Opinion
2022-P-0064 2022-P-0065
06-30-2023
STATE OF OHIO, Plaintiff-Appellee, v. JOHN C. THOMPSON, Defendant-Appellant.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee). John C. Thompson, pro se, (Defendant-Appellant).
Criminal Appeals from the Court of Common Pleas Trial Court Nos. 2016 CR 00294 2016 CR 00900
Judgment: Affirmed and remanded
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).
John C. Thompson, pro se, (Defendant-Appellant).
OPINION
EUGENE A. LUCCI, J.
{¶1} Appellant, John C. Thompson, appeals the judgment of the Portage County Court of Common Pleas, converting his criminal restitution order into a civil order. At issue is whether the trial court properly incorporated the original restitution order into his criminal sentencing judgment entry thereby empowering the court to convert the restitution order into a civil order. We affirm and remand the matter.
{¶2} Appellant originally pleaded guilty to various crimes in two separate cases to charges of passing bad checks, misuse of credit cards, and theft. At appellant's plea hearing, the prosecutor set forth the factual bases and represented to the court that the state and appellant had jointly agreed to a sentence of 10 years' imprisonment. The prosecutor also stated on record that the parties had agreed that appellant would be subject to a restitution order. Neither appellant nor counsel objected to these representations. Moreover, prior to sentencing, the prosecutor again confirmed that the parties agreed upon a monetary amount for restitution. The prosecutor noted the figure was over "a half million dollars * * * to approximately somewhere around 26 to 28 different victims." Again, neither appellant nor defense counsel objected.
{¶3} Appellant was sentenced to 10 years imprisonment and ordered to pay $512,852.51 in restitution to the victims of his crimes. The monetary amount of the restitution order was set forth in a July 5, 2017 judgment on sentence and each victim, and what he or she was owed, was memorialized in an exhibit attached to the judgment, which was incorporated into that judgment. Appellant appealed the judgment and this court reversed and remanded the matter. See State v. Thompson, 11th Dist. Portage Nos. 2018-P-0076, 2018-P-0077, 2019-Ohio-5407 ("Thompson I "). This court determined appellant's plea was invalid based upon the trial court's failure to fully comply with Crim.R. 11(C).
{¶4} On remand, appellant and the state negotiated a plea and sentencing agreement. The trial court accepted the plea and, via a December 31, 2020 judgment, imposed an aggregate term of five years' imprisonment. The court additionally ordered restitution to the victims. The trial court specifically stated "[t]he Court finds the Defendant shall pay restitution through Adult Probation to the victims as it is stated in Case 2016 CR 900 attached as EX 1." The trial court, however, did not provide a monetary amount of restitution in the judgment entry, nor did it attach the exhibit which specifically itemized the amounts owed to each victim.
{¶5} The matter later proceeded to a hearing on October 2, 2022 wherein the state requested the trial court to convert its criminal restitution order into a civil judgment so the victims would have a civil judgment to enforce should they choose to so proceed. Defense counsel did not object to converting the restitution order to a civil judgment. The state referenced the exhibit set forth in the original judgment on conviction and pointed out the total amount of restitution is $512,852.51. Neither appellant nor defense counsel objected to these points. The trial court ultimately converted the criminal order to a civil order and memorialized the amount in a judgment entry.
{¶6} Appellant now appeals assigning the following as error:
{¶7} "[1.] The trial court committed prejudicial error in converting a criminal restitution order from a prior sentencing order that has been replaced by subsequent nunc pro tunc sentencing order.
{¶8} "[2.] The trial court violated appellant's rights under the Double Jeopardy Clauses of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution, when it filed a 'Judgment Entry' dated October 4, 2022 ordering appellant to pay $512,852.51 in restitution, after appellant's lawfully-imposed final sentence had already been journalized and execution of the sentence had commenced and completed."
{¶9} Appellant claims that the trial court's failure to attach the exhibit to the December 2020 judgment, enumerating the victims and the amount of restitution owed to each, essentially negated any order of restitution. As a result, he claims, to the extent there was no criminal restitution order, the trial court could not convert the non-existent order into a binding civil restitution order. While appellant's argument is technically persuasive, given the record in this case, we conclude there was sufficient evidence establishing the amount of restitution, the victims to which it was owed, and appellant's agreement to financial sanctions throughout these proceedings to support the trial court's action.
