[Cite as State v. Clark,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NOS. 26944 and 26946 : v. : T.C. NOS. 15CR481/1 and 15CR482 : ANTHONY B. CLARK : (Criminal appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 30th day of December, 2016.

...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CHARLYN BOHLAND, Atty. Reg. No. 0088080, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

.............

DONOVAN, P.J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Anthony Becton

Clark, filed December 9, 2015. Clark was convicted, in case No. 2015 CR 481, -2-

following a bench trial, on one count of escape, in violation of R.C. 2921.34(A)(1), a felony

of the second degree, and one count of vandalism (government property), in violation of

R.C. 2909.05(B)(2). Clark also entered a plea of guilty to one count of burglary, in

violation of R.C. 2911.12(A)(3), a felony of the third degree, in Case No. 2015 CR 482.

The court sentenced Clark to two mandatory years on the escape offense, to nine months

on the burglary offense, and to six months on the vandalism offense. The court ordered

that the nine month sentence for burglary be served consecutively to the two year

sentence for escape, and that the six month sentence for vandalism be served

concurrently to the nine month sentence and consecutively to the two year sentence, for

a total sentence of two years and nine months. Clark’s appeal is addressed to the merits

of his escape conviction only.

{¶ 2} The events giving rise to this matter began at Clark’s July 21, 2014

adjudication in juvenile court involving three cases, namely 2014-4362 (Count 1, robbery;

Count 2, burglary; Count 3, receiving stolen property); 2014-4803 (Count 1, burglary),

and 2014-3802 (Count 1, violation of probation). At the start of the adjudication, the

State advised the court that it was willing to withdraw its pending motion to relinquish

jurisdiction in case numbers 2014-4362 and 2014-4803, and dismiss case number 2014-

3802, in exchange for Clark’s admission of responsibility to the remaining offenses. The

following exchange occurred:

THE COURT: * * * And basically, what they are saying is that you

are going to admit that the charges are true in case number 2014-4362 and

2014-4803. One is a robbery charge, a felony of the second degree in the

adult system, * * *; count two - - that’s a felony of the second degree; count -3-

two is a burglary charge * * * again, the burglary charge in the adult system

and a felony of the second degree; and then finally, a receiving stolen

property involving a motor vehicle, a felony of the fourth degree in the adult

system. Now, do you understand those charges?

ANTHONY BECTON CLARK: Yes, sir.

***

THE COURT: * * * And, finally, you understand that with regard to

those three charges, they are all felonies. Therefore you could be

committed to the custody of the Department of Youth Services?

ANTHONY BECTON CLARK: Yes, sir.

THE COURT: For a minimum of two and-a-half years, maximum to

age 21. Do you understand that?

ANTHONY BECTON CLARK: Yes, sir.

THE COURT: * * * And then finally, there is a - - a separate charge

of burglary, a felony of the third degree in case number 4803, and it’s my

understanding that you are willing to admit that that is true, also, is that

correct?

ANTHONY BECTON CLARK: Yes, sir.

***

THE COURT: * * * And, again, that is a felony, could require you to

be committed to the Department of Youth Services on that particular charge,

a minimum of six months, maximum to age 21. But, all of those charges

could be added together. So that your minimum could be, in this case, -4-

three years.

ANTHONY BECTON CLARK: Yes, sir.

THE COURT: Maximum to age 21. Do you understand that?

ANTHONY BECTON CLARK: Yes, sir.

{¶ 3} At Clark’s disposition on August 6, 2014, the following exchange occurred:

THE COURT: * * * Both cases have been adjudicated and come

back before the Court today for disposition. The recommendation from

probation department and the formal review team is a recommendation for

termination of placement at the Nicholas Residential Treatment Center, and

I believe - - in 4362; and placement of Anthony at the Center for Adolescent

Services in both cases, that there be a suspended commitment on all the

charges to the Department of Youth Services. I think we have two felonies

of the second degree and a felony of the fourth degree in one case.

And the other case, we have a felony - - is that a felony three

burglary? All right. So that we would have suspended sentences to the

Department of Youth Services of one year on each of the felony two, six

months on the felony four, and six months on the felony three.

{¶ 4} After a lengthy discussion regarding restitution, the following exchange

occurred:

THE COURT: * * * You know, because we’re a little bit complicated

here, we talk a little bit about all the cases kind of grouped together and

what the Court’s disposition or sentence was going to be. It’s important

that you understand what that sentence means. -5-

First of all, on the one case where there are three counts, you get

sentenced to the Department of Youth Services for a minimum of twelve

month - - a minimum of eighteen months in a case, maximum to age 21.

Do you understand?

ANTHONY BECTON-CLARK: Yes, sir.

