[Cite as State v. Van Tielen,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2013-11-012

: OPINION - vs - 10/6/2014 :

JOHN VAN TIELEN, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. 2010-2037

Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street, Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

John Van Tielen, #A629095, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601, defendant-appellant, pro se

PIPER, J.

{¶ 1} Defendant-appellant, John Van Tielen, appeals a decision of the Brown County

Court of Common Pleas, denying his motion for resentencing.

{¶ 2} Van Tielen has twice been before this court on appeal, arguing issues specific

to his convictions for pandering sexually-oriented material involving a minor. Van Tielen was

arrested after a multi-state investigation was conducted regarding the sharing of child Brown CA2013-11-012

pornography over the internet. A search warrant was executed on Van Tielen's computer,

and officials located ten different photographs containing child pornography. Van Tielen was

indicted on ten counts of pandering sexually-oriented material involving a minor. Van Tielen

plead guilty to four of the counts, and the remaining six counts were dismissed. The trial

court ordered a presentence investigation, and later held a sentencing hearing.

{¶ 3} The trial court sentenced Van Tielen to six years on each of the counts to which

he pled guilty. Each six-year sentence was mandatory because Van Tielen had previously

been convicted of rape and attempted rape. The trial court ordered the sentences to run

consecutive to one another, for a total aggregate sentence of 24 years. However, the trial

court's original sentencing entry failed to indicate that the six-year sentences were

mandatory. Three days after the sentencing hearing, the trial court issued a nunc pro tunc

entry in which it corrected its previous sentencing entry by notating that each of the four six-

year sentences were mandatory.

{¶ 4} Van Tielen filed a direct appeal through counsel, alleging that the trial court

erred by running his sentences consecutive to one another. This court affirmed the trial

court's decision. State v. Van Tielen, 12th Dist. Brown No. CA2010-06-011 (accelerated

calendar judgment entry), appeal not accepted,

,

. Van

Tielen then moved with the trial court to withdraw his guilty pleas. The trial court denied the

motion, and Van Tielen appealed the trial court's denial of his motion to withdraw his guilty

pleas. This court again affirmed the trial court's decision. State v. Van Tielen, 12th Dist.

Brown No. CA2012-04-007,

, appeal not accepted,

,

.

{¶ 5} In 2013, Van Tielen filed another motion in the trial court, asking the court to

resentence him. Van Tielen argued that his sentence was void because the trial court

wrongly issued its nunc pro tunc entry indicating that each of the six-year sentences were -2- Brown CA2013-11-012

mandatory. The trial court denied Van Tielen's motion for resentencing. Van Tielen now

argues on appeal that the trial court erred in denying his motion for resentencing, raising the

following assignments of error.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE TRIAL COURT ABUSED IT'S [SIC] DISCRETION AND ERRED AS A

MATTER OF LAW, WHEREAS IT MISUSED A NUNC PRO TUNC ORDER TO CORRECT A

JUDGMENT OF CONVICTION THAT WAS UNLAWFUL.

{¶ 8} Van Tielen argues in his first assignment of error that the trial court improperly

denied his motion to vacate a void sentence because the trial court wrongly issued a nunc

pro tunc entry to correct the sentence imposed upon him.1

{¶ 9} According to Crim.R. 43(A)(1), "the defendant must be physically present at

every stage of the criminal proceeding and trial, including the impaneling of the jury, the

return of the verdict, and the imposition of sentence, except as otherwise provided by these

rules." Thus, if a defendant is sentenced, and then subsequently receives a new or different

sentence than that announced in open court, the defendant is entitled to be present for

resentencing. State v. Williams, 6th Dist. Lucas No. L-11-1084,

. However,

when a trial court issues a nunc pro tunc entry to correct an omission in its original

sentencing entry, the defendant is not required to appear before the trial court because no

resentencing has occurred and the nunc pro tunc entry merely serves as an accurate

reflection of what the court actually decided. State v. Ferrell, 8th Dist. Cuyahoga No. 85821,

.