{¶10} As detailed above, throughout the proceedings, appellant agreed to the imposition of restitution as well as the amount. Although the transcript of the December 2020 plea hearing and sentencing hearing was not filed in this matter, our record includes transcripts of the original plea and sentencing hearings. Our record also includes a transcript from the October 2022 "criminal-to-civil" conversion hearing. In each of these proceedings, the state openly represented that appellant agreed to pay the restitution amount at issue. At no point did appellant object to or take issue with this fundamental and important fact.
{¶11} "[A] stipulation is a voluntary agreement entered into between opposing parties concerning the disposition of some relevant point in order to avoid the necessity for proof on an issue." (Citations omitted.) Wilson v. Harvey, 164 Ohio App.3d 278, 2005-Ohio-5722, 842 N.E.2d 83, ¶ 12 (8th Dist.). "A stipulation may also be defined as a voluntary agreement, admission, or concession made by the parties or their attorneys concerning disposition of some relevant point to eliminate the need for proof or to narrow the range of issues to be litigated." (Citations omitted.) Id. See also McLeod v. McLeod, 11th Dist. Ashtabula No. 2012-A-0030, 2013-Ohio-4546, ¶ 32 (a stipulation is an agreement which "remove[s] an issue from the litigation"); State v. Martin, 6th Dist. Lucas No. L-01-1214, 2002 WL 597332, *2 (Apr. 18, 2002) (a party is bound to all matters of fact concerned in the stipulation).
{¶12} Under the circumstances, appellant's agreement to pay the restitution order functions as a factual stipulation. Even though this court held in Thompson I that appellant's original plea was invalid, that reversal was premised upon an error of law. The factual background and overlay which led to the disposition was not affected by the reversal. To hold otherwise would permit appellant to avoid a fundamental aspect of the plea negotiations and sentence to which he agreed and never voiced an objection. Moreover, it would frustrate, if not vitiate altogether, the ability of appellant's victims to obtain financial redress for the crimes to which he knowingly, voluntarily, and intelligently pleaded guilty. Such an outcome would be a manifest miscarriage of justice.
{¶13} Given these points, the record is clear, as a result of the plea negotiations and agreed sentencing recommendation (which the trial court accepted) that restitution was an essential part of appellant's sentence. Indeed, the trial court's December 2020 judgment entry and the judgment entry converting the criminal restitution order to a civil restitution order reflects the court's obvious intention to hold appellant financially accountable to his victims. Although the December 2020 order did not attach the exhibit that it purported to include and incorporate into the judgment, the statement in the judgment provides obvious evidence of the court's intention to do so. And, the exhibit was attached to the July 2017 order and thus part of our appellate record. There is therefore evidence of the amount of restitution as well as the itemization of the amount owed to each victim. We accordingly conclude that the trial court's failure to actually append the exhibit to the judgment entry was a mere oversight or mistake; put differently, the omission was a clerical error.
{¶14} A clerical error or mistake is defined as "a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment." (Citations omitted.) State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 18. "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." Id., citing State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15.
{¶15} Under the circumstances, we hold that the trial court's failure to attach the exhibit setting forth the relevant amounts owed to the specific victims was a mistaken omission the correction of which is mechanical in nature apparent from the record and does not involve an actual legal decision. In light of this conclusion, we hold the restitution order remains valid and the trial court's conversion of the same to a civil judgment must be affirmed. Because, however, the record must be corrected, we remand the matter to the trial court to enter a nunc pro tunc judgment in which it will attach the exhibit to which it originally referred to correct the clerical omission.
{¶16} Given the foregoing analysis, appellant's double-jeopardy argument is rendered moot.
{¶17} Appellant's assigned errors lack merit.
{¶18} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is affirmed, but the matter is remanded to correct the clerical error identified in our analysis.
JOHN J. EKLUND, P.J., MARY JANE TRAPP, J., concur.