THE COURT: And that means that you - - your name goes to the

Department of Youth Services, your number goes to the Department of

Youth Services, but you don’t go. You stay here.

ANTHONY BECTON-CLARK: Yes, sir.

THE COURT: On the condition that you complete the programs and

the probation terms that the Court sets out. One of those would be that

you complete the program at the Center for Adolescent Services, and the

other complete your full probationary program.

You will be placed on probation for twelve months. If you violate

this, you come back here and you could go to the state institution. Do you

understand that?

ANTHONY BECTON-CLARK: Yes, sir.

THE COURT: And that’s similar for the other case. It’s a case

which the court could give you a commitment to the Department of Youth

Services. Is that an F2 or F3?

MS. XARHOULACOS: Three.

*** -6-

THE COURT: F3. That carries a minimum of six months in the

institution, maximum to age 21. That sentence is suspended on the

condition that you also complete your probation of twelve months, as well

as your program at the Center for Adolescent Services. Do you

understand that?

ANTHONY BECTON-CLARK: Yes, sir.

{¶ 5} On July 22, 2014 a “Judge’s Order of Adjudication and Continuance” was

issued that provides in part that Clark “is a delinquent child as alleged in the complaint,

for Count 1, an act of robbery, contrary to Section 2911.02(A)(2) of the Ohio Revised

Code, a felony of the second degree; for Count 2, an act of burglary, contrary to section

2911.12(A)(2) of the Ohio Revised Code, a felony of the third degree; and Count 3, an

act of receiving stolen property, contrary to Section 2913.51(A) of the Ohio Revised Code,

a felony of the fourth degree.” The court continued the matter for investigation.

{¶ 6} The August 13, 2014 “Judge’s Order of Disposition” provides the following

finding by the court: “that the child is a delinquent by reason of having committed an act

which if committed by an adult would constitute a felony of the third degree * * *.” The

court ordered that “the child be and hereby is committed to the legal custody of the

Department of youth Services for institutionalization in a secured facility for a minimum

period of six months on each count for a total minimum period of 18 months, and a

maximum period not to exceed the child’s attainment of the age of twenty-one (21).” The

court suspended the commitment conditioned upon Clark’s compliance with the court’s

orders. -7-

{¶ 7} Thereafter, Clark escaped from CAS on November 3, 2014. On December

16, 2014 an “Amended Judge’s Order of Disposition” was issued. The order provides:

“This order is being amended to correct the felony degree of adjudicated charges.”

It further provides in part that Clark “is a delinquent by reason of having committed

acts which if committed by an adult would constitute a felonies [sic] of the second,

third and fourth degree, respectively, for Counts 1, 2, and 3 * * *.” The amended

order provides that Clark “is committed to the legal custody of the Department of Youth

Services for institutionalization in a secured facility for a minimum period of twelve (12)

months on Count 1, and six (6) months on each count for Counts 2 and 3, for a total

minimum period of twenty-four (24) months, and a maximum period not to exceed the

child’s attainment of the age of twenty-one (21).”

{¶ 8} On December 18, 2014 a hearing was held in juvenile court involving Clark

and two other juveniles on the State’s motion to relinquish jurisdiction based upon the

escape, as well as vandalism and burglary charges. At the start of the hearing, the

following exchange occurred:

MS. XARHOULACOS: * * * The State, under the escape charge,

the felony of the second degree, has to show that my client was in some

way detained, also for a felony in the second degree. The judge’s order of

disposition, when Anthony was sentenced on those original charges back

on August 6th, does not show an indication of the correct degree.

I was handed an amended order of disposition from December 16th

of this year, two days ago, where the Court has entered the felony of the -8-

second decree in the amended entry. My contention to the Court is that

my client’s entry at the time of the charges was not showing the correct level

of felony; therefore, the escape could not be a felony in the second degree.

***

MR. SAULINE: It’s the State’s intention today to submit the orders

of the three individuals that sent each of them to CAS, and request judicial

notice be taken of them. The order that defense counsel is referring to was

originally filed and scanned in. And it was only into the JCS system with

only one sheet. And as she indicated, it was incorrect in the way it stated

things. However, there was an adjudication entry that was filed just a week

prior to that, perhaps a little bit more than that, that indicated the correct

levels of the felonies. And as defense counsel was present for both of

those hearings, she’s the same counsel who represented him at the time.

She’s aware that he was adjudicated on the F2, F3 and F4. And as this

Court is aware, and it was merely a reconciling of those two, and

stenographer’s error that was changed in those entries.

MS. XARHOULACOS: And if I may, Your Honor. State’s counsel

will know that the Court speaks through its entries. That entry was

distributed to the Prosecutor’s Office. They had ample time to take care of

the matter and to amend it if necessary. What I’m stating to the Court is

that was not amended. Because the Court speaks through its entry at the

time that they are trying to take this charge, it was incorrect. They cannot

take the charge as a felony of the second degree. And just because they -9-

amend it after the fact doesn’t make it right.

