State v. Hendrix

2024 Ohio 230

• Court: Ohio Court of Appeals
• Decided: January 24, 2024
• Docket: C-230310
• Status: Published

Opinion

[Cite as State v. Hendrix, 2024-Ohio-230.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230310 TRIAL NO. B-2002224 Plaintiff-Appellee, :

vs. : O P I N I O N.

ANTONIO HENDRIX, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: January 24, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Brian T. Goldberg, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Presiding Judge.

{¶1} Defendant-appellant Antonio Hendrix appeals from his sentencing

following the remand to the trial court after his previous appeal. Hendrix argues that

the trial court erred by failing to announce his correct sentence in his presence and

that the sentencing entry contains a clerical error that must be corrected. For the

following reasons, we remand the cause for the trial court to correct its sentencing

entry, but we affirm the judgment of the trial court in all other respects.

I. Factual and Procedural History

{¶2} Hendrix was convicted by a jury of one count of aggravated robbery

(Count 1), three counts of kidnapping (Counts 2, 3, and 4), and one count of having

weapons while under disability (Count 5). The robbery and kidnapping counts carried

firearm specifications. Hendrix was sentenced on all counts, with an aggregate

sentence of 26 to 31 years. In his first appeal, this court remanded the cause with

instructions to merge Count 1 with Count 2.

{¶3} On remand, Hendrix appeared before the trial court for a new

sentencing hearing. At the sentencing hearing, the state elected to pursue the

kidnapping count, and the aggravated-robbery count was merged into the kidnapping

count. The court then imposed a sentence of ten years on the kidnapping count, plus

three years consecutive for the firearm specification. The court also imposed a three-

year consecutive sentence on the firearm specification to the aggravated-robbery

count, as required by State v. Bollar, 171 Ohio St.3d 678, 2022-Ohio-4370, 220 N.E.3d

690. The trial court also reimposed the sentence previously imposed for the remaining

counts to run concurrently with the sentence on the first kidnapping count. The

aggregate sentence following resentencing is an indefinite sentence of 16 to 21 years.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} After the court announced the sentence, the prosecuting attorney

informed the court:

Judge, the only thing I have to add is, when you were going through

Counts 3 and 4, you didn’t address the gun specifications that he was

found guilty of on Counts 3 an[d] 4. I understand it’s already been

decided, and those should run concurrently with the time that he got on

Counts 2 and 1.

In response, the court stated, “Very good. So amended.” Defense counsel made no

objection or other comment about the issue.

{¶5} Following the hearing, the sentence that was entered differed from that

announced in court. The sentencing entry shows that both Count 1 and Count 2 were

merged into the other, and it contains a sentence for neither of those two counts.

Additionally, the sentencing entry shows sentences on two specifications to Count 3.

{¶6} This appeal timely followed.

II. Analysis

{¶7} On appeal, Hendrix raises two assignments of error for our

consideration. We address each in turn.

First Assignment of Error

{¶8} In his first assignment of error, Hendrix argues that the court erred

when it entered sentences on the firearm specifications to Counts 3 and 4 that were

not announced in open court, violating his due-process rights. See State v. Coach, 1st

Dist. Hamilton No. C-990349, 2000 Ohio App. LEXIS 1901, 5 (May 5, 2000), citing

Crim.R. 43(A).

{¶9} Crim.R. 43(A) provides that “the defendant must be physically present

3 OHIO FIRST DISTRICT COURT OF APPEALS

at every stage of the criminal proceeding and trial, including the impaneling of the

jury, the return of the verdict, and the imposition of sentence, except as otherwise

provided by these rules.” “If the judgment entry differs from the sentence announced

in open court, and there is nothing in the record to demonstrate that the defendant

was present at the time the different or modified sentence was imposed,” then the

sentence is invalid and this court must remand the cause for resentencing. Coach at 6.

{¶10} Hendrix argues that the trial court erred by journalizing sentences on

the firearm specifications that were not announced in his presence.

{¶11} The Ohio Supreme Court has held that “the presence of a defendant is a

condition of due process to the extent that a fair and just hearing would be thwarted

by his absence, and to that extent only.” (Emphasis sic.) State v. Hale, 119 Ohio St.3d

118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 100, quoting Snyder v. Massachusetts, 291

U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

{¶12} In Hendrix’s first appeal, we vacated his sentences only on Counts 1 and

2, with instructions to resentence Hendrix only as to those counts. State v. Hendrix,

1st Dist. Hamilton No. C-210679, 2023-Ohio-17, ¶ 31. We affirmed his sentences on

the remaining counts. Id. Consequently, Hendrix’s sentences on the remaining counts

were not open to revision by the trial court. See State v. White, 1st Dist. Hamilton No.

C-230165, 2023-Ohio-439, ¶ 10, citing State v. Wilson, 129 Ohio St.3d 214,

2011-Ohio-2669, 951 N.E.2d 381, ¶ 15 (“[W]hile a remand for a new sentencing

hearing generally anticipates a de novo sentencing hearing, only the sentences for the

offenses that were affected by the appealed error are reviewed de novo. The sentences

for any offenses that were not affected by the appealed error are not vacated and are

not subject to review.”). As such, Hendrix’s sentences on Counts 3 and 4 are not subject

4 OHIO FIRST DISTRICT COURT OF APPEALS

to review at this time.

{¶13} We overrule Hendrix’s first assignment of error.

Second Assignment of Error

{¶14} In his second assignment of error, Hendrix points out that the

sentencing entry does not accurately reflect what was stated in open court. Specifically,

the sentencing entry incorrectly shows that both Counts 1 and 2 were merged into the

other, and there is no sentence provided for either of those counts. Additionally, the

sentencing entry reflects sentences for two specifications on Count 3 instead of one.

{¶15} The state concedes that the sentencing entry is in error.

{¶16} Crim.R. 36 provides that “[c]lerical 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.” “A nunc pro tunc entry may be used to

correct a sentencing order, as long as the nunc pro tunc entry reflects what the court

actually did, and is not an attempt to modify the court’s judgment.” State v. Houston,

1st Dist. Hamilton No. C-130429, 2014-Ohio-3111, ¶ 42.

{¶17} Consequently, we sustain Hendrix’s assignment of error and remand

the cause to the trial court for the limited purpose of correcting this error with a nunc

pro tunc judgment entry.

III. Conclusion

{¶18} For the foregoing reasons, we overrule Hendrix’s first assignment of

error, but we sustain his second. Accordingly, we affirm the trial court’s judgment, but

remand the cause for the trial court to issue a nunc pro tunc judgment entry correcting

the clerical error.

Judgment affirmed and cause remanded.

5 OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER and KINSLEY, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.