[Cite as State v. Berry , 2021-Ohio-2249.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1275 Appellee Trial Court No. CR0200401149

v. Angela Berry DECISION AND JUDGMENT Appellant Decided: June 30, 2021

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee. Henry Schaefer, for appellant.

* * * * * MAYLE, J. {¶ 1} Appellant, Angela Berry, appeals the October 31, 2019 judgment of the Lucas County Court of Common Pleas resentencing her after reman d from this court. For the following reasons, we affirm, in part, and reverse, in part.2. I. Background and Facts {¶ 2} In 2005, Berry was convicted by a jury of three charges: felo ny murder in violation of R.C. 2903.02(B), a special felony (“count 1”), end angering children in violation of R.C. 2919.22(B)(3), a third-degree felony (“count 3”), and endangering children in violation of R.C. 2919.22(B)(3), a second-degree fe lony (“count 4”). 1 State v. Berry , 6th Dist. Lucas No. L-05-1048, 2007-Ohio-94, ¶ 15. The charg es arose from the January 2004 death of Berry’s three-year-old son, who died of h ypothermia while in her

care. {¶ 3} At the sentencing hearing, Berry’s attorney, the prosecutor, an d the court all agreed that the second-degree child endangering conviction was the predicate offense for the felony murder charge. The court stated that count 4 “is th e underlying offense, [and] that count should be merged with the sentence of the Court for the murder charge.” But, despite finding that those counts should merge, the trial court did not direct the prosecutor to elect an offense to pursue for sentencing. Inste ad, the trial court sentenced Berry to an indefinite term of 15 years to life in prison on co unt 1, a term of three years in prison on count 3, and a term of seven years in prison on count 4. The court found that the “offense [in count 4] is the underlying cause of * * * the offense set forth in Count 1 and is merged therein.” Regardless, the court ordered the sent ence for count 4 to “run concurrent” with the murder sentence. Berry’s attorney did not object.

1 Berry was also charged with and acquitted of one count of invo luntary manslaughter. Berry at ¶ 1, fn. 1.3. {¶ 4} In the original sentencing entry, the court ordered Berry to se rve the sevenyear sentence for count 4 concurrently with the murder sentence because “Count 4 [was] the underlying offense for Count 1 * * *.” The court also orde red Berry to serve the murder sentence and the three-year sentence for count 3 consecu tively. 2 The sentencing entry does not mention merger of the felony murder (count 1) an d second-degree child endangering (count 4) convictions. {¶ 5} Berry appealed, and we affirmed, in part, reversed, in part, an d remanded the case to the trial court under the authority of State v. Foster , 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, abrogated by Oregon v. Ice , 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009)—which was decided while Berry’s appeal was p ending. In Foster , the Supreme Court of Ohio invalidated portions of Ohio’s senten cing statutes and directed that all cases pending on direct appeal to which the u nconstitutional statutory sections applied be remanded for resentencing. Berry at ¶ 51, citing Foster at paragraphs one, three, and five of the syllabus, ¶ 104. Accordingly, we r eversed the trial court’s imposition of nonminimum and consecutive sentences. Id.

2 In Berry , we stated that the trial court ordered the murder and the thi rd-degree child endangering sentences to be served concurrently and the murder and second-degree child endangering sentences to be served consecutively. Berry at ¶ 15. However, the transcript from the original sentencing hearing and the trial court’s 2005 sentencing entry show that the court ordered that the sentence for the second-degree child endangering conviction (i.e., count 4) be served concurrently with the murder sentence and the sentence for the third-degree child endangering conviction (i.e., count 3) be se rved consecutively to the murder sentence. Additionally, we note that a third-degree fel ony cannot be the predicate offense for felony murder, so count 3 would not have satisfied the statutory requirement that Berry caused the child’s death “as a proximate result of * * * committing or attempting to commit an offense of violence that is a felony of the first or second degree * * *.” (Emphasis added.) R.C. 2903.02(B).4. {¶ 6} We also found that the trial court failed to consider Berry’s p resent and future ability to pay before ordering her to pay the costs of a ppointed counsel and costs under R.C. 2929.18(A)(4). We therefore reversed the trial cour t’s imposition of those costs. But, we affirmed the trial court’s imposition of the co sts of prosecution, which are mandatory. Id. at ¶ 53-57. We remanded the case to the trial court “for furt her proceedings consistent with * * *” our decision. Id. at ¶ 58. We issued our decision in Berry on January 12, 2007. {¶ 7} Following our remand, the trial court scheduled a resentencing hearing for February 26, 2007, but continued it to March 2, 2007, at Berry’ s request. The trial court’s order from the March 2 hearing notes that Berry had fil ed an appeal with the Ohio Supreme Court, so the trial court “no longer ha[d] jurisdiction for re-imposition of sentence[.]” {¶ 8} On June 6, 2007, the Supreme Court declined jurisdiction of Ber ry’s discretionary appeal. See 06/06/2007 Case Announcements , 114 Ohio St.3d 1411, 2007- Ohio-2632, 867 N.E.2d 845. However, the next action by the tri al court was not until September 2019—over 12 years later—when the court appointed cou nsel to represent Berry and ordered Berry conveyed to Lucas County for her resent encing hearing. There is no explanation in the record for the 12-year delay. {¶ 9} On October 28, 2019, the trial court resentenced Berry. It rei mposed the original prison sentences, i.e., 15 years to life on count 1, t hree years on count 3, and seven years on count 4. The court found that Berry’s conduct u nderlying the charge in count 4—second-degree child endangering—was the same conduct un derlying the felony5. murder conviction. The court then ordered that the sentences f or counts 1 and 4 run concurrently, and that the sentence for count 3—third-degree ch ild endangering—run consecutively to the other sentences. The court also stated at the resentencing hearing that it was “going to waive costs pursuant to the appellate dec ision.” {¶ 10} In its October 31, 2019 sentencing entry, the trial court resta ted the prison terms it imposed at the resentencing hearing. But the court al so found that “[c]ount 4 being the underlying charge to count 1, the offense of Murder, therefore the counts merge.” Despite finding that counts 1 and 4 merged, the court imposed separate

sentences for each count and ordered them to be served concurre ntly. Additionally, although the court said at the hearing that it was “going to wa ive costs pursuant to the appellate decision,” the sentencing entry stated that [d]efendant found to have, or reasonably may be expected to hav e, the means to pay all or part of the applicable costs of supervision , confinement, assigned counsel, and prosecution as authorized by law. Defend ant ordered to reimburse the State of Ohio and Lucas County for such costs. * * * Defendant further ordered to pay the cost[s] assessed pursuant to R.C. 9.92(C), 2929.18 and 2951.021 if not sentenced to ODRC. {¶ 11} Berry now appeals, raising one assignment of error:

THE UNCONSCIONABLE DELAY BETWEEN FINDING OF

GUILT BY THE JURY AND IMPOSITION OF SENTENCE BY THE COURT DEPRIVED THE TRIAL COURT OF JURSIDICTION [sic] TO SENTENCE APPELLANT[.]6. II. Law and Analysis A. The trial court retained jurisdiction to sentence Berry, de spite the lengthy delay, because the “without unnecessary delay” provision of Crim.R. 32 (A) does not apply when an offender is resentenced. {¶ 12} In her assignment of error, Berry argues that the delay of 4,47 0 days between the conclusion of her first appeal and her resentencing hearing was unjustified and sufficiently lengthy to violate Crim.R. 32(A), which requir es that a defendant’s “[s]entence shall be imposed without unnecessary delay.” {¶ 13} The state responds that (1) the delay did not strip the trial c ourt of its jurisdiction to resentence Berry, (2) Crim.R. 32(A) does not ap ply to cases on remand after appeal, and (3) assuming that Berry has a constitutional right to a timely resentencing (akin to the constitutional right to a speedy tria l), she was not prejudiced by the trial court’s delay. {¶ 14} Under Crim.R. 32(A), an offender’s sentence “shall be imposed w ithout unnecessary delay.” Many Ohio courts have held that this provi sion does not apply to cases that are remanded to the trial court for resentencing. See, e.g., State v. Morgan , 2d Dist. Montgomery No. 27774, 2018-Ohio-3198, ¶ 36 (the “without unnecessary delay” provision of Crim.R. 32(A) does not apply to resentencing, so a ppellant’s due process rights were not violated when his resentencing was held seven y ears after his original sentencing); State v. Creech , 4th Dist. Scioto No. 16CA3730, 2017-Ohio-6951, ¶ 12-13 (resentencing held five years after remand); State v. Smith , 10th Dist. Franklin No. 13AP129, 2013-Ohio-4674, ¶ 10 (resentencing held six years after re mand); State v. Adams , 7th Dist. Mahoning No. 12 MA 26, 2013-Ohio-1433, ¶ 20 (resenten cing held more than7. 11 years after original conviction, but only seven weeks after remand); State v. Martinez , 3d Dist. Seneca Nos. 13-11-21 and 13-11-32, 2012-Ohio-3750, ¶ 2 3 (resentencing held five years after remand); State v. Wrenn , 9th Dist. Summit No. 25616, 2011-Ohio-5640, ¶ 8 (resentencing held 16 months after conviction); State v. Bolton , 8th Dist. Cuyahoga No. 103628, 2016-Ohio-5706, ¶ 22 (citing cases; resentencing held t wo years after remand); see also State v. Hruby , 6th Dist. Ottawa No. OT-10-036, 2011-Ohio-3848, ¶ 12 (recognizing that other appellate courts have determined that t he “without unnecessary delay” provision of Crim.R. 32(A) does not apply to resentencin g); contra State v.

Crosier , 5th Dist. Tuscarawas No. 87 AP 12-0098, 1988 WL 59531, *2 (Ma y 31, 1988) (finding that, because the appellate court vacated the appellan t’s original sentence, the sentencing hearing held 15 months after the Supreme Court decli ned jurisdiction of the state’s appeal “was not a ‘resentencing’ so as to remove the pr ocedure from the mandate of * * *” Crim.R. 32(A)); but see State v. Feagin , 5th Dist. Richland No. 10CA46, 2011- Ohio-2025, ¶ 16 (finding that the “without unnecessary delay” p rovision of Crim.R. 32(A) “does not apply to defendants who must be resentenced due to a void original sentence”). {¶ 15} We agree with these courts and find that the “without unnecessa ry delay” provision of Crim.R. 32(A) does not apply to an offender’s rese ntencing on remand after an appeal. The protection intended by this rule “recognizes th e distinction between a trial

court refusing to sentence an offender and a trial court improperly sentencing an offender.” (Emphasis added.) State v. Spears , 9th Dist. Summit No. 24953, 2010-Ohio1965, ¶ 19.8. {¶ 16} Turning to Berry’s arguments, she claims that the trial court l ost jurisdiction to resentence her for two reasons. First, she ess entially argues that her October 29, 2019 resentencing hearing should be treated as an original sentencing because we remanded for a de novo sentencing pursuant to Foster . The only case that seems to support Berry’s belief that a de novo resentencing is the equivalent of an original sentencing is Crosier , at *2, in which the Fifth District, without analysis, held

that [t]he Court of Appeals vacated the relevant portion of the sent ence. The action by the trial court was not a “resentencing” so as to rem ove the procedure from the mandate of the Criminal Rules. The sentenci ng was a “sentencing” within the meaning of Crim.R. 32(A)(1). But, “resentencing” is “[t]he act or an instance of imposing a new or revised criminal sentence.” (Emphasis added.) Black’s Law Dictionary 1500 (10th Ed.2014). Imposing a “new or revised” sentence following our determination in Berry that the original sentence was improper is precisely what the trial court did. 3 Accordingly, we decline to adopt the view that the imposition of a new or revised sentence following remand—even if the hearing on remand is conducted de novo—constitutes an original sentencing hearing for purposes of the “without unnecessary delay” provision of Crim.R . 32(A).

3 We also note that no other appellate districts have adopted th is rationale, and the Fifth District determined in a more recent case that the “without unn ecessary delay” provision of Crim.R. 32(A) “does not apply to defendants who must be rese ntenced * * *.” Feagin , 5th Dist. Richland No. 10CA46, 2011-Ohio-2025, at ¶ 16.9. {¶ 17} Second, Berry argues that the trial court lost jurisdiction bec ause the delay before her resentencing was so lengthy. The cases she cites in support of this argument—

Warren v. Ross , 116 Ohio App.3d 275, 688 N.E.2d 3 (11th Dist.1996) and Willoughby v.

Lukehart , 39 Ohio App.3d 74, 529 N.E.2d 206 (11th Dist.1987)—each invol ve the original imposition of sentence (i.e., the first time the court imposed a sentence, prior to any appeals), not a resentencing on remand from an appellate co urt, and they are thus inapplicable. {¶ 18} In addition, we note that some courts considering delay in rese ntencing engage in a prejudice analysis—akin to a constitutional speedy- trial-time analysis—to determine whether the trial court lost jurisdiction to resenten ce the defendant. See, e.g.,

Creech , 4th Dist. Scioto No. 16CA3730, 2017-Ohio-6951, at ¶ 14-20 (co nducting a prejudice analysis when appellant’s arguments on appeal were ba sed on both Crim.R. 32(A) and the Sixth Amendment to the U.S. Constitution). Berry does not raise any constitutional arguments regarding the delay in her resentencin g. Regardless, even if she did, Berry could not establish prejudice because “when the defe ndant has been incarcerated during the length of the delay, and would not have been eligible for release during that time period, no prejudice exists.” Id. at ¶ 17. The earliest that Berry would have been eligible for parole was January 2022, long after her resentencing date of October 28, 2019. {¶ 19} In sum, because the “without unnecessary delay” provision of Cr im.R. 32(A) does not apply to resentencing, Berry’s argument that the trial court lost10. jurisdiction to resentence her is without merit. Therefore, he r assignment of error is not

well-taken. B. The trial court committed plain error on remand. {¶ 20} Although we have determined that Berry’s assigned error is not well-taken, we are compelled to notice two plain errors in the trial court’ s sentencing entry. {¶ 21} Plain error is an error that affects an appellant’s substantial rights. Crim.R. 52(B). An appellate court “‘may recognize plain error, sua spo nte, to prevent a miscarriage of justice.’” State v. Magee , 2019-Ohio-1921, 136 N.E.3d 800, ¶ 25 (6th Dist.), quoting State v. Vinson , 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 66 (8th Dist.); State v. Slagle , 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992) (recognizing th at Crim.R. 52(B) allows an appellate court to sua sponte consider a trial error to which the appellant did not object). Three things are required to make an error a “plain error”: (1) there must be an error, i.e., a deviation from a legal rule; (2) the error must be plain, i.e., the error “must be an ‘obvious’ defect in the trial proceedings”; and (3) the error must have affected a defendant’s substantial rights, i.e., “the trial cou rt’s error must have affected the outcome of * * *” the proceedings. State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Plain error should be found “only in exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Hill , 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001), citing State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.11. {¶ 22} We review felony sentences under R.C. 2953.08(G)(2). As releva nt here, the statute provides that we may only modify or vacate an appel lant’s sentence if we find that the sentence is clearly and convincingly contrary to law. R.C. 2953.02(G)(2)(b). 1. The trial court committed plain error by imposing concurren t sentences for “merged” offenses. {¶ 23} At Berry’s original sentencing hearing, Berry’s attorney, the p rosecutor, and the court all agreed that the second-degree child endangeri ng conviction was the predicate offense for the felony murder charge. The court stat ed that count 4 “is the underlying offense, [and] that count should be merged with the sentence of the Court for the murder charge [

. ]” (Emphasis added.) The trial court, however, did not direct the prosecutor to elect an offense to pursue for sentencing. Inste ad, the court went on to

order that the sentence for count 4 “will run concurrent” with the murder sentence. Berry’s attorney did not object. In the original sentencing en try, the trial court ordered Berry to serve the seven-year sentence for count 4 concurrently with the murder sentence because “Count 4 [was] the underlying offense for Count 1 * * * .” Although concurrent sentences—rather than merged convictions—are reflected in the o riginal sentencing entry, Berry did not appeal this aspect of the original sentenc ing entry. See Berry , 6th Dist. Lucas No. L-05-1048, 2007-Ohio-94. {¶ 24} The concept of merger was not explicitly discussed at Berry’s r esentencing hearing. But, the trial court expressly found that Berry’s con duct underlying count 4 (i.e., second-degree child endangering) was the same conduct underlyin g count 1 (i.e., felony murder). The trial court then reimposed the original prison se ntences on each count, and12. ordered that the sentences for counts 1 and 4 run concurrently. Berry’s attorney did not object. In its resentencing entry, the trial court stated that “[c]ount 4 [i.e., second-degree child endangering] being the underlying charge to count 1, the offense of Murder, therefore the counts merge .” (Emphasis added.) And, as it did at the resentencing hearing, the trial court ordered the sentences for counts 1 and 4 to run concurrently. {¶ 25} The Double Jeopardy Clauses of the Fifth Amendment to the U.S. Constitution and Article I, Section 10, of the Ohio Constitutio n protect a criminal defendant from receiving multiple punishments for the same offe nse. State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. Under R.C. 2941.25(B), multiple convictions (and, therefore, multiple punishments) are permissi ble only if the offenses are of dissimilar import (i.e., the offenses involved either separa te victims or separate and identifiable harm), were committed separately, or were committe d with separate animus.

Id. at ¶ 25. If multiple offenses involve the same victims, the s ame harm, the same conduct, and the same animus, they are “allied offenses of simi lar import” that must merge at sentencing into a single conviction. See R.C. 2941.25(B); Ruff at ¶ 25-26. {¶ 26} If the defendant has been found guilty of allied offenses, the trial court must direct the prosecutor to elect an offense to pursue for se ntencing, and then impose a sentence that is appropriate for the state’s chosen offense. State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 20, 24 (the intent of R.C. 2945.21 is “clear

that it is the state that chooses which of the allied offenses to pursue at sentencing * * *”; “[w]hen the state elects which of the two allied offenses to se ek sentencing for, the court must accept the state’s choice and merge the crimes into a sing le conviction for13. sentencing * * * and impose a sentence that is appropriate for the merged offense.” (Internal citation omitted.)). Moreover, although a trial court is not required to raise the issue of allied offenses sua sponte, State v. Lee , 2018-Ohio-1839, 112 N.E.3d 65, ¶ 13-14 (8th Dist.), it may raise the issue sua sponte. See State v. Straley , 6th Dist. Lucas No. L15-1237, 2016-Ohio-5434 (no error in trial court’s refusal to m erge charges after the court, unprompted, raised the issue of merger at sentencing). Indeed, the imposition of multiple sentences for allied offenses of similar import is pla in error. State v.

Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31. This is true even

if the trial court orders the defendant to serve the sentences for the allied offenses concurrently because “[t]he imposition of concurrent sentences is not the equivalent of merging allied offenses.” State v. Damron , 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17. {¶ 27} Here, although the resentencing entry reflects concurrent sente nces for counts 1 and 4, the judgment entry also states that “[c]ount 4 being the underlying charge to count 1, the offense of Murder, therefore the counts merge .” (Emphasis added.) Moreover, at the resentencing hearing, the trial court expressl y found that the same conduct underlies both counts—which suggests that the trial cou rt engaged in an incomplete merger analysis before ordering “the counts [to] mer ge” in its judgment entry. Regardless, given that “a sentencing court speaks only through its judgment entry of sentence, not its oral pronouncements[,]” State v. Swiergosz , 197 Ohio App.3d 40, 2012- Ohio-830, 965 N.E.2d 1070, ¶ 49 (6th Dist.), citing State v. Brooke, 113 Ohio St.3d 199,14. 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, we must presume that the trial court intended to merge count 1 (felony murder) and count 4 (second-degree child endangering). 4 {¶ 28} This, however, was plain error because the trial court did not follow the proper procedure to merge offenses. Because the trial court in tended to merge count 1 and count 4—as stated in its judgment entry—it was required, at the resentencing hearing, to direct the prosecutor to elect a single offense for purposes of sentencing. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 20, 21 (the intent of

R.C. 2945.21 is “clear that it is the state that chooses which of the allied offenses to pursue at sentencing * * *,” and the state “retains the right t o elect which allied offense to pursue on sentencing on a remand to the trial court after an ap peal”). That is because, when offenses merge, “the defendant may be convicted of only on e.” R.C. 2941.25(A). And, because the trial court may sentence on only one offense, “[t]he imposition of concurrent sentences is not the equivalent of merging allied of fenses.” Damron , 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, at ¶ 17.

4 Additionally, we note that the trial court’s inclusion of the statement that “[c]ount 4 being the underlying charge to count 1, the offense of Murder, therefore the counts merge” cannot be considered a clerical error. A “clerical erro r” is “a mistake or omission, mechanical in nature and apparent on the record, whic h does not involve a legal decision or judgment.” (Internal quotations omitted.) State v. Love , 6th Dist. Lucas No. L-05-1087, 2006-Ohio-2925, ¶ 27. Whether multiple offenses are allied offenses of similar import and subject to merger is a question of law. State v. Moore , 2021-Ohio765, -- N.E.3d --, ¶ 44 (6th Dist.), citing State v. Roberson , 2018-Ohio-1955, 113 N.E.3d 204, ¶ 12 (6th Dist.). Because a merger determination requires “a legal decision or judgment,” Love at ¶ 27, the statement in Berry’s resentencing entry the “the counts merge” is outside of the narrow scope of “clerical error.”15. {¶ 29} “A sentence that contains an allied-offenses error is contrary to law.” State

v. Wilson , 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 14. Th e remedy for

an allied-offenses error is remand to the trial court for a res entencing hearing at which the

state must choose which of the allied-offenses convictions it w ishes to proceed on. Id. at ¶ 13, citing Whitfield , at ¶ 24. Because the state has the discretion to select whic h conviction it wants to pursue at sentencing, the reviewing cour t cannot unilaterally correct the error by modifying the appellant’s sentence. Id. , citing Whitfield at ¶ 22. {¶ 30} Accordingly, we find that Berry’s sentence is contrary to law u nder R.C. 2953.08(G)(2) and we must reverse and remand this case to the t rial court for a resentencing hearing. At the resentencing hearing, the trial c ourt may consider the issue of merger and, if the offenses are to be merged, the state must choose which of the two offenses it wishes to pursue for sentencing. The trial court “ must accept the state’s choice among allied offenses, ‘merge the crimes into a single c onviction for sentencing, * * * and impose a sentence that is appropriate for the merged of fense.’” (Ellipsis sic.)

Wilson at ¶ 13, quoting Whitfield at ¶ 24. 2. The trial court committed plain error by imposing costs that were reversed on appeal. {¶ 31} Finally, we must address the trial court’s imposition of costs in the October 31, 2019 sentencing entry. In Berry , we determined that there was no evidence in the record that the trial court considered Berry’s ability to pay, so the trial court erred by ordering her to pay the costs of appointed counsel and costs un der R.C. 2929.18(A)(4). Berry , 6th Dist. Lucas No. L-05-1048, 2007-Ohio-94, at ¶ 54-56. Alt hough the trial court16. stated at the resentencing hearing that it intended to “waive c osts pursuant to the appellate decision[,]” in the resentencing entry, the court again found t hat Berry “ha[d], or reasonably may be expected to have, the means to pay all or par t of the applicable costs of supervision, confinement, assigned counsel, and prosecution as authorized by law” and ordered her to “reimburse the State of Ohio and Lucas County fo r such costs.” {¶ 32} On remand, a trial court is not permitted to deviate from the a ppellate court’s mandate, but must follow the mandate on all questions o f law that the appellate

court decided. Transamerica Ins. Co. v. Nolan , 72 Ohio St.3d 320, 323, 649 N.E.2d 1229 (1995). Here, we mandated that the trial court refrain from im posing the costs of appointed counsel and costs authorized by R.C. 2929.18(A)(4). Berry at ¶ 55-56. Although it appears that the trial court intended to follow thi s mandate, “a sentencing court speaks only through its judgment entry of sentence, not i ts oral pronouncements[,]” Swiergosz , 197 Ohio App.3d 40, 2012-Ohio-830, 965 N.E.2d 1070, at ¶ 49, and the trial court’s October 31, 2019 judgment entry deviated from our manda te by imposing costs that we clearly reversed. On that basis, we find that the tria l court’s imposition of costs that did not comply with our mandate was clearly and convincing ly contrary to law and that the court committed plain error by imposing those costs.

III. Conclusion {¶ 33} We find Berry’s sole assignment of error not well-taken because the “without unnecessary delay” provision of Crim.R. 32(A) does not apply to resentencing. Although Berry’s assigned error is without merit, we find that the trial court committed plain error when sentencing Berry in two respects: (1) it orde red that count 1 and count 417. “merge” but nonetheless entered concurrent sentences on those c ounts, and (2) it failed to follow our mandate from Berry’s first appeal regarding costs. Accordingly, the October 31, 2019 judgment of the Lucas County Court of Common Pleas is reversed and this matter is remanded for further proceedings consistent with this decision. {¶ 34} The state is ordered to pay the costs of this appeal pursuant t o App.R. 24. Judgment affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ______________________

_________ JUDGE Christine E. Mayle, J.

_______________________________ Carol Ann Robb, V.J. JUDGE CONCUR.

_______________________________ JUDGE

Judge Carol Ann Robb, Seventh District Court of Appeals, sittin g by assignment of the Chief Justice of the Supreme Court of Ohio.

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.