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State v. Pruitt

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

STATE OF OHIO, Plaintiff-Appellee,
JOHN PRUITT, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-619929-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jennifer King and Frank R. Zeleznikar, Assistant Prosecuting Attorneys, for appellee.

          Edward M. Heindel, for appellant


          SEAN C. GALLAGHER, J.

         {¶ 1} John Pruitt appeals his convictions for three counts of aggravated robbery and a single count each of aggravated vehicular assault and unauthorized use of a vehicle. Pruitt pleaded guilty to those crimes, which resulted in ten-year terms being imposed on each of the aggravated robbery counts, and 18- and 6- month sentences imposed for the remaining two counts. Those sentences are concurrent with each other. The aggregate term of imprisonment was within the parties' jointly recommended sentencing range of 6-10 years.

         {¶ 2} The state claims that Pruitt's convictions arose from separate incidents that occurred within a short period of time, in which Pruitt threatened victims with deadly weapons, including a firearm in one instance, and hit a victim with a car while fleeing the scene of the crime. During one robbery attempt, Pruitt threatened to "cut the victim up." One of the thefts involved $347 in cash and a Speedway card, upon which Pruitt charged $180 to the victim's account, and another involved the theft of $20, both of which occurred at knife point. In the third occurrence, Pruitt stole the victim's credit and social security cards at gun point. Pruitt fraudulently charged $280 to the third victim's credit card after forcing the victim into a van and driving him around for a brief period of time. And in the fourth incident, Pruitt stole the victim's purse and in the process of fleeing, Pruitt ran over the victim with his van, fracturing the victim's knee.

         {¶ 3} In the first assignment of error, Pruitt claims that his plea was not knowingly, voluntarily, or intelligently entered because the recitation of the counts to which Pruitt pleaded guilty, as stated in the final entry of conviction, differs from the crimes to which Pruitt pleaded guilty at the change-of-plea hearing. There is no purported issue with the aggravated robbery convictions. Pruitt's claim pertains to the conviction for aggravated vehicular assault and unauthorized use of a vehicle.

         {¶ 4} During the change-of-plea hearing, the state represented that Pruitt agreed to plead guilty to aggravated vehicular assault under R.C. 2903.08(A)(2), a felony of the fourth degree, and unauthorized use of a vehicle under R.C. 2913.03(A), a misdemeanor of the first degree. Pruitt agreed with the state's recitation. At the sentencing hearing, the trial court sentenced Pruitt to "the ten years [Pruitt] negotiated in the plea agreement and [the court is] going to run it concurrent on each count, 18 months on the felony of the 4th degree, misdemeanor of the 1st degree, six months." Tr. 45:23-46:6. In the final entry of conviction, it was noted that Pruitt pleaded guilty to, as is relevant to the claimed error, a fourth-degree felony felonious assault and a first-degree misdemeanor grand theft, although the names of the crimes and the relevant statutory sections were incorrect. The sentences on the lower-level offenses, even though the references to the names of the crimes and relevant statutory sections were incorrect, were consistent with the sentences imposed at the sentencing hearing.

         {¶ 5} The error Pruitt complains of did not occur during the plea colloquy but in the journalization of the final conviction. Thus, he cannot demonstrate that he would not have entered the plea but for the error. A trial court retains continuing jurisdiction to correct clerical errors in a judgment by nunc pro tunc entry to reflect that which actually was decided. State ex rel Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 13, citing State ex rel Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19, and 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"). The crimes and relevant statutory sections associated with Counts 8 and 11 to which Pruitt pleaded guilty were mistakenly transposed in the final entry of conviction. That clerical mistake can be corrected through the nunc pro tunc mechanism. We remand for the limited purpose of issuing a nunc pro tunc sentencing entry to correct the sentencing entry to reflect the crimes to which Pruitt pleaded guilty at the sentencing hearing. See State v. McGee, 8th Dist. Cuyahoga No. 104566, 2017-Ohio-1363, ¶ 10. The first assignment of error is otherwise overruled.

         {¶ 6} In the second assignment of error, Pruitt claims the trial court "misstated the purposes and principles of felony sentencing." According to Pruitt, this renders his sentence to be contrary to law.

         {¶ 7} R.C. 2953.08(D)(1) constrains appellate review of jointly recommended sentences that are imposed by the trial court. A defendant's right to appeal a sentence is derived from R.C. 2953.08. State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 15. "[I]f a jointly recommended sentence imposed by a court is 'authorized by law,' then the sentence 'is not subject to review.'" Id., quoting R.C. 2953.08(D)(1). An appellate court lacks jurisdiction to review jointly recommended sentences. State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 22. There is no dispute from the record that the trial court imposed the sentence that was jointly recommended. Thus, the only question in this case is whether the sentences imposed are authorized by law.

         {¶ 8} The Ohio Supreme Court has held that a sentence is "authorized by law," and is therefore not appealable within the meaning of R.C. 2953.08(D)(1), "'if it comports with all mandatory sentencing provisions.'" Sergent at ¶ 26, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, paragraph two of the syllabus. Although the trial court must consider the purposes and principles of sentencing, as well as the factors in R.C. 2929.12, the court is not required to use particular language or make specific findings on the record regarding its consideration of those factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Further, "[an] appellant's sentence is not contrary to law simply because he disagrees with the way in which the trial court weighed the factors under R.C. 2929.11 and 2929.12 and applied these factors in crafting an appropriate sentence." State v. Frazier, 2017-Ohio-8307, 98 N.E.3d 1291, ¶ 28 (8th Dist.).

         {¶ 9} In this case, Pruitt claims that the trial court failed to expressly reference R.C. 2929.11 or 2929.12 at the sentencing hearing. Instead, the trial court discussed the sentencing factors in terms of the specific facts of Pruitt's case and Pruitt's criminal history, rather than offering blanket reference to the statutory sections. Although not required, the trial court offered reasons in support of its sentence. Further, the trial court stated in its sentencing entry that it "considered all required factors of the law[, ]" and additionally, "the court finds that prison is consistent with the purpose of R C. 2929.11." This demonstrates that the trial court considered all that was required by law and the sentences are otherwise authorized by law. State v. Borden, 6th Dist. Wood No. WD-18-015, 2019-Ohio-424, ¶ 13; State v. Wilson, 8th Dist. Cuyahoga No. 106862, 2019-Ohio-150, ¶ 8. We cannot review the sentences imposed. R.C. 2953.08(D)(1). The second assignment of error is overruled.

         {¶ 10} Finally, in the third assignment of error, Pruitt claims the trial court failed to "adequately" explain the privilege against ...

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