[Cite as State v. Green, 2016-Ohio-926.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 102837



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   MORRIO R. GREEN
                                                       DEFENDANT-APPELLANT



                                      JUDGMENT:
                                 AFFIRMED AS MODIFIED
                                    AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-582071-B

               BEFORE:          Blackmon, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.

              RELEASED AND JOURNALIZED:                    March 10, 2016
                              -i-



ATTORNEY FOR APPELLANT

Eric M. Levy
55 Public Square
Suite 1600
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Patrick J. Lavelle
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Morrio R. Green (“Green”) appeals his sentence and assigns the

following three errors for our review:

       I. The trial court erred and imposed a sentence clearly and convincingly

       contrary to law when it sentenced appellant to five years of postrelease

       control instead of the mandatory three years for a conviction of drug

       trafficking, which is a felony of the second degree.

       II. Appellant was denied his Sixth Amendment right to counsel due to the

       ineffective assistance of trial counsel in failing to file an affidavit of

       indigency after the trial court agreed to waive the mandatory fine at

       sentencing, and such failure resulted in the imposition of the fine as the

       filing of the affidavit was required in order for the trial court to waive the

       mandatory fine.

       III. The trial court erred in filing its February 27, 2015 sentencing journal
       entry, which improperly imposed an aggregate prison sentence of eight
       years, when the sentences issued on each count only imposed a sentence of
       seven years in prison.

       {¶2} Having reviewed the record and pertinent law, we affirm Green’s sentence

as modified and remand for Green to file an affidavit of indigency to allow the trial court

to waive the fine and for the trial court to issue a nunc pro tunc sentencing entry to

properly reflect the sentence imposed at the sentencing hearing. The apposite facts

follow.
       {¶3} The Cuyahoga County Grand Jury indicted Green for one count each of

drug possession, a second-degree felony, with firearm and forfeiture specifications; drug

trafficking, a first-degree felony, with firearm, forfeiture, and juvenile specifications;

possession of criminal tools, a fifth-degree felony, with a forfeiture specification; and

having a weapon while under disability, a third-degree felony, with forfeiture

specifications. Green was also charged with three counts of endangering children, a

misdemeanor of the first degree, with each count having a forfeiture specification.

       {¶4} Green filed a motion to amend the indictment as to the drug possession and

trafficking counts due to a modification regarding the amount of drugs. The trial court

granted the motion and reduced the drug possession to a felony of the third degree, and

the trafficking count was reduced to a felony of the second degree.

       {¶5} The state offered Green a plea deal; however, Green refused to accept the

offer. Eight months later, while in the middle of trial, Green decided to enter a guilty

plea to the indictment. The drug possession count was merged with the drug trafficking

count. The state chose for the sentence to apply to the drug trafficking count. The

sentencing hearing was continued so that a presentence investigation report could be

compiled.

       {¶6} At sentencing, the trial court imposed a total sentence of eight years in

prison to be served consecutive to a one-year sentence imposed for his violation of

probation in another case. The trial court advised Green at the sentencing hearing and
also set forth in the sentencing journal entry that Green was subject to five years of

mandatory postrelease control.



                                     Postrelease Control

       {¶7} In his first assigned error, Green argues that the trial court erred by

imposing five years of mandatory postrelease control. According to Green, the correct

term of postrelease control for a second-degree felony is a mandatory three years. The

state concedes that the trial court erred.

       {¶8} Pursuant to R.C. 2967.28, postrelease control for a second-degree felony is

a mandatory three years. At the sentencing hearing, the trial court advised Green that he

was subject to five years mandatory postrelease control and also stated in the sentencing

entry that Green was subject to five years postrelease control.

       {¶9} R.C. 2953.08(G)(2) permits the appellate court to modify the sentence to

include that which the court had no discretion to alter. State v. Williams, 8th Dist.

Cuyahoga Nos. 94321, 94322, and 94323, 2011-Ohio-316. As we explained in Williams:

       In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
       the Ohio Supreme Court recently recognized that appellate courts do not
       have to remand a sentence that includes an improper period of postrelease
       control, calling remand “just one arrow in the quiver.” Id. at ¶29. Instead,
       it acknowledged that an appellate court’s discretion to correct “a defect in a
       sentence without a remand is an option that has been used in Ohio and
       elsewhere for years in cases in which the original sentencing court, as here,
       had no sentencing discretion.” Id. Indeed, the Supreme Court explained,
       “[c]orrecting the defect without remanding for resentencing can provide an
       equitable, economical, and efficient remedy for a void sentence[,]” in cases
       where “a trial judge does not impose postrelease control in accordance with
       statutorily mandated terms.” Id. at ¶ 30.
Williams at ¶ 28.

       {¶10} Thus, we modify Green’s sentence and remand with instructions for the

court to correct the sentencing entry to reflect that Green’s postrelease control is for a

mandatory three-year period. Accordingly, Green’s first assigned error is sustained.

                            Ineffective Assistance of Counsel

       {¶11} In his second assigned error, Green argues that his counsel was ineffective

because counsel failed to file an affidavit of indigency in support of Green’s request to

waive the mandatory fine. Green contends that because his counsel failed to file the

affidavit, the trial court could not waive the fine in spite of stating that it would do so at

sentencing. The state concedes that counsel failed to file an affidavit of indigency and

that without such an affidavit, the trial court could not waive the fine as promised at the

sentencing hearing.

       {¶12} R.C. 2929.18(B)(1) establishes a procedure for avoiding imposition of

mandatory fines applicable to certain felony drug offenses. That section provides:

       If an offender alleges in an affidavit filed with the court prior to sentencing

       that the offender is indigent and unable to pay the mandatory fine and if the

       court determines the offender is an indigent person and is unable to pay the

       mandatory fine described in this division, the court shall not impose the

       mandatory fine upon the offender.