{¶ 9} The court advised the parties that it would “take that matter under

advisement with regard to the nature of the charge of escape in that particular case.”

The prosecutor requested the court take judicial notice of the “certified copies of the

entries that sent these juveniles to CAS,” the court indicated that it “will take judicial notice

of its own orders,” and counsel for Clark objected to “the amended entry.” At the

conclusion of the hearing, counsel for Clark again argued that the escape charge “is

charged incorrectly. Again, because the Court speaks through its entries. And they

did not show that my client was detained at the CAS buildings for a felony of the first,

second or third degree. That * * * should not be put into evidence. And * * * we would

ask for that to be dismissed.” The court indicated that it found probable cause for Clark’s

offenses, and it referred the matter for probation reports and psychological evaluations.

Following an amenability hearing on February 9, 2015, the juvenile court transferred the

matter to the court of common pleas.

{¶ 10} On March 6, 2015, Clark was indicted on one count of burglary, and on

March 12, 2015, Clark was indicted on the escape and vandalism offenses. Clark’s

indictment provides in Count 1 that Clark, “knowing that he was under detention or being

reckless in that regard, did purposely break or attempt to break such detention, or

purposely fail to return to detention, while being detained for the charge of ROBBERY, in

violation of Section 2911.02 of the Revised Code, a felony of the second degree * * * .”

{¶ 11} On May 28, 2015, the court held a scheduling and pretrial conference.

The court indicated as follows:

* * * And we had the opportunity to talk in chambers about Mr. -10-

Clark’s cases. And there are some legal issues that we just need to drill

into a little bit deeper it seems to make sure that we’re getting it right in all

respects.

And it was my understanding, Mr. Dailey, that the game plan was

going to be that we were going to vacate the jury trial setting for Mr. Clark.

The State was going to order the transcript from the juvenile court

proceedings so we would get his plea as well as the sentencing transcripts

to have as much information as possible about what was said. And the

transcripts, as well as the termination entries and the related paperwork for

that, is going to be submitted to the Court. And once I know that we have

that, we’re going to set a briefing schedule to get clarity as to exactly what

felony level we ought to be dealing with on the escape charge and some

other issues that are kind of related to that.

{¶ 12} The court advised Clark of his right to a speedy trial on the escape and

vandalism charges, and Clark indicated that he was willing to waive that right. On

September 10, 2015, Clark signed a “Waiver of Jury,” and the bench trial commenced

after the court’s bailiff filed the waiver. The court indicated that the “bench trial is going

to proceed by way of, predominantly, stipulations as to documents that represent the

history of Mr. Clark’s proceeding in the juvenile court that gave rise to his detention in

CAS from which he left.” The court noted that “it’s largely a legal issue or it’s a combined

fact issue, legal issue. * * * The court has to sort through to determine whether or not Mr.

Clark was lawfully detained at CAS by the juvenile court pursuant to a lawful termination

entry by the juvenile court.” The court noted that “there’s no fact dispute to the fact that -11-

Mr. Clark engaged in behavior which would constitute an escape from CAS.” Defense

counsel stipulated to the vandalism charge, and the court indicated that “then the burglary

charge we would just have to take up in a different way at a different time.”

{¶ 13} The court noted that “there will be filed of record this listing of trial

stipulations that run from November 1 through November 15,” and that “the defendant is

stipulating to the authenticity of certain documents but has not necessarily stipulated as

to the admissibility of the documents.” Regarding the July 21, 2014 transcript of Clark’s

adjudication, defense counsel objected to its admission, and the following exchange

occurred:

MR. DAILEY: Your Honor, I do stipulate to that but we do object.

My argument is just because courts speak through their entries and I don’t

believe there’s any relevance while looking at the void entries that this

transcript would play in the case.

THE COURT: Well, it’s my understanding of the law that if a Court

does something correctly, a sentencing hearing, but then the termination

entry has clerical errors in it that then the clerical errors can be corrected

via a nunc pro tunc entry. And so the transcript of proceedings would have

relevance in helping the Court make the determination as to whether or not

there are discrepancies between what Mr. Clark was advised at any sort of

disposition or sentencing type hearings and how the termination entries

read in comparison to that. Because if he was misadvised of something

and then the termination entry embeds that wrong information that’s one

scenario that has one legal conclusion attached to it. If he was told the -12-

correct thing but then the sentencing entry gets something wrong that’s a

different legal conclusion because that might not, in all circumstances, but

it might be capable of correction via a nunc pro tunc entry.

So the transcripts, from the Court’s perspective because of that, are

indeed relevant because it’s part of the picture that I have to look at to

determine did something get said or done incorrectly and when did it get

said or done incorrectly.

So the Court would overrule that objection and we would admit that

transcript of proceedings.

{¶ 14} Regarding the July 22, 2014 order of adjudication and continuance, the

court admitted the document over defense counsel’s objection. The court admitted the

transcript of the August 6, 2014 dispositional hearing over defense counsel’s objection.

Regarding the August 13, 2014 dispositional order, defense counsel asserted that the

order “is void * * * and should not be part of the evidence.” The court responded, “I don’t

know how I could determine that without ever seeing it” and admitted the entry. Over

objection, the court admitted the juvenile court’s order discharging Clark to CAS on

August 7, 2014, as well as the August 13, 2014 order of disposition. The parties

stipulated to the fact that CAS is “a co-educational secure residential

correctional/treatment facility.”

{¶ 15} The court admitted, also over objection, the December 16, 2014 amended

order of disposition, noting that “this is the nunc pro tunc order that attempted to correct

deficiencies in the prior disposition order and that nunc pro tunc was placed of record

after the escape occurred; is that correct?” Defense counsel responded affirmatively and -13-

indicated “that’s the additional objection I have including the rest.” The parties stipulated

that “the amended judge’s order of disposition was filed in relation to the same disposition

hearing held on August 6th of 2014 regarding the adjudication hearing on July 21st of

2014.” The parties stipulated that “there has been no appeal taken by the State due to

the errors in the judge’s order of disposition,” and that Clark “was housed at CAS on or

about November 3rd of 2014,” which is in Montgomery County. The parties further

stipulated that on or about November 3, 2014, Clark “did purposely break his detention at

CAS without permission.” Defense counsel indicated that Clark had no evidence to

present and moved the court for an acquittal, and the court overruled the motion. The

court requested that the parties file post-trial briefs.

{¶ 16} The State’s “Post Trial Memorandum” was filed on October 2, 2015. The

State noted that the August 13, 2014 order of disposition “fails to correctly reflect the

charges and also left out one of the counts in 14-4362.” The State noted that the

amended order of December 16, 2014 “is also not in line with the sentencing hearing on

August 6, 2014,” since at the hearing it was clear “that on 14-4362 the defendant was

being sentenced on two second degree felonies and a fourth degree felony and that his

aggregate alternative sentence was 18 months to age 21 at DYS.” The State noted that

the “amended sentencing entry also changed the alternative sentence from 18 to 24

months,” and that the “sentencing hearing did not address whether the sentences for the

two case numbers would be concurrent or consecutive.”

{¶ 17} The State asserted that although “the disposition entries are not an accurate

reflection of what occurred at the dispositional hearing, this is not a defense to Escape,”

pursuant to R.C. 2921.34(B), which provides: “Irregularity in bringing about or maintaining -14-

detention * * * is not a defense to a charge under this section if the detention is pursuant

to judicial order or in a detention facility.” The State asserted as follows:

* * * Here, the Judge properly advised the defendant on the record

at the adjudication hearing and disposition hearing that he was before the

court for felonies of the second degree. More importantly, at the time of

disposition which resulted in his being discharged to CAS the defendant

was advised that he was being sent to CAS for felonies of the second, third

and fourth degrees. The defendant should not incur a windfall because of

clerical errors in the dispositional entries. The defendant at the time of

disposition was confined to CAS for, among other charges, Robbery, a

felony of the second degree.

{¶ 18} The State argued that “whether the nunc pro tunc entry is valid is not a

critical issue because of the plain language of the statute. However, assuming that the

court finds the irregularity of the original disposition entry to be an issue, the nunc pro

tunc did properly state that the defendant was being sent to CAS for a second degree

felony.” The State argued as follows:

The Ohio Supreme Court has recently held, in State ex rel. DeWine

v. Burge,

,

, that Crim.R. 32(C) errors are

clerical in nature, and they are subject to correction at any time under

Crim.R. 36. Id. at ¶ 17-19. Because stating an incorrect felony level in

the judgment entry is a technical violation, not a violation of a statutorily

mandated term, it does not render the judgment a nullity. Id. at ¶ 19.

Instead, the failure to comply with Crim.R. 32(C) is “a mere oversight” and -15-

the trial court is vested with “specific, limited jurisdiction” to issue a new

sentencing entry to reflect the action actually taken. Id. Referring to one

of the judgment entries of conviction in that case, the Court explained that

correcting the error in the entry with a nunc pro tunc entry is logical because

the trial court and the parties had all proceeded under the presumption that

it constituted a final, appealable order. Id. See also State v. Ford, 2014-

Ohio-1859, Mont. App. No. 25796 (holding that error in felony level can be

remedied with nunc pro tunc entry to accurately reflect what happened on

the record)[.]

A nunc pro tunc sentencing entry that corrects an error in the original

entry relates back to that original sentencing entry. State ex rel. Womack

v. Marsh,

,

,

, ¶ 15.

Once issued, it has the same legal force and effect as if it had been issued

at an earlier time, when it ought to have been issued. State v. Greulich

(1988),

,

. Thus a nunc pro tunc

entry will “fix”[] the technical error of omission in the original sentencing

entry by making the record reflect that which was obvious from the record,

that defendant had been adjudicated delinquent by reason of committing

second, third and fourth degree felonies.

{¶ 19} Clark’s post-trial memorandum was filed on October 5, 2015. He asserted

that at the August 6, 2014 dispositional hearing, the “sentence given was less than the

statutorily mandated minimum Anthony was facing at the adjudication hearing held

on July 21, 2014.” Clark noted that in the August 13, 2014 order of disposition, there -16-

“was no mention of any felonies of the second degree, or any felony of the fourth degree.”

{¶ 20} Clark argued that the State failed to prove that he was being detained on a

second degree felony robbery charge when he escaped. Clark argued that the

“sentence in the underlying case was confusing, unclear, and inconsistent throughout.

Looking at the whole process, the State did not prove beyond a reasonable doubt that

Anthony was being detained on the Robbery charge.” He argued that the “apparent

suspended sentence [imposed at disposition] did not meet the minimum statutorily

mandated requirements for the charges (minimum of 2.5 years)” pursuant to R.C.

2152.16. Clark asserted that “the only level of charge mentioned [in the August 13, 2014

order of disposition] was a ‘felony of the third degree,’ ’’ and that “this Order added a

specific sentence for each count, which was not stated on the record. It changed the

levels of the charges, which was contrary to the adjudication hearing (but, maybe

consistent with the Judge’s intent).” Finally, Clark asserted that the amended entry “only

increased the confusion on what sentence Anthony was given.” Clark asserted as

follows:

The errors within this Order included: the levels of charges still were

not consistent with the adjudication hearing or the disposition hearing, it

included the specific sentencing for each count which never happened at

the disposition hearing, and it still included a felony of the 3rd degree which

never had existed. The most confusing error was it upped the sentence to

a minimum of 24 months, however, this change is very important in the

current case. They needed to change the sentence to a minimum of 24

months to follow the statutory mandated requirements of R.C. 2152.61 (1 -17-

year on the F2 + 6 months on the F3 + 6 months of the F4 = 24 months).

They attempted to do this through a nunc pro tunc entry! Again, this

sentence is not consistent with what was on the record, there were never

any F3s, and the minimum statutory mandated sentence was supposed to

be 2.5 years.

Did the judge fail to sentence at the disposition hearing on both F2s?

Did he sentence on the F2 – Robbery, as required in the indictment, or the

F2 – Burglary, which the Grand Jury never decided on when they indicted

the Escape, and then forgot to sentence on the other F2? Did he

mistakenly, or purposely, change the levels of the charges to F3s when

sentencing Anthony? Was he looking at the wrong case or charges?

Which charge(s) was Anthony sent to CAS on? It is not clear on the record

what happened with the sentence, or which charges sent Anthony to CAS.

There are too many questions that cannot be answered to prove this case

beyond a reasonable doubt. Therefore, the Defendant requests a Not

Guilty on the Escape charge.

{¶ 21} Clark argued that the “sentence in the underlying case has numerous

errors, and should be found to be void and invalid.” Clark directed the court’s attention

in part to State v. Billiter,

,

,

, and he

argued that since the sentence imposed is not authorized by law, the sentence is void.

Clark argued that “where a sentence is void because it does not contain a statutorily

mandated term, the proper remedy is to resentence the defendant. Everything that

occurs after the sentence is also a nullity until a valid sentencing occurs.” Clark asserted -18-

that he “still has never been sentenced to the statutorily mandated sentence, which was

the minimum of 2.5 years, with a maximum of age 21.” Clark argued that “the Court was

required to provide [him] with a new sentencing hearing. That did not occur, and as we

stand here today, the sentence remains a nullity until a valid sentencing occurs.”

{¶ 22} Clark argued that the trial court lacked jurisdiction to convict him of the

escape. Again citing Billiter, Clark asserted that void “sentences can be collaterally

attacked at anytime [sic], including during a later charge of escape based on that void

sentence. When an escape charge is based on an invalid sentence, a trial court is

without jurisdiction to convict that person of the escape.” Citing R.C. 2921.34(B), Clark

argued that “this is not an irregularity or a lack of jurisdiction. The Juvenile Court had

jurisdiction to impose sentence on Anthony, however, the sentence was Constitutionally

infirm under the Due Process Clause, and was therefore void. With the void sentence

on the underlying charge, it is the current Court, according to Billiter, that cannot convict

Anthony.”

