Court Holds That Correction Does Not Create a New 'Final Order' In Case
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State v. Lester, Slip Opinion No. 2011-Ohio-5204.
Auglaize App. No. 2-10-20. Judgment affirmed.
O'Connor, C.J., and Pfeifer and McGee Brown, JJ., concur.
Lundberg Stratton and O'Donnell, JJ., concur in part and dissent in part.
Lanzinger, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-5204.pdf
(Oct. 13, 2011) The Supreme Court of Ohio ruled today that when a trial court makes a “nunc pro tunc” (now for then) entry in its journal to correct a clerical omission in a prior judgment entry recording a criminal conviction, the correcting entry is not a new “final order” in the case that triggers a new right of appeal by the defendant.
In arriving at its decision, the Court modified its 2008 holding in State v. Baker and held that a judgment of conviction is a final order subject to appeal when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating that the judgment has been entered in the court’s journal.
The Court’s 4-3 majority opinion, authored by Justice Robert R. Cupp, affirmed a ruling by the 3rd District Court of Appeals.
The case involved Steven Lester of Auglaize County, who was convicted of multiple offenses in a 2006 jury trial and sentenced to a prison term to be followed by a term of postrelease control. In its journal entry recording that judgment, the trial court listed the offenses for which Lester had been convicted and the sentence imposed, but did not indicate whether the convictions were based on a guilty or no-contest plea, findings after a bench trial, or a verdict after a jury trial.
Lester appealed. The 3rd District Court of Appeals vacated part of his sentence because of an error in the postrelease control portion of the sentence. On remand, the trial court imposed the same prison term it had previously imposed and corrected the postrelease control portion of the sentence. In its revised sentencing entry, the court listed the offenses for which Lester had been convicted and the corrected sentence, but again did not indicate what type of court proceeding had resulted in his convictions. Lester filed a new appeal. The court of appeals affirmed the trial court’s sentence.
In April 2010 the trial court, on its own initiative, made a nunc pro tunc entry in its journal adding the information that Lester’s convictions were “pursuant to a verdict at Jury Trial returned on May 16, 2006.”
Lester filed a new notice of appeal, asserting that the insertion of the nunc pro tunc correcting entry in the court’s journal had created a “final order” in his case that triggered a new right of appeal. Prior to briefing, the 3rd District dismissed the appeal based on a finding that, because the nunc pro tunc entry had been made for the sole purpose of correcting a clerical omission to make the trial court’s journal accurately reflect what had actually occurred at trial, the correcting entry did not constitute a final order from which Lester had a right of appeal. Lester sought Supreme Court review of the case, and obtained certification of a conflict between the 3rd District’s ruling in his case and a 2010 decision of the 6th District, State v. Lampkin. The Supreme Court recognized the conflict and accepted Lester’s discretionary appeal.
Writing for the majority in today’s decision, Justice Cupp cited the requirement in Ohio Criminal Rule 32(C) that “(a) judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence.” He noted that in State v. Baker, a 2008 decision applying Crim.R. 32(C), the Court included language suggesting that a judgment entry should include “the manner of conviction: a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial.”
“(T)his foregoing sentence appears to have created confusion and generated litigation regarding whether a trial court’s inadvertent omission of a defendant’s ‘manner of conviction’ affects the finality of a judgment entry of conviction,” wrote Justice Cupp.
“(W)e begin by observing that the purpose of Crim.R. 32(C) is to ensure that a defendant is on notice concerning when a final judgment has been entered and the time for filing an appeal has begun to run. ... We further observe that Crim.R. 32(C) clearly specifies the substantive requirements that must be included within a judgment entry of conviction to make it final for purposes of appeal and that the rule states that those requirements ‘shall’ be included in the judgment entry of conviction. These requirements are the fact of the conviction, the sentence, the judge’s signature, and the entry on the journal by the clerk. All of these requirements relate to the essence of the act of entering a judgment of conviction and are a matter of substance, and their inclusion in the judgment entry of conviction is therefore required. Without these substantive provisions, the judgment entry of conviction cannot be a final order subject to appeal under R.C. 2505.02. A judgment entry of conviction that includes the substantive provisions places a defendant on notice that a final judgment has been entered and the time for the filing of any appeal has begun.
“In contrast, when the substantive provisions of Crim.R. 32(C) are contained in the judgment of conviction, the trial court’s omission of how the defendant’s conviction was effected, i.e., the ‘manner of conviction,’ does not prevent the judgment of conviction from being an order that is final and subject to appeal. Crim.R. 32(C) does not require a judgment entry of conviction to recite the manner of conviction as a matter of substance, but it does require the judgment entry of conviction to recite the manner of conviction as a matter of form. In this regard, the identification of the particular method by which a defendant was convicted is merely a matter of orderly procedure rather than of substance. A guilty plea, a no-contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial explains how the fact of a conviction was effected. Consequently, the finality of a judgment entry of conviction is not affected by a trial court’s failure to include a provision that indicates the manner by which the conviction was effected, because that language is required by Crim.R. 32(C) only as a matter of form, provided the entry includes all the substantive provisions of Crim.R. 32(C).”
Justice Cupp’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, and Evelyn Lundberg Stratton.
Justice Terrence O’Donnell entered a separate opinion, joined by Justice Yvette McGee Brown, in which he concurred with the Court’s holding that a judgment entry of conviction qualifies as a final order under Crim.R. 32(C) without stating the manner of a defendant’s conviction. He disagreed, however, with the majority’s further holding that Crim.R. 32(C) requires that such entries include the manner of a defendant’s conviction as a non-substantive “matter of form.”
Justice O’Donnell wrote: “The plain language of Crim.R. 32(C) requires only that ‘[a] judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence’; it does not direct a sentencing court to specify the manner of conviction. Rather, our decision in State v. Baker .... inadvertently added the requirement to specify the manner of conviction to Crim.R. 32(C). The majority makes an effort to sidestep this problem but unnecessarily complicates and compounds the error introduced in Baker by retaining a duty on the part of the sentencing court to specify the manner of conviction as a formal requirement. In my view, we should strike that part of Baker requiring sentencing courts to indicate the manner of conviction in the judgment of conviction and bring an end to the needless and meaningless litigation that ithas spawned, requiring appeals and rehearings all over the state.”
Justice Judith Ann Lanzinger entered a separate dissenting opinion in which she wrote: “Crim.R. 32(C) states what a judge shall do to enter a judgment of conviction that is subject to appeal. (In Baker) (w)e explained this rule and held pursuant to its clear wording: ‘A judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court.’ ... Lester’s sentencing entry did not contain the first required element. His judgment entry did not state the manner of his conviction − whether obtained through ‘a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial.’”
“ ... (U)nless Crim.R. 32(C) is amended to change ‘the plea, the verdict, or findings, upon which each conviction is based’ to ‘the fact of the conviction,’ the majority’s conclusion that the current phrase is a merely ‘a matter of form’ contradicts the rule. Plainly, it is as much of a requirement as the other elements. Either Crim.R. 32(C) means what it says or it does not.”
Contacts
Amy Otley Beckett: 419.739.6785, for the state and Auglaize County prosecutor's office.
Alexandra T. Schimmer, 614.995.2273, for the Ohio Attorney General.
Jon W. Oebker, 216.696.4884, for Stephen Lester.
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