[Cite as State v. Bishop,
2021-Ohio-4168.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110423
v. :
RICKY BISHOP, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: November 24, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-630164-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Warren W. Griffin, Assistant Prosecuting Attorney, for
appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Aaron
T. Baker, Assistant Public Defender, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Ricky Bishop appeals the trial court’s denial of
his motion to vacate the March 11, 2021 nunc pro tunc entry that corrected his
sentencing entry. Because Bishop had completed the prison sentence imposed by
the trial court prior to the court correcting the sentencing entry, the trial court erred
denying the motion to vacate. Accordingly, we reverse the judgment of the trial
court.
On February 21, 2019, Bishop was convicted of one count of
aggravated assault in violation of R.C. 2903.12(A)(1) and was sentenced to a 5-year
term of community control sanctions. The trial court notified Bishop that he could
serve an 18-month prison sentence if he violated the terms of his community control
sanctions. Bishop’s case was transferred to the Cuyahoga County Veterans Court
docket for supervision. Thereafter, the trial court held several community control
violation hearings between April 25, 2019, and September 19, 2019, in which the
trial court ordered additional sanctions, including residential community control
sanctions.
On April 28, 2020, the trial court issued a capias for Bishop’s arrest.
Bishop was arrested January 14, 2021, and on January 19, 2021, the trial court held
a violation hearing. The trial court found Bishop to be in violation of his community
control sanctions and ordered the previously imposed 18-month prison sentence
into execution. The January 19, 2021 journal entry filed by the trial court reads in
pertinent part:
The court finds that prison is consistent with the purpose of
R.C. 2929.11. Defendant terminated unsuccessfully from term of
community control sanctions and Veterans Treatment Court. It is
therefore, ordered that said defendant, Ricky Bishop, is now
sentenced to the Lorain Correctional Institution for a term of 8
month(s). Defendant to receive 179 jail time credit for time at the
CBCF. Defendant to receive 131 days jail time credit for time at county
jail. Defendant to receive an aggregate total of 310 days of jail time
credit and any time accrued while awaiting transport to Lorain
Correctional Institution.
(Emphasis added.)
On February 24, 2021, the Ohio Department of Rehabilitation and
Correction sent a letter to the trial court indicating that Bishop was admitted to their
custody, the 8-month sentence reflected in the January 19, 2021 sentencing journal
entry was served in full, and Bishop was to be released from custody on February 24,
2021. On that same date, the trial court filed a nunc pro tunc entry to replace the
January 19, 2021 sentencing journal entry. However, that nunc pro tunc entry
iterated the trial court imposed an 8-month prison sentence on January 19, 2021.
On March 11, 2021, the trial court issued a second nunc pro tunc entry
regarding the sentence. The March 11, 2021 entry reads in pertinent part:
The court finds that prison is consistent with the purpose of
R.C. 2929.11. Defendant terminated unsuccessfully from term of
community control sanctions and Veterans Treatment Court. It is
therefore, ordered that said defendant, Ricky Bishop, is now
sentenced to the Lorain Correctional Institution for a term of 18
month(s). Defendant to receive 179 jail time credit for time at the
CBCF. Defendant to receive 131 days jail time credit for time at county
jail. Defendant to receive an aggregate total of 310 days of jail time
credit and any time accrued while awaiting transport to Lorain
Correctional Institution.
(Emphasis added.)
On March 24, 2011, Bishop filed a motion to vacate the March 11, 2021
nunc pro tunc entry arguing that he served the 8-month prison sentence imposed
by the trial court’s January 19, 2021 sentencing entry in full on February 24, 2021,
and that the trial court could not increase the sentence by means of a nunc pro tunc
entry. The trial court obtained a transcript of the January 19, 2021 hearing, and on
April 11, 2021, denied Bishop’s motion, but suspended further execution of the
prison sentence pending any appeal. Bishop appeals the trial court’s denial of his
motion to vacate the March 11, 2021 nunc pro tunc entry.
Bishop raises one assignment of error, which reads:
The trial court erred in issuing its March 11, 2021 nunc pro tunc
journal entry, because it violated Mr. Bishop’s due process interest in
the finality of his sentence under U.S. Const. Amends. V, XIV, and
Ohio Const. Art. I, Sec. 10.
Bishop argues that because the trial court’s January 19, 2021 journal
entry imposed an 8-month term of incarceration that he served in full prior to
March 11, 2021, the trial court could not increase his sentence through a nunc pro
tunc order. The state argues that pursuant to Crim.R. 36, the trial court could
correct the January 19, 2021 sentencing entry at any time, even after Bishop had
served the sentence imposed by the original entry in full.
