State v. Bradley

[Cite as State v. Bradley, 2015-Ohio-319.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101590
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEANGELO BRADLEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-580620-A
BEFORE: E.T. Gallagher, J., Celebrezze, A.J., and Jones, J.
RELEASED AND JOURNALIZED: January 29, 2015
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John Patrick Colan
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Deangelo Bradley (“Bradley”), appeals his sentence and raises
the following two assignments of error for our review:
I. The trial court abused its discretion when it imposed costs and fees in the
journalized sentencing entry after it had announced at the sentencing hearing that
costs and fees would be waived.
II. The trial court committed error in imposing restitution in an uncertain amount.
{¶2} The state concedes both errors in its appellee brief but failed to comply with
Loc.App.R. 16(B), which states:
When a party concedes an error that is dispositive of the entire appeal, the party
conceding the error shall file a separate notice of conceded error either in lieu of
or in addition to their responsive brief. Once all briefing is completed, the appeal
will be randomly assigned to a merit panel for review. The appeal will be
considered submitted on the briefs unless the assigned panel sets an oral argument
date.
Nevertheless, after reviewing the record, we agree the trial court made these errors. We,
therefore, affirm the trial court’s judgment in part and remand the case to the trial court to correct
the errors in Bradley’s sentence.
I. Factual and Procedural History
{¶3} Bradley pleaded guilty to two counts of theft, two counts of burglary, and two counts
of grand theft. The court sentenced Bradley to a four-year prison term followed by two years of
community control sanctions. As part of the community control sanctions, the court ordered
Bradley to participate in a rehabilitation program at a community-based correctional facility
(“CBCF”) to address his drug addiction and employment concerns. With respect to costs and
fees, the court stated in open court:
If you want to appeal this, I’m going to appoint the Public Defender to represent
you on appeal. I’m going to find that you’re indigent while you’re in prison.
I’m going to waive your costs and fees.
* * * And any transcript costs or filing fees will be paid for by the State because
of your indigent status.
Notwithstanding the court’s announcement in open court that court costs and fees were waived,
the sentencing entry states, in relevant part:
The defendant is ordered to perform CCWS in lieu of paying costs, paying fees.
* * * CCWS starts when on CCS and after CBCF is completed. * * *
The court hereby enters judgment against defendant in an amount equal to the
costs of this prosecution.
{¶4} With respect to restitution, the parties stipulated at the sentencing hearing that
Bradley would pay the victims the amount of damages they suffered less any insurance proceeds
they receive. (Tr. 45, 54.) The sentencing entry states:
Restitution ordered in the amount of $7,500 to victim named in indictment less
insurance proceeds. (Count 6)
Restitution ordered in the amount of $1,400 to the victim in indictment * * * less
insurance proceeds. (Count 10)
{¶5} Bradley now appeals the court’s order of court costs, fees, and restitution in the
sentencing entry, and, as previously stated, the state concedes both errors.
II. Law and Analysis
A. Costs and Fees
{¶6} In the first assignment of error, Bradley argues the trial court abused its discretion
when it imposed court costs and fees in the sentencing entry after it had stated at the sentencing
hearing that costs and fees were waived due to Bradley’s indigency. Bradley contends that
because the sentencing entry is inconsistent with the trial court pronouncement in open court that
court costs and fees were waived, this case should be remanded to the trial court for the issuance
of a nunc pro tunc entry to correct the sentencing entry to reflect what the court stated at the
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 court announced in open court that it waived Bradley’s court costs
and fees. Yet, the sentencing entry states that Bradley “is ordered to perform CCWS in lieu of:
paying costs, paying fees,” and the court entered judgment against Bradley “in an amount equal
to the costs of prosecution.” Therefore, because the sentencing entry is inconsistent with the
court’s decision in open court to waive court costs and fees, the sentencing entry should be
corrected by a nunc pro tunc to accurately reflect the court’s decision at the sentencing hearing.
{¶9} The first assignment of error is sustained.
B. Restitution
{¶10} In the second assignment of error, Bradley argues the trial court committed error by
imposing an unspecified amount of restitution. R.C. 2929.18(A)(1), which governs restitution,
states: “If the court imposes restitution, at sentencing, the court shall determine the amount of
restitution to be made by the offender.” Under the plain language of the statute, the trial court
must determine the actual amount of restitution the defendant must pay the victim if it orders
restitution as part of the sentence.
{¶11} The sentencing entry in this case requires that Bradley pay certain amounts of
restitution to the victims. However, the actual amount Bradley must pay for restitution is not
specified in the journal entry because it requires subtraction of an unknown amount of insurance
proceeds before Bradley’s liability can actually be determined. Therefore, the trial court’s order
of restitution fails to comply with R.C. 2929.18(A)(1), and the second assignment of error is
sustained.
III. Conclusion
{¶12} We conclude the trial court erred when it ordered Bradley to perform CCWS in lieu
of paying court costs and fees in the sentencing entry, when the court waived the costs and fees in
open court at the sentencing hearing. We further conclude the trial court erred in failing to
specify the amount Bradley must pay to the victims in restitution.
{¶13} Accordingly, Bradley’s assigned errors are sustained. The trial court’s judgment is
affirmed in part and reversed in part. We remand this case to the trial court to issue a nunc pro
tunc entry reflecting the fact that the court waived court costs and fees. The trial court is also
instructed to hold a hearing to determine the actual amount of restitution Bradley must pay to the
victims.
It is ordered that appellee pay costs herein taxed. Costs waived.
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. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. 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
FRANK D. CELEBREZZE, JR., A.J., and
LARRY A. JONES, SR., J., CONCUR