[Cite as State v. Mackey,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 10-CA-74 : : MAHOGANY MACKEY : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Licking County Court of Common Pleas Case No. 09CR649

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 23, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BRIAN WALTZ ERIN J. McENANEY Assistant Prosecuting Attorney Burkett & Sanderson, Inc. 20 South Second Street 21 West Church Street Fourth Floor Suite 201 Newark, Ohio 43055 Newark, Ohio 43055 [Cite as State v. Mackey,

.]

Edwards, J.

{¶1} Appellant was indicted on two counts of Trafficking in Crack Cocaine

within the vicinity of a juvenile, felonies of the fourth degree, in violation of R.C.

2925.03(A)(1)(C)(4)(b), one count of Possession of Marijuana, a minor misdemeanor, in

violation of R.C. 2925.11(A)(C)(3)(a), and one count of Possession of Crack Cocaine, a

felony of the fifth degree, in violation of R.C. 2925.11(A)(C)(4)(d).

{¶2} On November 17, 2009, a confidential information purchased crack

cocaine on two separate occasions from Appellant in front of her children. When

Appellant was interviewed by police, she was found to be in possession of a small

amount of marijuana. When she was arrested, officers found her to be in possession of

.39 grams of crack cocaine. Appellant entered guilty pleas on all counts and was

sentenced to terms of one year in prison on each count of Trafficking in Cocaine. A fine

of $100 was imposed on the minor misdemeanor Possession of Marijuana count. She

also received a sentence of nine months on the Possession of Cocaine count. The

sentences were ordered served consecutive to one another for a total term of

incarceration of two years and nine months.

{¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967),

, rehearing den. (1967),

,

indicating that the within appeal was wholly frivolous and setting forth one proposed

Assignments of Error.

{¶4} Counsel for Appellant raises the following potential assignment of error: Licking County App. Case No. 10-CA-74 3

{¶5} “I. THE TRIAL COURT ERRER (SIC) IN SENTENCING APPELLANT TO

A PRISON TERM OF TWO YEARS AND NINE MONTHS.”

{¶6} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.

{¶7} Counsel in this matter has followed the procedure in Anders v. California

(1967),

, we find the appeal to be wholly frivolous and grant counsel’s

motion to withdraw. For the reasons which follow, we affirm the judgment of the trial

court:

I

{¶8} In her only assignment of error, Appellant argues the trial court erred in

issuing a nunc pro tunc entry which ordered Appellant to serve the sentences on each

count to be served consecutive to one another. There are two sentencing entries filed

in this case. In the initial sentencing entry filed on April 6, 2011, the Court did not Licking County App. Case No. 10-CA-74 4

indicate the sentences on counts 1, 2, and 4 were to be served consecutive to one

another. The trial court issued a Nunc Pro Tunc sentencing entry on June 17, 2011,

which ordered the sentences on these counts to be served consecutively.

{¶9} At the actual sentencing hearing held on April 6, 2010, the trial court

stated, “And on the basis of that report, I will today impose on the first – each of the first

two counts terms of one year in the state penitentiary. A $100.00 fine on the third

count, marijuana possession. And a nine-month sentence on the crack cocaine charge

to run consecutively with each other for a term of two years and nine months.”

{¶10} The trial court’s judgment entry of April 6, 2011 does not accurately reflect

the sentence which was orally imposed. The nunc pro tunc entry did, however, reflect

the sentence imposed by the trial court at the sentencing hearing.

{¶11} “Although trial courts generally lack authority to reconsider their own valid

final judgments in criminal cases, they retain continuing jurisdiction to correct clerical

errors in judgments by nunc pro tunc entry to reflect what the court actually decided.

State ex rel. Cruzado v. Zaleski,

,

,

; Crim.R. 36 (“Clerical mistakes in judgments, orders, or other parts of the

record, and errors in the record arising from oversight or omission, may be corrected by

the court at any time”). State ex rel. Womack v. Marsh (Ohio, 2011),

,

2.

{¶12} “Pursuant to Crim.R. 36, “[c]lerical mistakes in judgments, orders, or other

parts of the record, and errors in the record arising from oversight or omission, may be

corrected by the court at any time.” “[C]ourts possess inherent authority to correct

clerical errors in judgment entries so that the record speaks the truth.” State ex rel. Licking County App. Case No. 10-CA-74 5

Cruzado v. Zaleski,

,

,

.

“[N]unc pro tunc entries ‘are limited in proper use to reflecting what the court actually

decided, not what the court might or should have decided.’ ” Mayer,

,

,

, quoting State ex rel. Fogle v. Steiner (1995),

,

.” State ex rel. DeWine v. Burge (Ohio, 2011),

, 3.

{¶13} “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.’” Cruzado,

,

,

,

quoting State v. Brown (2000),

,

.”

State v. Miller (2010),

,

.

{¶14} It is clear the initial sentencing entry did not reflect the sentence imposed

by the trial court. The trial court was permitted to issue a nunc pro tunc entry because

the first sentencing entry omitted the reference to consecutive sentences. We find the

nunc pro tunc entry did correct a clerical error and did not involve a legal decision or

judgment. For this reason, Appellant’s assignment of error is overruled. Licking County App. Case No. 10-CA-74 6

{¶15} For these reasons, after independently reviewing the record, we agree

with counsel's conclusion that no arguably meritorious claims exist upon which to base

an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant

counsel's request to withdraw, and affirm the judgment of the Fairfield County Court of

Common Pleas.

By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/as0407 [Cite as State v. Mackey,

.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : MAHOGANY MACKEY : : Defendant-Appellant : CASE NO. 10-CA-74

For the reasons stated in our accompanying Memorandum-Opinion on file, the

Judgment of the Licking County Court of Common Pleas is affirmed. Counsel’s Motion

to Withdraw is granted. Costs assessed to appellant.

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JUDGES