{¶ 10} It is well-settled that trial courts possess the authority to correct errors in

1. The state's brief is limited only to arguing that Van Tielen's assignments of error should be overruled because his arguments are barred by res judicata. Despite the state's assertion, res judicata does not bar Van Tielen from arguing that his sentence is void, as such an argument is jurisdictional in nature and may be raised at any time. State v. Waltz, 12th Dist. Clermont No. CA2013-10-077,

. -3- Brown CA2013-11-012

judgment entries so that the record speaks the truth. State ex rel. Fogle v. Steiner,

(1995); Crim.R. 36. Errors subject to correction by the court include a

clerical error, mistake, or omission that is mechanical in nature and apparent on the record

and do not involve a legal decision or judgment. State v. Miller,

, 2010-

Ohio-5705, ¶ 15. Nunc pro tunc entries are used to make the record reflect what the court

actually decided and not what the court might or should have decided or what the court

intended to decide. State v. Lester,

,

. Therefore, when

a sentencing court issues a nunc pro tunc entry to reflect what was actually done in court, the

sentence is not modified and the defendant does not have to be brought back into court for

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

.

{¶ 11} The record is clear that the trial court sentenced Van Tielen to four six-year

sentences, with each of the sentences being mandatory because Van Tielen had previously

been convicted of rape and attempted rape. Despite the original sentencing entry's omission

of the word "mandatory" for each sentence, Van Tielen was well-aware that his sentences

were mandatory, even before he pled guilty to the charges. Moreover, the events that

occurred at the sentencing hearing demonstrate that the trial court imposed four, six-year

mandatory sentences.

{¶ 12} On Van Tielen's change of plea form, the possible sentences for each of the

four counts of pandering sexually-oriented material involving a minor are clearly stated, and

the word "yes" appears next to each possible sentence under the category of "MANDATORY

PRISON TERM." (Emphasis sic.) Beneath the charges and listing of possible sentences,

the form provides, "I understand the maximum penalty as set out above, and any mandatory

prison term during which I am NOT eligible for judicial release." (Emphasis sic.) Van Tielen

signed the change of plea form, and later acknowledged his signature on the form and his

understanding of the form's contents during the plea change hearing. -4- Brown CA2013-11-012

{¶ 13} During the plea hearing, and before Van Tielen changed his plea, the trial court

asked Van Tielen, "you also understand that any prison sentence that the Court selects is a

mandatory prison time?" Van Tielen answered, "Yes, Sir." The trial court went on to further

explain, "and the meaning to [sic] that to you should be two fold: A) that if I set the guilty

pleas that there will be a prison sentence as to each one of these counts; B) that they're

mandatory, which means there's no early release. Do you understand that?" Van Tielen

answered, "Yes, Sir."

{¶ 14} After the state read the facts into the record, the trial court reiterated within

each count that the prison sentence for each count would be mandatory given that Van

Tielen had previous convictions for rape and attempted rape. The trial court went through

each count that Van Tielen was pleading guilty to, one at a time, and specifically stated that

the first count "is a mandatory prison time case," the second count "again, it is a mandatory

prison time, and I've already explained that to you that I must send you to prison, and there

will be no early release," the third count "again, as a mandatory prison sentence, meaning I

must select a prison sentence and impose it, and you will not be subject to being released

early," and the fourth count, "it is again a mandatory prison sentence where I must choose a

prison sentence and impose it, and you're not subject to early release." After discussing the

mandatory nature of each individual count, the trial court expressly asked Van Tielen whether

he understood the consequences of a mandatory sentence. Each time, and after each

explanation, Van Tielen answered that he understood that his sentences were mandatory on

each count, and what that meant.

{¶ 15} We, of course, recognize that these statements were made at the plea hearing,

and that such did not constitute the actual sentence imposed by the trial court. However, the

statements made by the court and Van Tielen expressly demonstrate that the trial court was

required to impose a mandatory sentence on each count, and that Van Tielen understood -5- Brown CA2013-11-012

that each sentence would be mandatory. Moreover, and even at the sentencing hearing, the

trial court reiterated multiple times that Van Tielen was facing mandatory prison sentences,

and such mandatory sentences were imposed in open court and with Van Tielen's full and

complete understanding.

{¶ 16} The trial court opened the sentencing hearing by recognizing that the plea

hearing had occurred, and that the court was ready to proceed with sentencing. The court

specifically stated, "the Defendant having entered a plea of guilty on May 17, 2010 to four

counts of Pandering Obscenity – Obscene Material Involving a Minor in violation of

2907.322(A)(1), each being felonies of the second degree, each said being a mandatory

prison charges [sic]." (Emphasis added.) Later during the sentencing hearing, Van Tielen's

attorney was in the process of offering mitigation arguments, and mentioned the use of strict

community control standards to help Van Tielen deal with his sexual addictions. The trial

court interrupted Van Tielen's counsel and stated, "because of his prior convictions this is

mandatory prison time. I don't have a choice." Van Tielen's counsel replied, "I understand,

Your Honor. * * * I Understand." Once the state was afforded the opportunity to argue

sentencing, the state suggested a "prison term imposed in this matter." The trial court, once

again, reiterated, "I have to send him to prison. I can't consider community control. I can't

consider house monitoring or anything like that." Any time the parties tried to suggest

anything other than a mandatory prison term, the trial court clearly and expressly stated that

the prison time it was imposing was mandatory.

{¶ 17} During its colloquy regarding the purposes and principles of sentencing, the trial

court once again noted that given Van Tielen's prior convictions, "a mandatory term of

imprisonment is dictated" according to the sentencing statute. The court then reviewed the

horrific nature of the photographs that Van Tielen reproduced, including an "engorged male

penis being stuck through the vagina of an infant," and then imposed a six-year sentence on -6- Brown CA2013-11-012

each of the four counts.

{¶ 18} While it is true that the trial court expressly stated that the six-year sentence

specific to the first count was mandatory but did not use the word "mandatory" with the other

three counts, the trial court never pronounced a sentence that was non-mandatory. The trial

court clearly imposed mandatory sentences during the sentencing hearing, and its nunc pro

tunc entry corrected the previous error in its sentencing entry resulting from the failure to list

each sentence as being mandatory. The fact that the trial court inadvertently omitted the

word "mandatory" from its original sentencing entry did not render its sentence void, nor

cause the trial court's nunc pro tunc to constitute a new or different sentence for which

resentencing was required. The trial court neither expressly nor inherently vacated its

sentence, and it never imposed a new or greater sentence than that which was imposed at 2 sentencing.

{¶ 19} Because the nunc pro tunc entry conformed to everyone's understanding of

what the sentencing court had done, Van Tielen did not object to the trial court's nunc pro

tunc entry, nor did he raise the issue of the nunc pro tunc entry in either of his previous direct

appeals to this court. Van Tielen was well-informed by the trial court before and after he pled

guilty to the charges that he would face a mandatory sentence on each count. The trial court

stated as much, and Van Tielen was informed no less than five times on his plea change

2. While the dissent suggests that the majority opinion stands for the proposition that a nunc pro tunc entry can be based upon the sentencing court's intent, the majority does not rely upon the intent of the trial court. Instead, the sentencing transcript clearly indicates that the trial court imposed mandatory sentences for each and every count, and there was no need to infer the trial court's intent. The dissent is correct that a nunc pro tunc entry cannot be used to correct a void sentence just because a trial court had an intention that a sentence be mandatory. However, the majority opinion does not hold that a void sentence can be corrected by a nunc pro tunc entry. The majority opinion instead recognizes that in the case at bar, the trial court imposed mandatory sentences and then corrected an omission in its original entry via the nunc pro tunc, which it had the authority to do. The dissent also suggests that this court is limited to review only the sentencing court's verbatim pronouncement of sentence, and that it is improper to consider other aspects of sentencing when determining if use of a nunc pro tunc entry was proper. However, the Ohio Legislature expressly instructed appellate courts to review "the trial record in the case in which the sentence was imposed" and "any oral or written statements made to or by the court at the sentencing hearing at which the sentence was imposed" when reviewing a sentence. (Emphasis added.) R.C. 2953.08(F)(2)-(3). -7- Brown CA2013-11-012

form, six times during the plea change hearing, and five times during the sentencing hearing

that his sentences were mandatory. The nunc pro tunc entry issued by the trial court spoke

the truth of what occurred at sentencing, and corrected the omission from the original

sentencing entry.3

{¶ 20} The trial court's nunc pro tunc entry corrected an "oversight or omission." The

nunc pro tunc entry did not, however, involve a new legal decision or different judgment from

the one the trial court discussed at the sentencing hearing. The trial court recognized its

oversight/omission in the original entry, and correctly used the nunc pro tunc entry according

to Crim.R. 36 so that the record now speaks the truth of what occurred at sentencing.

{¶ 21} Sentencing courts have been given the ability to correct omissions in

sentencing entries, and are not required to call the defendant into open court upon the

issuance of a nunc pro tunc entry where that defendant was present when the sentence was

correctly imposed. Van Tielen was present when he was told his sentences were mandatory

so that his constitutional right to be present during sentencing was not violated by the

issuance of the corrective nunc pro tunc entry. As such, Van Tielen's first assignment of

error is overruled.

{¶ 22} Assignment of Error No. 2:

{¶ 23} THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S

MOTION TO RE-SENTENCE WITHOUT FINDINGS OF FACT OR CONCLUSIONS OF

LAW.

{¶ 24} Van Tielen argues in his second assignment of error that the trial court erred in

failing to provide findings of fact or conclusions of law when it denied his motion for

3. It appears that the dissent agrees Van Tielen was told his sentences were mandatory at the sentencing hearing, but disagrees with the timing because the trial court's pronouncement was at the beginning of the hearing. Regardless of the timing, the court's spoken words clearly reveal that the "omission" was only in the original entry, which was subsequently corrected by the nunc pro tunc entry. -8- Brown CA2013-11-012

resentencing.

{¶ 25} "Courts may recast irregular motions into whatever category necessary to

identify and establish the criteria by which the motion should be judged." State v. Schlee,

.

, ¶ 12. Although it seems that Van Tielen is suggesting

the trial court was required to make findings of fact and conclusions of law as would be

required by R.C. 2953.21(G) if the motion had been treated as a petition for postconviction

relief, the trial court did not treat Van Tielen's motion as such. Therefore, the trial court was

not required to issue findings of fact and conclusions of law.4 State ex rel. McCuller v.

Callahan, 8th Dist. Cuyahoga No. 71961,

(Mar. 27, 1999).

{¶ 26} Van Tielen also argues that without complete findings of fact and conclusions of

law, this court is unable to perform an adequate review of the trial court's decision. We

disagree. The issue in this case is patently clear, and the record contains all pertinent

information on which this court based its decision within both the majority and dissenting

opinions. The record contained transcripts of each hearing pertinent to the disposition of the

appeal, as well as the relevant filings and entries of the court. Detailed findings of fact or

conclusions of law were therefore not necessary in the case at bar, and this court was able to

conduct a meaningful review of the legal issues raised herein without the trial court making

findings of fact or conclusions of law. As such, Van Tielen's second assignment of error is

overruled.

{¶ 27} Judgment affirmed.

S. POWELL, P.J. concurs.

4. We also note that had the trial court treated Van Tielen's motion for resentencing as a petition for postconviction relief, such a motion would have been untimely filed, and the trial court would not have been required to rule on the merits of Van Tielen's arguments. As such, Van Tielen was not prejudiced in any manner by the trial court's classification of the irregular motion as something other than a petition for postconviction relief. -9- Brown CA2013-11-012

M. POWELL, J. concurs in part and dissents in part.

M. POWELL, J. concurring in part and dissenting in part.

{¶ 28} I concur with the majority in its resolution of Van Tielen's first assignment of

error with regard to Count 1 of the indictment, and in its resolution of Van Tielen's second

assignment of error. However, I respectfully dissent from the majority's decision that the trial

court was within its authority to issue the nunc pro tunc entry with regard to Counts 2, 3, and

4 of the indictment because it simply corrected the original sentencing entry due to "oversight

or omission." I also respectfully dissent from the majority's opinion that as a result, Van

Tielen's presence was not required when the trial court issued its nunc pro tunc entry. For

the reasons that follow, I would vacate the trial court's nunc pro tunc entry with regard to

Counts 2, 3, and 4 of the indictment and remand the case to the trial court for resentencing in

accordance with Crim.R. 43.

{¶ 29} Trial courts lack authority to reconsider their own valid final judgments in

criminal cases, with two exceptions: (1) when a void sentence has been imposed, and (2)

when the judgment contains a clerical error. Miller,

; State v. Burton,

12th Dist. Clermont No. CA2013-09-071,

. A sentence not in

accordance with statutorily mandated terms is void as no court has the authority to impose a

sentence that is contrary to law. Burton at

citing State v. Fischer,

,

.

{¶ 30} Pursuant to R.C. 2929.13(F)(6), the trial court was obligated to impose a

mandatory prison term on each of the four counts. The mandatory nature of the sentence is

not merely an incident of a prison term but carries as much significance as the prison term

itself. During the sentencing hearing, the trial court correctly imposed a mandatory prison

term on Count 1, but imposed no mandatory prison term on Counts 2, 3, and 4. The original

- 10 - Brown CA2013-11-012

sentencing entry did not impose mandatory prison terms on any of the four counts.

Subsequently, apparently realizing its mistake, the trial court sua sponte issued a nunc pro

tunc entry properly sentencing Van Tielen to mandatory prison terms on each of the four

counts. There was no hearing in connection with the nunc pro tunc entry.

{¶ 31} Because the sentence imposed in the original sentencing entry failed to comply

with R.C. 2929.13(F)(6), the trial court had jurisdiction to reconsider that sentence under

Miller. Miller,

.

{¶ 32} The majority holds that the trial court was within its authority to issue the nunc

pro tunc entry because it simply corrected the original sentencing entry due to "oversight or

omission." See Crim.R. 36; Miller (the "clerical error" exception). That is, the trial court

simply issued the nunc pro tunc entry to reflect what was actually done in court so that the

record speaks the truth. I disagree and stand by this court's decision in Waltz, 2014-Ohio-

2474.

{¶ 33} Crim.R. 36 specifically authorizes a trial court to correct clerical mistakes in

judgments at any time. A clerical error or mistake is "a mistake or omission, mechanical in

nature and apparent on the record, which does not involve a legal decision or judgment."

Lester,

. While courts have 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, and not what the court

might or should have decided or what the court intended to decide. Id.; Burton, 2014-Ohio-

1692 at ¶ 14. Thus, the "purpose of a nunc pro tunc entry is to have the judgment of the

court reflect its true action." Miller v. Short, 6th Dist. Lucas No. L-96-162,

, *2

(Jan. 17, 1997). A nunc pro tunc entry cannot be used to supply omitted action. Waltz at ¶

16.

{¶ 34} The majority holds that the nunc pro tunc entry simply corrected an oversight or - 11 - Brown CA2013-11-012

omission because Van Tielen was notified multiple times on his plea change form and during

the plea change hearing and the sentencing hearing that his sentences were mandatory, and

such mandatory sentences were imposed in open court. As the change of plea form and the

trial court's colloquy with Van Tielen at the plea hearing plainly indicate, the trial court clearly

knew it was required to impose mandatory prison time on each of the four counts. The

majority acknowledges that the colloquy during the plea hearing, and by extension Van

Tielen's acknowledgments on the change of plea form, "did not constitute the actual

sentence imposed." During the sentencing hearing, the trial court referred to mandatory

prison time on three different occasions before it imposed its sentence in open court.

Undoubtedly, the trial court intended to impose mandatory prison time on each of the four

counts. However, it is not what the trial court actually imposed with regard to Counts 2, 3,

and 4, either at the conclusion of the sentencing hearing when it imposed its sentence in

open court or in its original sentencing entry. With regard to these three counts, the trial

court's nunc pro tunc entry may reflect what the trial court intended to impose and should

have imposed at the sentencing hearing or in its original sentencing entry. It does not reflect

what the trial court actually imposed.

