[Cite as State v. Roberts,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98973

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEMETROS ROBERTS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-562999

BEFORE: Celebrezze, J., Stewart, A.J., and Rocco, J.

RELEASED AND JOURNALIZED: May 30, 2013 ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen 3552 Severn Road Suite 613 Cleveland Heights, Ohio 44118

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: T. Allan Regas Christopher D. Schroeder Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant, Demetros Roberts, appeals from the sentence imposed

by the common pleas court following his guilty plea to five counts of trafficking in

violation of R.C. 2925.03(A)(2). After a thorough review of the record and case law, we

affirm appellant’s sentence, but remand to allow appellant to move the court for waiver of

court costs.

{¶2} On December 19, 2011, the Cuyahoga County Grand Jury indicted appellant

in Cuyahoga C.P. No. CR-557118 on one count of drug possession in violation of R.C.

2925.11(A). On June 7, 2012, the Cuyahoga County Grand Jury indicted appellant in

Cuyahoga C.P. No. CR-562999 on nine counts of drug trafficking in violation of R.C.

2925.03(A)(2) and nine counts of drug possession in violation of R.C. 2925.11(A).

{¶3} On August 7, 2012, appellant pled guilty in CR-562999 to five counts of drug

trafficking in violation of R.C. 2925.03(A)(2), each felonies of the fifth degree. As part

of appellant’s plea agreement, the state voluntarily dismissed CR-557118 and the

remaining counts in CR-562999. Thereafter, the trial court accepted appellant’s plea and

sentenced him to 12 months on each of the five drug trafficking counts. The trial court

ordered the first three counts to run consecutively to one another and the last two counts

to run concurrently to each other but consecutively to the first three counts, for a total

48-month term of imprisonment. The trial court’s sentencing entry further stated, “The

court hereby enters judgment against the defendant in an amount equal to the costs of this

prosecution.” {¶4} Appellant now brings this timely appeal, raising two assignments of error for

review.

Law and Analysis

{¶5} As an initial matter, we note that the trial court’s sentencing journal entry,

dated August 28, 2012, incorrectly states that the trial court imposed “a prison sentence at

the Lorain Correctional Institution of 36 month(s),” as opposed to the 48-month term

ordered by the court during the August 28, 2012 sentencing hearing.1 Thus, we direct the

trial court on remand to issue a nunc pro tunc entry to correct the sentencing journal entry

pursuant to Crim.R. 36(A) and App.R. 9(E).

I. Imposition of Court Costs

{¶6} In his first assignment of error, appellant argues that the trial court committed

plain error in imposing court costs in its sentencing entry without informing him of those

costs in open court. In support of his argument, appellant cites to the Ohio Supreme

Court’s decision in State v. Joseph,

,

,

.

{¶7} In Joseph, the court held that it is reversible error under Crim.R. 43(A) for the

trial court to impose costs in its sentencing entry when it did not impose those costs in

open court at the sentencing hearing. Id. at ¶ 22. The court reasoned that the defendant

1 At the sentencing hearing, the trial court stated, in relevant part: “Mr. Roberts I’m going to sentence you to a year on Count Number 11, Count Number 15 and Count Number 19, Count Number 21 and Count Number 23.” “Count Number 11, Count Number 15 and Count Number 19 are going to be served consecutive to each other and Counts Number 21 and 23 will be served concurrent to each other but consecutive to Count Number 11, 15, and 19.” was denied the opportunity to claim indigency and to seek a waiver of the payment of

court costs before the trial court because the trial court did not mention costs at the

sentencing hearing. Id. The remedy in such a situation is a limited remand to the trial

court for the defendant to seek a waiver of court costs. Id. at ¶ 23; State v. Mays, 2d

Dist. No. 24168,

.

{¶8} The state concedes that the trial court failed to assess costs in open court.

Therefore, appellant’s first assignment of error is sustained. The imposition of costs is

reversed, and this matter is remanded to the trial court to allow appellant to move the

court for waiver of court costs.

II. Sentence

{¶9} In his second assignment of error, appellant argues that the trial court erred at

sentencing by considering all of the charges contained in his two indictments, including

those charges that were voluntarily dismissed by the state. Because appellant did not

object to the alleged error at the sentencing hearing, we review this claim for plain error.

Under Crim.R. 52(B), a plain error affecting a substantial right may be noticed by an

appellate court even though it was not brought to the attention of the trial court. An error

rises to the level of plain error only if, but for the error, the outcome of the proceedings

would have been different. State v. Harrison,

,

,

; State v. Long,

,

(1978). Notice

of plain error “is to be taken with the utmost caution, under exceptional circumstances,

and only to prevent a manifest miscarriage of justice.”

{¶10} In the case at hand, the record reflects that during plea negotiations, the state

reserved the right to reference each of the counts appellant was indicted on at the time of

sentencing. At the sentencing hearing, the state indicated that it made the reservation

because it believed it was important for the court to be cognizant of the fact that appellant

was involved in nine separate drug transactions and not just the five counts he pled guilty

to. However, in imposing appellant’s four-year prison sentence, the trial court did not

expressly state that it considered appellant’s dismissed counts. Rather, the record reflects

that the trial court imposed the sentence based on its proper consideration, pursuant to

R.C. 2929.11 and 2929.12, of appellant’s history of drug abuse, his past criminal record,

and the perceived harm his current drug-related convictions have caused to the

community.

{¶11} Nevertheless, even if we were to interpret the trial court’s colloquy as

including references to appellant’s dismissed counts, we find no merit to appellant’s

argument. The Ohio Supreme Court has recognized that sentencing courts are “to

acquire a thorough grasp of the character and history of the defendant before it.” State v.

Burton,

,

(1977). Consideration of arrests for other

crimes comes within that function.

Thus, this court has held on previous occasions

that “a court may consider other charges, including charges which were dismissed as part

of a plea agreement, during sentencing.” State v. Edwards, 8th Dist. No. 85908,

; see also State v. Padilla, 8th Dist. No. 98187,

(“Even though charges may be dismissed as part of the plea agreement, a sentencing court may [within certain limits] consider a criminal charge, and supporting facts, that is

dismissed under a plea agreement”), citing State v. Bowser,

,

,

(2d Dist.).

{¶12} Based on the foregoing, we find that the factors considered by the trial court

during appellant’s sentencing hearing did not constitute error, plain or otherwise.

{¶13} Accordingly, appellant’s second assignment of error is overruled.

{¶14} The judgment of the trial court is affirmed in part, reversed in part, and the

cause remanded to allow appellant to seek a waiver of court costs and to correct the

August 28, 2012 journal entry.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas 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.

FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, A.J., and KENNETH A. ROCCO, J., CONCUR