[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 Case 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, Appellate 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, Ostrowski 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 trial court’s decision, order, and entry 
sustaining the State’s motion to amend the restitution included in a termination entry. 

{¶ 2} In her sole assignment of error, Thompson contends the trial 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 pay restitution of $21.52 to 

Caliber Machine and Tool (CMT), one of the employers. (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, which was reflected in a January 2013 termination entry along 

with the $21.52 restitution order. (Doc. #53). Thereafter, 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 contained in the pre-sentence investigation 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 argument from the parties and received 

stipulated exhibits. Thereafter, it filed a November 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 two count[s] of Theft and one count of 

Grand Theft involving t[w]o victims: Caliber 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 attached 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, the 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 filed. 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 information 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 ordered 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 within 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 tunc 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 whether the trial court’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 would be permitted to rectify the omission. The Ohio Supreme Court 

addressed the issue of imposing restitution 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 motion Thompson had filed for leave to pursue a delayed appeal. 

A clerical error or mistake refers to “‘a mistake or omission, mechanical in 

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

judgment.’” “Although courts possess inherent authority to correct clerical 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 journal 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 restitution 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 sentence. 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 impose 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 sentencing, we have serious reservations about its 

ability to do so through a nunc pro tunc amended termination 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 “judgment 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 signature, 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 recite Thompson’s 

sentence on each of the three counts of conviction. It notes only that she received an aggregate twelve-month prison term.