COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72226 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : ERIC NERO, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 22, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-345828 JUDGMENT : AFFIRMED, AS MODIFIED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: L. Christopher Frey Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Patrick E. Talty 20325 Center Ridge Road Suite 512 Rocky River, Ohio 44116-4386 -2- NAHRA, J.: Appellant, Eric Nero, brings this appeal following his conviction for a violation of R.C. 2911.12, Burglary. At his sentencing, appellant, represented by counsel, was told by the judge he would receive a sentence of five years incarceration, a $250.00 fine plus court costs, and three years post-release control. Shortly following his sentencing, the judge recalled appellant to the courtroom during his co-defendant's sentencing and questioned appellant's statements regarding details of the burglary in light of the co-defendant's statements. Appellant's counsel was not present and the judge told appellant I'm going to tell you something, if I find out you lied to me, your sentence is going to be increased to the maximum sentence allowed under the law. Do you understand that? The judgment entry indicating appellant's sentence indicated eight years incarceration, a $250.00 fine plus court costs, and five years post-release control. Appellant's sole assignment of error reads: DEFENDANT WAS DENIED DUE PROCESS AS REQUIRED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION WHEN HE WAS SENTENCED WITHOUT BENEFIT OF COUNSEL. Appellant argues that because he was sentenced without representation of counsel, his sentencing violates his constitutional right to counsel as well as Crim.R. 44(A), and that this court should vacate his current sentence and impose the -3- original five year sentence as orally prounounced by the trial court. Appellee does not dispute that the judge erred in sentencing appellant. However, appellee argues that the judge violated Crim.R. 43 when it imposed its sentence outside the presence of defendant and the proper remedy is for this court to remand this cause to the trial court for sentencing in accord with law. Crim.R. 43 provides in part: (A) Defendant's Presence. The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules. We have held that Crim.R. 43(A) requires that the defendant be before the court when sentence is imposed. State v. Ranieri (1992), 84 Ohio App.3d 432, 616 N.E.2d 1191; State v. Walton (1990), 66 Ohio App.3d 243, 583 N.E.2d 1106. Crim.R. 44 provides in part: (A) Counsel in Serious Offenses. Where a defendant charged with a serious offense is unable to obtain counsel, counsel shall be assigned to represent him at every stage of the proceedings from his initial appearance before a court through appeal as of right, unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel. In State v. Bush (1994), 97 Ohio App.3d 20, 646 N.E.2d 193, the court held that the sentencing of a defendant without counsel or waiver thereof is invalid. In this case, we find the court erred by entering a sentence of eight years incarceration, a $250.00 fine plus court costs, and five years post-release control where appellant was not present and -4- was unrepresented by counsel. The issue, therefore in this case is to determine the proper remedy. In State v. Bell (1990), 70 Ohio App.3d 765, 772-73, 592 N.E.2d 848, 852-53, the defendant was orally sentenced to a term of eight-to-fifteen years; however, the journal entry of defendant's sentencing indicated a sentence of twelve-to-fifteen years. After finding that the trial court violated Crim.R. 43(A), we vacated the journalized sentence and reinstated the trial court's original sentence pursuant to our authority under App.R.12(B). Id. at 773, 592 N.E.2d at 853. Other cases finding that a trial court violated Crim.R. 43(A) have remanded the cause for sentencing in accord with law. See, e.g., Ranieri, supra; Walton, supra. In this case, appellant, represented by counsel, was sentenced in open court to five years incarceration, a $250.00 fine plus court costs, and three years post-release control. We find that this sentence, originally imposed by the judge in open court was conducted in accordance with law and as in Bell, supra, we find it proper to reinstate the court's original sentence. Accordingly, under the authority of App.R.12(B), we hereby reinstate the sentence of five years incarceration, a $250.00 fine plus court costs, and three years post-release control. The trial court's judgment entry as filed for journalization on March 7, 1997, reads in part as follows: IT IS THEREFORE, ORDERED AND ADJUDGED BY THE COURT THAT SAID DEFENDANT, ERIC NERO, IS SENTENCED TO LORAIN CORRECTIONAL INSTITUTION FOR A TERM OF 8 YEARS AND PAY A FINE OF $250.00. POST RELIEF CONTROL 5 YEARS. PAY COURT COSTS. -5- This part of the trial court's journal entry is amended and judgment of sentence is modified to read as follows: IT IS THEREFORE, ORDERED AND ADJUDGED BY THE COURT THAT SAID DEFENDANT, ERIC NERO, IS SENTENCED TO LORAIN CORRECTIONAL INSTITUTION FOR A TERM OF 5 YEARS AND PAY A FINE OF $250.00. POST RELIEF CONTROL 3 YEARS. PAY COURT COSTS. The judgment of the trial court is thus modified and affirmed, as modified. This cause is remanded to the trial court with instructions to direct the Clerk of Courts to forward a certified copy of this journal entry to the institution to which defendant is sentenced. Judgment accordingly. -6- It is ordered that appellee recover of appellant its costs herein taxed. 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. DYKE, P.J., and ______________________________ JOSEPH J. NAHRA SPELLACY, J., CONCUR. JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .