[Cite as State v. Clemonts, 2019-Ohio-1425.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                      No. 18AP-490
v.                                               :                 (C.P.C. No. 17CR-5067)

Eric L. Clemonts,                                :             (REGULAR CALENDAR)

                 Defendant-Appellant.            :

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                      No. 18AP-492
v.                                               :                  (C.P.C. No. 18CR-238)

Eric L. Clemonts,                                :             (REGULAR CALENDAR)

                 Defendant-Appellant.            :

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                    No. 18AP-493
v.                                               :                 (C.P.C. No. 17CR-2415)

Eric L. Clemonts,                                :             (REGULAR CALENDAR)

                 Defendant-Appellant.            :

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                    No. 18AP-494
v.                                               :                 (C.P.C. No. 18CR-434)

Eric L. Clemonts,                                :             (REGULAR CALENDAR)

                 Defendant-Appellant.            :


                                           D E C I S I O N

                                      Rendered on April 16, 2019
Nos. 18AP-490, 18AP-492, 18AP-493 & 18AP-494                                                2




              On brief: Ron O'Brien, Prosecuting               Attorney,   and
              Barbara A. Farnbacher, for appellee.

              On brief: Blaise G. Baker, for appellant.

              APPEALS from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

       {¶ 1} Defendant-appellant, Eric L. Clemonts, appeals the judgments of the
Franklin County Court of Common Pleas in four consolidated cases. For the reasons that
follow, we reverse the trial court's judgment in the consolidated cases and remand the cases
for resentencing.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} Clemonts was indicted in four separate cases on charges related to robbery
and drug possession: case Nos. 17CR-2415; 17CR-5067; 18CR-238; and 18CR-434. Those
cases were consolidated in the trial court.
   A. Case No. 17CR-2415 (18AP-493):
       {¶ 3} On May 1, 2017, Clemonts was indicted on eight counts for robbing a True
North Shell station, a CVS store, and a Taco Bell on April 22, 2017. Those counts were as
follows: two counts of aggravated robbery, in violation of R.C. 2911.01, a felony in the first
degree; two counts of robbery, in violation of R.C. 2911.02, a felony in the second degree;
three counts of robbery, in violation of R.C. 2911.02, a felony in the third degree; and one
count of robbery, in violation of R.C. 2911.02, a felony in the second degree.
       {¶ 4} On May 14, 2018, Clemonts pled guilty to Count 2 of the indictment, robbery
(F2); Count 4 of the indictment, aggravated robbery (F1); and Count 8 of the indictment,
robbery (F3). (May 14, 2018 Tr. at 6, 7.) The remaining counts were dismissed.
       {¶ 5} On June 13, 2018, the trial court held a sentencing hearing on the
consolidated cases. Regarding the 3 counts on which Clemonts pled guilty in case No.
17CR-2415, the transcript from the sentencing hearing shows that the trial court sentenced
Clemonts to 4 years on Count 2 of the indictment and 6 years on Count 3 of the indictment.
(June 13, 2018 Tr. at 9, 11.) The trial court did not mention Count 8 of the indictment, and
did not impose a sentence on Count 8 at the sentencing hearing.
Nos. 18AP-490, 18AP-492, 18AP-493 & 18AP-494                                               3


       {¶ 6} The trial court ordered that the sentences on these counts be served
concurrent with each other but consecutive to the sentences in case Nos. 18CR-238 and
18CR-434. (June 13, 2018 Tr. at 9, 11.) The court also ordered Clemonts to pay some
restitution, but deferred restitution obligations during Clemonts' incarceration. The court
imposed 5 years of post-release control.
       {¶ 7} In the June 13, 2018 judgment entry, the trial court imposed the following
sentence:
              FOUR (4) YEARS on Count Two; SIX (6) YEARS on
              Count Four; and TWENTY-FOUR (24) MONTHS on
              Count Eight to be served concurrent with each other,
              but consecutive to Case Nos. 17CR-5067, 18CR-238
              and 18CR-434.

