State v. Clausing

[Cite as State v. Clausing, 

.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellant,                :
                                                               No. 110776
                 v.                                  :

DENNIS CLAUSING,                                     :

                 Defendant-Appellee.                 :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: VACATED AND REMANDED
                 RELEASED AND JOURNALIZED: May 26, 2022


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-20-654800-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel T. Van, Assistant Prosecuting
                 Attorney, for appellant.

                 Cullen Sweeney, Cuyahoga County Public Defender, and
                 John T. Martin, Assistant Public Defender, for appellee.


FRANK DANIEL CELEBREZZE, III, P.J.:

                Plaintiff-appellant, the state of Ohio, brings this appeal challenging the

trial court’s six-year prison sentence for defendant-appellee Dennis Clausing’s rape

and gross sexual imposition convictions. Specifically, the state argues that the trial
court erred by failing to impose an indefinite sentence pursuant to the Reagan Tokes

Law (enacted through S.B. 201). After a thorough review of the record and law, this

court vacates the trial court’s sentence and remands the matter for resentencing

consistent with this opinion.

                      I. Factual and Procedural History

            On January 5, 2021, Clausing was charged in a 19-count indictment

with various sex offenses involving victim D.L. The indictment alleged that the

offenses were committed between June 1, 2019, and August 31, 2019 (Counts 1-7);

between June 1, 2020, and August 31, 2020 (Counts 8-18); and on or about

August 21, 2020 (Count 19).

            The parties reached a plea agreement. On June 23, 2021, Clausing pled

guilty to two counts of rape, felonies of the first degree, in violation of R.C.

2907.02(A)(2) (Counts 1 and 8), and gross sexual imposition, felonies of the third

degree, in violation of R.C. 2907.05(A)(4) (Counts 4 and 14). The remaining counts

were nolled. The trial court ordered a presentence-investigation report and set the

matter for sentencing.

            The trial court held a sentencing hearing on July 28, 2021. The trial

court sentenced Clausing to six years in prison: six years on Count 1, three years on

Count 4, six years on Count 8, and three years on Count 14. The trial court ordered

the counts to run concurrently with one another. The trial court classified Clausing

a Tier III sex offender/child offender and reviewed his reporting requirements. The

trial court’s sentencing entry was journalized on July 28, 2021.
             On August 25, 2021, the state filed the instant appeal challenging the

trial court’s sentence.

             On September 28, 2021, after the state perfected its appeal, the trial

court issued a nunc pro tunc sentencing entry “add[ing] the maximum term of 9

years of incarceration under Reagan Tokes Law.” The trial court’s September 29,

2021 nunc pro tunc sentencing entry provides, in relevant part, “Reagan Tokes

applies for a maximum term of 9 years of incarceration, and the minimum term

being 6.” The trial court did not specify whether the maximum prison term applied

to Counts 1, 8, or both.

             In this appeal, the state assigns one error for review:

      I. The trial court erred when it did not impose a sentence under S.B.
      201.

                               II. Law and Analysis

                                   A. Transcript

             As noted above, the state did not file a transcript of the trial court’s

proceedings. As a result, it is unclear if, and to what extent the Reagan Tokes Law

was discussed during the change-of-plea and sentencing hearings. Nor is it clear

why the trial court failed to impose an indefinite prison sentence under the Reagan

Tokes Law at sentencing (i.e., whether the trial court opined that it was

unconstitutional, that appellant was not convicted of any qualifying offenses,

whether it was merely an oversight, etc.).

      Pursuant to App.R. 9(B), the appellant has a duty to file the transcript
      from any lower court proceedings to the extent it is necessary for
      evaluation of the judgment being appealed. This court has consistently
      held that “[f]ailure to file the transcript prevents an appellate court
      from reviewing an appellant’s assigned errors. … Thus, absent a
      transcript or alternative record under App.R. 9(C) or (D), we must
      presume regularity in the proceedings below.” Lakewood v. Collins,
      8th Dist. Cuyahoga No. 102953, 

, ¶ 9. See also Knapp
      v. Edwards Laboratories, 

, 

      (1980) (“When portions of the transcript necessary for resolution of
      assigned errors are omitted from the record, the reviewing court has
      nothing to pass upon and thus, as to those assigned errors, the court
      has no choice but to presume the validity of the lower court’s
      proceedings and affirm.”).

Farmer v. Healthcare Bridge, 8th Dist. Cuyahoga No. 110469, 

.

