[Cite as State v. Robinson,
2024-Ohio-847.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230394
C-230395
Plaintiff-Appellee, : TRIAL NOS. 23TRD-10908A
23TRD-10908B
vs. : 23CRB-4828B
SHAVEZ ROBINSON, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed In Part, Reversed In Part, and Cause
Remanded
Date of Judgment Entry on Appeal: March 8, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Victoria Gooder, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Two police officers filling out paperwork in their idled cruiser shifted
their attention to the sound of an accident occurring nearby. Perhaps to their surprise,
the offending driver pulled into their lot and right up next to their cruiser, just a few
feet away. The driver, equally surprised to find the police adjacent to him, sped off,
and officers briefly pursued and later ticketed the registered owner upon tracking
down the car. At a bench trial, the trial court convicted the owner and apparent
offending driver, defendant-appellant Shavez Robinson, of various traffic offenses and
of failing to comply with police directives. No qualms there—the evidence supported
its conclusion, and we accordingly reject Mr. Robinson’s weight and sufficiency
arguments. But when sentencing Mr. Robinson shortly thereafter, the court sentenced
him to “$100 in costs” each for two of his convictions. Because these announced
penalties differ from the $100 fines and $110 court costs reflected on the docket for
those two convictions, we must reverse those sentences and remand the cause for
resentencing.
I.
{¶2} In March 2023, a driver waiting to turn left at an intersection was struck
on the passenger side by a Nissan vehicle. She observed details about the vehicle but
could not see the offending driver before he drove away from the intersection. By
chance, two officers sitting in their cruiser in a nearby lot, heard the crash, and saw
the immediate aftermath. The offending driver, seemingly unaware of the police
cruiser, pulled up next to it, less than ten feet away from the officers. Apparently
surprised, he sped away after about a couple of seconds, fleeing from the officers as
they activated their lights and briefly pursued him. As he sped away, they observed
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OHIO FIRST DISTRICT COURT OF APPEALS
him accelerate past vehicles at a high rate of speed, crossing a double yellow line into
a two-way, center turn lane and back into the right lane.
{¶3} After calling off the pursuit for safety concerns, officers from another
department discovered the Nissan in a residential lot, and the pursuing officers issued
traffic warrants to the registered owner, Mr. Robinson. They impounded the vehicle
and conducted an inventory search, discovering a scale with a powdery residue that
later tested as cocaine. Officers also located a McDonald’s bag with Mr. Robinson’s
name on an attached receipt from earlier on the day of the collision. The state charged
him with possession of drug paraphernalia, in violation of R.C. 2925.14, driving left of
center of roadway, in violation of R.C. 4511.29, failing to stop after an accident, in
violation of R.C. 4549.02(A)(1), and failing to comply with the order or signal of a
police officer, in violation of R.C. 2921.331(B).
{¶4} At trial, the main issue was Mr. Robinson’s identity as the offending
driver. In his defense, he testified that his girlfriend drove him around that day
because he was under a driver’s license suspension. He embellished the story on cross-
examination, insisting that the vehicle was stolen and that neither he nor his girlfriend
were driving the car at the time of the collision.
{¶5} One of the pursuing officers testified that he could see the driver’s
silhouette when the Nissan pulled up next to the cruiser. After comparing what he saw
to the BMV photo of the registered owner, Mr. Robinson, the officer concluded it was
him due to similarities in hair, nose, and cheek alignment and was “very confident”
about the driver’s identity. The second officer testified that she had a “pretty positive
I.D.” of the driver after observing him for “almost a few seconds” and comparing what
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OHIO FIRST DISTRICT COURT OF APPEALS
she saw to the BMV photo. She observed the driver’s “dreads” and said “the [driver’s]
facial features looked very similar to” the photo of Mr. Robinson.
{¶6} The trial court ultimately found Mr. Robinson guilty of the driving left
of center, failure to stop, and failure to comply charges, and granted a Crim.R. 29
motion for an acquittal on the drug charge. It proceeded immediately to sentencing,
first ordering Mr. Robinson to pay the victim driver’s $500 insurance deductible,
which he paid in cash on the spot. Mr. Robinson admitted his guilt, and the trial court
orally sentenced him on his three convictions.
{¶7} On appeal, Mr. Robinson challenges the sentences for his failure to stop
and failure to comply convictions as contrary to law because the trial court announced
different sentences at the hearing than those reflected on the docket. According to the
sentencing transcript, for failure to stop after an accident, it sentenced him to “180
days in jail, 90 suspended, 90 days of home incarceration, $100 in costs, a year
probation, pay probation, Corrective Thinking and Remedial Driving.” And for failure
to comply, “180 days, suspend those days consecutive, $100 in costs, a year probation,
pay probation with the same conditions.”
{¶8} Despite the transcript stating “$100 in costs” on each of those two
convictions, the docket shows Mr. Robinson was subjected to a $100 fine and $110 in
court costs for the failure to stop conviction and another $100 fine and $110 in court
costs for the failure to comply conviction. The trial court’s handwritten sentence entry
forms are difficult to decipher and do not clarify the situation, stating “100 & C” for
both convictions with no mention of a fine. In addition to Mr. Robinson’s challenge
to these sentences, he claims his convictions were not supported by sufficient evidence
and were against the manifest weight of the evidence.
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OHIO FIRST DISTRICT COURT OF APPEALS
II.
{¶9} We first consider Mr. Robinson’s convictions for sufficiency and
manifest weight before addressing the apparent disparity between his actual sentences
and what the trial court announced to him at the sentencing hearing.
A.
{¶10} In his first assignment of error, Mr. Robinson maintains that the state
failed to prove his identity as the offending driver and failed to establish the conditions
that would make it unsafe for him to pass vehicles by using the center lane under R.C.
4511.29(A). He raises both arguments in terms of sufficiency and manifest weight.
{¶11} When assessing whether a conviction is sufficiently supported by the
evidence, “ ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’ ” State v. Walker, 150 Ohio
St.3d 409,
2016-Ohio-8295,
82 N.E.3d 1124, ¶ 12, quoting State v. Jenks,
61 Ohio St.3d
259,
574 N.E.2d 492 (1991), paragraph two of the syllabus. And “ ‘[w]here reasonable
minds can reach different conclusions upon conflicting evidence, determination as to
what occurred is a question for the trier of fact. It is not the function of an appellate
court to substitute its judgment for that of the factfinder.’ ” (Emphasis deleted.) State
v. Shabazz,
146 Ohio St.3d 404,
2016-Ohio-1055,
57 N.E.3d 1119, ¶ 20, quoting
Jenks
at 279.
{¶12} Both officers who observed the offending driver testified at trial that
they at least glimpsed him when he pulled up next to them after the accident. One
officer testified that, comparing the details he observed to Mr. Robinson’s BMV photo,
he was “very confident” the driver was Mr. Robinson; the other made a “pretty positive
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OHIO FIRST DISTRICT COURT OF APPEALS
I.D.” of him. Construing this evidence in a light most favorable to the state, a rational
trier of fact could have concluded the driver was Mr. Robinson.
{¶13} Likewise, the trial court heard sufficient evidence to conclude Mr.
Robinson committed a left of center violation under R.C. 4511.29(A). That statute
prohibits crossing over the center of a roadway, except under certain conditions and
so long as the driver can do so “without interfering with the safe operation of any traffic
approaching from the opposite direction or any traffic overtaken.” R.C. 4511.29(A).
The trial court heard testimony about the driver accelerating rapidly past other cars
while fleeing from police and weaving between two lanes while crossing over a double
yellow line. Under those circumstances, a rational trier of fact could conclude that Mr.
Robinson drove left of center into a lane with the potential for oncoming traffic and
did so unsafely. We therefore conclude his convictions were supported by sufficient
evidence.
{¶14} Next, in reviewing whether Mr. Robinson’s convictions run counter to
the manifest weight of the evidence, the court sits as a “ ‘thirteenth juror,’ ” reviewing
the evidence, the credibility of witnesses, and the entire record. State v. Thompkins,
78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997), quoting Tibbs v. Florida,
457 U.S. 31,
42,
102 S.Ct. 2211,
72 L.Ed.2d 652 (1982). However, the court will reverse the
judgment only if the jury “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v.
Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
{¶15} The trial court did not lose its way in convicting Mr. Robinson of driving
left of center, failing to stop after an accident, and failing to comply with an officer’s
signal. Although the officers only observed the offending driver for up to “a few
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OHIO FIRST DISTRICT COURT OF APPEALS
seconds,” he failed to present evidence regarding who else might have been driving his
vehicle. Testifying on cross-examination that the vehicle was stolen, he offered no
explanation of how or when that occurred or who might have stolen it (and whether
that person might have resembled him, contributing to the alleged mix-up). He also
claimed he was at work at the time of the collision but presented no evidence to back
that up. Considering all the relevant evidence, we conclude Mr. Robinson’s
convictions did not run counter to the manifest weight of the evidence.
{¶16} We therefore overrule Mr. Robinson’s first assignment of error and
affirm the judgment of the trial court convicting him of driving left of center, in
violation of R.C. 4511.29. We affirm in part the trial court’s judgments convicting him
of failing to stop after an accident, in violation of R.C. 4549.02(A)(1), and failing to
comply with the order or signal of a police officer, in violation of R.C. 2921.331(B).
B.
