{¶ 2} This court previously considered Simmons' convictions and sentence in State v. Simmons, Cuyahoga App. No. 86499,
{¶ 3} On remand, after considering the arguments presented by the parties at the resentencing hearing, the trial court imposed the same total term for Simmons' convictions as it hаd originally.
{¶ 4} Simmons presents two challenges in this appeal to the trial court's decision to re-impose a total term of nine years for his four convictions. First, he argues that his sentence must be vacated because the trial court failed to pronounce on the record his sentence with respect to his conviction on Count Two. Sеcond, he argues that his sentence must be vacated because the trial court failed to consider "mitigating evidence" which called for a reduction in the total tеrm of sentence.
{¶ 5} This court agrees with his first argument, but only in part. After a review of the transcript of the resentencing hearing, it appears that the court reporter misheard the trial court when it pronounced Simmons' concurrent nine-year sentence for his conviction on Count Two. This error in transcription, unfortunately, necessitates a resеntencing hearing, but only as to the sentence imposed on Count Two. Simmons' second argument is rejected. *3
{¶ 6} Consequently, his sentences as to Counts One, Three and Four are affirmеd, and his sentence on Count Two is vacated. This case is remanded for resentencing on Count Two.
{¶ 7} The record reflects that just prior to the resentencing hearing, Simmons filed a sentencing memorandum for the trial court to consider. Therein, Simmons sought to persuade the court that he deserved some mitigation of the original nine-year term.
{¶ 8} When the сase was called for hearing, the trial court noted it had reviewed Simmons' memorandum, and had "revisited" his sentence in light of Simmons I and additional "case law." The court then first permittеd the prosecutor to address the facts of the case with respect to the "dictates of R.C.
{¶ 9} The trial court, however, subsequently stated: *4
{¶ 10} "Mr. Simmons, I get the opportunity to review your case anew, and to look at everything. And you were putting poison on the streets for quite some time.* * *"
{¶ 11} The court explained that Simmons' actions "calculatedly undermined the system," and it considered that he had committed a "very serious offense," i.e., providing "very large amounts of heroin over a very long period of time, done in a calculated manner in this community."
{¶ 12} Thus, according to the transcript of the hearing, the court "impose[d] a sentence on Count One to nine years (sic).
{¶ 13} "Count Three of nine years.
{¶ 14} "And Count Four six months.
{¶ 15} "All those counts will run concurrent."
{¶ 16} However, in light of the fact that Simmons by that time was indigent, the costs and fines were waived. The court informed Simmons of postrelease control prior to concluding the hearing. The journal entry of sentence indicates the court imposed a term of "9 years on each of counts 1, 2 and 3."
{¶ 17} Simmons filed the instant appeal of his sentence and presents two assignments of error.
"I. Appellant's right to due process and a fair sentencing hearing under the Fifth, Sixth and Fourteenth Amendments was violated when the trial *5 court erred by imposing a nine-year prison sentence in its judgment entry that was not made on the record at the sentencing hearing.
"II. Appellant's right to due process and fair (sic) sentencing hearing under the Fifth, Sixth and Fourteenth Amendments was violated when the trial court abused its discretion in failing to consider the mitigating evidence presented on Appellant's behalf at the sentencing hearing."
{¶ 18} Simmons' two assignments of error are better addressed in reverse order, since in them he asserts his entire sentencе is void for two reasons.
{¶ 19} First, he argues that the trial court's decision to impose the same sentence imposed in Simmons I demonstrates, in itself, that the court failed to conduct a de novo hearing. Second, he contends that since the transcript demonstrates the trial court failed to pronounce separately his sentence on Count Twо, it acted improperly in placing the sentence in its subsequent journal entry, and he is entitled to a completely new sentencing hearing on this ground as well. This court disagrees with his argument, and agrees with his contention only in part. In reviewing a sentence imposed for felony convictions, this court may take action only if it "clearly and convincingly finds" the sеntence is "contrary to law." R.C.
{¶ 20} Simmons initially claims that his sentence must be vacated because the trial court failed to impose a lesser sentence in spite of evidencе that he deserved consideration. As authority for his claim, Simmons cites State v. Taogaga, Cuyahoga App. No. 83505,
{¶ 21} It must be noted that Taogaga was decided beforeFoster, although this court stated therein that R.C.
{¶ 22} In any event, nothing in the trial court's comments in the instant case indicates the court failed to give cоnsideration to the mitigating evidence Simmons presented. State v. Schaffer, Portage App. No. 2006-P-0115,
{¶ 23} Since a term of nine yeаrs for a first-degree felony conviction is within the statutory range, this court cannot clearly and convincingly on this basis find Simmons' sentence is contrary to law. Consequently, Simmons' secоnd assignment of error is overruled.
{¶ 24} As to Simmons' first assignment of error, however, a review of the transcript of the resentencing hearing leads to the conclusion that, when the cоurt stated its sentence as to Counts One and Two, the court reporter misheard, and ran the words together. Thus, most likely, the court stated, "Count One and Two, nine years."
{¶ 25} Unfortunately, this court is constrained by what actually is contained in the record. State v. Howard, Cuyahoga App. No. 88532,
{¶ 26} Nevertheless, the mistake does not render the entire sentence void, as Simmons contends. In State v. Bezak,
{¶ 27} The record in this case demonstrates thе trial court complied with its statutory duties as to all but Count Two. Pursuant toBezak, only the sentence for that offense requires another hearing. Id. at ¶ 17; see also, State v Saxon,
{¶ 28} Based upon the foregoing, Simmons' first assignment of error is sustained only in part.
{¶ 29} Simmons' sentences on Counts One, Three and Four are affirmed. His sentence on Count Two is vacated, and the case is remanded to the trial court to conduct a resentencing hearing on Count Two.
It is ordered that appellee recover from appellant costs herein taxed.
The сourt 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. Case remanded to the trial court for rehearing and execution of sentence. *9
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
CHRISTINE T. McMONAGLE, J., and FRANK D. CELEBREZZE, JR., J., CONCUR