[Cite as State v. Bolden, 2025-Ohio-2010.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 114504 v. :
MARVIER BOLDEN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: June 5, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-690050-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Krystal Hyojong Lee, Assistant Prosecuting Attorney, for appellee.
Law Office of Schlachet & Levy and Eric M. Levy, for appellant.
DEENA R. CALABRESE, J.:
Defendant-appellant Marvier Bolden, indicted in connection with an
aggravated robbery and a later police chase, entered guilty pleas to 3 of 12 counts.
The trial court sentenced appellant to an aggregate prison term of 60-78 months, plus restitution. Appellant now appeals, challenging several aspects of his
sentencing. Finding merit to the appeal, we reverse and remand for further
proceedings consistent with this opinion.
I. Factual and Procedural History
On January 7, 2024, appellant, a juvenile, entered a Lyft ride-sharing
vehicle with another male and brandished a firearm. The driver exited, after which
appellant took control of the vehicle and drove away. The following day, January 8,
2024, Cuyahoga Metropolitan Housing Authority officers spotted the stolen vehicle
and began chase. Appellant sped away, making several quick turns in the stolen car.
The pursuit lasted some ten minutes, with appellant ultimately exiting the still-
running vehicle and fleeing on foot. The vehicle came to a stop after it crashed into
a police cruiser. Police finally cornered and apprehended appellant.
A complaint was initially filed against appellant in juvenile court, and
the State sought a mandatory bindover to common pleas court. On March 26, 2024,
the Cuyahoga County Grand Jury returned a 12-count indictment charging
appellant with multiple felonies and misdemeanors, several with one- and three-
year firearm specifications attached under R.C. 2941.141(A) and 2941.145(A).
Appellant entered into a plea agreement, and on August 19, 2024, he pleaded guilty
to three counts, specifically:
Count 1, aggravated robbery, a felony of the first degree in violation of R.C. 2911.01(A)(1), with a one-year firearm specification;
Count 5, having weapons while under disability, a felony of the third degree in violation of R.C. 2923.13(A)(2); and Count 7, failure to comply with the order or signal of a peace officer, a felony of the third degree in violation of R.C. 2921.331(B).
The trial court sentenced appellant on September 30, 2024. On
Count 1, it imposed a mandatory prison term of 12 months on the one-year firearm
specification to be served prior to and consecutive to the underlying offense, in
which it imposed a minimum prison term of 36 months and a maximum of 60
months, to be served consecutively with all other counts. On Count 5, it imposed a
prison term of 36 months, to be run concurrently with all counts. Finally, on
Count 7, it imposed a prison term of 12 months, to be served consecutively with all
other counts.
II. Analysis
Appellant raises a single assignment of error for our review:
The trial court erred and imposed a prison sentence which was contrary to law and not supported by the record where the trial court failed to consider a community control sanction and failed to find the required sentencing factors specific to an offense of failure to comply pursuant to R.C. 2921.331(C)(5)(b) and where its journal entry of sentence does not properly reflect what occurred at the actual sentencing hearing.
Appellant divides his assignment of error into four distinct App.R.
16(A)(4) issues presented for review, with each issue essentially parsing out and
arguing a discrete error. We address them accordingly.
A. Issues 1 and 2 — R.C. 2921.331(C)(5)(b) Factors and Community Control
We address appellant’s first two arguments together. He frames the
issues as follows: Whether the record is unsupported or otherwise contains facts which would permit the trial court to consider and whether the trial court did consider the factors in R.C. 2921.331(C)(5)(b) prior to imposing sentence upon appellant for count seven, failure to comply with the order or signal of a peace officer.
Whether the trial court properly considered the possibility of a community control sanction prior to imposing what it referred to as a mandatory prison sentence.
R.C. 2953.08(G)(2) governs an appellate court’s review of a trial court’s
sentence. Pursuant to the statute, “‘an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that the
record does not support the trial court’s findings under relevant statutes or that the
sentence is otherwise contrary to law.’” State v. Evans, 2021-Ohio-1411, ¶ 12 (8th
Dist.), quoting State v. Marcum, 2016-Ohio-1002, ¶ 1. As this court has previously
stated:
A sentence is not clearly and convincingly contrary to law “where the trial court considers the purposes and principles of sentencing under R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly applies post-release control, and sentences a defendant within the permissible statutory range.”
State v. Thompson, 2018-Ohio-1393, ¶ 7 (8th Dist.), quoting State v. A.H., 2013-
Ohio-2525, ¶ 10 (8th Dist.). See also Evans at ¶ 12. Furthermore, while “[t]he record
must indicate that the trial court considered all relevant factors required by R.C.
2929.11 and 2929.12,” the trial court “has no obligation to state reasons to support
its findings.” Evans at ¶ 13, citing State v. Bonnell, 2014-Ohio-3177, syllabus. This
is because R.C. 2929.11 and 2929.12 “are not fact-finding statutes.” State v. Seith,
2016-Ohio-8302, ¶ 12 (8th Dist.), citing State v. Keith, 2016-Ohio-5234, ¶ 11 (8th Dist.). “[T]he court is not required to use particular language or make specific
findings on the record regarding its consideration of those factors.” Id. at ¶ 11.
Indeed, “[t]rial courts . . . are not required to make factual findings on the record
under R.C. 2929.11 or 2929.12” even “before imposing the maximum sentence.”
State v. Gohagan, 2019-Ohio-4070, ¶ 21 (8th Dist.), citing State v. Kronenberg,
2015-Ohio-1020, ¶ 27 (8th Dist.).
Instead, “[c]onsideration of the factors is presumed unless the
defendant affirmatively shows otherwise.” Seith at ¶ 12, citing Keith at ¶ 11. “[A]
trial court’s statement in its sentencing journal entry that it considered the required
statutory factors alone is enough to fulfill its obligations under R.C. 2929.11 and
2929.12.” Seith at ¶ 12. See also Evans at ¶ 17, citing Kronenberg at ¶ 27.
Appellant’s arguments with respect to the trial court’s consideration
of community-control sanctions are somewhat confusing. It is unclear from the
assignment of error whether appellant is arguing the trial court should have made a
more detailed record with respect to the possibility of community-control sanctions
as to both Count 1 (aggravated robbery, a felony of the first degree) and Count 7
(failure to comply, a felony of the third degree), or just with respect to Count 7. The
sole assignment of error mentions “community control” without referencing a
specific count. Appellant’s statement of the second issue presented for review,
however, questions whether the trial court considered the possibility of a
community-control sanction “prior to imposing what it referred to as a mandatory prison sentence,” which appears to be a reference to the trial court’s remarks as to
Count 7. (Emphasis added.)
With respect to Count 1, the trial court informed appellant that it was
required to sentence him to a prison term of one year for the attached one-year
firearm specification, (tr. 29, 33-34, and 36), and that there was “a presumption of
incarceration” on the underlying offense of aggravated robbery. (Tr. 35-36.) The
trial court ultimately imposed a prison term on the underlying offense, stating on
the record that it took into account “[R.C.] 2929.11 for the principles and purposes
of sentencing, 2929.12 for the seriousness and recidivism factors, and 2929.13 and
other Revised Code Sections for felony sentencing.” (Tr. 96.) The trial court’s
sentencing entry likewise references R.C. 2929.11.
Appellant directs our attention to State v. Logan, 2023-Ohio-3353
(8th Dist.). In Logan, this court, en banc, ruled that while trial courts were required
to impose a definite, mandatory prison term on firearm specifications, this “does not
also require the court to impose a mandatory prison term with respect to the
underlying felony.” Id. at ¶ 8. On May 21, 2025 — after the close of briefing and
after oral argument in this case — the Ohio Supreme Court reversed this court’s
decision in Logan and held that “R.C. 2929.13(F)(8) requires a trial court to impose
a prison sentence on an offender convicted of a felony offense that has a
corresponding firearm specification.” State v. Logan, 2025-Ohio-1772, ¶ 25. That
reversal, however, does not moot appellant’s argument that because of
entanglements between Counts 1 and 7, we should reverse and remand for resentencing on both counts. Given our disposition below of appellant’s arguments
as to Count 7, we agree that the sentencings on these counts are so interrelated that
a full resentencing is required. Moreover, while the trial court had referred to a
“presumption of incarceration” on the underlying felony in Count 1, Logan makes
clear that a term of imprisonment is mandatory. This further supports a remand for
a full resentencing.