{¶ 23} Finally, Clark argued that the errors in the amended order of disposition

“could not be cured by a nunc pro tunc entry because the sentence was not clear

and apparent on the record. Therefore, this Order was also void.” Clark argued that

a “nunc pro tunc entry is inappropriate when it reflects a substantive change in the

judgment. When a court exceeds its power in entering a nunc pro tunc order, the

resulting nunc pro tunc order is invalid.” According to Clark, the “failure to impose a

statutorily mandated sentence has been held to be more than administrative or clerical

error, because it is an act that lacks both statutory and constitutional authority.” Clark

directed the court’s attention to City of Mayfield Heights v. Barry, 8th Dist. Cuyahoga No. -19-

99361,

, and State v. Williams, 7th Dist. Mahoning No. 11 MA 131, 2012-

Ohio-6277, noting that “an order that changes the length of a defendant’s sentence

substantively modifies the sentence.” Clark argued that a “new sentencing hearing is

what was required, and that did not occur. The failure to impose a statutorily mandated

sentence is more than an administrative or clerical error, as it lacks both statutory and

constitutional authority.”

{¶ 24} On October 13, 2015, the trial court issued a “Verdict and Finding of Guilt

on Counts One and Two.” The entry provides in part as follows:

The court finds that Defendant’s detention was pursuant to a judicial

order and/or in a detention facility. Although the orders of disposition may

contain errors regarding the statement of charges and/or associated

minimum term of Department of Youth Services commitment, each

disposition entry placed Defendant at the Center for Adolescent Services

(CAS), from which Defendant escaped and harmed property. Lack of

jurisdiction by the detaining authority (CAS) is not a defense given the

juvenile court’s order that Defendant be placed at CAS.

{¶ 25} On October 15, 2015, Clark pled guilty to burglary. On November 5, 2015,

Clark filed an “Objection to Possible Finding of Mandatory Prison Sentence.” Clark cited

this Court’s decision in State v. Hand, 2d Dist. Montgomery No. 25840,

(Donovan, J. dissenting), noting that the matter was currently pending in the Ohio

Supreme Court.

{¶ 26} The court imposed sentence on November 5, 2015. The court indicated in

part as follows: -20-

The defense did file and the Court has reviewed, this morning, a

memorandum regarding sentencing for Mr. Clark arguing that by virtue of

his juvenile status that the underlying charge should not serve as an

enhancement to turn the present second degree felony into a mandatory

time charge. And the record should reflect that those arguments are

lodged with the [C]ourt. The Court did consider them. And the Court is

not going to accept those arguments and is going to proceed with

sentencing under the analysis that the escape, while detained on a second

degree felony, is a felony of the second degree that presents a mandatory

sentence scenario.

{¶ 27} We note that Clark’s November 13, 2015 Judgment Entry of Conviction in

case number 2015 CR 0481 provides incorrectly that Clark pled guilty to escape and

vandalism.

{¶ 28} On November 12, 2015, Clark filed a “Motion to Stay Execution of

Sentence” pending “the outcome of his motion to reconsider and/or vacate plea.” On the

same day, Clark filed a second “Motion to Stay Execution of Sentence” pending “the

outcome of his appeal.” On November 18, 2015, the trial court issued a “Decision, Order

and Entry Denying Defendant’s Motion to Stay Execution of Sentence.”

{¶ 29} Clark asserts two assignments of error herein. His first assigned error is

as follows:

THE TRIAL COURT VIOLATED ANTHONY CLARK’S RIGHT TO

DUE PROCESS OF LAW WHEN IT CONVICTED HIM OF ESCAPE, A

SECOND-DEGREE FELONY, IN THE ABSENCE OF SUFFICIENT -21-

EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE U. S. CONSTITUTION; AND, CRIM.R. 29(A). * * *

{¶ 30} Clark asserts that “the State failed to prove beyond a reasonable doubt that

Anthony was being held on a second-degree felony. R.C. 2921.34(C)(2)(a). In the light

most favorable to the prosecution, the State only proved that Anthony was being held on

a third-degree felony.” According to Clark, “the juvenile court’s orders do not clearly

demonstrate that Anthony was being held for a second-degree felony.” Clark asserts that

the “felony level associated with each offense is unclear throughout the juvenile court

proceedings. The disposition hearing transcript and the disposition entry reflects that the

judge did not commit Anthony to CAS on a second-degree felony.” Instead, Clark

argues, “at the hearing, [the] judge imposed suspended DYS commitments consistent

with third-, fourth-, or fifth-degree felonies, and the journalized entry reflects the judge’s

intentions.” Clark asserted that “the juvenile court could not issue the amended entry to

act as a nunc pro tunc entry, because there were no errors to be fixed.”

