STATE OF OHIO, Plаintiff-Appellee, vs. SHAMEKA GAVIN, Defendant-Appellant.
Case No. 14CA3672
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Released: 06/25/15
[Cite as State v. Gavin, 2015-Ohio-2549.]
McFarland, A.J.
Matthew F. Loesch, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.
McFarland, A.J.
{¶1} Shameka Gavin appeals her convictions for trafficking in drugs/cocaine in violation of
FACTS
{¶2} Appellant was indicted on March 6, 2014 on 6 counts. All related to the trafficking or possession of cocaine or marijuana, except for one count of tampering with evidence and one count of possеssion of criminal tools. Defense counsel was appointed. Appellant entered pleas of not guilty.
{¶3} Appellant later waived her right to speedy trial. Defense counsel filed a demand for discovery and a request for a bill of particulars to which the State of Ohio provided responses. According to the transcript of proceedings, on October 30, 2014, in open court, Appellant changed her pleas of not guilty and entered into a negotiated plea, pursuant to
{¶4} Appellant was sentenced to a total net mandatory sentence of twenty-four months on Count 1 and twenty-four months on Count 5. The trial court ordered a consecutive sentence, for a total aggregate sentence of forty-eight (48) months, with twenty-four (24) months being mandatory.
{¶5} Appellant‘s notice of appeal is from the October 31, 2014 judgment entry of sentence. The October 31, 2014 judgment entry of sentence incorrectly indicated Aрpellant had pled to Count 1, trafficking in drugs/cocaine, and “felonious assault.” However, this entry described the correct term of the aggregate forty-eight (48) month consecutive prison
{¶6} On November 18, 2014, the trial court filed a nunc pro tunc judgment entry of sentence. The nunc pro tunc entry correctly reflected the transcript of proceedings and reflected Appellant‘s pleas to Counts 1 and 5 respectively, as trafficking in drugs and tampering with evidence. On November 26, 2014, Appellant filed a timely notice of appeal from the judgment еntry of sentence dated October 31, 2014.
ANDERS BRIEF
{¶7} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), counsel may ask permission to withdraw from a case when counsel has conscientiously examined the record, can discern no meritorious claims for appeal, and has determined the case to be wholly frivolous. Id. at 744; State v. Adkins, 4th Dist. Gallia No. 03CA27, 2004-Ohio-3627, ¶ 8. Counsel‘s request to withdraw must be accompаnied with a brief identifying anything in the record that could arguably support the client‘s appeal. Anders at 744; Adkins at ¶ 8. Further, counsel must provide the defendant with a copy of the brief and allow sufficient time for the defendant to raise any other issues, if the defendant chooses to. Id.
{¶9} In the current action, Appellant‘s counsel advises that the appeal is wholly frivolous and has requested permission to withdraw. Pursuant to Anders, counsel has filed a brief raising one potential assignment of error for this Court‘s review.
POTENTIAL ASSIGNMENT OF ERROR
“I. WHETHER THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH CRIM.R. 11 IN ACCEPTING APPELLANT‘S GUILTY PLEA.”
A. STANDARD OF REVIEW
{¶10} A defendant‘s right to appeal a sentence is based upon specific grounds stated in
“A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923.
Appellant was given an agreed sentence.
{¶11} ” ‘When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.’ ” State v. Felts, 4th Dist. Ross No. 13CA3407, 2014-Ohio-2378, ¶ 14, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). In determining whether a guilty or no contest plea was entered knowingly, intelligently, and voluntarily, an appellate court examines the totality of the circumstances through a de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards. Felts, supra; State v. Cooper, 4th Dist. Athens No. 11CA15, 2011-Ohio-6890, ¶ 35.
B. LEGAL ANALYSIS
{¶12} Appellate counsel‘s brief sets forth the only possiblе issue presented for review and argument as that the trial court erred in failing to comply with
{¶13}
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Dеtermining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining thаt the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to cоnfront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶14} An appellant who challenges his plea on the basis that it was not knowingly and voluntarily made must show a prejudicial effect. Houston, ¶ 8; State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 at 476-477, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977);
{¶15} In the case sub judice, the trial court‘s colloquy with Appellant is set forth as follows:
The Court: Let the record reflect we‘re here on 14CR160(A), cаptioned State of Ohio versus Shameka Gavin. It‘s the Court‘s
Mr. Brazinski: It is, Your Honor.
