[Cite as State v. Anderson, 2019-Ohio-5220.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. Nos.     29275
                                                                  29276
        Appellee

        v.
                                                    APPEAL FROM JUDGMENT
JEFFREY ANDERSON                                    ENTERED IN THE
                                                    COURT OF COMMON PLEAS
        Appellant                                   COUNTY OF SUMMIT, OHIO
                                                    CASE Nos. CR-2018-04-1094
                                                               CR-2018-06-2046

                                 DECISION AND JOURNAL ENTRY

Dated: December 18, 2019



        CARR, Judge.

        {¶1}     Appellant, Jeffrey Anderson, appeals the judgment of the Summit County Court

of Common Pleas. This Court reverses and remands.

                                               I.

        {¶2}     The instant appeal flows from separate indictments handed down by the Summit

County Grand Jury. On April 24, 2018, Anderson was indicted on one count of harassment with

a bodily substance, one count of obstructing official business, and one count of assault in Case

No. 2018-04-1094. Anderson pleaded not guilty to the charges at arraignment. The Summit

County Grand Jury returned a second indictment against Anderson on July 6, 2018. In Case No.

2018-06-2046, Anderson was charged with one count of kidnapping, one count of escape, one

count of assault, and one count of obstructing official business. Anderson pleaded not guilty to

these charges as well.
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       {¶3}    The cases were combined for the purposes of trial and the jury found Anderson

guilty of the all of the charges in both indictments. Prior to sentencing, Anderson filed a motion

to merge allied offenses of similar import.

       {¶4}    After holding a sentencing hearing, the trial court issued its sentencing entries in

both cases on December 18, 2018. In Case No. 2018-04-1094, the parties agreed that all of the

charges merged for sentencing purposes and the trial court imposed a 12-month term of

incarceration for harassment with a bodily substance. In Case No. 2018-06-2046, the trial court

found that the count of escape merged with the count of obstructing official business and

imposed an aggregate three-year prison sentence for the offenses in that case. The trial court

also specified that the sentences in Case No. 2018-04-1094 and Case No. 2018-06-2046 were to

be served concurrently for a total prison sentence of three years.

       {¶5}    On appeal, Anderson raises two assignment of error.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT IMPROPERLY IMPOSED A SENTENCE UPON
       DEFENDANT WHEN IT WAS NOT MADE IN OPEN COURT, AND
       IMPROPERLY SENTENCED THE DEFENDANT ON AN ALLIED OFFENSE
       WHEN THE STATE DID NOT ELECT THE OFFENSE FOR WHICH
       DEFENDANT SHOULD BE PUNISHED.

       {¶6}    In his first assignment of error, Anderson asserts that the trial court erred when it

set forth a one-year prison term of escape in its sentencing entry in Case No 2018-06-2046 when

no sentence for that offense was pronounced at the sentencing hearing. This Court agrees.

       {¶7}    The sentencing hearing in this matter was held on December 14, 2018. At the

outset of the hearing, the trial court addressed Anderson’s motion to merge certain counts for the

purposes of sentencing. With respect to Case No. 2018-06-2046, Anderson initially argued that
                                                3


all of the charges should be merged. In the alternative, he argued that the kidnapping count

should be merged with the assault count, and that the escape count should be merged with the

count of obstruction of official business.      The State sharply disagreed with Anderson’s

contention that all of the counts should be merged, particularly with respect to the counts of

kidnapping and assault, which the State maintained were clearly committed with a separate

animus. The trial court ultimately determined that the counts of kidnapping and assault should

not be merged, but the counts of escape and obstructing official business were allied offenses and

should be merged. With respect to merger, the trial court stated that it “[would] sentence on the

more serious charge left standing.”

       {¶8}    The trial court proceeded to sentencing and imposed a three-year prison sentence

for kidnapping and a 12-month prison sentence for assault. With respect to the remaining counts

in Case No. 2018-06-2046, the trial court stated, “Counts Two [Escape] and Four [Obstructing

Official Business] were merged, so the aggregate sentence is three years.” The trial court neither

mentioned that it was imposing sentence on the count of escape, nor did it indicate the length of

the sentence for that offense.

       {¶9}    The parties proceeded to get into a disagreement with respect to jail time credit.

During the exchange, the trial court stated, “I will tell you what. I will meet with counsel after

the hearing, and we will discuss it further.” Prior to adjourning the hearing, the State sought

clarification regarding which counts had merged for sentencing purposes. The trial court again

indicated that while the counts of kidnapping and assault did not merge, the counts of escape and

obstructing official business did, in fact, merge. The State then inquired as to whether the trial

court had imposed a sentence on the count of assault. The trial court responded, “I thought I said
                                                4


12 months?” Defense counsel confirmed that the trial court had indeed imposed a 12-month

term of incarceration for assault. The hearing was then adjourned.

