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9th District Court of Appeals reverses escape sentence
TRACEY BLAIR
Legal News Reporter
Published: January 3, 2020
A Summit County trial court erred by sentencing a defendant to one year in prison for escape when no sentence for that offense was pronounced at the sentencing hearing, according to the 9th District Court of Appeals.
Appellant Jeffrey Anderson was found guilty by a jury of all counts in two separate cases. The charges in the first case were one count each of harassment with a bodily substance, obstructing official business and assault. The charges in the second case were kidnapping, escape, assault and obstructing official business.
Prior to the Dec. 14, 2018 sentencing, Anderson filed a motion to merge allied offenses of similar import. After a hearing, the parties agreed that all of the charges merged for sentencing purposes and the trial court ordered Anderson to 12 months behind bars for harassment with a bodily substance. In the second case, the trial court found that the count of escape merged with the count of obstructing official business and imposed an aggregate three-year prison sentence for the offenses in that case.
The trial court also specified that the sentences in both cases were to be served concurrently for a total prison sentence of three years.
On appeal, Anderson argued the trial court’s sentence was improper because it was not made in open court and because the state did not specify the offense for which he should be punished.
The 9th District agreed.
Anderson initially argued that all of the charges should be merged. In the alternative, he argued that the kidnapping count should be merged with the assault count, and that the escape count should be merged with the count of obstruction of official business.
The state contended the kidnapping and assault counts were clearly committed with a separate animus. The trial court failed to mention that it was sentencing on the escape count, nor did it indicate the length of the sentence for that offense.
The parties then got into a disagreement about jail time credit. Then the state asked for clarification regarding which counts had merged for sentencing purposes.
Anderson claimed the trial court erred by failing to pronounce a sentence for escape on the record at the sentencing hearing and then imposing a 12-month term of incarceration for that offense in its sentencing entry.
The state argued there may have been additional discussion regarding the length of the sentence during the off-the-record dialogue, but the appellate court was not swayed.
“We are not persuaded by the state’s suggestion that the trial court may have addressed the sentence for escape during an off-the-record discussion with counsel,” 9th District Judge Donna J. Carr said in her opinion. “In addition to the fact that it would be inappropriate for the trial court to sua sponte conduct a portion of the sentencing hearing off the record and outside the presence of the defendant, a review of the transcript suggests that any off-the-record discussion that occurred in this matter was aimed at resolving issues relating to the calculation of jail-time credit. It follows that Anderson’s first assignment of error is sustained.”
The panel also sustained Anderson’s assignment of error stating the trial court committed plain error by not imposing court costs in open court.
“This court’s independent review of the record confirms that the trial court erroneously imposed court costs in its sentencing entries after failing to discuss that issue at the sentencing hearing,” Carr added. “Therefore, the trial court erred by imposing court costs without providing Anderson an opportunity to seek waiver of payment.”
The case was reversed and remanded. Appellate judges Thomas A. Teodosio and Julie A. Schafer concurred.
The case is cited State v. Anderson, 2019-Ohio-5220.