[Cite as State v. White, 2013-Ohio-3808.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99280



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       JOSEPH WHITE
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-565175

         BEFORE: E.A. Gallagher, J., Boyle, P.J., and Rocco, J.

         RELEASED AND JOURNALIZED:                   September 5, 2013
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Henry A. Marcus
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

         {¶1} Defendant-appellant Joseph White appeals his sentence rendered in the

Cuyahoga County Court of Common Pleas. White argues the trial court erred (1) in

imposing consecutive sentences without the required findings, (2) in failing to properly

advise him of postrelease control and (3) in failing to properly advise White of the

imposition of court costs. Finding merit to the instant appeal, we reverse the decision

of the trial court and remand for the limited purpose of correction of the errors outlined

below.

         {¶2} The Cuyahoga County Grand Jury indicted White for felonious assault and

having weapons while under disability.        The state and White entered into a plea

agreement whereby White pleaded guilty to an amended count of attempted felonious

assault and having weapons while under disability, both third-degree felonies. During

the sentencing hearing, in open court, the court sentenced White to 24 months of

imprisonment for attempted felonious assault, 12 months for having weapons while

under disability and ordered the sentences to be served consecutively.          The court’s

journal entry, however, stated “a prison sentence at the Lorain Correctional Institution of

24 months.”

         {¶3} In an effort to remove any jurisdictional impediment, this court remanded

the case to the trial court to issue a final, appealable order conforming to State v. Lester,

130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142 (requiring a sentence for each
count).   On June 20, 2013, the trial court issued a nunc pro tunc journal entry

sentencing White to two years in prison on the charge of attempted felonious assault and

one year on the charge of having weapons while under disability to be served

consecutively. White appeals, raising the following three assignments of error:

                                  Assignment of Error I

       The trial court erred by ordering appellant to serve a consecutive sentence
       without making the appropriate findings required by R.C. 2929.14 and HB
       86.

                                 Assignment of Error II

       Appellant is entitled to a de novo sentencing hearing as the court did not
       properly impose a period of postrelease control at the sentencing hearing.

                                 Assignment of Error III

       The trial court erred by ordering appellant to pay costs in the journal entry
       because it was not addressed or ordered in open court.

       {¶4} Both the state and White agree that under R.C. 2929.14(C)(4) and H.B. 86,

the trial court failed to make the requisite findings when it sentenced White to

consecutive terms of imprisonment.    The parties disagree, however, about the remedy to

correct the error.   White moves this court to vacate the imposition of a consecutive

sentence and impose concurrent terms of imprisonment; the state requests this court

remand the issue back to the trial court to decide whether White’s sentences should be

run concurrently or consecutively.

       {¶5} When H.B. 86 became effective on September 30, 2011, it revived the

requirement that trial courts make certain findings before imposing consecutive
sentences for felony convictions.     State v. Jones, 8th Dist. Cuyahoga No. 98371,

2013-Ohio-489.    Under R.C. 2929.14(C)(4), the trial court must first find that the

imposition of consecutive sentences is “necessary to protect the public from future crime

or to punish the offender.”      Id. Second, the trial court must find “consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public.” Id. In addition, the court must find at least

one of the following factors:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single
       prison term for any of the offenses committed as part of any of the courses
       of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime
       by the offender.

See State v. Wright, 8th Dist. Cuyahoga No. 98901, 2013-Ohio-3132; State v. Venes, 8th

Dist. Cuyahoga No. 98682, 2013-Ohio-1891.

       {¶6} A review of the record reveals that the trial court did not make any of those

three findings.   This court has consistently determined that the proper remedy for

correcting an error during imposition of consecutive sentences is a limited remand for

the purpose of determining whether consecutive sentences should be imposed. See

State v. Dodson, 8th Dist. Cuyahoga No. 98521, 2013-Ohio-1344; State v. Ross, 8th Dist.
Cuyahoga No. 98763, 2013-Ohio-3130; State v. Walker, 8th Dist. Cuyahoga No. 97648,

2012-Ohio-4274.       Accordingly, the trial court’s judgment sentencing White to

consecutive terms of imprisonment is reversed.     This case is remanded to the trial court

to consider whether consecutive sentences are appropriate under H.B. 86 and, if so, to

enter the proper findings on the record. See Dodson, Ross, Wright.

      {¶7} White’s first assignment of error is sustained.

      {¶8} The parties also agree that the trial court erred by not properly informing

White of postrelease control requirements for both counts.     Again, the parties differ as

to the remedy.    The state requests a limited remand for proper advisement of postrelease

control requirements while White moves this court for a de novo sentencing hearing.

      {¶9} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,

the Ohio Supreme Court held that when a judge fails to impose “statutorily mandated

postrelease control as part of the defendant’s sentence, that part of the sentence is void

and must be set aside.”     Thus, the court was no longer required to conduct a de novo

resentencing hearing.      Id.   State v. Freeman, 8th Dist. Cuyahoga No. 99351,

2013-Ohio-3004; State v. Harris, 8th Dist. Cuyahoga No. 96887, 2011-Ohio-6762.

Instead, according to Fischer, the court can correct the error by conducting a hearing on

the postrelease control, or after conducting a hearing, by issuing a nunc pro tunc order

that includes notification of the applicable term of postrelease control.        Freeman;

Harris.

      {¶10}      Thus, we sustain White’s assignment of error to the extent that White was
not properly notified of postrelease control for his having weapons while under disability

conviction and remand the case for a hearing that is limited to the imposition of

postrelease control for that conviction.

         {¶11}   Lastly, the parties agree that the trial court erred when it imposed court

costs upon White without first informing him in open court. In State v. Joseph, 125

Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the Ohio Supreme Court held that “a

court errs in imposing court costs without so informing a defendant in open court but that

error does not void the defendant’s entire sentence.”

         {¶12}    Accordingly, White’s third assignment of error is sustained.       Upon

remand, the court is to issue a new sentencing entry deleting the imposition of court

costs.    See State v. Shaffer, 8th Dist. Cuyahoga Nos. 95273 and 95274, 2011-Ohio-844.



         {¶13}   The judgment of the trial court is reversed and the case is remanded for

the limited purpose of determining whether consecutive sentences are proper and if so, to

make the required findings, to advise White of postrelease control for the charge of

having weapons while under disability and to issue a new sentencing entry deleting the

imposition of court costs.

         It is ordered that appellant recover of said appellee 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.




EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR
