[Cite as State v. Anderson, 2017-Ohio-7803.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-05-065
: DECISION
- vs - 9/25/2017
:
DAMIAN B. ANDERSON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2016-12-1789
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Engel & Martin, LLC, Mary K. Martin, 4460 Duke Drive, Suite 101, Mason, Ohio 45040, for
defendant-appellant
Per Curiam.
{¶ 1} This cause came on to be considered upon a notice of appeal, the transcript of
the docket and journal entries, the transcript of proceedings and original papers from the
Butler County Court of Common Pleas, and upon the briefs filed by counsel, oral argument
having been waived.
{¶ 2} Counsel for appellant, Damian B. Anderson, has filed a brief with this court
Butler CA2017-05-065
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), which (1) indicates that
a careful review of the record from the proceedings below fails to disclose any errors by the
trial court prejudicial to the rights of appellant upon which an assignment of error may be
predicated; (2) lists two potential errors "that might arguably support the appeal," Anders at
744, 87 S.Ct. at 1400; (3) requests that this court review the record independently to
determine whether the proceedings are free from prejudicial error and without infringement of
appellant's constitutional rights; (4) requests permission to withdraw as counsel for appellant
on the basis that the appeal is wholly frivolous; and (5) certifies that a copy of both the brief
and motion to withdraw have been served upon appellant.
{¶ 3} Having allowed appellant sufficient time to respond, and no response having
been received, we have accordingly examined the record and find no error prejudicial to
appellant's rights in the proceedings in the trial court. However, the court has found a clerical
error in the May 2, 2017 judgment of conviction entry that should be corrected.
{¶ 4} The judgment of conviction entry improperly designates appellant's robbery
conviction as to Count One as a third-degree felony. Appellant in fact entered a plea to
robbery as a second-degree felony, and was sentenced accordingly. Aside from the
judgment of conviction entry, the record reflects that there was no question in the mind of
appellant, counsel, or the court that the plea was to robbery as a second-degree felony. A
clerical error may be corrected at any time. State v. Mitchell, 5th Dist. Muskingum No. C.T.
2015-0055, 2016-Ohio-5149. A nunc pro tunc entry is a proper means of correcting a clerical
mistake. Id.
{¶ 5} Based upon the foregoing, the court makes the following orders: the motion of
counsel for appellant requesting withdrawal is GRANTED. This cause is hereby reversed
and remanded to the Butler County Court of Common Pleas with instructions to file a nunc
pro tunc judgment of conviction entry indicating that appellant was convicted of robbery, a
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Butler CA2017-05-065
second-degree felony. Appellant's convictions and sentences are affirmed in all other
respects.
S. POWELL, P.J., PIPER and M. POWELL, JJ., concur.
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State v. Anderson
Combined Opinion