State v. Warner , 2012 Ohio 716 ( 2012 )

[Cite as State v. Warner, 2012-Ohio-716.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110198
TRIAL NO. B-1002256-G
Plaintiff-Appellee, :
vs. : O P I N I O N.
CLAYTON WARNER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: February 24, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
J. Thomas Hedges, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
J. H OWARD S UNDERMANN , Presiding Judge.
{¶1} Defendant-appellant Clayton Warner was indicted on numerous counts
of forgery, theft, and possession of criminal tools in conjunction with his involvement in
a counterfeit check cashing ring. Warner subsequently pleaded guilty to counts 3, 4, 5,
6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 24, 25, 26, 27, 30, 32, 33, 35, 36, 37, 38, 50, 51, 52,
53, and 54. In exchange for his guilty pleas, the state dismissed counts 1, 2, 8, 9, 19, 20,
21, 22, 23, 28, 29, 31, 34, 39, 40, 41, 42, 43, 44, and 45. The trial court sentenced
Warner to eleven months on each of the counts to which he had pleaded guilty, some of
which were to be served concurrently, for an aggregate sentence of 132 months in
prison. Warner now appeals.
I. Merger of Theft and Forgery Offenses
{¶2} In a single assignment of error, Warner argues that the trial court erred
in imposing separate sentences for the theft offenses in counts 14, 16, 18, 36, and 38
because it had stated that they were allied offenses of similar import under R.C. 2941.25
with their related forgery offenses. The state concedes the error.
{¶3} The record reveals that the trial court stated at Warner’s sentencing
hearing that it was merging the theft offenses in counts 14, 16, 18, 36, and 38 with their
corresponding forgery counts because they were allied offenses of similar import. But
in its sentencing entry, the trial court, nonetheless, imposed sentences of eleven months
incarceration for the theft offenses in counts 14, 16, 18, 36, and 38. As a result, we agree
with Warner and the state that the trial court committed plain error in separately
sentencing Warner for the theft offenses, when it had previously stated that it was
merging these theft offenses with the related forgery offenses. See State v. Underwood,
124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26 and 31. We, therefore, sustain
Warner’s sole assignment of error, vacate the sentences for the theft offenses in counts
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OHIO FIRST DISTRICT COURT OF APPEALS
14, 16, 18, 36, and 38, and remand this case to the trial court to correct the mistake in the
judgment entry by nunc pro tunc entry to reflect what it had actually decided at the
sentencing hearing. See State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-
229, 943 N.E.2d 1010, ¶ 14; Crim.R. 36. We affirm the trial court’s judgment in all
other respects.
Judgment accordingly.
HENDON and CUNNINGHAM, JJ. concur.
Please note:
The court has recorded its own entry this date.
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