       {¶10} In its December 18, 2018 sentencing entry, the trial court stated that the counts of

escape and obstructing official business merged for the purposes of sentencing, and the State

elected to proceed with sentencing on the count of escape. The trial court imposed a three-year

prison term for kidnapping, a 12-month prison term for escape, a 12-month prison term for

assault, and further ordered that all of the sentences were to be served concurrently. The trial

court also ordered that the three-year sentence in Case No. 2018-06-2046 was to be served

concurrently with the one-year sentence in Case No. 2018-04-1094.

       {¶11} On appeal, Anderson contends that the trial court erred by failing to pronounce a

sentence for escape on the record at the sentencing hearing and then subsequently imposing a 12-

month term of incarceration for that offense in its December 18, 2018 sentencing entry. In

response, the State stresses that it is Anderson’s burden to provide all necessary parts of the

record to this Court and to demonstrate error. The State emphasizes that the trial court indicated

at the sentencing hearing that there would be further discussion with counsel off the record and

“it does not appear that the parties went back on the record after the discussion.” The State

speculates that it likely elected to have Anderson sentenced on the escape charge during the off-

the-record discussion and that there may have been an additional dialogue regarding the length of

the sentence at that time.

       {¶12} Under the circumstances of this case, we are compelled to sustain Anderson’s

assignment of error as the trial court imposed a sentence in its judgment entry that differed from

what was pronounced at the sentencing hearing. Crim.R. 43(A) requires the defendant to be

present at every stage of a criminal proceeding, including sentencing. State v. Wooden, 9th Dist.
                                                  5


Summit No. 27250, 2015-Ohio-2633, ¶ 16. “[A] trial court errs when it issues a judgment entry

imposing a sentence that differs from the sentence pronounced in the defendant[’]s presence.”

State v. West, 9th Dist. Summit No. 27485, 2015-Ohio-2936, ¶ 51, quoting State v. Aliane, 10th

Dist. Franklin No. 03AP-840, 2004-Ohio-3730, ¶ 8; see also State v. Meyer, 1st. Dist. Hamilton

No. C-100502, 2012-Ohio-145, ¶ 2 (“[A] trial court must orally impose a sentence for each

offense on the record.”). “The remedy for such an error is a remand for a resentencing hearing.”

West at ¶ 51, citing Aliane at ¶ 9. Here, the trial court erred by imposing a 12-month sentence for

escape in its judgment entry when it did not pronounce that sentence at the sentencing hearing.

We are not persuaded by the State’s suggestion that the trial court may have addressed the

sentence for escape during an off-the-record discussion with counsel. In addition to the fact that

it would be inappropriate for the trial court to sua sponte conduct a portion of the sentencing

hearing off the record and outside the presence of the defendant, a review of the transcript

suggests that any off-the-record discussion that occurred in this matter was aimed at resolving

issues relating to the calculation of jail-time credit. It follows that Anderson’s first assignment of

error is sustained.

        {¶13} The first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR II

        THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
        IMPOSING COURT [COSTS] WHEN IT DID NOT DO SO IN OPEN COURT.

        {¶14} In his second assignment of error, Anderson contends that the trial court erred

when it ordered him to pay court costs in the sentencing entries for Case. No. 2018-04-1094 and

Case No. 2018-06-2046 when court costs were not addressed at the sentencing hearing. This

Court agrees.
                                                  6


       {¶15} R.C. 2947.23 requires the trial court to impose court costs in criminal cases but a

trial court may waive the payment of costs upon the motion of an indigent defendant. See State

v. Vinson, 9th Dist. Summit No. 28313, 2017-Ohio-4275, ¶ 18. While a motion to waive court

costs must be made at sentencing, the Supreme Court of Ohio has held that a defendant is denied

the opportunity to request a waiver where the trial court fails to mention courts costs at the

sentencing hearing. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 13. A trial court

violates Crim.R. 43(A) when it imposes court costs in a sentencing entry when it did not address

court costs at the sentencing hearing. Id. at ¶ 22.

       {¶16} Here, the State concedes that the trial court never mentioned court costs at the

sentencing hearing and then subsequently imposed court costs in the sentencing entries in Case.

No. 2018-04-1094 and Case No. 2018-06-2046. This Court’s independent review of the record

confirms that the trial court erroneously imposed court costs in its sentencing entries after failing

to discuss that issue at the sentencing hearing. Therefore, the trial court erred by imposing court

costs without providing Anderson an opportunity to seek waiver of payment. See Vinson at ¶ 19.

       {¶17} The second assignment of error is sustained.

                                                 III.

       {¶18} Anderson’s first and second assignments of error are sustained. The judgment of

the Summit County Court of Common Pleas is reversed and the cause remanded for further

proceedings with this decision.

                                                                                Judgment reversed,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



TEODOSIO, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.