(Case No. 17CR-2415, June 13, 2018 Jgmt. Entry at 2.)

   B. Case No. 17CR-5067 (18AP-490):
       {¶ 8} On September 15, 2017, Clemonts was indicted on two drug counts: Count 1
of the indictment, illegal conveyance of drugs of abuse of a specified governmental facility,
in violation of R.C. 2921.36, a felony in the third degree; and Count 2 of the indictment,
possession of cocaine, in violation of R.C. 2925.11, a felony in the fifth degree.
       {¶ 9} On May 14, 2018, Clemonts pled guilty to Count 2 of the indictment,
possession of cocaine (F5). (May 14, 2018 Tr. at 8.) Count 1 of the indictment was
dismissed.
       {¶ 10} At the June 13, 2018 sentencing hearing, the trial court stated the following
regarding this count: "obviously six months on the F5 cocaine charge to run concurrent
with the other sentences." (June 13, 2018 Tr. at 11.)
       {¶ 11} In the June 13, 2018 judgment entry, the trial court imposed the following
sentence:
              TWELVE (12) MONTHS on Count Two to be served
              concurrent with Case Nos. 17CR-2415, 18CR-238, and
              18CR-434.

(Case No. 17CR-5067, June 13, 2018 Jgmt. Entry at 1.)
Nos. 18AP-490, 18AP-492, 18AP-493 & 18AP-494                                               4


       C. 18CR-238 (18AP-492):
         {¶ 12} On January 17, 2018, Clemonts was indicted on four counts for robbing a CVS
pharmacy and a Dunkin Donuts restaurant on January 8, 2018. Those counts were as
follows: two counts of robbery, in violation of R.C. 2911.02, felonies in the second degree;
and two counts of robbery, in violation of R.C. 2911.02, felonies in the third degree.
         {¶ 13} Clemonts pled guilty to Count 2 of the indictment, robbery (F3); and Count 3
of the indictment, robbery (F2). (May 14, 2018 Tr. at 8-9.) The remaining counts were
dismissed.
         {¶ 14} At the sentencing hearing, the trial court sentenced Clemonts to 2 years on
Count 2 of the indictment and 4 years on Count 3 of the indictment. (June 13, 2018 Tr. at
11.)
         {¶ 15} The trial court further ordered the sentences on these counts to run
concurrent to one another but consecutive to the sentences in case Nos. 17CR-2415 and
18CR-434. Clemonts was also ordered to pay some restitution.
         {¶ 16} In its June 13, 2018 judgment entry, the trial court imposed the following
sentence:
               TWENTY-FOUR (24) MONTHS on Count Two; and
               FOUR (4) YEARS on Count Three to be served
               concurrent with each other but consecutive to Case
               Nos. 17CR-2415, 17CR-5067 and 18CR-434.

(Case No. 18CR-238, June 13, 2018 Jgmt. Entry at 2.)

       D. 18CR-434 (18AP-494):
         {¶ 17} On January 26, 2018, Clemonts was indicted on two counts for robbing a
woman on January 8, 2018, including one count of robbery, in violation of R.C. 2911.02, a
felony in the second degree; and one count of robbery, in violation of R.C. 2911.02, a felony
in the third degree.
         {¶ 18} Clemonts pled guilty to Count 1 of the indictment, robbery (F2). (May 14,
2018 Tr. at 9-10.) Count 2 of the indictment was dismissed.
         {¶ 19} At the sentencing hearing, the trial court sentenced Clemonts to 4 years on
Count 1 of the indictment. The trial court further ordered that the sentence be served
consecutive to the sentences in 17CR-2415 and 18CR-238. (June 13, 2018 Tr. at 11-12.)
Nos. 18AP-490, 18AP-492, 18AP-493 & 18AP-494                                               5


         {¶ 20} In its June 13, 2018 judgment entry, the trial court imposed the following
sentence:
               FOUR (4) YEARS on Count One to be served
               consecutive to Case Nos. 17CR-2415, 17CR-5067 and
               18CR-238.

