State v. Francys

[Cite as State v. Francys, 

.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                Nos. 101069, 101070, 101071



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  ROBERTO FRANCYS
                                                      DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
               Case Nos. CR-13-576036-A, CR-13-576114-A, CR-12-567867-A

        BEFORE:           McCormack, J., S. Gallagher, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: August 21, 2014
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Erica Barnhill
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant, Roberto Francys, pleaded guilty to numerous counts

of drug trafficking, drug possession, and possession of criminal tools and was sentenced

accordingly. In an issue that is dispositive of this consolidated appeal, Francys argues

that the trial court imposed a sentence in its journal entry that did not comport with the

sentence imposed at sentencing. We agree.

       {¶2} The state concedes the error in the journal entry, and our review of the

record substantiates the error. It appears that what was indicated in open court at the

sentencing hearing is not accurately reflected in the trial court’s journal entry. The

transcript of the sentencing hearing demonstrates that Francys was sentenced to “one year

each on Counts 5, 8, and 11, all trafficking offenses, all felonies of the fourth degree” to

be served concurrently. The sentencing entry, however, stated “12 years on Counts 5, 8,

and 11, each count concurrent to each other ….” It is clear from the record that the

trial court intended to impose a twelve-month sentence on Counts 5, 8, and 11, and the

statement in the journal entry indicating “twelve years” was a clerical error, especially

given the fact that the proper range of sentencing for a fourth-degree felony is 6 to 18

months. See R.C. 2929.14(A)(4).

       {¶3} Because our conclusion that the journal entry contained a clerical error with

respect to the actual sentence imposed, Francys’s second assignment of error alleging that

the trial court’s sentence was contrary to law is moot.
       {¶4} We also note, however, that the journal entry fails to explicitly reference the

count to which the statement at the beginning of the sentencing portion of the entry “3

years in prison (mandatory time), $7,500 mandatory fine” applies. We can discern from

the transcript of proceedings and the remaining language of the journal entry that the trial

court intended this statement to refer to Count 2. It appears that the reference to this

count was inadvertently omitted, and we conclude that this omission was merely a clerical

error that requires clarification.

       {¶5} While a court speaks through its journal entries, clerical errors may be

corrected at any time in order to conform to the transcript of the sentencing hearing.

State v. Steinke, 8th Dist. Cuyahoga No. 81785, 

, ¶ 47; Crim.R. 36.

Trial courts retain continuing jurisdiction to correct clerical errors in judgments by nunc

pro tunc entry to reflect what the court actually decided. In re D.P., 8th Dist. Cuyahoga

No. 100597, 

, citing State ex rel. Cruzado v. Zaleski, 

, 

, 

.

       {¶6} Accordingly, in light of the above, the judgment of the trial court is

affirmed and we remand the case for the trial court to correct its journal entry of January

31, 2014, nunc pro tunc, to (1) accurately reflect what the court actually decided — that

Francys’s sentence on Counts 5, 8, and 11 is one year each (or 12 months); and (2) clarify

that the statement in its journal entry providing “3 years in prison (mandatory time),

$7,500 mandatory fine” applies to Count 2.
       {¶7} This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

SEAN C. GALLAGHER, P.J., and
KENNETH A. ROCCO, J., CONCUR