[Cite as State v. Marcum, 2013-Ohio-951.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      HOCKING COUNTY

STATE OF OHIO,                        :    Case No. 11CA30
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
v.                                    :    JUDGMENT ENTRY
                                      :
JAMES E. MARCUM,                      :
                                      :    RELEASED 02/28/13
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:1

Benjamin E. Fickel, Logan, Ohio, for appellant.
______________________________________________________________________
Harsha, J.

          {¶1}    James Marcum appeals from the trial court’s November 2011 judgment

entry finding that he violated conditions of his probation. His appointed counsel

reviewed the record and informed us that he could discern no meritorious claims for

appeal. Accordingly, under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967), counsel moved to withdraw.

          {¶2}    In an August 27, 2012 entry, we rejected counsel’s potential assignments

of error and granted his motion to withdraw. However, after independently reviewing

the record as required by Anders, we found the trial court’s decision ambiguous about

the sanction imposed for the violations. We explained that when the court originally

sentenced Marcum for passing bad checks, it imposed three years of community

control. However, the November entry could potentially be read to alter that amount of

time even though from the revocation hearing transcript it did not appear the court

intended such a result. We also noted that certain topics were discussed in the
1
    The State has not entered an appearance or otherwise participated in this appeal.
Hocking App. No. 11CA30                                                                        2


November entry even though they were not mentioned at the revocation hearing, like

post release control and court costs. Because of the lack of clarity in the November

entry, we could not engage in a meaningful independent review of Marcum’s sentence.

We remanded the matter to the trial court for clarification and instructed the court that if

it determined clerical mistakes were made in the November entry, “it should issue a

judgment outlining what mistakes occurred and under Crim.R. 36 it may issue a nunc

pro tunc entry to correct them.”

       {¶3}   On January 8, 2013, the court issued a nunc pro tunc entry. The court

clarified that Marcum’s three year period of community control remained unchanged.

The court omitted reference to certain issues mentioned in the November entry that

were not discussed at the revocation hearing, such as post release control. However,

the court left unchanged its order instructing Marcum to pay court costs and prosecution

costs. Thus, we interpret this language as an order to pay the court costs and

prosecution costs for the revocation proceedings.

       {¶4}   After independently reviewing the record, including the nunc pro tunc

entry, we find that the trial court erred when it imposed court costs and costs of

prosecution for the revocation proceedings. The court failed to orally notify Marcum at

the revocation hearing that he would have to pay those costs, depriving him of an

opportunity to claim indigency and seek a waiver of payment of those costs. State v.

Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22. We recognize that

normally under Anders if we find that a nonfrivolous issue for appeal exists, we are to

appoint new counsel for the appellant and afford new counsel the opportunity to argue

on appeal. Anders, 386 U.S. at 744, 877 S.Ct. 1396, 18 L.E.2d 493. However, given
Hocking App. No. 11CA30                                                                         3


that the trial court clearly erred when it failed to orally notify Marcum about the

imposition of court costs and costs of prosecution, we conclude that judicial economy

favors an immediate remand to the trial court for the limited purpose of allowing Marcum

to move the court for a waiver of the payment of those costs. Joseph at ¶ 22-23 (finding

trial court’s failure to orally notify defendant about imposition of court costs did not void

sentence but entitled defendant to limited remand for purpose of allowing him to seek

waiver of payment). See generally State v. Ross, 4th Dist. No. 10CA31, 2011-Ohio-

1136, ¶ 13 (finding in Anders case judicial economy favored immediate remand to the

trial court because of clear error in the imposition of post release control).

                                                         JUDGMENT AFFIRMED IN PART,
                                                                 REVERSED IN PART,
                                                              AND CAUSE REMANDED.
Hocking App. No. 11CA30                                                                       4


                                    JUDGMENT ENTRY

      It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART
and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Hocking
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. & Hoover, J.: Concur in Judgment and Opinion.

                                                   For the Court,


                                                   ____________________________
                                                   William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
