State v. Burnett

2024 Ohio 1915

• Court: Ohio Court of Appeals
• Decided: May 20, 2024
• Docket: CA2023-06-010
• Status: Published

Opinion

[Cite as State v. Burnett, 2024-Ohio-1915.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

MADISON COUNTY

: STATE OF OHIO, : CASE NO. CA2023-06-010 Appellee, : DECISION 5/20/2024 - vs - :

: ADAM T. BURNETT, : Appellant.

CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case Nos. CRI 20220162; CRI 20230007

Nick Adkins, Madison County Prosecuting Attorney, and Rachel Price and Michael S. Klamo, Assistant Prosecuting Attorneys, for appellee.

Culp, Parson, and Murray, LLC, and Joshua W. Beasley, for appellant.

Per Curiam.

{¶1} This cause came on to be considered upon a notice of appeal filed by

appellant, Adam T. Burnett, the transcript of the docket and journal entries, the transcript

of proceedings and original papers from the Madison County Court of Common Pleas,

and upon the brief filed by appellant's counsel. Madison CA2023-06-010

{¶2} Appellant's counsel has filed a brief with this court pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396 (1967), which (1) indicates that a careful review

of the record from the proceedings below fails to disclose any errors by the trial court

prejudicial to the rights of appellant upon which an assignment of error may be predicated;

(2) lists one potential error "that might arguably support the appeal," Anders, at 744, 87

S.Ct. at 1400; (3) requests that this court review the record independently to determine

whether the proceedings are free from prejudicial error and without infringement of

appellant's constitutional rights; (4) requests permission to withdraw as counsel for

appellant on the basis that the appeal is wholly frivolous; and (5) certifies that a copy of

both the brief and motion to withdraw have been served upon appellant.

{¶3} Having allowed appellant sufficient time to respond, and no response

having been received, we have accordingly examined the record and find no error

prejudicial to appellant's rights in the proceedings in the trial court. The motion of counsel

for appellant requesting to withdraw as counsel is granted, and this appeal is dismissed

for the reason that it is wholly frivolous.

{¶4} However, our independent review reveals that we must remand the case to

the trial court to correct a clerical error in the June 8, 2023 sentencing entry. While the

trial court made the findings necessary for the imposition of consecutive sentences at the

sentencing hearing, the judgment entry of sentence fails to include the trial court's finding

that imposition of consecutive sentences is not disproportionate to the seriousness of the

defendant's conduct and to the danger he poses to the public. See R.C. 2929.14(C)(4).

The consecutive sentencing findings must be made at the hearing and must be

incorporated in the sentencing entry. State v. Hunter, 12th Dist. Butler No. CA2022-05-

054, 2023-Ohio-1317, ¶ 32.

-2- Madison CA2023-06-010

{¶5} A trial court's failure to incorporate the required consecutive sentence

findings in the sentencing entry after making the findings at the sentencing hearing does

not render the sentence contrary to law and the omission may be corrected through a

nunc pro tunc entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 30. The

"The function of a nunc pro tunc entry is not to change, modify, or correct erroneous

judgments, but merely to have the record speak the truth." State v. Kimmie, 8th Dist.

Cuyahoga No. 98979, 2013-Ohio-2906, ¶ 21, quoting Ruby v. Wolf, 39 Ohio App. 144,

147 (8th Dist. 1931). Therefore, we remand this matter for the trial court to issue a nunc

pro tunc sentencing entry, incorporating the R.C. 2929.14(C)(4) finding that was made at

the sentencing hearing. See State v. Crawford, 8th Dist. Cuyahoga No. 112191, 2023-

Ohio-3791 (dismissing Anders appeal and remanding for the trial court to issue a nunc

pro tunc order to correct clerical errors).

S. POWELL, P.J., M. POWELL and BYRNE, JJ., concur.

-3- [Cite as State v. Burnett, 2024-Ohio-1915.]