[Cite as State v. Carelli, 2016-Ohio-8031.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO 

 PLAINTIFF-APPELLEE 

VS. 

FRANK CARELLI 

 DEFENDANT-APPELLANT 

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CASE NO. 15 CO 0025 

OPINION 

CHARACTER OF PROCEEDINGS: Appeal from the Columbiana County 

Municipal Court, Columbiana County, 

Ohio 

Case No. 2010 TRC 925 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Robert Herron 

Columbiana County Prosecutor 

Attorney Don Humphrey, Jr. 

Assistant Prosecutor 

38832 Saltwell Road 

Lisbon, Ohio 44432 

For Defendant-Appellant Attorney Scott Cochran 

19 East Front Street, Suite 1 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 

 

 Dated: December 2, 2016 
[Cite as State v. Carelli, 2016-Ohio-8031.]

DeGENARO, J. 

{¶1} Defendant-Appellant, Frank Carelli, appeals the nunc pro tunc judgment 

of the trial court amending a 2010 judgment entry to indicate the proper statutory 

section to which he pled. As the trial court correctly issued a nunc pro tunc entry to 

reflect what actually occurred at the 2010 hearing, Carelli's assignment of error is 

meritless, and the judgment of the trial court is affirmed. 

{¶2} Carelli was charged with two counts of OVI, R.C. 4511.19(A)(1)(a) and 

R.C. 4511.19(A)(2) and a stop sign violation, RC 4511.12. On November 23, 2010, 

Carelli pled to one count of OVI and the stop sign citation. The same day the trial 

court issued a judgment entry in which it found Carelli guilty of these offenses and 

pronounced his sentence. This entry did not specify which subsection of RC 4511.19 

that Carelli was guilty of violating. 

{¶3} In 2015, Carelli filed a motion seeking resentencing on the 2010 OVI 

case. At the hearing the audio taped proceedings from the 2010 case were played 

and entered into evidence. The trial court denied Carelli's motion and entered a nunc 

pro tunc entry for the purpose of correcting the clerical omission to reflect that Carelli 

pled to R.C. 4511.19(A)(1)(a) rather than 4511.19(A)(2)(B).

{¶4} In his sole assignment of error, Carelli asserts: 

The trial Court erred as a matter of law in correcting the original 

sentencing entry through a nunc pro tunc entry as opposed to a new 

sentencing entry incorporating new findings made by the Court and in 

denying the Motion for Resentencing. 

{¶5} Trial courts generally lack authority to reconsider their own valid final 

judgments in criminal cases, however they retain continuing jurisdiction to correct 

clerical errors in judgments by nunc pro tunc entry to reflect what the court actually 

decided. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 

N.E.2d 1010, ¶ 13. Crim.R. 36 provides "[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 proper use of a nunc pro tunc is 
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limited to reflecting what the court actually decided, not what the court should have 

decided or what the court intended to decide. Bobb Forest Products, Inc. v. Morbark 

Industries, Inc., 151 Ohio App.3d 63, 2002-Ohio-5370, 783 N.E. 560, ¶ 26 (7th.Dist.) 

{¶6} "The term "clerical mistake" refers to a mistake or omission, mechanical 

in nature and apparent on the record which does not involve a legal decision or 

judgment." State ex rel. Litty v. Leskovyansky`, 77 Ohio St.3d 97, 100, 1996-Ohio340, 671 N.E.2d 236. (internal citations omitted) "[T]he nunc pro tunc entry does not 

reflect a modification of an erroneous judgment but rather supplies omissions of a 

clerical nature which serve to have the record speak the truth." Doe v. Catholic 

Diocese of Cleveland, 158 Ohio App.3d 49, 2004-Ohio-3470, 813 N.E.2d 977, ¶ 14 

(8th.Dist.) 

{¶7} Carelli concedes "[a] nunc pro tunc entry is to be used to correct an 

error that is apparent on the record." However, he argues that the court never 

announced which count he was convicted of, nor disposed of the remaining OVI 

count. The State agrees with the law presented by Carelli but contends that based 

upon the facts presented, the trial court was correct in issuing a nunc pro tunc entry. 

{¶8} The State recited the charges that Carelli was facing to the trial court. 

The assistant prosecutor stated, "we are proceeding under (A)(1)(a)." The defense 

attorney confirmed to the trial court that the prosecutor correctly presented the Rule 

11 agreement, that Carelli was entering a plea of no contest, and asked the court to 

accept the recommendation of the agreement. The court addressed Carelli directly, 

"To the charge of Operating Under the Influence, second offense, do you wish to 

plead no contest." Carelli answered affirmatively. 

{¶9} The record clearly demonstrates that the State was proceeding with the 

(A)(1)(a) charge, that defense counsel confirmed this with Carelli entering his plea, 

and the trial court accepting that plea. Though the trial court inadvertently omitted the 

statutory designation, it corrected this clerical error by way of the 2015 nunc pro tunc 

entry which expressly listed that Carelli pled to R.C. 4511.19(A)(1)(a) and merged the 

remaining refusal count. As this was an oversight by the trial court resulting in a 
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clerical error, the trial court was correct in using a nunc pro tunc to resolve this issue. 

Accordingly Carelli's sole assignment of error is meritless and the judgment of the 

trial court is affirmed. 

Donofrio, P. J., concurs. 

Waite, J., concurs.