(Case No. 18CR-434, June 13, 2018 Jgmt. Entry at 2.)

   E. Appeal

         {¶ 21} Clemonts appealed each of the trial court's separate June 13, 2018 judgment
entries. The cases were consolidated. Rather than set forth any assignments of error or
present any arguments, Clemonts' appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). Counsel recited the factual and procedural history of the
cases and then stated:
               Counsel has reviewed the original court file, as well as the
               transcript of proceedings prepared in this case, and can find no
               error by the trial court prejudicial to the rights of Defendant-
               Appellant which may be argued to this Court on appeal.

               Pursuant to Anders v. California, 386 U.S. 738 (1967), Counsel
               respectfully requests this Court to independently review the
               transcript of proceedings and the case file to determine
               whether any possible error exists. Counsel also requests
               permission to withdraw as counsel for Defendant-Appellant on
               the basis that the appeal is frivolous.

(Appellant's brief at 7.)

         {¶ 22} Appellate counsel represented that he provided a copy of his brief to
Clemonts and informed Clemonts that he may file his own brief with the court.
         {¶ 23} On August 20, 2018, we issued a journal entry providing Clemonts the right
to file a supplemental brief by November 9, 2018. Clemonts did not file a supplemental
brief.
II. LEGAL ANALYSIS
         {¶ 24} In Anders, the United States Supreme Court established a process by which
appellate counsel in criminal actions can fulfill his or her advocacy duties even in cases in
which there is no legitimate issue to appeal. The court held:
Nos. 18AP-490, 18AP-492, 18AP-493 & 18AP-494                                              6


              [Counsel's] role as advocate requires that he support his client's
              appeal to the best of his ability. Of course, if counsel finds his
              case to be wholly frivolous, after a conscientious examination
              of it, he should so advise the court and request permission to
              withdraw. That request must, however, be accompanied by a
              brief referring to anything in the record that might arguably
              support the appeal. A copy of counsel's brief should be
              furnished the indigent and time allowed him to raise any points
              that he chooses; the court -- not counsel -- then proceeds, after
              a full examination of all the proceedings, to decide whether the
              case is wholly frivolous. If it so finds it may grant counsel's
              request to withdraw and dismiss the appeal insofar as federal
              requirements are concerned, or proceed to a decision on the
              merits, if state law so requires. On the other hand, if it finds any
              of the legal points arguable on their merits (and therefore not
              frivolous) it must, prior to decision, afford the indigent the
              assistance of counsel to argue the appeal.

Id. at 744.

       {¶ 25} This court allows appellate counsel to file an Anders brief if he " 'concludes
that the case is wholly frivolous.' " State v. Barber, 10th Dist. No. 15AP-902, 2016-Ohio-
1409, ¶ 6, quoting State v. Bayer, 10th Dist. No. 11AP-733, 2012-Ohio-5469, ¶ 9. In these
instances, we have stated:
              Upon receiving an Anders brief, we must conduct a full
              examination of all the proceedings to decide whether the case
              is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct.
              346, 102 L. Ed. 2d 300 (1988), citing Anders at 744. After fully
              examining the proceedings below, if we find only frivolous
              issues on appeal, we then may proceed to address the case on
              its merits without affording appellant the assistance of counsel.
              Penson at 80. However, if we conclude that there are
              nonfrivolous issues for appeal, we must afford appellant the
              assistance of counsel to address those issues. Anders at 744;
              Penson at 80.

Id., quoting Bayer at ¶ 9.

       {¶ 26} When a defendant does not file his own brief in response to an Anders brief,
this court has imposed the following duty on itself:
              Where a defendant does not file a pro se brief in response to an
              Anders brief, an appellate court will examine the potential
              assignment of error and the entire record below to determine if
              the appeal lacks merit. State v. Cooper, 10th Dist. No. 09AP-
Nos. 18AP-490, 18AP-492, 18AP-493 & 18AP-494                                                7


              511, 2009-Ohio-6275. "After fully examining the proceedings
              below, if we find only frivolous issues on appeal, we then may
              proceed to address the case on its merits without affording
              appellant the assistance of counsel." Matthews at ¶ 10, citing
              Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d
              300 (1988). However, if we conclude that there are
              nonfrivolous issues for appeal, we must afford appellant the
              assistance of counsel to address those issues. Anders at 744;
              Penson at 80.

