Opinion
No. 107887
05-23-2019
STATE OF OHIO, Plaintiff-Appellee, v. JERMONE J. CARRINGTON, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony Thomas Miranda, Assistant Prosecuting Attorney, for appellee. Jermone J. Carrington, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-13-576768-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony Thomas Miranda, Assistant Prosecuting Attorney, for appellee. Jermone J. Carrington, pro se. SEAN C. GALLAGHER, J.:
{¶ 1} Jermone J. Carrington appeals the denial of his motion for a final appealable order, in which Carrington claimed that the trial court was required to conduct a new sentencing hearing before issuing the nunc pro tunc entry as ordered in Carrington's direct appeal. In State v. Carrington, 8th Dist. Cuyahoga No. 100918, 2014-Ohio-4575, ¶ 39, Carrington's convictions for two counts of felonious assault, both of which included three-year firearm specifications, and the resulting 19-year aggregate term of imprisonment were affirmed. The aggregate term of incarceration was achieved through the base sentences being imposed consecutive to one another and consecutive with the sentences imposed on the firearm specifications. Although the consecutive sentencing findings under R.C. 2929.14(C)(4) were made at the time of the sentencing hearing, the trial court inadvertently omitted the findings from the final entry of conviction. Id. at ¶ 38. Under the authority of State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37, the matter was remanded for the specific, and limited, purpose of the trial court issuing a nunc pro tunc entry of final conviction to reflect that which occurred at the sentencing hearing. Carrington at ¶ 38. The trial court complied with this mandate.
{¶ 2} Following the trial court's compliance with the order of remand, Carrington filed a motion attempting to force a sentencing hearing before the court issued the nunc pro tunc, final order. The trial court ultimately denied Carrington's motion, which was captioned as a motion for a final appealable order, in which Carrington claims the right to appeal the nunc pro tunc entry rendered upon remand. Carrington is mistaken.
{¶ 3} Correcting the sentencing entry through a nunc pro tunc entry does not create a new final, appealable order. Bonnell at ¶ 31, citing State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 20. The failure to incorporate the statutory, consecutive sentence findings in the final sentencing entry after properly making the findings at the sentencing hearing does not render the consecutive sentence as being contrary to law. Id. at ¶ 30. It is simply a clerical mistake that can be corrected through the administrative procedure of issuing a nunc pro tunc entry. Id. The Carrington court recognized this and remanded the matter for the limited purpose of including the consecutive sentence findings into the final entry of conviction through a nunc pro nunc entry. That entry, although journalized on June 2, 2016, was in actuality effective as of the original sentencing entry in November 25, 2013, via the nunc pro tunc mechanism.
{¶ 4} In accordance therewith, the new sentencing entry, entered nunc pro tunc, does not extend the time to file an appeal from the original judgment of conviction, nor does it create a new right to appeal. Id.; State v. Garner, 8th Dist. Cuyahoga No. 106933, 2019-Ohio-250, ¶ 11. A nunc pro tunc judgment entry is issued "for the sole purpose of complying with Crim.R. 32(C)" in order "to correct a clerical omission in a final judgment entry[,]" but that entry "is not a new final order from which a new appeal may be taken." Lester at ¶ 20. The trial court's clerical omission, corrected through the issuance of a nunc pro tunc entry, is not an order from which Carrington can appeal.
{¶ 5} We note, however, that the trial court "merged" the sentences on the firearm specifications into one sentence. The trial court lacked authority to impose the sentences in that manner in this case. Under R.C. 2929.14(B)(1)(g), if the offender is convicted, as pertinent to this case, of felonious assault and another felony offense to which firearm specifications are attached, the trial court must impose separate sentences on the two most serious specifications under R.C. 2929.14(B)(1)(a), to be served consecutively. State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 7; State v. Sheffey, 8th Dist. Cuyahoga No. 98944, 2013-Ohio-2463, ¶ 28; State v. Steele, 10th Dist. Franklin No. 18AP-187, 2018-Ohio-3950, ¶ 12; State v. Rouse, 9th Dist. Summit No. 28301, 2018-Ohio-3266, ¶ 11. The trial court has no authority to disregard the statutory mandate. State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2013-Ohio-1785, ¶ 10; State v. Isreal, 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876, ¶ 73. Normally, a sentence that is not imposed in accordance with statutorily mandated terms is void. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 8.
{¶ 6} A void sentence "may be reviewed at any time, on direct appeal or by collateral attack." Id. at ¶ 40; State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 9. Time, however, is a factor. A void sentence, although reviewable, may not be modified at "any time." Young v. Bunting, 3d Dist. Marion Nos. 9-13-46, 9-13-47, 2014-Ohio-3671, ¶ 41, quoting Holdcraft at ¶ 15 (Rogers, J. concurring). Once the prison sanction has been served, finality in the sentence prevents a court from modifying the sentence for that crime even to correct a void sentence. Id. at ¶ 42, quoting Holdcraft at ¶ 18.
{¶ 7} The trial court "merged" the sentences related to the firearm specifications at the sentencing hearing, ostensibly under R.C. 2941.25. The concept of merger applies as between separate counts and not to the sentencing enhancements attached to an individual count. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 219. The sentences on firearm specifications cannot be merged or imposed concurrently; either the trial court is required or authorized to impose the sentences under R.C. 2929.19(B), or it lacks authority to impose separate sentences for multiple firearm specifications if the underlying felonies were committed as part of the same act or transactions. R.C. 2929.19(B)(1)(b). There is an exception under R.C. 2929.19(B)(1)(g). In this case, the trial court was required to impose sentences on the two most serious firearm specifications, the sentences that were to be served consecutive to each other and the base sentences. Thus, the "merger" of the sentence on the second firearm specification was not authorized by law and is void.
{¶ 8} Carrington served the "merged" portion of the sentence for the firearm specification. The "void" aspect of Carrington's sentence was limited to the sentences imposed for the firearm specifications. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 17, 36 (holding that the improper imposition of postrelease control does not infect the valid parts of the conviction and sentence, and stating that resentencing is limited to properly imposing postrelease control). "[O]nce a valid prison sanction has been served, it is no longer res judicata that acts as a bar to modification; rather, the court has lost jurisdiction to modify the sentence." (Emphasis sic.) Holdcroft at ¶ 14. Because Carrington served the sentence on the merged firearm specifications, he is entitled to finality in that compartmentalized portion of the final sentence. No court may modify the sentence on the firearm specifications at this juncture. Holdcraft at ¶ 18.
{¶ 9} Nevertheless, the trial court did not err in denying Carrington's motion for a final appealable order. We affirm.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
SEAN C. GALLAGHER, JUDGE MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR