COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 85233 STATE OF OHIO, : : : JOURNAL ENTRY Plaintiff-Appellant : : AND v. : : OPINION MARK WALKER, : : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: JUNE 16, 2005 CHARACTER OF PROCEEDING: Criminal Appeal from Common Pleas Court, Case No. CR-452900. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: William D. Mason Cuyahoga County Prosecutor Denise R. Cameron Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellee: Wesley A. Dumas, Sr. Wesley A. Dumas, Sr., and Associates 815 Superior Avenue, Suite 612 Cleveland, OH 44114 -2- CHRISTINE T. McMONAGLE, J.: Plaintiff-appellant, the State of Ohio, appeals the judgment of the trial court dismissing count three of the State's indictment in case number CR-452900. For the reasons that follow, we reverse. The record before us demonstrates that appellee was indicted by the Cuyahoga Grand Jury in case number CR-452900 on two counts of felonious assault and one count of domestic violence. Appellee was further indicted by the Cuyahoga Grand Jury in case number CR- 454096 on one count of possession of drugs. Appellee pled not guilty to all of the charges at his arraignment. After negotiations with the State, appellee agreed to withdraw his previously entered not guilty plea to count two of case number CR-452900, felonious assault, and plead guilty to attempted felonious assault. Appellee further agreed to withdraw his previously entered not guilty plea to count three of case number CR-452900, domestic violence, and plead to that charge as indicted. Finally, appellee agreed to withdraw his previously entered not guilty plea to the sole count of possession of drugs of case number CR-454096, and plead guilty to attempted possession of drugs. As part of the agreement, count one of case number CR-452900, felonious assault, was to be nolled by the State. At the change of plea hearing, the assistant prosecuting attorney set forth the agreement on the record, and defense counsel acknowledged that he and appellee were in agreement with the -3- assistant prosecuting attorney's recitation of the plea bargain. However, in taking appellee's plea, the trial court accepted appellee's plea as to the attempted felonious assault and attempted possession of drug charges, but dismissed the domestic violence charge, count three of case number CR-452900. The matter immediately proceeded to sentencing, at the conclusion of which the assistant prosecuting attorney realized the court's mistake and brought it to the court's attention. The court acknowledged that it made a mistake, but declined to correct it, stating that it could not "reactivate the indictment[,]" and the mistake "ha[d] no effect." The record before us demonstrates that nothing more than a simple mistake occurred, but a mistake we believe the trial court properly could and should have corrected. Further, a review of the court's journal entry relative to the change of plea and sentencing reveals another mistake that must be corrected. Specifically, the journal entry states that appellee pled guilty in case number CR- 452900 to amended count two, attempted felonious assault and count three, domestic violence. The journal entry then states in regard to sentencing that count three, domestic violence, was nolled by the court. Not only is that not the agreement reached by the State and appellee, it is an inaccurate representation of what occurred at the hearing and what the plea agreement was. -4- Thus, we find the State's sole assignment of error to be with merit, and reverse and remand. -5- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, ordered that appellant recover from appellee costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. CHRISTINE T. McMONAGLE JUDGE PATRICIA A. BLACKMON, A.J., and JAMES J. SWEENEY, J., CONCUR. 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .