State v. Jama

• Decision Date: 30 September 2010
• Docket Number: Nos. 09AP–872,09AP–878.,s. 09AP–872
• Citation: 189 Ohio App.3d 687,939 N.E.2d 1309
• Parties: The STATE of Ohio, Appellant,v.JAMA, Appellee.The State of Ohio, Appellee,v.Jama, Appellant.
• Court: Ohio Court of Appeals

189 Ohio App.3d 687

939 N.E.2d 1309

2010 -Ohio- 4739

The STATE of Ohio, Appellant,

v.JAMA, Appellee.The State of Ohio, Appellee,

v.Jama, Appellant.

Nos. 09AP–872

09AP–878.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Sept. 30, 2010.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for appellant in case No. 09AP–872 and for appellee in case No. 09AP–878.Byron L. Potts & Co., L.P.A., and Byron L. Potts, Columbus, for appellee in case No. 09AP–872 and for appellant in case No. 09AP–878.FRENCH, Judge.

[Ohio App.3d 690] {¶ 1} Defendant-appellee and appellant, Shamso Jama (“defendant”), appeals the judgment of the Franklin County Court of Common Pleas, which convicted her of possession of drugs, a third-degree felony, pursuant to a bench trial. Plaintiff-appellant and appellee, the state of Ohio (“the state”), appeals the trial court's decision to (1) use a nunc pro tunc order to amend its verdict from finding defendant guilty of a second-degree felony drug-possession offense to a third-degree felony offense and (2) sentence defendant to community control despite a presumption of prison. For the following reasons, we vacate the nunc pro tunc order, reinstate the trial court's original verdict, and remand for further proceedings.

{¶ 2} Defendant was indicted on two offenses involving a drug commonly known as khat. Count 1 charged her with aggravated drug trafficking, a first-degree felony. Count 2 charged her with unlawfully possessing khat in “an amount equal to or exceeding fifty times the bulk amount but less than one hundred times the bulk amount.” The indictment referred to the offense in Count 2 as “aggravated possession of drugs” and designated it a second-degree felony based on the amount of khat in defendant's possession.

{¶ 3} Defendant pleaded not guilty and waived her right to a jury. Because defendant, a Somalian, did not speak English, an interpreter assisted her during [Ohio App.3d 691] the bench trial, including when she testified. The court did not determine whether the interpreter was qualified or was giving adequate translations. In any event, the interpreter pledged to “make true interpretations of the testimony and the statements of witnesses.”

{¶ 4} After the parties presented evidence, the court orally announced its verdict. The court found defendant guilty of “aggravated possession of drugs” and noted that it is a second-degree felony. The court acquitted defendant of aggravated drug trafficking. On January 23, 2009, the court journalized the verdict in a written entry, which stated that defendant was guilty of “possession of drugs,” a second-degree felony.

{¶ 5} Defendant filed a motion for a nunc pro tunc order to correct the trial court's January 2009 entry. She complained that the court had failed to use the term “aggravated possession of drugs” in the entry when it identified the offense for which she was convicted. She also claimed that the court made no finding regarding the amount of khat she unlawfully possessed, and she argued that if the court determines that the quantity “was less than fifty (50) times bulk amount, then the * * * verdict should have been * * * guilty of a lesser included offense, which is a felony of the third degree rather than a felony of the second degree.”

{¶ 6} At the sentencing hearing, the court granted defendant's motion for a nunc pro tunc order. The prosecution conceded that the offense defendant had been convicted of should be referred to as “possession of drugs as opposed to aggravated possession of drugs.” Thus, the court said, “While there was a finding of guilty on aggravated possession, that should be amended to possession of drugs.” Next, the court said that it did not “issue a finding with respect to the amount of drugs that were in the possession” of defendant, and it concluded that she possessed khat in an amount “[g]reater than bulk, but less than 50 times bulk.” The court stated that this amount made the drug offense a third-degree felony. The prosecution objected, claiming that the evidence established that defendant possessed khat in an amount constituting a second-degree felony, as alleged in the indictment.

{¶ 7} Defendant's nephew served as an interpreter during the sentencing hearing, replacing the one who assisted defendant at trial. He pledged to “truly interpret the proceedings.” The court did not determine whether the interpreter was qualified or providing adequate translations, however. In fact, the court expressed “concerns” that defendant's nephew was not translating, and it admonished him, “You need to be interpreting to her, sir.” When the court advised defendant of her right to allocution, the interpreter translated her as saying, “It's okay, Your Honor.” The court questioned this translation, responding, “Well, she was saying an awful lot to be saying she was okay.” At another point in the [Ohio App.3d 692] hearing, the court asked, “Sir, are you going to interpret—I have some concerns. I think I'm almost to a point where I—do I need to get an official interpreter, counsel?” Despite these concerns, however, the court allowed defendant's nephew to serve as an interpreter for the balance of the sentencing hearing.

