[Cite as State v. Truckey , 2019-Ohio-4836.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2019- A -0040 - vs - : JAMES A. TRUCKEY, : Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas , Case No. 2016 CR 00675.

Jud g ment: Modified and affirmed as modified.

Nicholas A. Iarocci , Ashtabula County Prosecutor, and Shelley M. Pratt , Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Stre et, Jefferson, OH 44047 ( For Plaintiff-Appellee )

. David L. Doughten and Kimberly Corral , 4403 St. Clair Avenue, Cleveland, OH 44103 ( For Defendant-Appellant )

.

MATT LYNCH, J. {¶1} Defendant-appellant, James A. Truckey, appeals the Ashtabula Co unty Court of Common Pleas’ February 28, 2019 Judgment Entries order ing the “reinstatement” of his conviction for Dereliction of Duty and c orrecting nunc pro tunc a prior Entry dismissing that conviction. For the following reas ons, we modify the decision

of the court below and affirm as modified. {¶2} On June 28, 2017, Truckey was found guilty after a jury trial o f the following charges: Assault (Count 1), Tampering with Records (C ount 5), Tampering2 with Evidence (Count 6), Dereliction of Duty (Count 7), and Der eliction of Duty (Count 11). {¶3} On September 29, 2017, the trial court merged Dereliction of Du ty (Count 7) into Assault (Count 1) and merged Tampering with Evidence (C ount 6) and Dereliction of Duty (Count 11) into Tampering with Records (Cou nt 5). The court, inter alia, sentenced Truckey “to 180 days in the Lake County Jail on each count, to-wit Counts One and Five, to be served concurrently with each other, of which ninety (90) days on each count are suspended .” {¶4} Truckey appealed his convictions to this court. {¶5} On February 8, 2019, this court rendered its decision in State v. Truckey , 11th Dist. Ashtabula No. 2017-A-0076, 2019-Ohio-407. This cour t found that “Mr. Truckey’s convictions for tampering with evidence, tampering wi th records, and dereliction of duty are unsupported by sufficient evidence, and must be reversed.” Id. at ¶ 14. 1 This court affirmed the assault conviction, however, noting t hat “[t]he body camera video alone proves that Mr. Truckey assaulted Mr. Dirrig l, causing him serious injury.” Id. at ¶ 42. The matter was remanded for “further proceedings con sistent with this opinion.” Id. at ¶ 44. {¶6} This court did not specify which Dereliction of Duty conviction , Count 7 or Count 11, was being reversed. Dereliction of Duty (Count 7) wa s implicitly affirmed,

1. We note two instances in which the import of this sentence in paragraph 14 was misrepresented by counsel for Truckey. On page 5 of the Appellant’s Brief, it is stated that this court found Truckey’s convictions for, inter alia, “derelictions of duty,” rather tha n “dereliction of duty,” to be unsupported by sufficient evidence. At oral argument, counsel asserted that, in the “language of this court’s opinion,” Truckey’s “convictions – in the plural – of dereliction of duty ” were reversed, whereas it was his convictions for tampering with evidence, tampering with records , and dereliction of duty that were reversed. Both claims would have strengthened Truckey’s argume nt that it was this court’s conscious intent to vacate both dereliction of duty convictions, if they had accurately reflected this court’s opinion, which they do not.3 however, by virtue of it being found a lesser included offense of Assault (Count 1). Under the facts of the present case the elements of the two off enses aligned inasmuch as the conduct constituting the Dereliction of Duty was the sam e conduct that

constituted the Assault. 2 {¶7} On February 22, 2019, the trial court, upon “consideration [of] the Eleventh District Court of Appeal’s remand to the Trial Court,” determin ed that “the convictions on all counts, save Count One (Assault), should be and are hereby ordered vacated and

set aside.” {¶8} On February 26, 2019, the State filed a Motion to Reconsider Va cating Defendant’s Conviction for Dereliction of Duty. {¶9} On February 28, 2019, the matter came on for hearing at which t he trial court found the State’s Motion well-taken and “order[ed] reinst atement of the conviction on Count Seven, Dereliction of Duty, as that count was aligned with the Assault

conviction.” {¶10} Also on that date, the trial court entered a Judgment Entry Nun c pro Tunc, correcting its February 22 Entry so that “the convictions on al l counts, save Counts One (Assault) and Seven (Dereliction of Duty) , should be and are hereby ordered vacated

and set aside.” {¶11} On March 27, 2019, Truckey filed a Notice of Appeal. On appeal , he raises the following assignments of error: {¶12} “[1.] The trial court erred by sentencing Truckey for Count Sev en, Dereliction of Duty, R.C. 2921.44(E), as this Court had dismiss ed this conviction for

2. The Indictment for Count 7 reads: “On or about 09/11/2016, * * * one JAMES A TRUCKEY , being a public servant, did recklessly fail to perform a duty expressly imposed by law with respect to the public servant’s office, or recklessly do any act expressly forbidden by law with respect to the public servant’s office, to-wit: failed to protect and/or assaulted Edward J. Di rrigl * * *.”4 insufficient evidence. Therefore the trial court had no jurisd iction to reinvoke the conviction through a nunc pro tunc order.” {¶13} “[2.] The trial court erred by entering a nunc pro tunc order p ursuant to a state motion to reconsider the court’s earlier entry dismissing Count 7 Dereliction of Duty, R.C. 2921.44(E).” {¶14} In the first assignment of error, Truckey claims that this cour t reversed his conviction for Dereliction of Duty (Count 7) and that the trial court, therefore, correctly

