Medina County Courthouse

Wednesday, December 08, 2010

Court May Not Add Restitution to Criminal Sentence by Means of a 'Nunc pro Tunc' Journal Entry

When Restitution Was Not Part of Sentence as Pronounced and Journalized

State v. Miller, Slip Opinion No. 2010-Ohio-5705.
Cuyahoga App. No. 91543, 2009-Ohio-3307. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.

View oral argument video of this case.

(Nov. 30, 2010) The Supreme Court of Ohio ruled today that when a trial court fails to include restitution in the sentence that is pronounced on a criminal defendant at his sentencing hearing, or in the journal entry recording that sentence, the court may not later add restitution to that person’s sentence by means of a “nunc pro tunc” (now for then) entry amending the court’s journal.

The Court’s 7-0 decision, which reversed a ruling by the 8th District Court of Appeals, was written by Justice Maureen O’Connor.

Andrew Miller of Cleveland was indicted on two counts of felonious assault. Miller was offered a plea bargain based on his entry of a guilty plea to a single count of aggravated assault. During a discussion with Miller to ensure that he understood the consequences of his guilty plea, a visiting judge filling in for the judge to whom Miller’s case had been assigned indicated that his sentence would include community control, court costs, random drug tests and restitution to the victim of the assault. After consulting with his attorney, Miller indicated that he understood the plea bargain, and the court accepted his plea of guilty.

Two weeks later, at his sentencing hearing, the visiting judge sentenced Miller to an 18-month suspended prison term, community control and drug testing, but did not mention restitution. A written entry accurately recording Miller’s sentence as pronounced by the court, with no mention of restitution, was subsequently made in the court’s journal.

Almost two months later, the state filed a motion asking the court “to convene a hearing to determine restitution.” The state’s motion asserted that restitution to the victim in the amount of $20,409.35 was part of the plea agreement and that it had been “inadvertently omitted from the plea and sentencing orders.” Two months later, the trial court judge wrote on the motion, “The court, having been read the transcript of the plea proceedings by [the court reporter] is satisfied that [Miller] entered his guilty plea with full knowledge of and agreement to the restitution [amount] of $20,409.35; the court finds that the order of restitution was inadvertently omitted by the visiting judge at sentencing. The court therefore amends the sentencing entry to also include [restitution] of $20,409.35 . . .”

Miller appealed, asserting that the trial court had “abused its discretion by entering a restitution order after the final sentencing order had been journalized.” In a 2-1 decision, the 8th District Court of appeals affirmed the ruling of the trial court, holding that the trial court had “continued jurisdiction to correct clerical mistakes.” Miller sought and was granted Supreme Court review of the 8th District’s decision.

In today’s unanimous decision, Justice O’Connor wrote: “ … (A) trial court lacks the authority to reconsider its own valid, final judgment in a criminal case with two exceptions: (1) when a void sentence has been imposed, and (2) when the judgment contains a clerical error. State ex rel. Cruzado v. Zaleski … The court of appeals in this case suggested that the latter exception applied and that nothing more than a nunc pro tunc entry was invoked. Not so. A clerical error or mistake refers to ‘a mistake or omission, mechanical in nature and apparent on the record which does not involve a legal decision or judgment.’ … Although courts possess inherent authority to correct clerical errors in judgment entries so that the record speaks the truth, nunc pro tunc entries ‘are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided.’”

“The amended journal entry in this case may reflect what the trial court should have decided at sentencing. It does not reflect what the trial court did decide but recorded improperly. Thus, the use of the nunc pro tunc entry to impose restitution upon Miller was improper because it does not reflect the events that actually occurred at the sentencing hearing.”

“Notably, the determination of restitution entails a substantive legal decision or judgment and is not merely a mechanical part of a judgment. Restitution is a financial sanction, based on a victim’s economic loss, that is imposed by a judge as part of a felony sentence. … It is not an order that is so ‘mechanical in nature’ that its omission can be corrected as if it were a clerical mistake. … . The trial court improperly used a nunc pro tunc entry to impose a sanction on Miller that was not imposed by the visiting judge at sentencing. It was error to do so, and the court of appeals erred in affirming the order. We therefore reverse its decision and remand the cause to the trial court to vacate the nunc pro tunc order and the order of restitution.”

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County Prosecutor's Office.

John T. Martin, 216.443.3675, for Andrew Miller.

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