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State v. Johnson

Court of Appeals of Ohio, Ninth District, Summit

May 23, 2018

STATE OF OHIO Appellee
v.
EFREM R. JOHNSON Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2015 02 0453

          APPEARANCES: PAUL GRANT, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER JUDGE

         {¶1} Defendant-Appellant, Efrem Johnson, appeals his convictions for rape, felonious assault, and kidnapping in the Summit County Court of Common Pleas. We dismiss the appeal in part and affirm.

         I.

         {¶2} On August 26, 2000, K.M. was raped, beaten, and left naked and unconscious in a wooded area. When K.M. regained consciousness, she was disoriented and could not locate her clothing. She eventually made it to a house where she was covered with a blanket and EMS was called. K.M. was taken to a hospital where a rape kit was performed and she spent several days recovering in the trauma ward.

         {¶3} The rape kit and other evidence were sent to the Ohio Bureau of Criminal Investigation (BCI) for analysis in 2000. In 2010, BCI received a known DNA reference standard for Johnson and subsequently developed Johnson's DNA profile. Then, in 2015, a BCI report determined that Johnson's DNA profile could not be excluded from the DNA collected as a part of KM.'s rape kit.

         {¶4} The Summit County Grand Jury returned a secret indictment on February 18, 2015, charging Johnson with one count of rape, in violation of R.C. 2907.02(A)(2), a felony of the first degree; one count of rape in violation of R.C. 2907.02(A)(1)(c), a felony of the first degree; one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree; and one count of kidnapping, in violation of R.C. 2905.01(A)(4), a felony of the first degree. The court ordered that a capias be issued to the Sheriff of Summit County for Johnson's arrest that same day.

         {¶5} On June 17, 2016, Johnson filed a motion to dismiss asserting that the State was beyond the 270 days within which it was required to bring Johnson to trial pursuant to R.C. 2945.71. After a hearing, the trial court summarily denied Johnson's motion.

         {¶6} Prior to trial, the State dismissed the charge of rape in violation of R.C. 2907.02(A)(1)(c). The matter proceeded to a jury trial on October 6, 2016. Johnson was ultimately found guilty of the three remaining charges.

         {¶7} On December 2, 2016, the trial court filed a sentencing entry sentencing Johnson as follows: (1) on the remaining charge of rape, a non-mandatory term of ten years imprisonment, with a mandatory term of five years of post-release control; (2) on the charge of felonious assault, a non-mandatory term of eight years imprisonment, with a mandatory term of three years of post-release control; and (3) on the charge of kidnapping, a non-mandatory term of ten years imprisonment, and a mandatory term of three years of post-release control. Although the indictment identified the kidnapping charge as a felony of the first degree, the sentencing entry identified the kidnapping charge as a felony of the second degree. The trial court then ordered the sentences to be served consecutively to each other, for a total of 28 years. The trial court further ordered that the sentence in this case be served and with the sentence imposed in a previous case, Summit County Common Pleas Case Number 2010-03-0866, for a total sentence of 28 years to life in prison. The trial court then found by clear and convincing evidence that Johnson engaged in acts which indicate he is a sexually-oriented offender and adjudicated him a sexually-oriented offender. Johnson was also ordered to pay the costs of the prosecution.

         {¶8} The trial court filed a journal entry nunc pro tunc on December 5, 2016, correcting the felony level of the kidnapping charge from a felony of the second degree to a felony of the first degree.

         {¶9} Johnson thereafter filed a notice of appeal of the December 5, 2016 nunc pro tunc entry. However, upon review of the initial filings, this Court concluded it was without jurisdiction to consider the attempted appeal as it was untimely. State v. Johnson, 9th Dist. Summit No. 28477 (Jan. 30, 2017). However, this Court stated that its journal entry did not preclude Johnson from filing a new appeal along with a motion for delayed appeal of the December 2, 2016 judgment of conviction.

         {¶10} On January 10, 2017, the trial court then filed a journal entry nunc pro tunc to replace the December 5, 2016, nunc pro tunc order. Then, on January 26, 2017, the trial court filed another journal entry nunc pro tunc to correct the journal entry filed January 10, 2017, to read that the sentence in this matter was to "be served CONSECUTIVELY TO the sentence imposed in Case Number CR 2010 03 0866, for a sentence of 28 years to life in prison."

         {¶11} On February 3, 2017, Johnson filed a notice of appeal of the entries dated December 2, 2016, December 5, 2016, January 10, 2017, and January 26, 2017. Johnson filed a motion for delayed appeal from the entry dated December 2, 2016, on February 8, 2017. This Court granted Johnson's delayed appeal.

         {¶12} The trial court subsequently filed a fourth entry nunc pro tunc on February 28, 2017, to correct the journal entries filed January 10, 2017 and January 26, 2017, to state that the sentence was to "be served CONSECUTIVELY TO the sentence imposed in Case Number CR 2010 03 0866, for a sentence of 55 years to life in prison." Later, the trial court filed a fifth journal entry nunc pro tunc on March 24, 2017, changing the above "55 years" to "54 years to life in prison."