{¶ 35} Crim.R. 43(A) requires that a criminal defendant be present for sentencing,

including when a sentence is vacated and a new sentence imposed. State v. Francis, 5th

Dist. Guernsey No. 98CA13,

, *14 (Jan. 25, 2000). When the trial court

issued its nunc pro tunc entry, it effectively vacated its previous sentence and imposed a new

sentence. State v. Mullens, 9th Dist. Summit No. 23395,

(trial court

effectively vacated its previous sentence and imposed a new sentence when its nunc pro

tunc entry changed the original sentence of seven years of mandatory time to ten years of

mandatory time). A trial court can correct a statutorily incorrect sentence with a nunc pro

tunc entry as long as it is done in open court with the defendant present and with a full

- 12 - Brown CA2013-11-012

explanation for resentencing. See, e.g., State v. Calvillo,

(8th

Dist. 1991). If, however, a trial court corrects such a sentence in the defendant's absence,

the new sentencing entry must be vacated and the case remanded to the trial court for

resentencing in accordance with Crim.R. 43(A).

{¶ 36} Because Van Tielen was not present when the trial court issued its nunc pro

tunc entry (which resulted in a more severe sentence), I believe the nunc pro tunc entry must

be vacated and the case remanded to the trial court for a resentencing hearing in accordance

with Crim.R. 43. Doing so will not violate Van Tielen's double jeopardy rights.

{¶ 37} It is apparent Van Tielen was aware he was subject to mandatory prison

sentences, and the trial court's intention to impose mandatory prison sentences was

manifest. However, the precedent established by the majority opinion permits consideration

of a trial court's comments made during the sentencing hearing prior to the actual

pronouncement of the sentence, as the sentence itself. I cannot go along with this 5 precedent. Sentencing hearings are oftentimes freewheeling affairs in which numerous

matters and alternatives are discussed and debated. The majority's precedent introduces an

element of uncertainty into criminal sentencing that will be used by the state and criminal

defendants to contest criminal sentences, and consequently, will lead to a proliferation of

such challenges. The only definite indication of a trial court's sentence is that imposed by the

trial court when it pronounces, "It is the order of the court that the defendant be sentenced to

* * *," or similar words to that effect. Otherwise, when there is a conflict between the

pronounced sentence and comments made by the trial court during the sentencing hearing,

as here, we find ourselves foraging through the sentencing hearing transcript to identify what

5. The majority references that R.C. 2953.08.(F)(3) provides that "Any oral or written statements made to or by the court at the sentencing hearing at which the sentence was imposed" are part of the record to be reviewed upon the appeal of a felony sentence. That such statements are a part of the record do not make the trial court’s statements any less prefatory to the actual sentence imposed herein. - 13 - Brown CA2013-11-012

sentence was actually imposed. While it was a relatively easy task here, it will not always be

so. Nonetheless, the precedent established by the majority requires us to engage in this

exercise and will encourage parties to contest sentences based upon the prefatory

comments of the sentencing judge. I think it is neither burdensome nor unreasonable to

expect that a trial court impose the intended or required sentence when the sentence is in

fact pronounced.

{¶ 38} I realize that conducting a resentencing hearing with Van Tielen present will

involve some expense and inconvenience. It is not my purpose to impose such burdens

needlessly. Nonetheless, adherence to precedent and Crim.R. 43(A) demands nothing less.

{¶ 39} Notwithstanding the seriousness of Van Tielen's offenses and the horrific

nature of the photographs reproduced by Van Tielen, I believe the trial court's original

sentencing entry was void with regard to Counts 2, 3, and 4, and subsequently improperly

corrected in Van Tielen's absence via the trial court's issuance of the nunc pro tunc entry. I

would therefore vacate the trial court's June 4, 2010 nunc pro tunc entry with regard to those

three counts and remand the case to the trial court for resentencing in accordance with

Crim.R. 43.

{¶ 40} With regard and respect for my colleagues in the majority, I dissent.

- 14 -