With respect to Count 7, appellant raises two issues. We first address
appellant’s argument that the trial court erred when it stated that it was required to
impose a prison term for failure to comply if it “sentence[ed] [appellant] to prison
on any other count.” (Tr. 50.) In addition to that statement, made during the
appellant’s plea hearing, the trial court stated at sentencing that “if the Court
sentences you to prison on the other counts,” then “by law, [it] must give you some
time on that failure to comply.” (Tr. 75.)
R.C. 2929.13(C), the code provision governing third-degree felonies,
specifies no presumption in favor of or against imprisonment. ‘“[T]hird-degree
felonies carry no presumption for either prison or community control.’” State v.
Rodriguez, 2023-Ohio-805, ¶ 21 (8th Dist.), quoting State v. Robinson, 2013-Ohio-
2698, ¶ 10 (8th Dist.). More to the point, R.C. 2921.331 does not mandate
imprisonment for a felony of the third degree. The relevant subsection states: “If an
offender is sentenced to a prison term for a violation of division (B) of this section,
the offender shall serve the prison term consecutively to any other prison term or mandatory prison term imposed upon the offender.” (Emphasis added.) R.C.
2921.331(D).
This court has described subsection (D) as a “consecutive sentence
mandate.” State v. Perry, 2015-Ohio-1542, ¶ 11 (8th Dist.). It means what it says,
i.e., “any prison sentence imposed for a violation of R.C. 2921.331 would have to be
served consecutively to sentences imposed for other counts[.]” Id. at ¶ 15. See also
State v. Harper, 2017-Ohio-8963, ¶ 15 (1st Dist.) (“[W]hen a trial court has properly
imposed a prison term for certain felony violations under R.C. 2921.331(B), by
operation of law the term is required to be served consecutively to any other prison
terms.”); State v. Gonzalez, 2023-Ohio-4466, ¶ 6 (9th Dist.) (“The statute requires
a trial court imposing a prison term on an offender to run that term consecutive to
any other prison term imposed on the offender[.]”).
A “consecutive sentence mandate,” however, is not the same as a
“prison term mandate.” In Perry, this court cited without criticism an exchange
between defense counsel and the trial court that highlighted the difference:
DEFENSE COUNSEL: I believe the count the State is offering, failure to comply 2921.331, although would require the sentence be run consecutive, it doesn’t require a mandatory prison term be imposed. So thereby stating the way it was indicted by the State of Ohio, if the court still elected to impose a term of incarceration, then that term would have to run consecutive but it still is at the election of the court and the court’s discretion.
THE COURT: Right, I’m sorry, it’s not mandatory to impose the prison term in Count 1 [failure to comply], but that if I do impose a prison term on Count [3] [trafficking in heroin], then also on Count 1 will run consecutively. That’s what I was trying to say.
Perry at ¶ 3. In State v. Shade, 2022-Ohio-3845 (2d Dist.), the defendant entered
into a global plea agreement with respect to two pending criminal cases, ultimately
pleading to one count of failure to comply and one count of having weapons while
under disability. “[T]he State and Shade agreed to a recommended sentence of no
more than 24 months in prison.” Id. at ¶ 2. In other words, while community control
was an option on both counts, the plea agreement contemplated possible prison
time. Shade argued that his plea was not knowing and voluntary “because the trial
court did not inform him that a prison sentence for failure to comply is statutorily
required to be served consecutively to other prison terms[.]” Id. at ¶ 8. The court
wrote that “Shade’s argument — that a court must inform a defendant that a
sentence imposed pursuant to a R.C. 2921.331(D) must run consecutively to any
other prison term is not a novel one and has been adopted by other Ohio appellate
districts.” Id. at ¶ 14. The court continued:
He cites to State v. Norman, 8th Dist. Cuyahoga No. 91302, 2009- Ohio-4044. The Norman court stated that when a statute mandates that sentences be served consecutively, the consecutive nature “directly affects the length of the sentence, thus becoming a crucial component of what constitutes a ‘maximum’ sentence.” Id. at ¶ 7. Put differently, when consecutive sentences are mandatory (as opposed to discretionary), a trial court must advise of that fact to achieve “substantial compliance” with Crim.R. 11(C). See also State v. Mil[l]hoan, 6th Dist. Lucas Nos. L-10-1328, L-10-1329, 2011-Ohio- 4741.
Id. at ¶ 14. The Shade Court distinguished those cases, however, stating that “[t]he
holdings of cases like Norman and Mil[l]hoan . . . only apply ‘when the imposition
of consecutive sentences is a foregone conclusion at the time the plea is entered and accepted, that is, only in cases where “a mandatory, consecutive prison term was a
guaranteed consequence of appellant’s guilty plea.”’” Id. at ¶ 15, quoting State v.
Millhoan, 2011-Ohio-4741, ¶ 35 (6th Dist.), quoting State v. Norman, 2009-Ohio-
4044, ¶ 9 (8th Dist.). The court concluded:
Shade’s receiving a prison sentence, let alone a consecutive one, was not a “foregone conclusion” when he entered into his plea agreement. Shade was informed that he was eligible for community control sanctions on both failure to comply and having weapons while under disability at the plea hearing, and his plea agreement included simply a “cap” of 24 months if prison were imposed. Further, failure to comply does not carry mandatory prison time (see R.C. 2921.331(D) — “* * * if the offender is sentenced to a prison term for that violation, the offender shall serve the prison term consecutively to any other prison term* * *.”), so despite the possibility of incurring a consecutive sentence, it was not a “guaranteed consequence” of Shade’s guilty plea.
(Emphasis in original.) Shade at ¶ 16.
While Shade turned on the voluntariness of a plea, the Second
District’s intricate discussion of the interplay between various counts illuminates the
issue in this case, i.e., the distinction between a consecutive-sentence mandate and
a prison-term mandate. While it is tempting to discount Shade because of the fact
that community control was a distinct possibility as to both counts, the court noted
that failure to comply “does not carry mandatory prison time” immediately after
noting the negotiated prison cap of 24 months. Id. This suggests the court’s
understanding that even if Shade had been sentenced to imprisonment on the
separate count (having weapons while under disability), that did not require a
mandatory prison term for failure to comply. “If the statute’s language is plain and unambiguous, we apply it as
written.” State v. Bollar, 2022-Ohio-4370, ¶ 10, citing Portage Cty. Bd. of Commrs.
v. Akron, 2006-Ohio-954, ¶ 52. R.C. 2921.331(D) is plain and unambiguous. It
requires a trial court to impose consecutive sentences for violations of R.C.
2921.331(B), but only if a prison term is imposed.1 Neither this nor any other code
provision cited by the State requires the imposition of a prison sentence for failure
to comply merely because a defendant is sentenced to a term of imprisonment on
one or more completely distinct counts.
The State offers no cases directly addressing this issue, and the cases
it does discuss are inapposite. It cites State v. Robinson, 2022-Ohio-3033 (8th
Dist.), for the proposition that “[a] court may . . . not impose a community-control
sanction on one count consecutive to a prison term on another count absent
statutory authority.” Id. at ¶ 12, citing State v. Hitchcock, 2019-Ohio-3246, ¶ 25. In
Robinson, however, immediately after explaining the import of Hitchcock, this court
However, the Supreme Court of Ohio has held that a court may impose both a prison term for one offense and a community-control term for another offense in the same case. State v. Paige, 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 9. The Paige Court went on to hold that the trial court could not impose what amounted to a consecutive term of commitment to a community-based correctional facility after release from prison. Id. at ¶ 13.
1 See also R.C. 2929.14(C)(3), which provides: “If a prison term is imposed for . . . a
felony violation of division (B) of section 2921.331 of the Revised Code, the offender shall serve that prison term consecutively to any other prison term or mandatory prison term previously or subsequently imposed on the offender.” (Emphasis added.) (Emphasis added.) Robinson at ¶ 12.
In this context, the key distinction is between consecutive and
concurrent sentences. In Paige, the trial court sentenced the defendant to 42
months’ imprisonment on a sexual-battery count and a concurrent term of 60
months of community control on a domestic-violence count. Paige argued “that the
‘effective sentence’ on the domestic-violence count is both a prison term and
community-control supervision because the prison term is ‘incorporated’ into the
term of community control as a result of the concurrently running sentences on each
offense.” (Emphasis added.) Paige at ¶ 7. The Court rejected Paige’s argument that
this was an improper split sentence:
We agree with the state that the mere fact that the sentences on each offense were to run concurrently does not mean that the community- control sentence imposed on the domestic-violence count included a prison term. The prison term was imposed on the sexual-battery count, and a period of community-control supervision was imposed separately on the domestic-violence count. This complies with our recent decision in [State v. Anderson, 2015-Ohio-2089].
Additionally, nothing in the sentencing statutes requires the duration of a community-control sanction to match that of a concurrent prison term. The only applicable requirement is that “[t]he duration of all community control sanctions imposed upon an offender under this division shall not exceed five years.” R.C. 2929.15(A)(1). Thus, we do not accept the appellate court’s conclusion that the length of the community-control sentence resulted in an improper split sentence here.
Id. at ¶ 9-10. This brings us full circle to Robinson, in which we cited Paige and held
that “[a] trial court may appropriately impose a term of community-control
supervision for one count concurrent to a prison term for another count.”
(Emphasis added.) Robinson at ¶ 14. Accordingly, we reject the State’s argument that the trial court was
barred from considering a community-control sanction with respect to Count 7.
Under Paige and Robinson, the trial court had the discretion to impose a
community-control sanction on Count 7 so long as it ran concurrently with the
prison terms it imposed on other counts.
We reverse because the trial court made it clear on the record that it
believed “if the Court sentences you to prison on the other counts,” then “by law, [it]
must give you some time on that failure to comply.” (Tr. 75.) This was erroneous.
Moreover, it highlights the interplay between the various counts and necessitates a
remand for full resentencing. The interrelationship between the sentences cannot
be untangled at the appellate level on the record before us. Moreover, the Ohio
Supreme Court has now provided further clarity with respect to any resentencing on
Count 1. Finally, while appellant has not specifically argued that the trial court
erroneously failed to consider a community-control sanction with respect to
Count 5, having weapons while under disability, its sentence on that count was
likewise intertwined with the remaining counts. The trial court’s sentence is
reversed, and the case is remanded for full resentencing.
Appellant also argues that the trial court neglected to consider the
factors listed in R.C. 2921.331(C)(5)(b) prior to sentencing appellant for failure to
comply. Under that code provision:
[T]he trial court “shall consider, along with the factors set forth in sections 2929.12 and 2929.13 of the Revised Code that are required to be considered,” other factors including, but not limited to: the duration of the pursuit; the distance of the pursuit; the rate of speed; whether the offender failed to stop for traffic lights or stop signs during the pursuit; whether the offender committed a moving violation during the pursuit; and any other relevant factors indicating that the offender’s conduct is more serious than conduct normally constituting the offense.
State v. Whitfield, 2008-Ohio-3145, ¶ 10 (8th Dist.), quoting R.C. 2921.331(C)(5)(b).
Whitfield, like appellant herein, argued that “the trial court failed to
consider” the statutory factors. Whitfield at ¶ 10. The court rejected Whitfield’s
argument, noting that “‘the [trial] court is not required by statute or otherwise to
state its considerations of those statutory factors on the record, nor to make any
specific findings in relation thereto.’” Id. at ¶ 11, quoting State v. Anderson, 2004-
Ohio-2858, ¶ 22 (8th Dist.). In Anderson, as here, the defendant-appellant entered
a guilty plea. Anderson’s conduct while fleeing police “[was] recited by the State,”
which “afforded the court the opportunity to assess the seriousness of defendant’s
conduct under the requisite factors.” Id. at ¶ 21. In addition to stating that the trial
court was not required to make specific findings on the record, the Anderson Court
held that the trial court “found defendant guilty of the charges based upon the facts
presented by the State; therefore, the court necessarily considered those facts which
fell within R.C. 2921.331(C)(5)(b)(i)-(ix).” Id. at ¶ 22.
At the original sentencing hearing, the State recited multiple factors
with respect to the danger caused by the car chase. (Tr. 77.) The trial court was not
required to discuss its considerations of those factors on the record or make specific
findings. The better practice, however, would be to reference R.C. 2921.331(C)(5)(b) on the record and state that the trial court considered the requisite factors. This may
be addressed at resentencing.
B. Issue 3 — Conflict Between Sentencing Hearing and Journal Entry
Appellant frames his third issue of law as follows:
Whether the trial court imposed a sentence contrary to law when it failed to impose a sentence in its sentencing journal entry that reflected what took place at the oral sentencing hearing.
Here, appellant points to discrepancies between what actually
occurred at the sentencing hearing and the ultimate written sentencing entry.
Appellant argues that the journal entry does not accurately reflect what occurred at
the sentencing hearing, and the matter must therefore be remanded to the trial court
to issue a nunc pro tunc entry.
More specifically, with respect to Count 1, at the sentencing hearing,
the court imposed a one-year mandatory sentence on the firearm specification, to
be served prior and consecutive to three years on the underlying offense, with a one-
and-one-half-year Reagan Tokes tail, for a total of four to five and one-half years.
This was to be served concurrently to the three years on Count 5, having weapons
while under disability. As appellant points out, the trial court also imposed a
sentence of 12 months on Count 7, to be served consecutively to Counts 1 and 5.
The sentencing entry, however, specifies with respect to Count 1 that
appellant is sentenced to “12 month(s) mandatory prison on the firearm
specification specification(s) to be served prior to and consecutive to a minimum
prison term of 36 month(s) and a maximum 60 month(s) on the base charge, to be served consecutively with all counts.” (Emphasis added.) Appellant argues, and
the State concedes, that this was “merely a typographical error,” and that the
maximum on the base charge should read 54 months rather than 60 months. The
reference to serving time on Count 1 “consecutively with all counts” is also
erroneous. The sentencing transcript makes clear that Counts 1 and 5 were to be
served concurrently.
‘“A trial court retains continuing jurisdiction to correct clerical errors
in a judgment by nunc pro tunc entry to reflect that which actually was decided.’”
State v. Robinson, 2022-Ohio-1311, ¶ 82-84 (8th Dist.), quoting State v. Roberts,
2017-Ohio-9014, ¶ 6 (8th Dist.), citing State ex rel. Womack v. Marsh, 2011-Ohio-
229 ¶ 13. See also Crim.R. 36 (“Clerical mistakes in judgments, orders, or other
parts of the record, and errors in the record arising from oversight or omission, may
be corrected by the court at any time.”). Because we reverse and remand for full
resentencing, however, this error is moot.
Appellant also argues that the trial court’s sentencing entry contains
an additional clerical error with respect to Count 5. Specifically, it states that the
sentence of 36 months is to run “concurrently with all counts.” Appellant notes that
Count 5 is to run concurrently with Count 1, but consecutively to Count 7 because of
the imposition of a prison sentence on Count 7. Once again, any error in this regard
is rendered moot by our reversal and remand for resentencing.
C. Issue 4 — Restitution
Appellant’s fourth and final issue of law presents this question: Whether the trial court imposed a sentence contrary to law when it imposed restitution in its September 30, 2024, sentencing journal entry not imposed at the oral sentencing hearing.
The trial court referred to restitution during the plea hearing, and the
sentencing entry orders restitution to the victim in the amount of $500. Restitution,
however, was not mentioned during appellant’s sentencing hearing.
Appellant argues that because restitution was not pronounced during
the sentencing hearing, the order must be vacated and the case remanded with
instructions that the trial court issue a nunc pro tunc entry permanently deleting the
order of restitution in order to conform to what occurred at the sentencing hearing.
The State argues that because restitution was part of the underlying plea agreement
and was discussed at sentencing, restitution was properly imposed.
Neither party is fully correct. This court addressed similar facts in
State v. Jones, 2011-Ohio-453 (8th Dist.). In Jones, restitution was part of the plea
agreement but was not announced at sentencing. The restitution order nevertheless
found its way into the sentencing entry. This court held “that the trial court erred
when it ordered restitution through its journal entry without verbalizing the order
in Jones’s presence during his sentencing hearing.” Id. at ¶ 16. Accordingly, the
court sustained the associated assignment of error, indicating that this “requires a
remand for resentencing to order restitution in Jones’s presence consistent with his
plea agreement.” Id. at ¶ 17.
Jones is on point. The trial court may address the issue of restitution
when it resentences appellant. This cause is reversed and remanded to the lower court for further
It is ordered that appellant recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
DEENA R. CALABRESE, JUDGE
EILEEN A. GALLAGHER, A.J., and EMANUELLA D. GROVES, J., CONCUR