             However, in the case sub judice, it is undisputed that the trial court did

not impose an indefinite prison sentence, pursuant to Reagan Tokes, during the

July 28, 2021 sentencing hearing. The trial court’s July 28, 2021 sentencing journal

entry, from which this appeal was filed, also did not impose an indefinite Reagan

Tokes sentence. It is well-established that a trial court speaks through its journal

entries. See State v. Brooke, 

, 

, 

. Accordingly, despite the state’s failure to file a transcript, the error raised in

this appeal may be considered from the record before us.

                                  B. Jurisdiction

              The state filed this appeal on August 25, 2021, appealing the trial

court’s July 28, 2021 sentencing journal entry. The state argues that the trial court

was without jurisdiction to subsequently issue the nunc pro tunc sentencing entry

on September 28, 2021. After reviewing the record, we agree.

      “‘[O]nce an appeal is perfected, the trial court is divested of jurisdiction
      over matters that are inconsistent with the reviewing court’s
      jurisdiction to reverse, modify, or affirm the judgment.’” State ex rel.
      Elec. Classroom of Tomorrow v. Cuyahoga County Court of Common
      Pleas, 

, 

, 

, ¶ 13, quoting
      State ex rel. Rock v. Sch. Emples. Ret. Bd., 

, 2002-
      Ohio-3957, 

, ¶ 8; see also State v. Washington, 

, 

, 

, ¶ 8 (“‘An appeal is
      perfected upon the filing of a written notice of appeal. … Once a case
      has been appealed, the trial court loses jurisdiction except to take
      action in aid of the appeal.’”), quoting In re S.J., 

,
      

, 

. This rule applies even where
      the appellate court ultimately determines that the order appealed from
      was not a final, appealable order and later dismisses the appeal for lack
      of jurisdiction. State ex rel. Elec. Classroom of 

.
      Thus, generally, the timely filing of a notice of appeal precludes a trial
      court from issuing further orders affecting matters at issue in the
      appeal. Where a trial court enters an order without jurisdiction, its
      order is void and a nullity. State v. Williamson, 8th Dist. Cuyahoga
      Nos. 100563 and 101115, 

, citing State v. Abboud,
      8th Dist. Cuyahoga Nos. 87660 and 88078, 

.

State v. Aarons, 8th Dist. Cuyahoga No. 110313, 

.

             The trial court’s nunc pro tunc sentencing entry in this matter directly

related to and affected matters assigned as error on appeal. Therefore, the trial

court’s nunc pro tunc sentencing entry was inconsistent with this court’s jurisdiction

to reverse, modify, or affirm the trial court’s judgment. See Aarons at ¶ 24.

              The trial court lacked jurisdiction to issue the nunc pro tunc

sentencing journal entry while the state’s appeal was pending. The trial court’s nunc

pro tunc sentencing entry is void. See Aarons at id.; see also State v. Schrader,

12th Dist. Fayette Nos. CA2019-12-025 and CA2019-12-026, 

(because trial court lacked jurisdiction to file amended sentencing entries while

appeal was pending, trial court’s amended sentencing entries had “no legal effect”);

State v. Ward, 

, 

, 

 (2d
Dist.) (trial court’s nunc pro tunc entry, entered after trial court was divested of

jurisdiction to correct error due to pending appeal, was a “nullity”).

              Furthermore, the trial court’s use of a nunc pro tunc sentencing entry

in this case was improper.

      Proper use of a nunc pro tunc entry is limited to correcting a clerical
      error in a judgment or order so that the record reflects what the court
      actually did or decided. See, e.g., Lester, 

, 2011-
      Ohio-5204, 

; State ex rel. Fogle v. Steiner, 

, 

 (1995); Chislton, 

; State v. Wright, 8th Dist. Cuyahoga No. 107213, 2019-Ohio-
      1361, ¶ 18. A nunc pro tunc entry cannot be used to supply omitted
      action or to indicate what the court might or should have done or
      intended to do. See, e.g., State v. Williams, 8th Dist. Cuyahoga No.
      109091, 

; State v. Abner, 8th Dist. Cuyahoga No.
      81023, 

, ¶ 22; see also Chislton, 

 (“A nunc pro tunc entry may be used only to reflect what actually
      happened. A nunc pro tunc entry may not be used to ‘change, modify,
      or correct erroneous judgments.’”), quoting Wright at ¶ 18. Thus, while
      a nunc pro tunc entry can be used to correct a sentencing entry to reflect
      the sentence the trial court actually imposed upon a defendant at a
      sentencing hearing, it cannot be used to “resentence” a defendant or to
      “impose a sanction that the court did not impose as part of the
      sentence” at the sentencing hearing. See, e.g., State v. Smith, 8th Dist.
      Cuyahoga No. 109963, 

