In re J.T.

85 N.E.3d 763

2017 Ohio 7723

IN RE: J.T., a Minor Child

Nos. 105311

105316

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: September 21, 2017

Timothy Young, Ohio Public Defender, BY: Timothy Hackett, Assistant Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, Attorneys for Appellant.

Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Geoffrey S. Minter, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, Attorneys for Appellee.

BEFORE: Boyle, P.J., S. Gallagher, J., and Jones, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, P.J.:

{¶ 1} In this consolidated appeal, the defendant-appellant, J.T., appeals the juvenile court's disposition of two years of commitment for Cuyahoga C.P. Nos. DL 16103910 and DL 16108687. He raises three assignments of error for our review:

1. The Cuyahoga County Juvenile Court abused its discretion when it issued a judgment entry that failed to reflect what actually occurred during its dispositional hearing.

2. The Cuyahoga County Juvenile Court violated J.T.'s right to be free from double jeopardy and right to equal protection when it enhanced his weapons under disability offense with a firearm specification.

3. J.T.'s trial counsel rendered ineffective assistance by failing to object to the imposition of J.T.'s firearm specification, in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution; and, Article I, Sections 10 and 16, Ohio Constitution.

{¶ 2} Finding merit to J.T.'s first assignment of error, we remand to the juvenile court to correct its dispositional journal entry.

I. Procedural History and Factual Background

{¶ 3} In Case No. DL 16103910,¹ the state of Ohio filed a complaint against J.T. alleging one count of receiving stolen property. In Case No. DL 16107971,² the state filed a complaint against J.T. alleging one count of having a weapon while under disability, with a one-year firearm specification and forfeiture-of-weapon specification; one count of carrying a concealed weapon, with a forfeiture-of-weapon specification; and one count of improperly handling a firearm in a motor vehicle, with a one-year firearm specification and a forfeiture-of-weapon specification. In Case No. DL 16108687,³ the state filed a third complaint against J.T. alleging one count of having a weapon while under disability, with one- and three-year firearm specifications; one count of tampering with evidence; two counts of receiving stolen property, with one- and three-year firearm specifications; and one count of carrying a concealed weapon. J.T. denied the allegations.

{¶ 4} Eventually, J.T. agreed that he would admit to amended charges incorporating all three cases. As part of the plea deal, the trial court, upon the state's request, nolled all of the counts in Case No. DL 16107971, as well as the count of tampering with evidence, the one-year firearm specification for the weapon while under disability count, and the one- and three-year firearm specifications for the receiving stolen property counts in Case No. DL 16108687. In return, J.T. admitted to the complaint of receiving stolen property in Case No. DL 16103910 and to having a weapon while under disability, including the three-year firearm specification, two counts of receiving stolen property, and one count of carrying a concealed weapon in Case No. DL 16108687.

{¶ 5} During the plea hearing, the juvenile court stated, "With respect to the having weapons under disability count, that's Count 1 in case number ending in 8687, because you're going to admit to being found delinquent of the three-year gun spec, it is mandatory that you be sent to the Ohio Department of Youth Services." J.T. stated he understood that he was required to spend at least one year at the Ohio Department of Youth Services ("ODYS") by admitting to the three-year gun specification. Neither the state nor J.T. or his counsel objected to the juvenile court's imposition of the gun specification during the plea hearing.

{¶ 6} At the dispositional hearing, the juvenile court committed J.T. to a two-year minimum term of commitment at the ODYS. In calculating J.T.'s sentence, the juvenile court stated:

So for having weapons under disability, * * * that is a $750 fine. The fine will be suspended. * * * That six-month commitment to the Ohio Department of Youth Services, minimum period of confinement, maximum period is until he turns 21. I'll give him the minimum, and I do have discretion to do three years. * * * I'm only going to do one. So it's one year on the gun spec, mandatory, six months on the having weapons under disability, so it's a year and a half. The one year has to be served.

In addition to that 18–month commitment, the juvenile court found that J.T.'s three receiving stolen property counts would merge, added another six months to J.T.'s term of commitment, and imposed a suspended $400 fine. Finally, as to the count of carrying a concealed weapon, the juvenile court imposed a suspended $100 fine.