The Court: Ms. Gavin, is this your understanding?
Defendant: Yes.
The Cоurt: Ma‘am, you understand by proceeding in this fashion that you‘re waiving your right to appeal?
Defendant: Yes.
* * *
The Court: You‘ve been advised by your lawyer and by the Court of the charges against you, the penalties provided by law, and your rights under the Constitution, and you‘ve waived a reading of the indictment by signing this document entitled waiver. Is that your signature, Ma‘am?
Defendant: Yes, sir.
The Court: You understand by signing this document you‘re giving up the right to a trial by jury with representation by counsel.
Defendant: Yes, sir.
The Court: You‘re giving up the right to confront the witnesses against you.
The Court: You‘re giving up the right to compulsory process for obtaining witnesses on your own behalf.
Defendant: Yes, sir.
The Court: And you‘re giving up the right to require the State to- - to prove you‘re guilty beyond a reasonable doubt at a trial.
Defendant: Yes, sir.
The Court: And furthermore, you understand you cannot be made to testify against yourself.
Defendant: Yes, sir.
{¶16} As is evident, the trial court explained Appellant‘s Constitutional rights. The transcript further reflects the court explained the maximum prison term for both Counts 1 and 5, and the maximum fine amounts. And, the transcript revеals the trial court explained to Appellant that she would be supervised by the Adult Parole Authority for a mandatory three-year period upon her release. The trial court further explained to Appellant the repercussion of violating the rules of post-release control.
{¶17} Additionally, the reсord contains Appellant‘s signature on two forms which explained the maximum penalties for both counts. After explaining to Appellant all that was required pursuant to
{¶18} Because we have thoroughly reviewed the record in the context of an Anders’ appeal, we briefly address the nunc pro tunc judgment entry of sentence. It is well-settled that courts possess the inherent authority to correct errors in judgment entries at any time so that the record speaks the truth. State v. McCord, 12th Dist. Clermont No. 2013-12-096, 2014-Ohio-3187, ¶ 8; State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 18;
{¶19} Here, Appellant appealed the October 31, 2014 entry which listed her convictions as “trafficking in drugs/cocaine” and “felonious assault.” In State v. Carter, 8th Dist. Cuyahoga No. 10180, 2015-Ohio-1834, Carter contended thаt the trial court sentenced him on charges that he did not plead guilty to and, therefore, the case needed to be remanded so that he could be resentenced. The 8th district appellate court agreed. The appellate court noted that Carter pled guilty to Counts 3 and 7, but the court sentenced him on Counts 1 and 5. The trial court‘s original sentencing judgment entry also stated the wrong counts. The trial court later issued a nunc pro tunc judgment to reflect that Carter had been sentenced on Counts 3 and 7. The appellate court concluded the trial court‘s nunc pro tunc entry
{¶20} In State v. Hitchcock, 4th Dist. Hocking No. 02CA16, 2003-Ohio-1456, this court reviewed a sentencing hearing transcript and the trial court‘s original sentencing and nunc pro tunc entries. The subsequent nunc pro tunc entry specified for which offenses the trial court actually sentenced Hitchcock. We noted the subsequеnt entry did not change what the trial court actually decided and thus, was not an improper use of nunc pro tunc authority. Id. at ¶ 14.
{¶21} Hitchcock is similar to the case sub judice in that the nunc pro tunc entry was utilized to reflect what actually occurred. Here, Appellant pled to, and the transcript of proceedings reflects that Appellant pled to Count 1, trafficking in drugs/cocaine and Count 5, tampering with evidence. The nunc pro tunc judgment entry of sentence corrected this defect, by listing her convictions as “trafficking in drugs/cocaine” and “tampering with evidence.” This is a permissible correction because it accurately reflеcts what the court actually decided at Appellant‘s plea hearing, as verified by the transcript of proceedings. The transcript of proceedings demonstrates that the trial court correctly referred to Counts 1 and 5 throughout the transcript and at no time referenced a “felonious assault” сharge.
APPEAL DISMISSED.
It is ordered that the APPEAL BE DISMISSED. Costs are assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stаy is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Cоurt of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _____________________________
Matthew W. McFarland,
Administrative Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.