{¶17} Turning to Mr. Robinson’s sentences, the state agrees with him that,
pursuant to Crim.R. 43, “a trial court’s sentence is contrary to law when it imposes a
sentence in the sentencing entry different from the sentence announced at the
sentencing hearing.” See State v. Jackson, 1st Dist. Hamilton No. C-140178, 2014-
Ohio-5008, ¶ 22, citing State v. Railey, 2012-Ohio-4233,
977 N.E.2d 703, ¶ 21 (1st
Dist.); Crim.R. 43(A)(1) (requiring the defendant’s presence “at every stage of the
criminal proceeding and trial”). However, it maintains there is no such disparity and
that Mr. Robinson’s appeal regarding his sentences for failure to stop and failure to
comply is essentially much ado about nothing.
{¶18} To state the obvious, the trial transcript does not match the sentencing
entries and docket for his sentences on those two convictions. Sentencing Mr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Robinson to “$100 in costs” for each conviction, as the transcript says, cannot
reasonably, at least on its face, be read as equating to the sentences that he actually
received: $100 in fines and $110 in court costs for each. Perhaps the trial court stated,
or meant to state, “$100 and costs,” which might better support the state’s position.
But the state only makes that point in reference to the sentencing entry forms, which
state “100 & C,” and it does not assert that the trial court misspoke or that the court
reporter transcribed the wrong word. Simply put, what Mr. Robinson was told, at least
as the transcript reveals it, differed from what he received.
{¶19} The state tries to salvage his sentences by advancing two arguments
relying on inference. First, because the trial court did not waive the fines at the
hearing, it insists that Mr. Robinson is wrong to assert he did not receive a fine. But
the state never explains why the failure to explicitly waive the fines would matter. The
sentencing transcript shows the trial court never used the term “fine” or any similar
term; why should Mr. Robinson assume that he received a fine when the trial court
never said anything about it?
{¶20} Second, and more logically, the state asserts that court costs are
mandatory under R.C. 2947.23 and are fixed at $110 under the trial court’s local rules.
See Hamilton County Municipal Court Local Rule 10.02. But even so, the court has
the power to waive, suspend, or modify the payment of such costs. R.C. 2947.23(C);
State v. Taylor, 161 Ohio St.3d 319,
2020-Ohio-3514,
163 N.E.3d 486, ¶ 7. Therefore,
the fixed $110 local court costs amount does not preclude the trial court from
modifying that amount, as a plain reading of “$100 in costs” might suggest.
{¶21} We are therefore convinced that the sentences Mr. Robinson received
for his failure to stop and failure to comply convictions differed from the ones
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OHIO FIRST DISTRICT COURT OF APPEALS
announced at sentencing, and they are thus contrary to law. See Jackson, 1st Dist.
Hamilton No. C-140178, 2014-Ohio-5008, at ¶ 22; see Crim.R. 43(A)(1). And because
the disparities concern whether Mr. Robinson received certain financial sanctions,
and in what amounts, the error concerns substantive legal decisions that cannot be
corrected nunc pro tunc as clerical errors. See State v. Miller,
127 Ohio St.3d 407,
2010-Ohio-5705,
940 N.E.2d 924, ¶ 16 (holding a disparity in whether restitution was
ordered cannot be corrected nunc pro tunc).
{¶22} Instead, Mr. Robinson asks this court to modify the sentence below,
imposing $100 in court costs, and no fines, for each of the two convictions, bringing
the actual sentence in conformity with what the transcript reflects. But the sentences
reflected on the docket suggest that the trial court might not have intended to impose
just $100 in court costs and no fines on each case. And our concern on appeal is with
what Mr. Robinson was told at the hearing, not with the sentences that he received.
Rather than dictating a new sentence from above by choosing between the transcript
and the docket, we remand the cause for the trial court to clearly notify Mr. Robinson
of the sentences it intended to impose. We accordingly sustain his second assignment
of error, reverse Mr. Robinson’s sentences for failure to stop after an accident, in
violation of R.C. 4549.02(A)(1), and failure to comply, in violation of R.C. 2921.331(B),
and remand the cause for resentencing on those two charges. Mr. Robinson does not
challenge his sentence on the left of center violation, and we affirm the trial court’s
judgment on that sentence only.
…
{¶23} Concluding that Mr. Robinson’s convictions for driving left of center,
failing to stop after an accident, and failing to comply with an officer’s signal were
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OHIO FIRST DISTRICT COURT OF APPEALS
supported by sufficient evidence and were not against the manifest weight of the
evidence, we overrule his first assignment of error. Because his sentences on the
failure to stop and failure to comply convictions differed from the sentences on those
convictions announced at his sentencing hearing, we sustain his second assignment of
error, reverse those two sentences, and remand for resentencing on those two charges.
Judgments affirmed in part, reversed in part, and cause remanded.
BOCK, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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