It is well settled law that a court speaks only through its journal. State
v. Steinke, 8th Dist. Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 45, citing Gaskins v.
Shiplevy,
76 Ohio St. 3d 380, 382,
667 N.E.2d 1194 (1996). It is also well settled law
that pursuant to Crim.R. 36, a court may correct clerical errors in its journal at any
time. State v. Sandidge, 8th Dist. Cuyahoga No. 109277,
2020-Ohio-1629, ¶ 7.
However, at issue in this case is not the court’s ability to issue a nunc pro tunc order
to reflect that it imposed an 18-month prison sentence on January 19, 2021, but
rather whether the trial court had the ability to issue that entry after Bishop had fully
served the 8-month prison sentence imposed in the January 19, 2021 journal entry.
In State v. Holdcroft, 137 Ohio St.3d 526,
2013-Ohio-5014,
1 N.E.3d
382,1 the Ohio Supreme Court was asked to consider whether a sentencing court
could impose postrelease control sanctions upon a defendant after the defendant
had fully served his prison sentence. The Ohio Supreme Court noted it “consistently
and repeatedly held that a trial court loses jurisdiction to resentence a defendant for
the purpose of imposing postrelease control once the defendant has served his entire
sentence of incarceration.” Id. at ¶ 5, citing Hernandez v. Kelly,
108 Ohio St.3d 395,
2006-Ohio-126,
844 N.E.2d 301, ¶ 32; State v. Bloomer,
122 Ohio St.3d 200, 2009-
Ohio-2462,
909 N.E.2d 1254, ¶ 70; State v. Simpkins,
117 Ohio St.3d 420, 2008-
Ohio-1197,
884 N.E.2d 568, State v. Bezak,
114 Ohio St.3d 94,
2007-Ohio-3250,
868
N.E.2d 961, ¶ 18. The Holdcroft Court found that
[n]either this court’s jurisprudence nor Ohio’s criminal-sentencing
statutes allow a trial court to resentence a defendant for an offense
when the defendant has already completed the prison sanction for
that offense.
Id. at ¶ 19
1We recognize that Holdcroft has been abrogated on other grounds by State v.
Hudson,
161 Ohio St.3d 166,
2020-Ohio-3849,
161 N.E.3d 608, and State v. Harper,
160 Ohio St.3d 480,
2020-Ohio-2913,
159 N.E.3d 248.
This court recently recognized the validity of that holding regarding
finality in State v. Smith, 8th Dist. Cuyahoga No. 109963, 2021-Ohio-3099, ¶ 20,
stating that “[t]he Ohio Supreme Court has explained that when a defendant has
fully served his or her sentence, the defendant enjoys an expectation of finality,
which prevents further modification.”
Further, neither the state nor Bishop filed an appeal of the January
19, 2021 entry in which the court imposed the 8-month sentence. We note that the
importance of finality in criminal sentences has been reinforced by the Ohio
Supreme Court’s recent holdings in State v. Hudson, 161 Ohio St.3d 166, 2020-
Ohio-3849,
161 N.E.3d 608, and State v. Harper,
160 Ohio St.3d 480, 2020-Ohio-
2913,
159 N.E.3d 248, in which postconviction challenges to an error in the
pronouncement of sentence that could have been raised on direct appeal are now
subject to being barred by the doctrine of res judicata. Hudson,
2020-Ohio-3849, ¶
16, Harper,
2020-Ohio-2913, ¶ 41. And we recognize that even unlawful sentences
can become final if not imposed in accordance with law. See State v. Henderson,
161 Ohio St.3d 285,
2020-Ohio-4784,
162 N.E.3d 776.
In this case, it is not contested that Bishop fully served the 8-month
prison sentence reflected in the January 19, 2021 journal entry before the trial court
attempted to correct its error on March 11, 2021. Because Bishop’s sentence was
fully served by March 11, 2021, the trial court was without jurisdiction to modify the
sentence. Accordingly, the trial court erred by denying Bishop’s motion to vacate
the nunc pro tunc entry. We sustain Bishop’s sole assignment of error.
Judgment reversed, and case remanded to the trial court with
instructions to vacate the March 11, 2021 nunc pro tunc entry.
It is ordered that appellant recover of 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.
____________________________
MICHELLE J. SHEEHAN, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EMANUELLA D. GROVES, J., CONCUR
