concurring.
{¶ 48} The trial court is required by R.C. 2929.19(B)(6) to consider a defendant’s present and future ability to pay the fine mandated by R.C. 2929.18(B)(1) before imposing the fine, and the record demonstrates that the court did that. The court had no duty to conduct the hearing that R.C. 2929.18(E) permits, absent the affidavit contemplated by R.C. 2929.18(B)(1) representing that defendant is indigent and therefore unable to pay the fine. Because no affidavit was filed, I would overrule the first assignment of error.
{¶ 49} Defendant’s counsel advised the court that he had prepared the necessary affidavit but neglected to file it. That failure constitutes conduct that falls below an objective standard of reasonable representation. Further, the record affirmatively demonstrates a reasonable probability that but for counsel’s error, a hearing would have been held to determine whether defendant is unable to pay the fine and that the outcome of that hearing would have produced a different result with respect to the fine that was imposed. Ineffective assistance of counsel is therefore demonstrated. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. I would sustain defendant’s second assignment of error for that reason.
{¶ 50} The third assignment of error presents an interesting issue. The trial court’s statement in its judgment of conviction and sentence that the one-year term of imprisonment it imposed is “mandatory” was a clerical mistake, which is subject to correction pursuant to Civ.R. 60(A). That rule states: “During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.” An appeal is docketed when the clerk of the court of appeals, upon receipt of the notice of appeal, entered the appeal on the docket. App.R. 11(A).
{¶ 51} This appeal was docketed by the clerk on April 30, 2009. No leave had been obtained from this court permitting the trial court to correct the clerical mistake in its judgment which the court ordered, nunc pro tunc, on October 20, 2009. Therefore, the trial court erred when it granted that relief. The error is a product of the lack of jurisdiction discussed in State ex rel. Prosecutors v. Judges, *393Court of Common Pleas (1978), 55 Ohio St.2d 94, 9 O.O.3d 88, 378 N.E.2d 162. However, a careful reading of the opinion of the Supreme Court in that case shows that the rule of law on which the case was decided was the law-of-the-case doctrine, which is considered to be a rule of practice rather than a rule of substantive law. Gohman v. St. Bernard (1924), 111 Ohio St. 726, 146 N.E. 291; Thatcher v. Sowards (2001), 143 Ohio App.3d 137, 757 N.E.2d 805.