State v. Martin

2017 Ohio 4144

Opinion

[Cite as State v. Martin, 2017-Ohio-4144.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-160507 TRIAL NO. B-1504302 Plaintiff-Appellee, : O P I N I O N. vs. :

TRACY MARTIN, :

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: June 7, 2017

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

John Treleven, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

M ILLER , Judge.

{¶1} Tracy Martin was indicted for five counts of aggravated vehicular assault,

five counts of vehicular assault, one count of resisting arrest, and one count of operating

a vehicle while intoxicated. Martin pled guilty to three counts of aggravated vehicular

assault and two counts of vehicular assault. The remaining seven counts were

dismissed. The court sentenced Martin to five years on each aggravated vehicular

assault count and 18 months on each vehicular assault count. The court ordered Martin

to serve two of the aggravated vehicular assault sentences consecutively to each other

and concurrently with the remaining three counts, for an aggregate total sentence of ten

years.

{¶2} Martin’s appointed counsel has advised this court that, after a thorough

review of the record, he can find nothing that would arguably support Martin’s appeal,

and that the appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967); see also Freels v. Hills, 843 F.2d 958 (6th Cir.1988).

Counsel, as required by Anders, has communicated this conclusion to Martin, and has

offered him an opportunity to respond and to raise any issues. Counsel has also moved

this court for permission to withdraw as counsel. See Anders at 744; see also 1st Dist.

Loc.R. 16.2(C)(1) and 16.2(D)(2).

{¶3} If we determine that the appeal is wholly frivolous, we may then proceed

to a decision on the merits without appointing new counsel. See In re Booker, 133 Ohio

App.3d 387, 390, 728 N.E.2d 405 (1st Dist.1999), citing Anders at 744. If, however, we

conclude that “any legal points arguable on their merits and prejudicial to the defendant

exist, we must ensure, prior to decision, that the indigent defendant receives the

assistance of counsel to argue the appeal.” State v. Gilbert, 1st Dist. Hamilton No. C-

110382, 2012-Ohio-1366, ¶ 5.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} Counsel now requests that this court independently examine the record

to determine whether the appeal is wholly frivolous. See Anders at 744. We have done

so, and we agree with counsel’s conclusion that the proceedings below were free of error

prejudicial to appellant and that no grounds exist to support a meritorious appeal.

{¶5} While not prejudicial to Martin, the trial court made the statutory

findings for consecutive sentences at the sentencing hearing, but did not include those

findings in the sentencing entry. See State v. Thomas, 1st Dist. Hamilton No. C-

140070, 2014-Ohio-3833, ¶ 8-9. The omission of consecutive-sentence findings from

the sentencing entry is a “clerical mistake [that] may be corrected by the court through a

nunc pro tunc entry to reflect what actually occurred in open court.” State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 30. Therefore, we overrule

counsel’s motion to withdraw from his representation of appellant. We affirm the trial

court’s judgment but remand the cause for a nunc pro tunc order correcting the

sentencing entry.

{¶6} We hold that this appeal is frivolous under App.R. 23 and without

“reasonable cause” under R.C. 2505.35. But we refrain from taxing costs and expenses

against appellant because he is indigent.

Judgment affirmed and cause remanded.

Z AYAS , P.J., and M YERS , J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.