{¶ 31} Clark asserts courts speak through their journal entries, and that “although

the juvenile court’s amended entry noted that ‘[t]his order is being amended to correct the

felony degree of adjudicated charges,’ the amended entry changed Anthony’s disposition

and did not reflect what the juvenile court stated during open court at the disposition

hearing.” According to Clark, the “amended entry cannot satisfy the elements of the

underlying felony level because it is a void entry.” Clark asserts that “[a]t most, the State

proved that Anthony was held on a third-degree felony, because that is how the juvenile

court sentenced Anthony and that is what is reflected in the juvenile court’s entry.” Clark

argues that “this Court should reverse the court’s decision for lack of sufficient evidence -22-

and vacate Anthony’s conviction for second-degree felony escape.”

{¶ 32} The State responds that it is “undisputed that Clark was adjudicated

delinquent for having committed three offenses, the most serious of which – robbery

under R.C. 2911.02(A)(2) – would be a felony of the second degree if committed by an

adult.” The State further asserts that it “is also undisputed that at the August 6, 2014

dispositional hearing, the juvenile court committed Clark to CAS as a condition of his

probation following his adjudication for, among other charges, second-degree felony

robbery.” The State asserts as follows:

The only confusion arises in the juvenile court’s Order of Disposition,

which incorrectly states that Clark was adjudicated delinquent for having

committed only one act that, if committed by an adult, would have been a

felony of the third degree. * * * But errors in the juvenile court’s Order of

Disposition have no relevance to determining the only question that matters

in this case: When Clark escaped from CAS, was he being detained for an

act that would be a felony of the second degree if committed by an adult?

{¶ 33} The State argues that each element of escape was proven beyond a

reasonable doubt, and that “Clark nevertheless ignores what actually occurred at his

adjudication and disposition and focuses instead exclusively on what was stated in the

juvenile court’s August 13, 2014 Order of Disposition – an Order the State agrees does

not properly reflect Clark’s true adjudication or disposition.” According to the State, “the

contents of the Order of Disposition is of no consequence because all that really matters

is that Clark was at CAS because he was adjudicated to be a delinquent child for having

committed an offense that would be a second-degree felony if committed by an adult.” -23-

The State asserts that “it is Clark’s adjudication – not his disposition – that determines the

felony level of his escape charge.” Finally, the State asserts that “the trial court correctly

found as part of its verdict that Clark was guilty of escape because the errors in the Order

of Disposition did not change the fact that Clark’s detention at CAS was pursuant to a

judicial order and that CAS is a detention facility.”

{¶ 34} As this Court has previously noted:

“A sufficiency of the evidence argument disputes whether the State

has presented adequate evidence on each element of the offense to allow

the case to go to the jury or sustain the verdict as a matter of law.” State v.

Wilson, 2d Dist. Montgomery No. 22581,

, citing

State v. Thompkins,

,

(1997). When

reviewing whether the State has presented sufficient evidence to support a

conviction, “the relevant inquiry is whether any rational finder of fact, after

viewing the evidence in a light most favorable to the State, could have found

the essential elements of the crime proven beyond a reasonable doubt.”

State v. Dennis,

,

(1997), citing

Jackson v. Virginia,

,

,

(1979). A guilty verdict will not be disturbed on appeal unless “reasonable

minds could not reach the conclusion reached by the trier-of-fact.”

State v. Quinn,

,

, ¶ 50 (2d Dist.).

{¶ 35} R.C. 2921.34(A)(1) provides in part: “No person, knowing the person is

under detention, other than supervised release detention, or being reckless in that regard,

shall purposely break or attempt to break the detention * * *.” R.C. 2921.34(C)(2) provides -24-

that if the offender violates division (A)(1) of this section, escape is: “(a) A felony of the

second degree, * * * if the person was under detention as an alleged or adjudicated

delinquent child, when the most serious act for which the person was under detention

would be aggravated murder, murder, or a felony of the first or second degree if

committed by an adult.” R.C. 2921.34(B) provides: “Irregularity in bringing about or

maintaining detention, or lack of jurisdiction of the committing or detaining authority, is not

a defense to a charge under this section if the detention is pursuant to judicial order or in

a detention facility. * * *.”

{¶ 36} R.C. 2152.16(A)(1)(d) provides that for a child who has been adjudicated

delinquent of an offense that would be a felony of the first or second degree if committed

by an adult, the juvenile court may sentence the child “for an indefinite term consisting of

a minimum period of one year and a maximum period not to exceed the child’s attainment

of twenty-one years of age.” R.C. 2152.16(A)(1)(e) provides that for an offense that

would be a felony of the third, fourth, or fifth degree if committed by an adult, the juvenile

court may sentence the child “for an indefinite term consisting of a minimum period of six

months and a maximum period not to exceed the child’s attainment of twenty-one years

of age.”