         {¶13} On October 26, 2017, Johnson filed a notice of appeal and a motion for delayed appeal of the December 2, 2016 sentencing entry as well as the nunc pro tunc entries filed December 5, 2017, January 10, 2017, January 26, 2017, February 28, 2017, and March 24, 2017.

         {¶14} This Court consolidated Johnson's appeals for the purposes of the record, briefing, oral argument, and if applicable, the decision. Johnson raises three assignments of error for our review.

         II.

         {¶15} As an initial matter, we must determine whether the trial court's nunc pro tunc entries are properly before this Court. "A court may issue a nunc pro tunc to correct a clerical mistake in an entry so that the entry reflects what actually occurred in open court." State v. Stevens, 9th Dist. Summit No. 27366, 2015-Ohio-4009, ¶ 5, citing State v. Bonnell 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 30. However, "a nunc pro tunc judgment entry issued for the sole purpose of complying with Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new final order from which a new appeal may be taken." State v. Lester, 130 Ohio St.3d, 2011-Ohio-5204, ¶ 20. Therefore, as a threshold matter, we must determine if the trial court's nunc pro tunc orders are properly before this Court, as we only have jurisdiction to hear an appeal from a final judgment. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2501.02. "In the absence of a final, appealable order, this Court must dismiss the appeal for lack of subject matter jurisdiction." In re Estate of Thomas, 9th Dist. Summit No. 27177, 2014-Ohio-3481, ¶ 4. R.C. 2505.02(B).

         {¶16} A review of the transcript shows that the trial court imposed the following sentence on Johnson at his sentencing hearing: (1) on the charge of rape, Johnson was to be confined to the Ohio Department of Corrections for a period of ten years. The trial court further advised Johnson that once he was released from prison he would be placed on a mandatory five years of post-release control; (2) on the charge of felonious assault, Johnson was to be confined for a period of eight years, with three years of mandatory post-release control; (3) on the charge of kidnapping, Johnson was to be confined for a period of ten years, with five years of mandatory post-release control. The trial court then stated that the penalties for each offense were to be served consecutive to one another for a total of 28 years in prison.

         {¶17} On December 2, 2016, the trial court filed a journal entry containing multiple clerical errors that did not reflect what the court decided at the sentencing hearing. That order states Johnson's sentence as follows: (1) on the remaining charge of rape, a non-mandatory term of ten years imprisonment, with a mandatory term of five years of post-release control; (2) on the charge of felonious assault, a non-mandatory term of eight years imprisonment, with a mandatory term of three years of post-release control; and (3) on the charge of kidnapping, a non-mandatory term of ten years imprisonment, and a mandatory term of three years of postrelease control. Although the indictment identified the kidnapping charge as a felony of the first degree, the sentencing entry identified the kidnapping charge as a felony of the second degree. The trial court then ordered the sentences to be served consecutively to each other, for a total of 28 years. The trial court further ordered that the sentence in this case be served with the sentence imposed in a previous case, CR 2010 03 0866, for a total sentence of "28 years to life in prison." The trial court then found by clear and convincing evidence that Johnson engaged in acts which indicate he is a sexually-oriented offender and adjudicated him a sexually-oriented offender. Johnson was also ordered to pay the costs of the prosecution.

         {¶18} A review of the record shows that the December 5, 2016 order, the January 10, 2017 order, and the January 26, 2017 order were all nunc pro tunc entries. "Where a sentencing hearing transcript makes clear what the trial court decided, the trial court has jurisdiction to correct typographical errors in a sentencing entry via a nunc pro tunc entry." State v. Ibn-Ford, 9th Dist. Summit No. 27380, 2015-Ohio-753, ¶ 8. First, the December 5, 2016 nunc pro tunc corrected the felony level of the kidnapping charge from a felony of the second degree to a felony of the first degree. Second, although the trial court's second nunc pro tunc sentencing entry stated that entry was intended to replace the December 5, 2016, nunc pro tunc order, a review of the order shows there is no difference between the January 10, 2017 order and the December 5, 2016 order. Third, the January 26, 2017 nunc pro tunc order corrected the journal entry filed January 10, 2017, to read that the sentence in this matter was to "be served CONSECUTIVELY TO the sentence imposed in Case Number CR 2010 03 0866, for a sentence of 28 years to life in prison." As the trial court acted within its authority in correcting the above clerical errors, we conclude that the December 5, 2016, January 10, 2017, and January 26, 2017 nunc pro tunc orders are not final appealable orders and we are without jurisdiction to review them. See R.C. 2505.02(B).

          {¶19} Therefore, Johnson's appeal is dismissed as it relates to the December 5, 2016, January 10, ...


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