State v. A.H., 10th Dist. No. 16AP-487, 2017-Ohio-7680, ¶ 18.

       {¶ 27} Applying the Anders standard to the present case, this court has undertaken
a review of the record to determine whether the appeal is wholly frivolous. In the course of
that review, we have determined that the trial court clearly failed to sentence Clemonts on
case No. 17CR-2415, Count 8 of the indictment at the May 14, 2018 sentencing hearing. We
have further determined that the trial court imposed two different, inconsistent sentences
on Clemonts in case No. 17CR-5067, Count 2 of the indictment. At the sentencing hearing,
the trial court imposed a 6-month sentence on that count. (May 14, 2018 Tr. at 11.) In the
sentencing entry, however, the trial court imposed a 12-month sentence on that count.
(June 13, 2018 Jgmt. Entry at 1 in Case No. 17CR-5067.) Furthermore, in the sentencing
entry on case Nos. 17CR-2415, 18CR-238, and 18CR-434, the trial court stated that the
sentences on the counts in those cases should run consecutive to the other cases, including
case No. 17CR-5067, even though the trial court stated at the sentencing hearing that the
sentence on case No. 17CR-5067 would run concurrent to the other cases. (See the three
June 13, 2018 Jgmt. Entries in Case Nos. 17CR-2415, 18CR-238, and 18CR-434 and
compare to May 14, 2018 Tr. at 11 and June 13, 2018 Jgmt. Entry in Case No. 17CR-5067.)
Because there are plain and obvious errors by the trial court, this court need not appoint
counsel to brief the issue. Rather, in the interests of justice and judicial economy, the
proper course is to reverse the trial court's sentence in the judgment entries in case No.
17CR-2415, Count 8 of the indictment and case No. 17CR-5067, Count 2 of the indictment
and remand these cases back to the trial court for resentencing on those two counts. State
v. D.M.J., 10th Dist. No. 13AP-57, 2014-Ohio-1377; State v. Marcum, 4th Dist. No. 11CA30,
2013-Ohio-951, ¶ 4 ("given that the trial court clearly erred * * * judicial economy favors an
immediate remand to the trial court"); State v. Meyer, 6th Dist. No. WM-03-008, 2004-
Ohio-5229, ¶ 7 ("justice requires an immediate remand to the trial court for resentencing");
Nos. 18AP-490, 18AP-492, 18AP-493 & 18AP-494                                             8


State v. Shannon, 12th Dist. No. CA2003-02-005, 2004-Ohio-1866. After resentencing
Clemonts on the remanded counts, the trial court must determine de novo whether the
three counts in case No. 17CR-2415 should run concurrent or consecutive to one another
and whether the sentences imposed in the four consolidated cases should run concurrent
or consecutive to one another.
       {¶ 28} Further, in his appellate brief, counsel for Clemonts has moved to withdraw
as appellate counsel. That motion has not been ruled on. We grant Mr. Baker's August 14,
2018 motion to withdraw as counsel. The trial court is instructed to appoint new counsel
for Clemonts to represent him for the purposes of resentencing and for appeal following
resentencing.
                                        Motion to withdraw granted; judgment reversed
                                                       and remanded with instructions.

                                BRUNNER, J., concurs.
                             LUPER SCHUSTER, J., dissents.
LUPER SCHUSTER, J., dissenting.
       {¶ 29} I respectfully dissent because I would appoint appellate counsel, pursuant to
Anders v. California, 386 U.S. 738 (1967), to review not only the errors identified by the
majority, but to also review the record for any other possible errors.