{¶ 8} The prosecution asserted that there is a presumption of prison for defendant's offense, but the court imposed community control instead. In its August 2009 entry of conviction and sentence, the court stated that it had originally found defendant guilty of aggravated possession of drugs as a second-degree felony. It said, however, that pursuant to defendant's motion, it was issuing a nunc pro tunc order to amend its verdict to guilty of “POSSESSION OF DRUGS IN AN AMOUNT GREATER THAN BULK BUT LESS [THAN] 50 TIMES THE BULK, * * * a Felony of the Third Degree.” It explained that it had reached this conclusion after considering the parties' arguments on the matter and reviewing the trial transcripts.

{¶ 9} Defendant appeals, raising two assignments of error:

DEFENDANT'S FIRST ASSIGNMENT OF ERROR:

The lower court abused its discretion by not evaluating the credentials of the interpreter used for defendant–appellant Shamso Jama.

DEFENDANT'S SECOND ASSIGNMENT OF ERROR:

The lower court denied defendant–appellant's constitutional rights by failing to ensure appellant was given an opportunity to speak in her defense and understanding what is taking place.

{¶ 10} The state has also appealed, raising the following assignments of error:

PLAINTIFF'S FIRST ASSIGNMENT OF ERROR:

The trial court's sentence of community control was contrary to law, as a presumption of prison applied, and the court failed to make the requisite statutory findings to overcome the presumption.

PLAINTIFF'S SECOND ASSIGNMENT OF ERROR:

The trial court's decision to “amend” the verdict exceeded the court's authority to correct clerical errors.

{¶ 11} We first consider the state's appeal. R.C. 2945.67(A) governs the prosecution's right to appeal and provides that it may appeal “as a matter of right” a trial court's decision to dismiss a charging instrument, suppress evidence, return seized property, or grant postconviction relief. That statute also indicates that “[i]n addition to any other right to appeal * * *, a prosecuting attorney * * * may appeal, in accordance with section 2953.08 of the Revised Code, a sentence imposed upon a person who is convicted of or pleads guilty to a felony.” Likewise, R.C. 2953.08(B)(1) states that the prosecution may appeal as a matter of right a trial court's failure to impose a prison term for a felony when there is a [Ohio App.3d 693] presumption of imprisonment. Therefore, pursuant to R.C. 2945.67(A) and 2953.08(B)(1), the state may appeal as a matter of right the subject of its first assignment of error, which challenges the trial court's decision to sentence defendant to community control despite the presumption of prison.

{¶ 12} Neither R.C. 2945.67(A) nor 2953.08(B)(1) provides the state an appeal as a matter of right on the subject of its second assignment of error, which challenges the trial court's decision to issue a nunc pro tunc order. With leave from the appellate court, however, the prosecution may appeal “any other decision” when there is no appeal as of right, so long as the final verdict is not being appealed. R.C. 2945.67(A). Although the trial court's nunc pro tunc order amended its verdict, the state is not appealing the merits of the final verdict. Instead, the state claims that the trial court erred in its use of the nunc pro tunc order, and, pursuant to R.C. 2945.67(A), it may appeal that issue with leave of court.

{¶ 13} The decision to grant or deny a motion for leave to appeal by the state in a criminal case is solely within the discretion of the court of appeals. State v. Fisher (1988), 35 Ohio St.3d 22, 26, 517 N.E.2d 911, citing State v. Ferman (1979), 58 Ohio St.2d 216, 12 O.O.3d 206, 389 N.E.2d 843. We grant the state's motion for leave to appeal, given the significant role the nunc pro tunc order played in this case, by amending the verdict, and because the appeal provides an opportunity to resolve uncertainty about the proper use of these orders. We proceed, then, to the merits of the state's second assignment of error.

{¶ 14} A nunc pro tunc order corrects a judicial entry that contains error in the recordation of a court's decision. State v. Nye (June 4, 1996), 10th Dist. No. 95APA11–1490, 1996 WL 303675. Specifically, the order corrects errors that are merely clerical, and this type of error does not involve any legal determinations. Warren v. Warren, 10th Dist. No. 09AP–101, 2009-Ohio-6567, 2009 WL 4809429, ¶ 7, 11; State v. Brown, 10th Dist. No. 08AP–747, 2009-Ohio-1805, 2009 WL 1027181, ¶ 8. Stated another way, a nunc pro tunc order shall not modify a court's judgment or render a decision on a matter when none was previously made. Nye. Consequently, an entry corrected by a nunc pro...