[Cite as State v. Hannah , 2012-Ohio-204.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 24162

v. : T.C. NO. 01 CR 607/3 TIMOTHY HANNAH : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 20 th day of January , 2012.

. . . . . . . . . . CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellant TIMOTHY HANNAH, #A418-860, Toledo Correctiona l Institute, 2001 E. Central Avenue, Toledo, Ohio 43608 Defendant-Appellant

. . . . . . . . . . FROELICH, J.2 {¶ 1} Timothy Hannah has appealed from hi s July 1, 2010 re-sentencing on one count of murder, two counts of felonious assault, one count of illegal possession of a firearm in a liquor-permit establishment, and accompanying firearm specifications. {¶ 2} On October 6, 2010, Hannah’s appointed appellate counsel filed a brief pursuant to Anders v. California (1967), 386 U.S. 738, asserting the absence of any non-frivolous issues for our review. Upon receiving the Anders brief, we advised Hannah of his right to file a pro se brief assigning errors for our review. No pro se brief was received. {¶ 3} On February 8, 2011, we reviewed counsel’s Anders brief and agreed that the three potential issues counsel raised therein were frivolous. Conducting our own independent review, however, we concluded that a ppellate counsel had “viewed the record too narrowly when searching for appealable issues.” In partic ular, we found that appellate counsel improperly had limited his review to re-sentencing issu es. Although this ordinarily would be proper, we determined that a jurisdictional defect in Hannah’s original termination entry rendered a prior direct appeal from hi s conviction and sentence a nullity. The defect involved the trial court’ s failure to set forth the manner of Hannah’s convictions in its original termination entry, as required by Cr im.R. 32(C). Therefore, we reasoned that the present appeal was Hannah’s “first appeal as of right.” As a result, we directed appellate counsel to file a new brief, as if no appeal previously had been filed. {¶ 4} On March 4, 2011, the State moved for reconsideration of our Anders ruling. Alternatively, it requested a stay of further briefing pending a ruling by the Ohio Supreme Court in State v. Lester , Ohio Supreme Ct. Case N o. 2010-Ohio-1007. On May 26, 2011, we overruled the motion for reconsideration. We sust ained the motion to stay briefing, however,3 noting that the Ohio Supreme Court was expected to decide in Lester whether an appeal from a revised sentencing entry to correct a Crim.R. 32(C) defect was a first appeal as of right. {¶ 5} The Ohio Supreme Court decided Lester on October 13, 2011. See State v.
Lester , __ Ohio St.3d __, 2011-Ohio-5204. It held that “[a] judgment of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judg e’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk.” Id. at Syllabus. The fact that a judgment entry fails to set forth “the manner” of convic tion does not affect its finality. 1 Id. at ¶12. {¶ 6} In light of Lester , the State filed a November 10, 2011 motion to vacate the stay of briefing and to reconsider our denial of appointed appellate counsel’s Anders brief. No responsive brief has been filed. {¶ 7} Having reviewed Lester , we sustain the State’s motion to lift the previously entered stay of briefing. We also sustain the State’s motion for reconsideration of our February 8, 2011 decision and entry rejecting appella te counsel’s Anders brief. Lester makes clear that the original termination entry in this case was a final, appealable order and that Hannah’s present appeal from re-s entencing is not a first appeal as of right. Consequently, his present appeal is limited to issues related to his re-sente ncing. In our February 8, 2011

1 Parenthetically, we note that Lester authorized a trial court to add the manner of conviction to an existing judgment entry through a nunc pro tunc entry. The Ohio Supreme Court further determined that such a nunc pro tunc entry is not appealable. Lester , at ¶20. That determination does not preclude the present appeal, however, because the trial court did not use a nunc pro tunc entry to remedy the Crim.R. 32(C) problem. Instead, the trial court brou ght Hannah back to court for re-sentencing and filed the July 1, 2010 amended termin ation entry from which the present appeal has been taken.4 decision and entry, we agreed with appointed appellate counsel th at the three potential re-sentencing issues he raised were fri volous. Having conducted our own independent review of the record, as required by Anders , we likewise have found no non-frivolous issues for our consideration. {¶ 8} Based on the reasoning set forth above , the judgment of the Montgomery County Common Pleas Court is affirmed.

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GRADY, P.J. and DONOVAN, J., concur. Copies mailed to: Carley J. Ingram Lucas W. Wilder Timothy Hannah Hon. Mary Katherine Huffman