Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-602795-A
ATTORNEY FOR APPELLANT Robert A. Dixon
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Melissa Riley Assistant County
BEFORE: Keough, J., Kilbane, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE.
In January 2016, defendant-appellant, Dustin J. Beaver, was
named in a seven-count indictment charging him with five
counts of rape and two counts of kidnapping. He subsequently
pleaded guilty to one count of rape and an amended count of
attempted rape. On October 24, 2016, the trial court
sentenced Beaver to a total of nine years, to be served
consecutively to the one-year sentence in Cuyahoga C.P. No.
CR-15-592396, which was imposed on February 24, 2015.
In this delayed appeal, Beaver contends in his sole
assignment of error that the trial court failed to make the
requisite findings prior to imposing consecutive sentences.
Pursuant to Loc.App.R. 16(B), the state concedes the error.
However, after reviewing the record, this court was concerned
that the issue may be moot because the trial court ordered
the nine-year sentence to be served consecutively to a
sentence that was already completed. Accordingly, this court
ordered the parties to brief the following issue:
What effect does the trial court's journal entry dated
October 18, 2016 in Cuyahoga C.P. No. CR-16-602795 ordering
the nine-year "sentence to run consecutive to the
sentence that he is presently serving on CR-592396" have
on the conceded error in this appeal? Pursuant to the
February 24, 2015 sentencing journal entry in Cuyahoga C.P.
No. CR-15-592396, appellant was ordered to serve a one-year
sentence, which would have been completed by the time
appellant was sentenced in CR-16-602795.
The state responded that the trial court intended that Beaver
serve the nine-year sentence consecutive to the prison
sentence he was still serving. The state concedes that Beaver
completed his sentence in CR-15-592396, but maintains that
the error can be corrected by having the trial court issue a
nunc pro tunc and order the nine-year sentence consecutive to
the case number under which Beaver is still serving his
sentence. Defense counsel responded by "agree[ing]
completely with the arguments and conclusions" provided
by the state. However, we do not.
It is axiomatic that the trial court speaks through its
journal entry. State v. Brooke, 113 Ohio St.3d 199,
2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, citing Kaine
v. Marion Prison Warden, 88 Ohio St.3d 454, 455, 727
N.E.2d 907 (2000). Therefore, we must review the sentencing
journal entries in these cases to decide the issue before
When Beaver was sentenced for the rape offenses, the court
stated in open court:
Okay. This sentence will run consecutive to the sentence that
he is now serving, and that will be in case number 592396,
which is also concurrent to 586857 and 585738. Okay.
(Tr. 41-42.) The sentencing journal entry accurately reflects
the court's oral pronouncement - "sentence to run
consecutive to the sentence that he is presently [sic]
serving on CR-592396." Therefore, the use of a nunc pro
tunc would be improper. State v. Miller, 127 Ohio
St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15 (nunc
pro tunc entries are limited to reflect what the court
actually decided, not what the court might or should have
decided); State v. Waltz, 2014-Ohio-2474, 14 N.E.3d
429, ¶ 28 (12th Dist.) (a trial court lacks authority to
correct final entry to reflect the court's intention of
imposing a five-year term of community control, when the
trial court at the hearing and in the final entry imposed a
one-year term). Moreover and absent any exceptions,
"once a sentence has been executed, the trial court
loses jurisdiction to amend or modify the sentence."
State v. Carr, 167 Ohio App.3d 223, 2006-Ohio-3073,
854 N.E.2d 571 (3d Dist.), ¶ 3, citing State v.
Garretson, 140 Ohio App.3d 554, 748 N.E.2d 560 (12th
The record clearly reflects that at sentencing and in its
journal entry, the trial court ordered Beaver's nine-year
sentence consecutive to the sentence in
CR-15-592396, which was only one year. If the court wanted to
impose an aggregate sentence of 13 years, the court should
have ordered Beaver's nine-year sentence consecutive to
the four-year sentence imposed in CR-14-586857. As this court
has previously stated, "we are bound by the record as
presented. Whatever was the trial court's intention with
respect to the aggregate sentence, it must be set
aside." State v. Montanez-Roldon, 8th ...