[Cite as State v. Thompson , 2014-Ohio-3648.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 26023 Plaintiff-Appellee : : Trial Court Ca se No. 2012-CR-1483 v. : : MATTIE THOMPSON : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 22nd day of August, 2014.

. . . . . . . . . . . MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee ANDREA G. OSTROWSKI, Atty. Reg. #0075318, Os trowski Law Firm Co., L.P.A., 20 South Main Street, Springboro, Ohio 45066 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J. {¶ 1} Mattie Thompson appeals from the tria l court’s decision, order, and entrysustaining the State’s motion to amend the restitution included in a termination entry. {¶ 2} In her sole assignment of error, T hompson contends the tr ial court erred in modifying her termination entry to impose an omitted restitution obligation. {¶ 3} The record reflects that Thompson pled no contest to three theft-related charges involving two employers. Additional charges were dismissed, and Thompson agreed to pay unspecified restitution. At sentencing, the trial court ordered her to pa y restitution of $21.52 to Caliber Machine and Tool (CMT), one of the empl oyers. (Tr. at 16). The trial court explained, “I believe everything else was covered.” ( Id .). The trial court also imposed an aggregate twelve-month prison sentence, wh ich was reflected in a January 2013 termination entry along with the $21.52 restitution order. (Doc. #53). Ther eafter, in July 2013, the State filed a motion to amend the termination entry. (Doc. #57). It argued that Thompson had bilked her other employer, Adaptive Development Corporation (ADC ), out of more than $90,000 and that roughly a $40,000 loss remained after insurance adjustments. The State argued that this information was known to the parties and was cont ained in the pre-sentence inves tigation materials. The State noted, however, that the information had not been placed in the “recommendation” portion of the PSI report. The State invoked Crim. R. 36 and requested a modified termination entry to correct this “clerical error.” {¶ 4} On October 2, 2013, the court heard ar gument from the parties and received stipulated exhibits. Thereafter, it filed a Nove mber 8, 2013 decision, order, and entry sustaining the State’s motion. The trial court reasoned as follows: On December 19, 2012, Defendant Mattie Thompson (“Defendant”) pled no contest to and was found guilty of tw o count[s] of Theft and one count of Grand Theft involving t[w]o victims: Ca liber Machine and Tool (“CMT”) and 3

 Adaptive Development Corporation (“ ADC”). At the plea on December 19, 2012, the record reflects that Defendant was made aware that restitution was part of the plea agreement, and further, restitution is noted as a sanction on the plea forms filed in this case. Defendant was sentenced on January 16, 2016 [sic]. In addition to her twelve month prison sentence, she was ordered to pay CMT restitution in the amount of $21.52. Restitution to ADC was not mentioned, the Termination Entry only states restitution to CMT. The pre-sentence investigation report used by this Court at sentencing had an exhibit attach ed that indicated the amount of restitution owed to ADC. The investigator, however, omitted that amount and any mention of ADC in the recommendation section of the PSI report, which is the paragraph read by the Court during sentencing. Thus, th e Termination Entry did not reflect the restitution due to ADC. The State requests that this Court amend the Termination Entry to do so. Defendant rightly argues that generally this Court lacks jurisdiction over a case once the Termination Entry is file d. Ohio Crim.R. 36, however, permits a court to correct a clerical error on the Termination Entry. In this case, the paperwork and restitution information were properly in front of the Court during sentencing. The omission of that info rmation from the PSI recommendation and, as a result from the Termination Entry, is a clerical error that may be corrected under Ohio Crim.R. 36. Based on the evidence set forth at the hearing on October 2, 2013, the 4

 Court finds that, in addition to the restitution owed to CMT, the amount of restitution due to ADC equals $90,109.60. The Court hereby offsets this amount by the $50,000 payment received by ADC from its insurance carrier. Accordingly, Defendant is hereby orde red to pay restitution to ADC in the amount of $40,109.60. The State is hereby ordered to submit an Amended Termination Entry reflecting such amount to this Court w ithin five (5) days of the date hereof. (Emphasis added) (Doc. #70 at 1-2). {¶ 5} Thompson filed a delayed appeal on December 11, 2013. 1 She argues that the trial court engaged in an improper use of the nunc pro t unc process. For its part, the State contends the trial court properly relied on Crim.R. 36 to correct a “mere oversight.” {¶ 6} Upon review, we have doubts about whet her the trial cour t’s post-judgment ruling constitutes a nunc pro tunc termination entry as argued by Appellant. Nor do we believe that a nunc pro tunc entry woul d be permitted to rectify the o mission. The Ohio Supreme Court addressed the issue of imposing restituti on through the nunc pro tunc process in State v. Miller , 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, reasoning:

1 On January 13, 2014, we accepted the appeal, sustaining a mo tion Thompson had filed for leav e to pursue a delayed appeal. A clerical error or mistake refers to “‘a mistake or omission, mechanical in nature and apparent on the record, whic h does not involve a legal decision or judgment.’” “Although courts possess inherent authority to correct cler ical errors in judgment entries so that the record speaks the truth, ‘nunc pro tunc entries “are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided.”’” The amended j ournal entry in this case 5

 may reflect what the trial court should have decided at sentencing. It does not reflect what the trial court did decide but recorded improperly. Thus, the use of the nunc pro tunc entry to impose restitu tion upon Miller was improper because it does not reflect the events that actually occurred at the sentencing hearing. Notably, the determination of restitution entails a substantive legal decision or judgment and is not merely a mechanical part of a judgment. Restitution is a financial sanction, based on a victim’s economic loss, that is imposed by a judge as part of a felony se ntence. It is not an order that is so “mechanical in nature” that its omission can be corrected as if it were a clerical mistake. As the dissenting judge stated, a nunc pro tunc order cannot cure the failure of a judge to impose restitution in the first instance at sentencing. We agree and therefore hold that a court may not use a nunc pro tunc entry to impose a sanction that the court did not im pose as part of the sentence. (Citations omitted) Id. at ¶ 15-16. {¶ 7} The State urges us to distinguish Miller and argues that the trial court’s action was authorized by Crim. R. 36. We note only that because the trial court did not impose a $40,109.60 restitution obligation with regard to ADC at sent encing, we have serious reservations about its ability to do so through a nunc pro tunc amended te rmination entry, if that is how the ruling is characterized.[Cite as State v. Thompson , 2014-Ohio-3648.] {¶ 8} Nevertheless, we express no opinion whether Crim. R. 36 or any other vehicle is available to correct the omission because we do not have before us a final appealable order. At no time prior to or after the filing of Thompson’s notice of appeal did the State submit, or did the trial court file, an amended termination entry. Thompson’s appeal itself is from the trial court’s ruling on the State’s motion to amend the termination entry. The ruling expressly contemplated a subsequent entry. Because no amended judgment of conviction was ever filed (and the trial court’s ruling on the State’s motion does not even purport to be such a judgment), no appealable order exists. 2 Accordingly, the present appeal must be dismissed. {¶ 9} It is so ordered.

. . . . . . . . . . . . .
FROELICH, P.J., and DONOVAN, J., concur.
Copies mailed to: Mathias H. Heck Michele D. Phipps Andrea G. Ostrowski Hon. Barbara P. Gorman

2 We considered the possibility that the trial court’s ruling on the State’s motion itself might qualify as an appealable “judgm ent of conviction” even though the trial court expressly contemplated a subsequent filing. But it does not. “A judgment of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's signa ture, and (4) the time stamp indicating the entry upon the journal by the clerk.” State v. Lester , 130 Ohio St.3d 303, 2011– Ohio–5204, 958 N.E.2d 142, paragraph one of the syllabus. Here the trial court’s ruling on the State’s motion for an amended termination entry fails to re cite Thompson’s sentence on each of the three counts of conviction. It notes on ly that she received an aggregate twelve-month prison term.