State v. Russell

2016 Ohio 7712

Opinion

[Cite as State v. Russell, 2016-Ohio-7712.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103993

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

SHAKIM L. RUSSELL DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-13-579855-A and CR-15-599705-A

BEFORE: E.T. Gallagher, J., Jones, A.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: November 10, 2016 ATTORNEY FOR APPELLANT

Kevin P. Shannon Kehoe & Associates, L.L.C. 1940 East 6th Street 900 Baker Building Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Christine M. Vacha Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Defendant- appellant, Shakim L. Russell (“Russell”), appeals from the trial

court’s imposition of court costs. He raises two assignments of error for our review:

1. The trial court erred by assessing costs to appellant in its journal entry when it had waived costs in court at the sentencing hearing.

2. Alternatively, trial counsel admitted malpractice by failing to file a motion to waive costs.

{¶2} After careful review of the record and relevant case law, we reverse and

remand for proceedings consistent with this opinion.

I. Procedural History

{¶3} In November 2015, Russell pleaded guilty in Cuyahoga C.P. No.

CR-13-579855-A to drug trafficking, a felony of the first degree, with a one-year firearm

specification; and carrying a concealed weapon, a felony of the fourth degree. In

Cuyahoga C.P. No. CR-15-599705-A, Russell pleaded guilty to drug trafficking, a felony

of the first degree, with a one-year firearm specification; having a weapon while under

disability, a felony of the third degree; and two counts of endangering children,

misdemeanors of the first degree.

{¶4} At a joint sentencing hearing, the trial court imposed an aggregate 11-year

prison term and a $10,000 fine. In addition, the trial court waived “all court costs.” The

sentencing journal entry in Case No. CR-13-579855-A reflects the waiver of costs. In contrast, however, the sentencing journal entry in Case No. CR-15-599705-A ordered

Russell to pay “an amount equal to the costs of this prosecution.”

{¶5} Russell now appeals from the trial court’s inclusion of costs in the sentencing

journal entry in Case No. CR-15-599705-A.

I. Law and Analysis

{¶6} In his first assignment of error, Russell argues the trial court erred in

assessing costs in its sentencing journal entry when it had waived costs on the record

during the sentencing hearing.

{¶7} Although a court speaks through its journal entries, clerical errors may be

corrected at any time in order to conform to the transcript of the proceedings. State v.

Steinke, 8th Dist. Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 47; Crim.R. 36. Trial courts

retain continuing jurisdiction to correct these clerical errors in judgments with a nunc pro

tunc entry to reflect what the court actually decided. State ex rel. Cruzado v. Zaleski,

111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19.

{¶8} In this case, the state concedes that the trial court waived costs at the time of

the sentencing. Moreover, our review of the record confirms that the sentencing entry in

Case No. CR-15-599705-A includes an order of costs to be paid by Russell, while the

transcript shows the trial court waived costs on the record. Accordingly, we remand to

the trial court for the limited purpose of issuing a nunc pro tunc journal entry in Case No.

CR-15-599705-A that accurately reflects the court’s decision at the sentencing hearing.

See State v. Lugo, 8th Dist. Cuyahoga No. 103893, 2016-Ohio-2647. {¶9} Russell’s first assignment of error is sustained. His second assignment of

error is thereby rendered moot. See App.R. 12(A)(1)(c).

{¶10} Judgment affirmed and case remanded for the trial court to issue a nunc pro

tunc entry reflecting the fact that the court waived court costs.

It is ordered that appellant recover from appellee costs herein taxed. Costs

waived.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., A.J., and SEAN C. GALLAGHER, J., CONCUR