[Cite as State v. Neumann-Boles , 2013-Ohio-3968.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO Appellee

v. RANDY NEUMANN-BOLES Appellant C.A. No. 12CA0069-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 09 CR 0069

DECISION AND JOURNAL ENTRY Dated: September 16, 2013

BELFANCE, Presiding Judge. {¶1} Defendant-Appellant Randy Neumann-Boles appeals from her resentencing in the Medina County Court of Common Pleas. For the r easons set forth below, we vacate the August 10, 2012 entry that is the subject of this appeal.

I. {¶2} This Court related much of the backgr ound of this matter in a prior appeal: On September 16, 2008, Ms. Neumann-Boles was driving under the influence of alcohol in violation of R.C. 4511.19(A)(1 )(a) when she caused the vehicle she was driving to swerve from the eastbound la ne of State Route 18 and collide with a vehicle being driven in the westbound la ne. Both Ms. Neumann-Boles and the other driver were seriously injured in the collision. As a result of the collision, Ms. Neumann- Boles was charged with one count of aggravated vehicular assault in viola tion of R.C. 2903.08(A)(1)(a), and one count of aggravated vehicular assault in viola tion of R.C. 2903.08(A)(2)(b). Pursuant to the enhancement provisions of R.C. 2903.08(B)(1)(a) and R.C. 2903.08(C)(2) respectively, the violation of R.C. 2903.08(A)(1)(a) was charged as a seconddegree felony and the violation of R.C. 2903 .08(A)(2)(b) was charged as a thirddegree felony. The indictment for both counts alleged that at the time of the offense, Ms. Neumann-Boles was “und er a driving suspension imposed under Chapter 4510 or any other provision of the Ohio Revised Code, or any2

substantial[ly] equivalent current or former law of another state[.]” See R.C. 2903.08(B)(1)(a), (C)(2), (G). The matter pr oceeded to a bench trial and the trial court found Ms. Neumann-Boles guilty of both counts. The trial court concluded the offenses were allied, and the State elected to have Ms. Neumann-Boles sentenced for the violation of R.C. 2903.08(A)(1)(a) as a second-degree felony. The trial court sentenced Ms. Neuma nn-Boles to seven years in prison. State v. Neumann-Boles, 9th Dist. Medina No. 10CA0013-M, 2011-Ohio-6684, ¶ 2-3. {¶3} Ms. Neumann-Boles appealed asserting that there was insufficient evidence presented by the State to establish the element that enhanced the penalty of her offenses. See id. at ¶ 4. This Court concluded that “the State failed to produce sufficient evidence of the fact

which would elevate Ms. Neumann–Boles’ convic tion [from a third-degree felony] to a seconddegree felony.” Id. at ¶ 9. We “agree[d] that Ms. Neuma nn–Boles could not be convicted of a second-degree felony based upon the evidence presented at trial.” Id. at ¶ 10. This Court noted that, “[g]enerally, a violation of R.C. 2903.08(A)(1 )(a), absent a demonstration of facts leading to a penalty enhancement, is a felony of the third degree.” Id. “Consequently, we remand[ed the matter] to the trial cour t with instructions that the trial court enter a conviction against Ms. Neumann–Boles for a third-degree felony viol ation of R.C. 2903.08(A)(1)(a) and that she be sentenced accordingly.” Id. {¶4} On May 25, 2012, a resentencing hearing was held at which the trial court acknowledged this Court’s remand instructions. Accordingly, at the hearing, the trial court sentenced Ms. Neumann-Boles to 60 months in pris on for a third-degree felony violation of R.C. 2903.08(A)(1)(a). However, the tr ial court’s June 5, 2012 sentenci ng entry contains several typographical errors that do not reflect what occurred at the sentencing hearing. The entry states that Ms. Neumann-Boles was found guilty of a sec ond-degree felony, that she was convicted of a second-degree felony, and thereafter impos es a sentence for a second-degree felony.3 {¶5} On June 11, 2012, Ms. Neumann-Boles file d a motion to vacate her sentence asserting that, because of our remand instructions, the trial court lacked jurisdiction to sentence Ms. Neumann-Boles for a second-degree felony . The trial court held a hearing on Ms. Neumann-Boles’ motion on July 20, 2012. At th e hearing, the trial court determined Ms.

Neumann-Boles should be resenten ced and proceeded to do so. The trial court did not vacate its prior entry and issued a new sentencing entry journalized August 10, 2012, which still recited that Ms. Neumann-Boles was found guilty and convicted of a second-degree felony and appears to improperly refer to count one as count two in discussing the State’s election with respect to merger. However, the entry does appear to sentence Ms. Neumann-Boles for a third-degree felony and orders Ms. Neumann-Boles to serve 60 months in prison. Ms. Neumann-Boles has appealed from this entry raising four assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT INCORRECTLY ENTERED A JUDGMENT OF CONVICTION, AND SENTENCED APPELLANT FOR SECOND[-] DEGREE FELONY. ASSIGNMENT OF ERROR II IN THE JULY 20, 2012, RE-SENTENCING HEARING, THE TRIAL COURT FAILED TO MAKE SPECIFIC FINDINGS OF FACT TO SUPPORT THE IMPOSITION OF THE MAXIMUM SENTENCE. ASSIGNMENT OF ERROR III

THE TRIAL COURT’S IMPOSITION OF THE MAXIMUM TERM OF IMPRISONMENT IS NOT SUPPORTED BY THE RECORD. ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMPLETELY FAILED TO CONSIDER APPELLANT’S PROPORTIONALITY ARGUMENT AT SENTENCING.4 {¶6} In her four assignments of error, Ms. Neumann-Boles raises challenges to the trial court’s July 20, 2012 resentencing hearing and August 10, 2012 sentencing entry. However, because we determine that the August 10, 2012 entry was entered without authority, we vacate it

and are unable to address Ms. Neumann-Boles’ a ssignments of error which pertain solely to the resentencing hearing and the ensuing improper sentencing entry. {¶7} “R.C. 2505.02 sets forth the conditions under which an order is final and may be reviewed, affirmed, or modified, w ith or without retrial. Crim.R. 32(C) specifies the substantive requirements that are to be included within a judgment of conviction that make it final for purposes of appeal.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶ 17. On its face, the June 5, 2012 sentencing entry complies with the re quirements of Crim.R. 32( C) and is final. See Crim.R. 32(C); Lester at paragraph one of the syllabus (int erpreting Crim.R. 32(C)). “[A] trial court lacks the authority to reconsider its own valid, final judgment in a criminal case, with two exceptions: (1) when a void sentence has been im posed and (2) when the judgment contains a

clerical error.” State v. Miller , 127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 14. {¶8} In her motion to vacate, Ms. Neumann-Boles asserted that the June 5, 2012 entry should be vacated as void because the entry exceed ed the trial court’s jurisdiction on remand by convicting and sentencing Ms. Neumann-Boles on a second-degree felony when this Court ordered that she be convicted and sentenced for a third-degree felony. The motion to vacate, however, fails to take into account the fact that the actual resentencing hearing conducted by the trial court in May 2012 followed our remand, and, thus, was within the bounds of its jurisdiction. The trial court, on more than one occasion, at the May 2012 sentencing hearing referred to our prior opinion and remand instructions. It noted th at we had concluded that “Ms. Boles could not be convicted of a second[-]degree felony based on ev idence at the trial[.]” Thus, it stated that we5

charged it with “enter[ing] a conviction against Ms. Boles for a third[-]degree felony, a violation

of Revised Code Section 2903.08(A)(1)(a) and * * * sentenc[ing her] accordingly.” Later, at the same hearing, the trial court stated that “[t]his is a felony of the third degree. As instructed by the Ninth District, the Court is going to sentence her on this felony of the third degree.” Moreover, the sentence actually imposed by the trial court at the May 2012 sentencing hearing and in the June 2012 entry is within the range for a third-degree felony. See R.C. 2929.14(A)(3). Thus, it is very clear that the trial court was convicting Ms. Neumann-Boles of a third-degree felony. {¶9} Accordingly, we cannot say that the June 5, 2012 sentencing entry was void; instead, the entry appears to contain clerical errors that could be corrected via Crim.R. 36 and a nunc pro tunc entry. “[T]rial cour ts * * * retain continuing jurisd iction to correct clerical errors in judgments by nunc pro tunc entry to reflec t what the court actually decided.” (Internal quotations and cita tions omitted.) State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 13; see also State v. Berryman, 2d Dist. Montgomery No. 25081, 2012-Ohio-5208, ¶ 12; State v. Brown, 1st Dist. Nos. C-100309, C-100310, 2011-Ohio-1029, ¶ 15; State v. Williams, 6th Dist. Lucas No. L-02-1394, 2004-Ohio-466, ¶ 6-9. At the sentencing hearing in May 2012, the trial court actually decided to convict Ms. Neumann-Boles of a third-degree felony. It is very clear from the sentencing hearing that the trial court was sentencing Ms. Neumann-Boles to a felony of the third degree. Thus, this is not a case in which this Court questions what the trial court

intended. It is clear that the June 2012 sentenci ng entry does not reflect what the trial court

decided. {¶10} Thus, while the trial court had jurisdiction to correct the typographical errors in the June 2012 sentencing entry via a nunc pro tunc entry, see id. , because the June 2012 final6

judgment was not void, the trial court did not ha ve authority to resentence Ms. Neumann-Boles and enter an entirely new sentencing entry. See Miller at ¶ 14. Accordingly, the trial court’s August 10, 2012 sentencing entry is vacated, and the tr ial court is instructed to correct the June 5, 2012 sentencing entry via a nunc pro tunc entry.

III. {¶11} The August 10, 2012 judgment entry of the Medina County Court of Common

Pleas is vacated. Judgment vacated.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT7

WHITMORE, J. HENSAL, J. CONCUR.

APPEARANCES: GREGORY SCOTT ROBEY, Attorney at Law, for Appellant. DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.