[Cite as State v. Grace,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. Nos. 15AP0022 15AP0023 Appellee

v. APPEAL FROM JUDGMENT CARL GRACE ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT Appellant COUNTY OF WAYNE, OHIO CASE Nos. 2014-TRD-0643 2014-CRB-0172

DECISION AND JOURNAL ENTRY

Dated: July 18, 2016

CARR, Presiding Judge.

{¶1} Appellant, Carl Grace, appeals the judgment of the Wayne County Municipal

Court. This Court vacates Grace’s sentence and remands for further proceedings.

I.

{¶2} On February 3, 2014, a complaint was filed in the Wayne County Municipal

Court charging Grace with two counts of operating a vehicle under the influence of alcohol, one

count of speeding, and one count of failure to wear a safety belt. In a separate complaint filed

the same day, Grace was charged with possession of marijuana. All of the charges arose from a

traffic stop that occurred on February 1, 2014.

{¶3} Grace pleaded not guilty to the charges at arraignment. The two cases were

consolidated and the matter proceeded to a bench trial. At the conclusion of trial the judge took

the matter under advisement. On June 24, 2014, the trial court issued journal entries in both 2

cases indicating that it found Grace guilty of all the charges. Despite never announcing its

verdict in Grace’s physical presence, the trial court proceeded to the sentencing phase, where

Grace was physically present. The trial court sentenced Grace to a 12-month probationary

period, suspended his driver’s license, and imposed a series of fines. Grace’s first two attempts

to appeal were dismissed by this Court for want of a final, appealable order. After a third

sentencing hearing, the trial court issued sentencing entries in both cases on April 30, 2015, and

Grace filed a timely notice of appeal.

{¶4} On appeal, Grace raises one assignment of error.

II.

ASSIGNMENT OF ERROR

WHETHER THE TRIAL COURT VIOLATED THE DEFENDANT- APPELLANT’S RIGHT TO BE PRESENT FOR THE RETURN OF THE VERDICTS IN VIOLATION OF [CRIM.R. 43(A)].

{¶5} In his sole assignment of error, Grace contends that the trial court erred by

announcing the verdict when he was not physically present. This Court agrees.

{¶6} Crim.R. 43(A)(1) provides, in pertinent part, that “the defendant must be

physically present at every stage of the criminal proceeding and trial, including impaneling of the

jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by

these rules.” Absent a valid exception, such as waiver by the defendant, the trial court may not

take a matter under advisement and issue a written decision in lieu of announcing the verdict and

sentencing the defendant in his presence. State v. Welch,

(1978); State v.

Price, 7th Dist. Mahoning No. 14 MA 28,

, ¶ 30-31.

{¶7} The State has conceded that this matter must be reversed and remanded,

acknowledging that the trial court failed to announce the verdict in Grace’s presence prior to 3

proceeding to sentencing. This case does not involve a scenario where the trial court notified the

parties of its verdict in a journal entry and then subsequently announced its verdict in the

presence of the defendant at the sentencing hearing. See Shaker Heights v. Burns, 8th Dist.

Cuyahoga No. 70902,

(Apr. 3, 1997) (holding that a trial court does not err by

issuing a journal entry reflecting the verdict prior to announcing the verdict in the presence of the

defendant at sentencing). Moreover, while it is common for a defendant to waive his or her right

to be physically present for the return of a verdict in a bench trial, particularly in municipal court,

no such waiver occurred in this case. It follows that this matter must be remanded for the trial

court to announce its verdict in compliance with Crim.R. 43(A)(1). Moreover, as the trial court

proceeded to sentencing prematurely in this matter, the sentence imposed by the trial court is

vacated.

III.

{¶8} Grace’s assignment of error is sustained. Grace’s sentence is vacated. The

judgment of the Wayne County Municipal Court is reversed and the cause remanded for further

proceedings consistent with this decision.

Judgment vacated, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. 4

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

MOORE, J. HENSAL, J. CONCUR.

APPEARANCES:

NORMAN R. “BING” MILLER, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.