COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60177 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ANTONIO M. APPLING : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 30, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-194432 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES MICHAEL E. MURMAN Cuyahoga County Prosecutor 14701 Detroit Avenue 8th Floor Justice Center Suite 485 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- ECONOMUS, J.: Defendant-appellant, Antonio M. Appling, hereinafter Appel- lant, appeals his guilty plea in Common Pleas Court Case No. CR- 229438 and the trial court's finding that he was on probation in Common Pleas Court Case No. CR-194432. Appellant argues that he was denied effective assistance counseling entering his guilty plea and was not properly on probation when violated. For the reasons stated below, we affirm. On November 1, 1984, Appellant was indicted for Aggravated Burglary, Felonious Assault, and Aggravated Robbery in Case No. CR-194432. On June 20, 1985, he pled guilty to the lesser included offense of Burglary, Felonious Assault as charged and the third count of the indictment was nolle prosequi. The trial court immediately sentenced him to an indefinite term of eight to fifteen years on the two counts, which were to run consecutive to each other. Finally, the trial court's judgment entry of that day reflects that: Execution of sentence suspended on the following conditions; (1). Defendant is to serve thirty (30) days at the Cleveland House of Correction; (2). Upon completion of thirty (30) days at the Cleveland House of Correction, the defendant is to be transported by County Sheriff's Department to Project Cure in Dayton, Ohio, for in-patient treatment; (3). Upon completion of Project Cure, defendant ordered to complete two hundred hours of Community Work Service Program. On June 1, 1988, the trial court executed a judgment entry which states nunc pro tunc to June 20, 1985 that the Appellant was also placed on five years probation. On September 27, 1988, Appellant was brought before the trial court for a probation violation hearing in CR-194432, CR- -3- 191481B and CR-176689. The probation supervisor explained that the trial court did not specifically journalize probation in its sentencing, which the probation department brought to the trial court's attention on June 1, 1988, which led to the trial court's nunc pro tunc entry. He also represented that Appellant claimed to have completed the other conditions, but was before the trial court as an alleged violator for failure to report to a probation officer and pay court costs. Finally, the probation supervisor presented the wife of Appellant who was the alleged victim in a pending felonious assault charge against him in CR-229438. Appellant's counsel agreed with the recommendations of the probation department for extending probation and indicated Appellant was willing to cooperate with the probation department. The trial court found Appellant a probation violator in all three cases. Probation was terminated in CR-191481B and CR- 176689 cases, but continued in CR-194432 until June 20, 1990. Continued probation was conditioned upon payment of court costs, no contact with his wife or mother, urinalysis at the discretion of the probation department and reassignment to a new probation officer was ordered. The trial court further warned Appellant that a conviction in CR-229438, or his other pending case in Montgomery County would result in a probation violation. On November 29, 1988, Appellant was alleged to be a probation violator for having entered a plea of guilty to the lesser included offense of Assault in CR-229438. -4- Appellant's counsel asserted that Appellant completed the original conditions of his suspended sentence given by the trial court. He further indicated that he advised his client to enter a guilty plea to Assault in CR-229438. He requested that the trial court allow Appellant to withdraw his guilty plea in CR- 229438, because his advice was based on his mistaken belief that the guilty plea to Assault would not lead to a probation violation, but a conviction in Montgomery County would. The trial court inquired as to whether Appellant completed the three original conditions of his suspended sentence. Appellant answered in the affirmative. Appellant attempted to explain that there was a question in his mind as to whether he was on probation for five years, because there was no indication of probation in the original sentencing journal entry. He also attempted to explain his layman's understanding, but the trial court stated it did not care about his layman's understanding. Nonetheless, Appellant admitted that the trial court orally informed him at his sentencing hearing on June 20, 1985, that he had been placed on probation for five years. Finally, the trial court reimposed the original sentence, but changed the two counts from consecutive to eight to fifteen years concurrent time. This sentence was also ordered to run concurrent to the sentence in CR-229438. Appellant was given credit for time served and ordered transported to Montgomery County for his other pending case. -5- On July 9, 1990, Appellant filed a notice of appeal from the trial court's judgment in CR-194432. On August 13, 1990, we considered Appellant's motion for leave as a motion for delayed appeal and granted it as to CR-194432. Appellant's first assignment of error takes issue with Case No. CR-229438 and states: DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Appellate courts are restrained from making premature declarations upon merely potential controversies. Fortner v. Thomas (1970), 22 Ohio St. 2d 13, 14. Appellant's plea of guilty to assault in CR-229438 is not properly before this court. Loc. App. R. 21 provides that "motions for delayed appeal will only be considered upon compliance with App. R. 5(A)." App. R. 5(A) requires the filing of a motion and a notice of appeal. In the instant case, no notice of appeal was filed for CR- 229438. While the record in this case reveals a justiciable issue in CR-229438, it is not properly before this court. In State v. Cooperrider (1983), 4 Ohio St. 3d 226, the court held that allegations of ineffective assistance counsel which are based on facts outside records are limited to post-conviction relief under R.C. 2953.21. Appellant's first assignment is not well taken. -6- Appellant's second assignment of error takes issue with CR- 194432 and states: THE TRIAL COURT PREJUDICED APPELLANT WHEN IT FOUND HIM TO BE IN VIOLATION OF THE TERMS OF A NUNC PRO TUNC ORDER ENTERED THREE YEARS AFTER THE ORIGINAL ORDER AT A TIME WHEN APPELLANT HAD PREVIOUSLY FULFILLED ALL TERMS AND CONDITIONS OF THAT ORIGINAL ORDER. A nunc pro tunc order cannot be used to supply omitted action, or to indicate what the court might or should have decided, or what the trial court intended to decide. Its proper use is limited to what the trial court actually did decide. State v. Greulich (1988), 60 Ohio App. 3d 22 at 25. See also, State v. Casalicchio (Feb. 16, 1989), Cuyahoga App. No. 56295, unreported. (Held error to increase lawful sentence in nunc pro tunc entry.) In the instant case, there is evidence in the record that the trial court actually imposed five years probation on June 20, 1985. (Emphasis added.) The probation supervisor's statements, on September 27, 1988, suggested that the trial court intended to impose probation, but did not do so. Further, on November 29, 1988, Appellant was questioned by the trial court, and he acknowledged that he understood that he was placed on probation for five years. The trial court's intention and what it actually decided was consistent. Further, the trial court's nunc pro tunc order was not tantamount to an enlargement of probation. E.g., Greulich at 26. Therefore, the trial court's nunc pro tunc order did not prejudice Appellant. Appellant's second assignment of error is not well taken. -7- Judgment affirmed. It is ordered that Appellee recover of Appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J., and JOHN F. CORRIGAN, J., CONCUR. PETER ECONOMUS* JUDGE (*SITTING BY ASSIGNMENT: JUDGE PETER ECONOMUS, MAHONING COUNTY COMMON PLEAS COURT) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .