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State v. Patterson

Court of Appeals of Ohio, Fifth District, Stark

December 9, 2019

STATE OF OHIO Plaintiff-Appellee
v.
BRANDON C. PATTERSON Defendant-Appellant

          Appeal from the Stark County Court of Common Pleas, Case No. 2019-CR-0136

         JUDGMENT: Affirmed.

          For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney

          KRISTINE W. BEARD Assistant Prosecuting Attorney

          For Defendant-Appellant BRANDON C. PATTERSON Inmate No. A564-655

          For Defendant-Appellant BRANDON C. PATTERSON Inmate No. A564-655

          JUDGES: Hon. William B. Hoffman, P.J Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          HOFFMAN, P.J.

         {¶1} Appellant Brandon C. Patterson appeals the judgment entered by the Stark County Common Pleas Court resentencing him to an aggregate term of incarceration of fourteen years for his convictions of two counts of felonious assault with accompanying firearm specifications, and one count of having weapons under disability.

         STATEMENT OF THE FACTS AND CASE

         {¶2} The facts and much of the procedural history of this case can be found in our previous opinions in this matter, and is incorporated herein. See State v. Patterson, 5th Dist. Stark No. 2009CA00142, 2010-Ohio-2988; State v. Patterson, 5th Dist. Stark No. 2014CA00220, 2015-Ohio-1714; State v. Patterson, 5th Dist. Stark No. 2015CA00125, 2015-Ohio-4325; State v. Patterson, 5th Dist. Stark No. 2017CA00153, 2017-Ohio-9001.

         {¶3} On March 4, 2019, the Eleventh District Court of Appeals issued a writ of habeas corpus vacating Appellant's conviction for attempted felony murder and the accompanying firearm specification pursuant to State v. Nolan, 141 Ohio St.3d 454, 25 N.E.3d 1016, 2014-Ohio-4800, In Nolan, the Ohio Supreme Court held attempted felony murder is not a crime under Ohio law, and found the defendant's conviction to be void and not merely voidable. Patterson v. Bracy, 11th Dist. Trumbull No. 2016-T-0067, 132 N.E.3d 1115, 2019-Ohio-747, ¶13. The court remanded to the Stark County Common Pleas Court for resentencing on Count 2, felonious assault with its attendant firearm specification, holding as follows:

As petitioner's conviction on count one, attempted felony murder, is void, it is vacated. He has therefore demonstrated that he is entitled to release from confinement but not absolute discharge as sentencing issues remain that cannot be fully addressed in the context of this action regarding sentencing on count two and the accompanying firearm specification. It is clear that count two, felonious assault, and the accompanying firearm specification cannot merge with the void conviction on count one as ordered in the first sentencing entry. However, after first merging count two with count one, and after the Fifth District remanded for what appears to be the limited purpose of imposing post-release control, the trial court, in its second sentencing entry, merged count two with count three. Thus, an issue remains as to which merger order controls. See State v. Teagarden, 5th Dist. Licking No. 14-CA-56, 2015-Ohio-2563, 2015 WL 3935756; State v. Carsey, 4th Dist. Athens No. 14CA5, 2014 WL 4181351, 2014-Ohio-3682, ¶ 11 (a trial court lacks jurisdiction to exceed the scope of an appellate court's remand and actions beyond the scope are void).
The trial court then issued what it deems to be a nunc pro tunc entry sentencing petitioner to three years on count two but not the accompanying firearm specification. An issue remains as to whether this is a proper nunc pro tunc order. State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15 (" 'Although courts possess 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, not what the court might or should have decided.'"' "). See also Barille v. O'Toole, 8th Dist. Cuyahoga No. 82063, 2003-Ohio-4343, 2003 WL 21956982, ¶ 50; State v. McIntyre, 2d Dist. Montgomery No. 25502, 2013 ...

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