[Cite as State v. Roberts, 2013-Ohio-2202.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98973

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

DEMETROS ROBERTS

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED IN PART, REVERSED 

IN PART, AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-562999 

BEFORE: Celebrezze, J., Stewart, A.J., and Rocco, J. 

RELEASED AND JOURNALIZED: May 30, 2013 
ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen 

3552 Severn Road 

Suite 613 

Cleveland Heights, Ohio 44118 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: T. Allan Regas 

Christopher D. Schroeder 

Assistant Prosecuting Attorneys 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
FRANK D. CELEBREZZE, JR., J.: 

{¶1} Defendant-appellant, Demetros Roberts, appeals from the sentence imposed 

by the common pleas court following his guilty plea to five counts of trafficking in 

violation of R.C. 2925.03(A)(2). After a thorough review of the record and case law, we 

affirm appellant’s sentence, but remand to allow appellant to move the court for waiver of 

court costs. 

{¶2} On December 19, 2011, the Cuyahoga County Grand Jury indicted appellant 

in Cuyahoga C.P. No. CR-557118 on one count of drug possession in violation of R.C. 

2925.11(A). On June 7, 2012, the Cuyahoga County Grand Jury indicted appellant in 

Cuyahoga C.P. No. CR-562999 on nine counts of drug trafficking in violation of R.C. 

2925.03(A)(2) and nine counts of drug possession in violation of R.C. 2925.11(A). 

{¶3} On August 7, 2012, appellant pled guilty in CR-562999 to five counts of drug 

trafficking in violation of R.C. 2925.03(A)(2), each felonies of the fifth degree. As part 

of appellant’s plea agreement, the state voluntarily dismissed CR-557118 and the 

remaining counts in CR-562999. Thereafter, the trial court accepted appellant’s plea and 

sentenced him to 12 months on each of the five drug trafficking counts. The trial court 

ordered the first three counts to run consecutively to one another and the last two counts 

to run concurrently to each other but consecutively to the first three counts, for a total 

48-month term of imprisonment. The trial court’s sentencing entry further stated, “The 

court hereby enters judgment against the defendant in an amount equal to the costs of this 

prosecution.” 
{¶4} Appellant now brings this timely appeal, raising two assignments of error for 

review. 

Law and Analysis

{¶5} As an initial matter, we note that the trial court’s sentencing journal entry, 

dated August 28, 2012, incorrectly states that the trial court imposed “a prison sentence at 

the Lorain Correctional Institution of 36 month(s),” as opposed to the 48-month term 

ordered by the court during the August 28, 2012 sentencing hearing.1

 Thus, we direct the 

trial court on remand to issue a nunc pro tunc entry to correct the sentencing journal entry 

pursuant to Crim.R. 36(A) and App.R. 9(E). 

I. Imposition of Court Costs

{¶6} In his first assignment of error, appellant argues that the trial court committed 

plain error in imposing court costs in its sentencing entry without informing him of those 

costs in open court. In support of his argument, appellant cites to the Ohio Supreme 

Court’s decision in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278. 

{¶7} In Joseph, the court held that it is reversible error under Crim.R. 43(A) for the 

trial court to impose costs in its sentencing entry when it did not impose those costs in 

open court at the sentencing hearing. Id. at ¶ 22. The court reasoned that the defendant 

 

1 At the sentencing hearing, the trial court stated, in relevant part: 

“Mr. Roberts I’m going to sentence you to a year on Count Number 11, Count 

Number 15 and Count Number 19, Count Number 21 and Count Number 23.” 

“Count Number 11, Count Number 15 and Count Number 19 are going to be 

served consecutive to each other and Counts Number 21 and 23 will be served 

concurrent to each other but consecutive to Count Number 11, 15, and 19.” 
was denied the opportunity to claim indigency and to seek a waiver of the payment of 

court costs before the trial court because the trial court did not mention costs at the 

sentencing hearing. Id. The remedy in such a situation is a limited remand to the trial 

court for the defendant to seek a waiver of court costs. Id. at ¶ 23; State v. Mays, 2d 

Dist. No. 24168, 2012-Ohio-838, ¶ 17. 

{¶8} The state concedes that the trial court failed to assess costs in open court. 

Therefore, appellant’s first assignment of error is sustained. The imposition of costs is 

reversed, and this matter is remanded to the trial court to allow appellant to move the 

court for waiver of court costs. 

II. Sentence

{¶9} In his second assignment of error, appellant argues that the trial court erred at 

sentencing by considering all of the charges contained in his two indictments, including 

those charges that were voluntarily dismissed by the state. Because appellant did not 

object to the alleged error at the sentencing hearing, we review this claim for plain error. 

Under Crim.R. 52(B), a plain error affecting a substantial right may be noticed by an 

appellate court even though it was not brought to the attention of the trial court. An error 

rises to the level of plain error only if, but for the error, the outcome of the proceedings 

would have been different. State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 

N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). Notice 

of plain error “is to be taken with the utmost caution, under exceptional circumstances, 

and only to prevent a manifest miscarriage of justice.” Id. 
{¶10} In the case at hand, the record reflects that during plea negotiations, the state 

reserved the right to reference each of the counts appellant was indicted on at the time of 

sentencing. At the sentencing hearing, the state indicated that it made the reservation 

because it believed it was important for the court to be cognizant of the fact that appellant 

was involved in nine separate drug transactions and not just the five counts he pled guilty 

to. However, in imposing appellant’s four-year prison sentence, the trial court did not 

expressly state that it considered appellant’s dismissed counts. Rather, the record reflects 

that the trial court imposed the sentence based on its proper consideration, pursuant to 

R.C. 2929.11 and 2929.12, of appellant’s history of drug abuse, his past criminal record, 

and the perceived harm his current drug-related convictions have caused to the 

community. 

{¶11} Nevertheless, even if we were to interpret the trial court’s colloquy as 

including references to appellant’s dismissed counts, we find no merit to appellant’s 

argument. The Ohio Supreme Court has recognized that sentencing courts are “to 

acquire a thorough grasp of the character and history of the defendant before it.” State v. 

Burton, 52 Ohio St.2d 21, 23, 368 N.E.2d 297 (1977). Consideration of arrests for other 

crimes comes within that function. Id. Thus, this court has held on previous occasions 

that “a court may consider other charges, including charges which were dismissed as part 

of a plea agreement, during sentencing.” State v. Edwards, 8th Dist. No. 85908, 

2006-Ohio-2315, ¶ 43; see also State v. Padilla, 8th Dist. No. 98187, 2012-Ohio-5892, ¶ 

25 (“Even though charges may be dismissed as part of the plea agreement, a sentencing 
court may [within certain limits] consider a criminal charge, and supporting facts, that is 

dismissed under a plea agreement”), citing State v. Bowser, 186 Ohio App.3d 162, 168, 

2010-Ohio-951, 926 N.E.2d 714 (2d Dist.). 

{¶12} Based on the foregoing, we find that the factors considered by the trial court 

during appellant’s sentencing hearing did not constitute error, plain or otherwise. 

{¶13} Accordingly, appellant’s second assignment of error is overruled. 

{¶14} The judgment of the trial court is affirmed in part, reversed in part, and the 

cause remanded to allow appellant to seek a waiver of court costs and to correct the 

August 28, 2012 journal entry. 

It is ordered that appellant and appellee share the costs herein taxed. 

The court 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. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., JUDGE 

MELODY J. STEWART, A.J., and 

KENNETH A. ROCCO, J., CONCUR