{¶ 37} “It is well established that a court speaks through its journal entries.” State

v. Hottenstein,

,

, ¶15 (2d Dist.). Crim.R. 32(C) provides

that a “judgment of conviction shall set forth the fact of conviction and the sentence.”

Crim.R. 36 provides that “[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.” As this Court has previously noted: -25-

* * * It is well settled that a nunc pro tunc entry can be used only to

reflect what a court actually decided, not what it might have decided or

should have decided. State v. Miller,

, 2010-Ohio-

5705,

. Stated differently, a nunc pro tunc entry may

be used to “reflect what the trial court did decide but recorded improperly.”

An improper nunc pro tunc entry is void. Plymouth Park Tax Services

v. Papa, 6th Dist. Lucas No. L-08-1277,

, ¶ 18, citing Natl.

Life Inc. Co. v. Kohn,

,

(1937), paragraph

three of the syllabus.

State v. McIntyre, 2d Dist. Montgomery No. 25502,

.

{¶ 38} At the start of the disposition hearing, the court indicated that pursuant to

the recommendation of the probation department and the formal review team, “we would

have suspended sentences to the Department of Youth Services of one year on each of

the felony two, six months on the felony four, and six months on the felony three.” At the

conclusion of the hearing, however, the court indicated that “on the one case where there

are three counts, you get sentenced to the Department of Youth Services for a minimum

of twelve month - - a minimum of eighteen months in a case, maximum to age 21,” and

further indicated that the felony-three burglary “carries a minimum of six months in the

institution, maximum to age 21.” The disposition order provides that Clark committed an

act which if committed by an adult would constitute a felony of the third degree, and it

imposed a total suspended sentence of 18 months, six months on each count. The

amended order provides that its purpose is “to correct the felony degree of adjudicated

charges,” but then the order alters Clark’s total sentence to “a minimum of twelve (12) -26-

months on Count 1, and six (6) months on each count for Counts 2 and 3, for a total

minimum period of twenty-four (24) months * * *.”

{¶ 39} We conclude that the amended disposition entry is void, since it does not

reflect what occurred at Clark’s disposition, namely that he received a total sentence of

18 months. After viewing the evidence most strongly in favor of the State, however, at

the time of Clark’s escape, the original order of disposition established that Clark was

placed at CAS for “an act which if committed by an adult would constitute a felony of the

third degree.” No appeal was taken from this original order. It is undisputed that Clark

escaped while this original order was in place. Accordingly, there is sufficient evidence

to convict Clark of the lesser level of escape as a felony of the third degree which does

not carry mandatory time. Clark’s first assigned error is sustained in part and overruled

in part.

{¶ 40} Clark’s second assignment of error is follows:

THE TRIAL COURT ERRED WHEN IT USED ANTHONY’S PRIOR

JUVENILE ADJUDICATION AS AN ENHANCEMENT FOR A

MANDATORY PRISON TERM IN COMMON PLEAS COURT, IN

VIOLATION OF HIS RIGHT TO DUE PROCESS AS GURANTEED BY THE

FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND

ARTICLE 1, SECTION 16, OHIO CONSTITUTION. * * *

{¶ 41} R.C. 2929.13(F)(6) provides that “the court shall impose a mandatory prison

term” for a felony of the first or second degree “if the offender previously was convicted

of or pleaded guilty to * * * any first or second degree felony.” R.C. 2901.08 provides: -27-

If a person is alleged to have committed an offense and if the person

previously has been adjudicated a delinquent child or juvenile traffic

offender for a violation of a law or ordinance, * * * the adjudication as a

delinquent child or as a juvenile traffic offender is a conviction for a violation

of the law or ordinance for purposes of determining the offense with which

the person should be charged and, if the person is convicted of or pleads

guilty to an offense, the sentence to be imposed upon the person relative to

the conviction or guilty plea.

{¶ 42} We note that in State v. Hand, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-

5504, ¶ 37, the Ohio Supreme Court determined that R.C. 2901.08(A) is unconstitutional

“because it is fundamentally unfair to treat a juvenile adjudication as a previous conviction

that enhances either the degree of or the sentence for a subsequent offense committed

as an adult.” Finally, since Clark’s sentence is reversed and vacated, and since he is

subject to resentencing for a felony of the third degree, he is not subject to a mandatory

sentence, rendering this assignment of error moot.

{¶ 43} Clark’s sentence for escape is reversed and vacated, and the matter is

remanded for resentencing on that offense. The judgment of the trial court is affirmed in

all other respects.

..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Andrew T. French Charlyn Bohland Hon. Mary L. Wiseman