State v. Marcum
2013 Ohio 951
Ohio Ct. App.2013Background
- Marcum appeals a trial court judgment revoking probation for a three-year community-control sentence imposed for passing bad checks.
- Appointed counsel filed Anders brief and moved to withdraw; this court initially granted withdrawal but remanded for clarity on the November 2011 sentence entry.
- November 2011 entry raised ambiguity about the sanction and included topics not discussed at the revocation hearing (e.g., post-release control, court costs).
- Court remanded to correct clerical mistakes via a Crim.R. 36 nunc pro tunc entry, clarifying the sentence while preserving three years of community control.
- January 8, 2013 nunc pro tunc entry preserved the three-year community-control term and removed unfounded issues, but kept the cost-imposition language intact.
- Independent review found error in imposing court costs and prosecution costs without proper oral notification at the revocation hearing, triggering a limited remand for indigency waiver proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imposition of court costs and prosecution costs without proper notice was proper | State contends costs were properly imposed as part of the revocation sentence | Marcum argues failure to orally notify about costs violated due process and right to seek a waiver | Remanded for limited waiver proceedings; costs issue not harmless |
Key Cases Cited
- State v. Joseph, 125 Ohio St.3d 76 (2010-Ohio-954) (failure to orally notify about costs entitles limited remand for waiver)
- State v. Ross, 4th Dist. No. 10CA31 (2011-Ohio-1136) (Anders remand appropriate for clear error in imposition of post-release control)
- Anders v. California, 386 U.S. 738 (1967) (appointed counsel may withdraw where no meritorious issues exist, but remand may be used for limited corrections)