       {¶13} Therefore, in order for an offender to avoid the imposition of a fine at the

time of sentencing, two things must occur: (1) the defendant must submit an affidavit of
indigency to the court prior to sentencing; and (2) the court must make a determination

that the offender is, in fact, indigent. Id.; State v. Turner, 8th Dist. Cuyahoga No.

102741, 2015-Ohio-4388; State v. Hubbard, 8th Dist. Cuyahoga No. 99093,

2013-Ohio-1994, ¶ 8, citing State v. Gilmer, 6th Dist. Ottawa No. OT-01-015,

2002-Ohio-2045, ¶ 5.

         {¶14} Ohio courts have held that the failure to file an affidavit of indigency for

purposes of waiving a mandatory fine constitutes ineffective assistance of counsel where

the record shows a “reasonable probability” that the trial court would have found the

defendant indigent and unable to pay the fine had the affidavit been filed. Turner at ¶

19; Hubbard at ¶ 9; Gilmer at ¶ 5.

         {¶15} In this case, there is a reasonable probability that the trial court would have

found Green to be indigent and unable to pay the mandatory drug fine of $7,500. At the

sentencing hearing, the following colloquy occurred between defense counsel and the trial

court:

         Counsel:      Judge, he is indigent as it relates to the mandatory drug fine or
                       any other fine imposed by the this court. We would ask that
                       you make a finding that he’s indigent and waive all fines and
                       court costs in this matter.

         Court: I’ll waive the fines.

Tr. 241-242.

         {¶16} Thus, if Green’s counsel had filed the affidavit of indigency, the trial court

would have waived the fine. Accordingly, Green’s second assigned error is sustained.

                                        Incorrect Sentence
       {¶17} In his third assigned error, Green argues that the trial court erred by

imposing an eight-year prison sentence in the sentencing journal entry. According to

Green, the sentencing hearing transcript shows the trial court intended to impose a

seven-year prison sentence.

       {¶18} Prior to entering the sentence, the trial court summarized the sentence as

follows:

       So it’s a 6-year sentence on Count 2, which will be run prior to consecutive
       to the 1-year sentence, so far we’re at 7. On Count 3 it’s a 1-year sentence,
       which I will run concurrent with that underlying 6-year sentence on Count
       2. On Count 4, it’s a 12-month sentence, which will be run consecutive to
       the underlying 6-year and consecutive to the 1-year firearm specification.
       Counts 5, 6, and 7, 6 months on each of those counts concurrent with
       Counts 2 and 3. And then 1 year on Case 555198 [prior case that he
       violated probation], consecutive to the sentences in Case 582071 [current
       case].

       {¶19} Defense counsel then asked, “So that’s a 9-year sentence?” The court

responded “that’s correct.” Our reading of the transcript indicates that the trial court

intended to impose a one-year sentence in prison on the probation violation case, which

would be served consecutive to the eight-year sentence on the current case, for a total of

nine years.

       {¶20} The sentencing entry states as follows:

       The court imposes a prison sentence at the Lorain Correctional Institution
       of 8 years.

       For the purposes of sentencing in this case, Counts 1 and 2 merge. State
       elects to proceed to sentencing on Count 2.
       A sentence in Count 2 is 6 years on the underlying charge and 12 months on

       the firearm spec. to run consecutive for 7 years. On Count 3, a sentence of

       12 months is to run concurrent with the underlying charge on Count 2. On

       Count 4, a sentence of 12 months is to run consecutive with 12 months

       sentence on Count 2’[ s] 1 year firearm spec. A sentence of 6 months is

       imposed on each Counts 5, 6, and 7 to run concurrent with Counts 2 & 3, all

       totaling a prison term of 8 years in prison.

       {¶21} The ninth year referenced at the sentencing hearing would be the sentence

pertaining to the probation violation case. The journal entry from the probation violation

case shows that Green was sentenced to one year in prison to be served consecutive with

the current case.

       {¶22} Green contends that because the trial court stated that Count 4 was to run

consecutive to the one-year firearm specification in Count 2, that it is unclear whether

Count 4 is to run concurrent with the underlying six-year prison sentence on Count 2.

The trial court failed to specifically state that Count 4 was to run consecutive to the

underlying six-year prison sentence in Count 2. However, because at the sentencing

hearing the trial court specifically stated that Count 4 was to run consecutive to the

underlying prison sentence in Count 2, the trial court can correct the sentencing entry by

issuing a nunc pro tunc entry. See State v. Thompson, 8th Dist. Cuyahoga No. 102326,

2015-Ohio-3882, ¶ 16 (a nunc pro tunc entry is properly used to correct the sentencing

entry to reflect the sentence actually imposed by the trial court at the sentencing hearing.)
       {¶23} We also direct the trial court to correct the sentencing entry regarding the

merger of Counts 1 and 2. The entry currently states “Counts 1 and ‘T’ merge.” The

court obviously meant “Counts 1 and 2 merge” based on the discussion at the sentencing

hearing and the fact the subsequent sentence in the entry states, “State elects to proceed to

sentencing on Count 2.” Thus, the correction can made by issuing a nunc pro tunc entry.

  Accordingly, Green’s assigned error is sustained.

       {¶24} Judgment is affirmed as modified and remanded to allow Green to file an

affidavit of indigency to waive the mandatory fine, and for the trial court to issue a nunc

pro tunc entry reflecting the correct sentence imposed at the sentencing hearing.

       It is ordered that appellant recover of appellee his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas 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.



PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