vacated this conviction. {¶15} Truckey misinterprets this court’s opinion. In the discussion of the Dereliction of Duty count, this court held that the State faile d to “identify a ‘lawful duty’ Mr. Truckey failed to perform,” inasmuch as there was insuffici ent evidence to predicate this conviction on Tampering with Evidence or Tampering with Re cords. Truckey , 2019- Ohio-407, at ¶ 20. This ruling could only apply to Dereliction of Duty (Count 11), which accused Truckey of “fail[ing] to promptly place [a] DVD of subj ect incident into the designated evidence containment area at the Ashtabula County Sh eriff’s Department,” the same conduct as was alleged in Tampering with Records (Coun t 5) and Tampering with Evidence (Count 6). As noted above, this court implicitly affirmed the finding of guilt for Dereliction of Duty (Count 7) by affirming the convic tion for the allied offense of Assault (Count 1). {¶16} Truckey further argues that “[t]he double jeopardy clause bars the reinstatement and sentencing in Common Pleas Court.” Appellant ’s brief at 10. Truckey is incorrect. “When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reins tate the jury verdict of5 guilty.” Smith v. Massachusetts , 543 U.S. 462, 467, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). {¶17} The first assignment of error is without merit. {¶18} In the second assignment of error, Truckey argues that “there i s no such thing as a motion for reconsideration for a criminal case,” and that, “once [the trial court judge] dismissed the charge, he no longer had jurisdiction to s ubstantively change a dismissal of a charge.” Appellant’s brief at 11. Again, we di sagree. {¶19} The Ohio Rules of Criminal Procedure provide: “Clerical mistake s 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 tim e.” Crim.R. 36. The State’s motion for “Reconsideration” properly apprised the tria l court of an error in the record arising from oversight which it had express authority to correct at any time. {¶20} Rather than lacking jurisdiction to correct the error, it would be more accurate to state that the trial court lacked jurisdiction to d ismiss Dereliction of Duty (Count 7) contrary to this court’s mandate on remand. Nolan v. Nolan , 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus (“an inferior court has no disc retion to disregard the mandate of a superior court in a prior appeal in the same case” ); State ex rel. Heck v.

Kessler , 72 Ohio St.3d 98, 104, 647 N.E.2d 792 (1995) (“in addition to lacking discretion to depart from a superior court’s mandate, an inferior court al so lacks jurisdiction to do so”); State v. Davis , 8th Dist. Cuyahoga No. 107645, 2019-Ohio-2115, ¶ 11 (“[a]n appellate mandate works in two ways: it vests the lower court o n remand with jurisdiction and it gives the lower court on remand the authori ty to render judgment consistent with the appellate court’s judgment”) (citation omit ted). {¶21} The second assignment of error is without merit.6 {¶22} Despite the lack of merit in Tru ckey’s assignments of error, we wish to draw attention to the terminology employed when discussing the multiple counts statute and the Double Jeopardy Clause. When a defendant’s conduct can be construed to constitute allied offenses of similar import, “the indictment o r information may contain counts for all such offenses, but the defendant may be convicte d of only one.” R.C. 2941.25(A). The Ohio Supreme Court has interpreted this statut e as “protect[ing] a defendant only from being punished for allied offenses, the det ermination of the defendant’s guilt for committing allied offenses remains intact , both before and after the merger of the allied offenses for sentencing.” State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph three of the syllabus. In the same case, the Court also affirmed that, “for purposes of R.C. 2941.25, a ‘con viction’ consists of a guilty

verdict and the imposition of a sentence or penalty.” Id. at ¶ 12. {¶23} This court, then, did not respect the appropriate terminology w hen we wrote, in our prior decision: “We find Mr. Truckey’s conviction s for tampering with evidence, tampering with records, and dereliction of duty are u nsupported by sufficient evidence, and must be reversed.” Truckey , 2019-Ohio-407, at ¶ 14. The only “conviction” properly speaking was for Tampering with Records a s this was the only one of the three counts for which Truckey received a sentence. An accurate statement of this court’s holding would have been that the verdicts or count s or findings of guilt for Tampering with Evidence (Count 6), Dereliction of Duty (Count 1 1), and Tampering with Records (Count 5) were unsupported by sufficient evidence and m ust be reversed. Similar misstatements exist in the assertion of Truckey’s appel late brief that “this Court dismissed Truckey’s conviction for Count Seven, Dereliction of Duty,” the State’s Motion requesting reconsideration of the “decision vacating defendant’ s conviction for Count7 Seven, Dereliction of Duty,” and trial court’s February 28, 201 9 Judgment Entry in which it “orders reinstatement of the conviction on Count Seven, Dere liction of Duty.”

Pursuant to the Whitfield decision, there was never a conviction for Dereliction of Duty (Count 7) because the trial court never imposed a sentence or o ther punishment for that

Count. {¶24} In light of the foregoing, the trial court’s February 28, 2019 Judgment Entry, in which it “orders reinstatement of the conviction on C ount Seven, Dereliction of Duty, as that count was aligned with the Assault conviction,” i s modified so that the verdict on Count Seven, Dereliction of Duty, is reinstated as t hat count was aligned with Count One, Assault. The court’s February 28, 2019 Judgment Ent ry Nunc pro Tunc, in which it states that “the convictions on all counts, save Count s One (Assault) and Seven (Dereliction of Duty) , should be and are hereby ordered vacated and set aside,” is modified so that all counts, save Counts One (Assaul t) and Seven (Dereliction of Duty), should be and are hereby ordered vacated and set asid e. {¶25} The February 28, 2019 Judgments are hereby modified and affirme d as modified. Costs to be taxed against the appellant.

MARY JANE TRAPP, J., concurs, THOMAS R. WRIGHT, P.J., concurs in judgment only.