; State v. Spears, 8th Dist.
      Cuyahoga No. 94089, 

, ¶ 10; Miller, 

, 

, 

; State v. Kirby, 9th Dist.
      Summit No. 27060, 

. “‘When a court exceeds its
      power in entering a nunc pro tunc order, the resulting nunc pro tunc
      order is invalid.’” State v. Walter, 8th Dist. Cuyahoga No. 104443,
      

, quoting State v. Senz, 9th Dist. Wayne No.
      02CA0016, 

, ¶ 12.

Aarons, 8th Dist. Cuyahoga 

.

              The trial court attempted to use a nunc pro tunc entry to supply

omitted action — the imposition of an indefinite sentence under the Reagan Tokes

Law. As noted above, it is undisputed that the trial court did not impose an
indefinite prison sentence, pursuant to Reagan Tokes, during the July 28, 2021

sentencing hearing. The trial court’s nunc pro tunc sentencing entry did not reflect

what actually occurred at the sentencing hearing. As a result, the trial court

exceeded its power in entering the nunc pro tunc sentencing entry, and the nunc pro

tunc sentencing entry is invalid.

              Based on the foregoing analysis, the trial court’s nunc pro tunc

sentencing entry is invalid and does not give rise to a final judgment of conviction

or a final appealable order.

              The instant appeal was not, however, filed from the trial court’s nunc

pro tunc sentencing entry. As noted above, the state filed this appeal from the trial

court’s July 28, 2021 sentencing journal entry, which is a final judgment of

conviction and a final appealable order. Accordingly, we will proceed to adjudicate

the merits of the state’s appeal.

                               C. Reagan Tokes Law

              In its sole assignment of error, the state argues that the trial court

erred when it failed to impose an indefinite prison sentence pursuant to the Reagan

Tokes Law. The record reflects that Clausing’s rape convictions on Counts 1 and 8,

first-degree felonies in violation of R.C. 2907.02(A)(2), were both qualifying

offenses subject to indefinite sentences.

              Clausing, on the other hand, argues that this court’s recent en banc

decision in State v. Delvallie, 

, 

 (8th Dist.), was

incorrect and that the trial court did not err by failing to impose an indefinite
sentence. In support of this argument, Clausing contends that the Reagan Tokes

Law violates the constitutional right to a trial by jury, separation of powers, and due

process.

              Pursuant to R.C. 2953.08(B)(2), the state has the right to appeal a

sentence if it is contrary to law. A sentence that fails to impose a mandatory

provision is contrary to law. See, e.g., State v. Underwood, 

,

, 

, ¶ 21.

              The Reagan Tokes Law provides that certain first- and second-degree

felonies are qualifying offenses subject to an indefinite sentencing scheme. R.C.

2929.14. When imposing prison terms for offenders with qualifying offenses, trial

courts are required to impose an indefinite sentence by imposing a stated minimum

prison term, as provided in R.C. 2929.14(A)(2)(a), and an accompanying maximum

prison term, as provided in R.C. 2929.144(B).

              This court has recently conducted en banc review of the

constitutionality of the Reagan Tokes Law. See Delvallie, 

, 

. In Delvallie, this court found “that the Reagan Tokes Law, as defined

under R.C. 2901.011, is not unconstitutional” and reaffirmed the principles

established in State v. Gamble, 

, 

 (8th Dist.), State v.

Simmons, 

, 

 (8th Dist.), and State v. Wilburn, 2021-

Ohio-578, 

 (8th Dist.). 

. This court overruled the

challenges presented by Clausing in this appeal to the constitutionality of the Reagan

Tokes Law.
              Although Clausing’s rape convictions on Counts 1 and 8 were both

qualifying offenses subject to indefinite sentences, the trial court imposed definite

six-year prison terms on both counts.       Accordingly, we find that the definite

sentences imposed by the trial court were contrary to law. See State v. McCalpine,

8th Dist. Cuyahoga No. 110665, 

, ¶ 6; State v. Primm, 8th Dist.

Cuyahoga Nos. 110479 and 110480, 

, ¶ 10

              The state’s sole assignment of error is sustained. The trial court’s

aggregate six-year prison sentence is vacated, and the matter is remanded to the trial

court for resentencing in accordance with S.B. 201.

              Judgment vacated and remanded.

      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.



FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR


N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in
Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes
Law are unconstitutional.