended to act pursuant to Crim.R. 36, which permits a court to correct "[clerical mistakes in judgments * * * at any time." Nunc pro tunc orders function to make the record reflect the truth. State v. Senz, 9th Dist. Wayne No. 02CA0016, 2002-Ohio-6464, ¶ 12, citing Reinbolt v. Reinbolt, 112 Ohio St. 526, 532 (1925). Nunc pro tunc orders "are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided or what the court intended to decide." State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164 (1995). They cannot correct or modify an existing judgment. Senz at ¶ 12. When the record of sentencing clarifies what the trial court actually decided, clerical errors in a sentencing entry can be corrected through a nunc pro tunc entry. See State v. Ibn-Ford, 9th Dist. Summit No. 27380, 2015-Ohio-753, ¶ 8, citing State v. Neumann-Boles, 9th Dist. Medina No. 12CA0069-M, 2013-Ohio-3968, ¶ 8-10.
{¶8} Although Mr. Al-Zerjawi requested a transcript of proceedings from his sentencing hearing in 2007, that transcript is not available because the court reporter's record no longer exists. In conjunction with his appeal from the trial court's order denying his motion to vacate the amended order, Mr. Al-Zerjawi filed a statement of evidence pursuant to App.R. 9(C). The trial court's order adopting the App.R. 9(C) statement noted the practical difficulties inherent in settling and approving a statement of evidence in this case-namely, the turnover on the trial bench since Mr. Al-Zerjawi's conviction that resulted in multiple trial court judges presiding over his case and the unavailability of the sentencing transcript. In light of those challenges, the trial court adopted a statement of the evidence that merely restated what is apparent from the record. Consequently, the App.R. 9(C) statement is of limited usefulness in resolving the question presented. It is well established that this Court may presume regularity and affirm the trial court's judgment when an appellant fails to ensure that the record contains all that is necessary for our review. State v. Jalwan, 9th Dist. Medina No. 09CA0065-M, 2010-Ohio-3001, ¶ 12, citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). In this case, however, it is not necessary to resort to this presumption because Mr. Al-Zerjawi's argument fails based on the record before this Court.
Although this Court consolidated the appeals for purposes of briefing and oral argument, the trial court's App.R. 9(C) statement pertains to the subject matter of both appeals.
{¶9} The State maintains that the 2007 sentencing order, on its face, required the sentences for counts one and two to be served consecutively. Consequently, the State's position is that the 2015 amendment was a nunc pro tunc order because it restated what the trial court had already decided-and, from the State's point of view, had already expressed.
{¶10} Mr. Al-Zerjawi was sentenced in 2007. At that time, as a result of the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, there was no statutory presumption in favor of concurrent sentences, and trial courts had the discretion to order consecutive sentences without judicial factfinding. See generally State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 17-19; State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, ¶ 18. Thus, at the time of Mr. Al-Zerjawi's sentencing, the common-law presumption in favor of consecutive sentences was reinstated. See Olmsted Falls v. Clifford, 8th Dist. Cuyahoga No. 100375, 2014-Ohio-2397, ¶ 10; State v. Johnson, 8th Dist. Cuyahoga No. 93004, 2010-Ohio-2214, ¶ 7, fn 3. See generally State ex rel Stratton v. Maxwell, 175 Ohio St. 65, 67 (1963) ("[I]n the absence of an affirmative act by the court multiple sentences run consecutively and not concurrently."). Compare State v. Butcher, 4th Dist. Meigs No. 14CA7, 2015-Ohio-4249, ¶ 26 (considering ambiguity in the context of felony sentences under current law).
{¶11} The fact that the trial court emphasized that a five-year term was imposed on each of the two counts, standing alone, is not dispositive: individual prison terms are required for each offense, whether they are to be served concurrently or consecutively. See generally State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, paragraph two of the syllabus. Similarly, the trial court's emphasis on the consecutive nature of the corresponding firearm specifications does not speak to the sentences on counts one and two themselves. Nonetheless, at the time that Mr. Al-Zerj awi was sentenced, the law presumed that sentences would be served consecutively unless the trial court made an affirmative decision to the contrary. Given this presumption, and the silence of the sentencing entry on this point, the trial court's 2015 amendment reflected what was actually decided in the 2007 sentencing order, and the nunc pro tunc amendment was appropriate. See Steiner, 74 Ohio St.3d at 164. To the extent that Mr. Al-Zerjawi's assignment of error argues, with respect to the delayed appeal, that the 2015 order must be vacated, his assignment of error is overruled on this basis. With respect to the appeal from the trial court's order that denied his motion to vacate, the trial court did not err, and Mr. Al-Zerjawi's assignment of error is also overruled on this basis.
Although we have concluded that under the circumstances present in this case, the 2015 amendment reflected what the trial court actually decided, it nonetheless affected a substantial right because it did not merely correct a clerical error or restate the information contained in the sentencing entry. See State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶ 20 (noting that a nunc pro tunc entry that "affected only the form of the entry and made no substantive changes[]" could not be appealed.). To the contrary, it affected "'a matter of substance.'" See In re E.B., 1st Dist. Hamilton No. C-150351, 2016-Ohio-1507, ¶ 8-13, quoting Brush v. Hassertt, 2d Dist. Montgomery No. 21687, 2007-Ohio-2419, ¶ 10-11. See generally R.C. 2505.02(B)(1). Accordingly, we do not dismiss Mr. Al-Zerjawi's appeal from the 2015 amendment for lack of jurisdiction. But see State v. Johnson, 9th Dist. Summit Nos. 28515, 28822, 2018-Ohio-2004, ¶ 18-23.
III.
{¶12} Mr. Al-Zerjawi's assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
HENSAL, P. J. CARR, J. CONCUR.