{¶ 7} It is from this judgment that J.T. appeals.

II. The Juvenile Court's Judgment Entry

{¶ 8} In his first assignment of error, J.T. claims that the juvenile court failed to accurately journalize the proceedings at the dispositional hearing. The state agrees with J.T. and concedes this error. We agree as well.

{¶ 9} Because Ohio courts speak through their journal entries, it is essential for those journal entries to be an accurate and truthful reflection of the court's proceedings. State ex rel. Worcester v. Donnellon, 49 Ohio St.3d 117, 118, 551 N.E.2d 183 (1990). A court may correct a clerical mistake in a judgment entry to accurately reflect the case's proceedings at any time. Crim.R. 36 ; In re F.M., 8th Dist. Cuyahoga No. 93255, 2009-Ohio-6317, 2009 WL 4406147, ¶ 9. A "clerical mistake" is "a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment." State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19.

{¶ 10} When clerical mistakes are raised on appeal, Ohio appellate courts may remand the issue to the trial court and direct that the court correct the misstatement through a nunc pro tunc entry. App.R. 9(E) ; State v. Peacock, 8th Dist. Cuyahoga No. 102567, 2015-Ohio-4697, 2015 WL 7075840, ¶ 40 ; see also In re F.M. at ¶ 12 ("The state does not dispute the errors in the entries. Accordingly, we sustain the first assignment of error and remand the matter to the trial court to issue a nunc pro tunc entry correcting the April 6, 2009 journal entry to accurately reflect what occurred during the proceedings of this case."). "A nunc pro tunc order records acts done at a former time that were not then carried into the record. A nunc pro tunc order may be used to make the record reflect the truth, but not to reflect something that did not occur." State v. Kelly, 8th Dist. Cuyahoga No. 102413, 2015-Ohio-5272, 2015 WL 9238944, ¶ 46, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.

{¶ 11} In its journal entry, the juvenile court did not indicate that J.T.'s counts for receiving stolen property were allied offenses on the record and expanded on its earlier disposition for the count of carrying a concealed weapon, adding a 90–day term of detention in addition to the $100 fine. Yet, during the dispositional hearing the juvenile court stated that the counts for receiving stolen property merged and made no mention of a term of commitment for the count of carrying a concealed weapon.

{¶ 12} Both J.T. and the state acknowledge those discrepancies and agree that the proper remedy is to remand the issue to the juvenile court for correction through a nunc pro tunc entry. Accordingly, we remand the matter to the juvenile court to allow the juvenile court to correct its December 12, 2016 journal entry reflecting that J.T.'s counts of receiving stolen property are allied offenses as well as reflecting the proper punishment for the count of carrying a concealed weapon.

{¶ 13} J.T.'s first assignment of error is sustained.

III. The Firearm Specification

{¶ 14} In his second assignment of error, J.T. argues that the juvenile court violated his double jeopardy and equal protection rights by enhancing his weapons while under disability offense with a firearm specification.

A. Standard of Review

{¶ 15} When a defendant fails to object or raise the issue of double jeopardy at trial or disposition, an appellate court reviews the issue for plain error. Crim.R. 52 ; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Courts should exercise the "utmost caution" when applying plain-error review as it only applies to prevent a "manifest miscarriage of justice." State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). "In order to have plain error under Crim.R. 52(B), there must be an error, the error must be an ‘obvious' defect in the trial proceedings, and the error must have affected ‘substantial rights,’ meaning that the error must have affected the outcome of the trial." State v. Ryan, 10th Dist. Franklin Nos. 08AP–481 and 08AP482, 2009-Ohio-3235, 2009 WL 1911863, ¶ 18, quoting Barnes. The violation of an individual's double jeopardy or equal protection rights constitutes plain error. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31 ; State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 2.

B. Double Jeopardy

{¶ 16} J.T. argues that the firearm specification enhancing his commitment for the having weapons while under disability count violates his double jeopardy protections under the United States and Ohio Constitutions. Specifically, J.T. contends that R.C. 2152.17(A), which allows a firearm specification to enhance a juvenile's having weapons while under disability adjudication, fails to provide him the same double jeopardy rights...