State v. Robinson

[Cite as State v. Robinson, 

.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                         BUTLER COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellee,                      :       CASE NO. CA2013-05-080

                                                 :             DECISION
  - vs -                                                        3/3/2014
                                                 :

RODERICK D. ROBINSON,                            :

        Defendant-Appellant.                    :



    CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                       Case No. CR2012-12-1929



Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center,
315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Charles M. Conliff, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant



        Per Curiam.

        {¶ 1} This cause came on to be considered upon a notice of appeal, the

transcript of the docket and journal entries, the transcript of proceedings and original

papers from the Butler County Court of Common Pleas, and upon a brief filed by

appellant's counsel.

        {¶ 2} Counsel for defendant-appellant, Roderick D. Robinson, has filed a brief

with this court pursuant to Anders v. California, 

, 

 (1967),
which (1) indicates that a careful review of the record from the proceedings below fails to

disclose any errors by the trial court prejudicial to the rights of appellant upon which an

assignment of error may be predicated; (2) lists five potential errors "that might arguably

support the appeal," 

, 

; (3) requests that this court review

the record independently to determine whether the proceedings are free from prejudicial

error and without infringement of appellant's constitutional rights; (4) requests

permission to withdraw as counsel for appellant on the basis that the appeal is wholly

frivolous; and (5) certifies that a copy of both the brief and motion to withdraw have been

served upon appellant.

         {¶ 3} Having allowed appellant sufficient time to respond, and no response

having been received, we have accordingly examined the record and find no error

prejudicial to appellant's rights in the proceedings in the trial court except as set forth

below.

         {¶ 4} Appellant was sentenced on May 13, 2013 for one count of having

weapons under a disability, a third-degree felony. As such, appellant was subject to an

optional three-year period of postrelease control. See R.C. 2967.28. The trial court

correctly informed appellant at both the plea hearing and the May 13, 2013 sentencing

hearing that he would be subject to an optional period of postrelease control for up to

three years. The sentencing entry, however, incorrectly states that the court "notified

the defendant that post release control is optional in this case up to a maximum of five

years …."

         {¶ 5} Both this court and the Ohio Supreme Court have held that when a

defendant is properly notified of postrelease control at the sentencing hearing, the

improper imposition of postrelease control in the judgment entry is a clerical error which

may be corrected by a nunc pro tunc entry which accurately reflects the sentence
imposed by the trial court at the sentencing hearing. State v. Qualls, 

, 

; State v. Harrison, 12th Dist. Butler No. CA2009-10-272,

.

      {¶ 6} Therefore, it is the order of this court that the motion of counsel for

appellant requesting to withdraw as counsel is granted. The cause is reversed and the

matter remanded with instructions to the trial court to prepare a nunc pro tunc

sentencing entry which accurately reflects the proceedings which took place at

appellant's May 13, 2013 sentencing hearing.


      HENDRICKSON, P.J., PIPER and M. POWELL, JJ., concur.