[Cite as State v. Nashe, 2012-Ohio-4122.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. John W. Wise, J, 

-vs- : 

 : 

EDWARD D. NASHE : Case No. 11-CA-64 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 2011CR341 

JUDGMENT: Affirmed/Reversed in Part 

 

DATE OF JUDGMENT: September 4, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

 

JOCELYN S. KELLY MARK P. ORT 

239 West Main Street 13297 Rustic Drive, NW 

Suite 101 Pickerington, OH 43147 

Lancaster, OH 43130 
Fairfield County, Case No. 11-CA-64 2

Farmer, J. 

{¶1} On August 5, 2011, the Fairfield County Grand Jury indicted appellant, 

Edward Nashe, on one count of trafficking in cocaine in violation of R.C. 2925.03 and 

one count of possessing crack cocaine in violation of R.C. 2925.11. 

{¶2} A jury trial commenced on October 25, 2011. The jury found appellant 

guilty as charged. After the verdicts were read, the trial court sentenced appellant to 

twelve months on the trafficking count and seventeen months on the possession count, 

to be served consecutively. The judgment entry reflecting this sentence was filed on 

November 15, 2011. 

{¶3} On October 31, 2011, appellant filed a motion for postconviction relief, 

claiming the two counts should have been merged for sentencing. A hearing was held 

on November 4, 2011. By nunc pro tunc judgment entry filed December 6, 2011, the 

trial court merged the trafficking count with the possession count and sentenced 

appellant to seventeen months on the possession count. The trial court also sentenced 

appellant to a consecutive term of twelve months for a violation of postrelease control. 

{¶4} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶5} "THE EVIDENCE WAS SUCH THAT REASONABLE MINDS COULD 

NOT CONCLUDED (SIC) THAT EITHER CHARGED OFFENSE HAD BEEN PROVEN 

BEYOND A REASONABLE DOUBT THUS THE CONVICTION WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE." 
Fairfield County, Case No. 11-CA-64 3

II 

{¶6} "THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT INITIALLY 

SENTENCED THE APPELLANT FOR THE ALLIED OFFENSES OF TRAFFICKING IN 

COCAINE AND FOR POSSESSION OF THE SAME COCAINE IN VIOLATION OF THE 

HOLDING IN STATE V. CABRALES." 

III 

{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED 

THE APPELLANT TO CONSECUTIVE SENTENCES THAT CLOSELY 

APPROXIMATED THE MAXIMUM ALLOWABLE SENTENCE FOR EACH OFFENSE." 

IV 

{¶8} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN, UPON 

GRANTING THE DEFENDANT'S MOTION FOR POST CONVICTION RELIEF AND 

CORRECTING THE PLAIN ERROR COMMITTED, THE COURT REPLACED THE 

INTENDED IMPROPER SENTENCE FOR THE MERGED OFFENSE WITH A 

SANCTION FOR COMMITTING A NEW OFFENSE WHILE ON POST RELEASE 

CONTROL." 

I 

{¶9} Appellant claims his conviction was against the manifest weight of the 

evidence. We disagree. 

{¶10} On review for manifest weight, a reviewing court is to examine the entire 

record, weigh the evidence and all reasonable inferences, consider the credibility of 

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly 

lost its way and created such a manifest miscarriage of justice that the conviction must 
Fairfield County, Case No. 11-CA-64 4

be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175. 

See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new 

trial "should be exercised only in the exceptional case in which the evidence weighs 

heavily against the conviction." Martin at 175. 

{¶11} Appellant was convicted of trafficking in cocaine in violation of R.C. 

2925.03 and possession of crack cocaine in violation of R.C. 2925.11 which state the 

following, respectively: 

{¶12} "(A) No person shall knowingly do any of the following: 

{¶13} "(1) Sell or offer to sell a controlled substance; 

{¶14} "(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, 

or distribute a controlled substance, when the offender knows or has reasonable cause 

to believe that the controlled substance is intended for sale or resale by the offender or 

another person. 

{¶15} "(A) No person shall knowingly obtain, possess, or use a controlled 

substance." 

{¶16} Appellant argues that none of the evidence presented tied him to drug 

possession or trafficking in the residence of Eugene Harman. 

{¶17} It is undisputed that Brian Ball was arrested and found to be in possession 

of crack cocaine. Mr. Ball testified he ordered the cocaine from Mr. Harman, went to 

Mr. Harman's residence, met Mr. Harman at the door, and exchanged money for the 

cocaine. T. at 284-285. 

{¶18} Mr. Harman testified on prior occasions, he drove with appellant to pick up 

cocaine and appellant supplied him with crack cocaine. T. at 155; 158-159. Mr. 
Fairfield County, Case No. 11-CA-64 5

Harman would take orders for crack cocaine and appellant would weigh it and hand it to 

Mr. Harman for delivery. T. at 160-161. On the evening in question, appellant brought 

crack cocaine to Mr. Harman's residence and Mr. Harman gave the crack cocaine to 

those who had placed orders. T. at 164, 166. 

{¶19} Joann Crist testified on prior occasions, she purchased crack cocaine from 

appellant and she would assist him in selling it. T. at 237-239. On the evening in 

question, appellant removed crack cocaine from his boxer pants area, weighed it, 

placed it in a baggie, and handed it over to Ms. Crist to deliver. T. at 239-240, 241-242. 

{¶20} Mr. Ball testified he gave appellant rides in exchange for crack cocaine. T. 

at 280. On the day in question, Mr. Ball drove appellant to Columbus and appellant 

paid him in crack cocaine. T. at 282. Mr. Ball dropped appellant off at Mr. Harman's 

residence. T. at 283-284. 

{¶21} When the police entered Mr. Harman's residence, they observed appellant 

in a doorway in a back room, his arms were moving, and he did not show police his left 

hand. T. at 74-75, 343. Nobody else was in the room. T. at 76. During a search of the 

back room, a bag of crack cocaine was immediately to the right of the doorway where 

appellant had been. T. at 84. An officer outside the residence looking through the 

window of the back room observed a bag of cocaine hit the floor. T. at 342-343. The 

officer saw "the arm of a black person there in that doorway." T. at 343. Appellant was 

the only black individual in the apartment at the time of the raid. 

{¶22} Both Mr. Harman and Ms. Crist identified appellant as the supplier of the 

crack cocaine who would give them some in exchange for assisting him in selling the 

drugs. Although several drug buys were witnessed by the police at Mr. Harman's 
Fairfield County, Case No. 11-CA-64 6

residence on the evening in question, after the arrests, appellant was the only one with 

money in his pockets ($471.00). T. at 350, 356. 

{¶23} Mr. Ball, Mr. Harman, and Ms. Crist specifically identified appellant as 

possessing crack cocaine and Mr. Harman and Ms. Crist identified appellant as the 

crack cocaine supplier and dealer. The testimony was substantiated by the 

circumstantial evidence of appellant's location and proximity to the crack cocaine baggie 

discovered in the back room, his actions at the time of the raid, and the fact that he was 

the only individual with money in his pockets. 

{¶24} Upon review, given the direct evidence and the corroborative 

circumstantial evidence, we find no manifest miscarriage of justice. 

{¶25} Assignment of Error I is denied. 

II 

{¶26} Appellant claims the trial court erred in originally failing to merge the two 

convictions for sentencing. 

{¶27} In its original sentence, the trial court sentenced appellant to twelve 

months on the trafficking count and seventeen months on the possession count, to be 

served consecutively. The trial court corrected the allied offenses issue via a nunc pro 

tunc judgment entry filed December 6, 2011, wherein the trial court merged the 

trafficking count with the possession count and sentenced appellant to seventeen 

months on the possession count. 

{¶28} "The purpose of a nunc pro tunc entry 'is restricted to placing upon the 

record evidence of judicial action which has been actually taken' and 'it can be 

exercised only to supply omissions in the exercise of functions that are clerical merely.' 
Fairfield County, Case No. 11-CA-64 7

Jacks v. Adamson (1897), 56 Ohio St. 397, 402; 'The function of nunc pro tunc is not to 

change, modify, or correct erroneous judgments, but merely to have the record speak 

the truth.['] Ruby v. Wolf (1931), 39 Ohio App. 144 (Emphasis added.); Dentsply 

Internatl., Inc. v. Kostas (1985), 26 Ohio App.3d 116. See, also, Pepera v. Pepera

(March 26, 1987), Cuyahoga App. Nos. 51989, 52024, unreported (A court may not by 

way of a nunc pro tunc entry, enter of record that which it intended or might have made 

but which in fact was not made.) McGowan v. Giles (March 16, 2000), Cuyahoga App. 

No. 76332. 

{¶29} The nunc pro tunc judgment entry in this case made a correction as to a 

matter of law and therefore was a substantive change. Appellant did not challenge the 

vehicle by which the trial court corrected its sentence, but merely argued the trial court 

erred in not originally merging the two offenses for sentencing. In its nunc pro tunc 

judgment entry filed December 6, 2012, the trial court merged the offenses and 

sentenced appellant on only one. We find the arguments relating back to the original 

sentence are moot. 

{¶30} Assignment of Error II is denied. 

III 

{¶31} Appellant claims the trial court erred in sentencing him to the almost 

maximum allowable sentence. We disagree. 

{¶32} Appellant was sentenced to seventeen months on a felony four offense. 

Pursuant to R.C. 2919.14(A)(4), felonies of the fourth degree are punishable by "six, 

seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or 

eighteen months." 
Fairfield County, Case No. 11-CA-64 8

{¶33} The sentence imposed is clearly within the statutory guidelines. The 

record demonstrates that appellant has had a continuous history of criminal 

involvement. T. at 520-523. 

{¶34} Upon review, we find no abuse of discretion in sentencing appellant to 

seventeen months on the felony four offense. 

{¶35} Assignment of Error III is denied. 

IV 

{¶36} Appellant claims the trial court erred in sentencing him to a term for 

violating postrelease control. 

{¶37} In its original sentence, the trial court did not impose a prison term for 

violating postrelease control. In its nunc pro tunc judgment entry filed December 6, 

2011, the trial court imposed a twelve month term for violating postrelease control: 

{¶38} "On the date first mentioned, the Court sentenced the Defendant as to 

Count Two to be confined in the Correctional Reception Center, Orient, Ohio, for a 

period of 17 months. The Court further ordered the Defendant to pay the Court costs 

and the costs of prosecution. The Court further found that the time that these offenses 

were committed, the Defendant was on Post-Release control. The Court elected due to 

the Defendant's criminal history to impose a 12 month sentence upon the Defendant for 

violating PRC. Said sentence is to be served consecutive to the 17 month sentence as 

to Count Two for a total prison sentence of 29 months." 

{¶39} Appellant argues the trial court erred in imposing the twelve month term as 

it was not imposed in the original sentence and the additional sentence is an indication 

of vindictiveness. Appellant argues upon realizing the allied offenses error in the 
Fairfield County, Case No. 11-CA-64 9

original sentence, the trial court sought to impose the same aggregate term with the 

addition of twelve months for the postrelease control violation. 

{¶40} At the original sentencing hearing, the trial court spoke directly to the 

postrelease control violation issue as follows: 

{¶41} "MR. ORT: Were you on parole? 

{¶42} "THE DEFENDANT: Yes. 

{¶43} "THE COURT: There's a penalty that can be imposed for being on postrelease control. 

{¶44} "MR. ORT: But would that be by the Court that initially sentenced him? 

{¶45} "THE COURT: No. It would be by the Judge who imposes - - me, who 

imposes the sentence in this case. The Court is not imposing a penalty. But the Parole 

Board could take action against you, Mr. Nashe. And you'll just have to deal with the 

Parole Board on whether or not they return you to prison to serve any portion of your 

previously imposed sentences." T. at 535-536. 

{¶46} By amending its decision in the December 6, 2012 judgment entry, the 

trial court demonstrated the original sentence of seventeen months was what it 

considered to be appropriate. We find it was error on resentencing to sentence 

appellant for an additional twelve month term for violating postrelease control given the 

fact that the trial court originally declined to impose a term and specifically stated so on 

the record. The twelve month sentence for violating postrelease control is hereby 

stricken. 

{¶47} Assignment of Error IV is granted. 
Fairfield County, Case No. 11-CA-64 10

{¶48} The judgment of the Court of Common Pleas of Fairfield County, Ohio is 

hereby affirmed in part and reversed in part. 

By Farmer, J. 

Delaney, P.J. and 

Wise, J. concur. 

 

 

 

 s / Sheila G. Farmer______________ 

 

 s/ Patricia A. Delaney_____________ 

 s / John W. Wise________________ 

 JUDGES 

SGF/sg 814
[Cite as State v. Nashe, 2012-Ohio-4122.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

EDWARD D. NASHE : 

 : 

 Defendant-Appellant : CASE NO. 11-CA-64 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed in part and 

reversed in part. The twelve month sentence for violating postrelease control is hereby 

stricken. Costs to appellant. 

 s / Sheila G. Farmer______________ 

 

 s/ Patricia A. Delaney_____________ 

 s / John W. Wise________________ 

 JUDGES