State v. GutierrezState v. Gutierrez
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Hess, J.
{1} Bethany Gutierrez appeals from a judgment entry of sentence of the Ross County Court of Common Pleas convicting her, following guilty pleas, of one count of corrupting another with drugs and one count оf trafficking in a fentanyl-related compound. Gutierrez presents three assignments of error asserting that (1) the trial court erred by accepting a guilty plea that wаs not made knowingly, voluntarily, and intelligently; (2) the trial court erred by failing to comply with the sentencing requirements in
I. PROCEDURAL HISTORY
{2} On May 8, 2020, a secret indiсtment was filed charging Gutierrez with two counts: Count One, corrupting another with drugs in violation of
{3} On March 5, 2021, a second indictment was filed under the same case number charging Gutierrez with two counts: Count One, corrupting another with drugs in violation of
{4} On April 18, 2022, Gutierrez executed a plea of guilty form stating that she was entering guilty pleas to Counts One and Two, evidently referring to the second indictment as neither party challenged the trial court‘s characterization of it as a superseding indictment. The parties agreed to jointly recommend a sentence of four to six years in prison, and the state agreed to not indict Gutiеrrez with respect to an unindicted second-degree felony case. The same day, the trial court conducted a change of plea hearing. The сourt accepted the guilty pleas and found Gutierrez guilty of the offenses to which she pleaded guilty.
{5} The trial court set the matter for sentencing in May 2022, but Gutierrez did not appear, and the court ordered that her bond be revoked and a warrant issue for her arrest. In March 2023, Gutierrez was arrested, and the court conducted the sentencing hearing. On March 14, 2023, the court issued a judgment entry of sentence ordering her to serve 8 to 12 years in prison on Count One and 12 months in prison on Count Two, to be servеd concurrently. The court did not impose a fine but did order Gutierrez to pay restitution and costs. This appeal followed.
II. ASSIGNMENTS OF ERROR
{6} Gutierrez presents three assignments of error:
First Assignment of Error: The trial court erred to the prejudice of Ms. Gutierrez by accepting a plea of guilty that was not made knowingly, voluntarily, and intelligently.
Second Assignment of Error: The trial court erred to the prejudice of Ms. Gutierrez by failing to comply with the sentencing requirements contained in
III. LAW AND ANALYSIS
{7} Before we address the merits of the appeal, we must determine whether we have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior tо the court of appeals within the district * * *.”
{8} “The General Assembly enacted
{9} In this case, Gutierrez was charged in two indictments filed under the same case number. The trial court and parties appear to have treated the first indictment as if it had been dismissed and replaced by the second indictment, and Gutierrez evidently pleaded guilty tо and was convicted of the two counts in the second indictment. However, “[i]t is axiomatic that a court speaks only through its journal entries.” State v. Richards, 4th Dist. Washington No. 20CA12, 2021-Ohio-389, ¶ 12, quoting State v. Payton, 4th Dist. Scioto No. 14CA3628, 2015-Ohio-1796, ¶ 7, quoting State ex rel. Collier v. Farley, 4th Dist. Lawrence No. 05CA4, 2005-Ohio-4204, ¶ 18. The trial court did not dispose of the counts in the first indictment via journal entry. As a result, the two counts in the first indictment constitute “hanging charges” which prevent the trial court‘s judgment entry of sentence from being a final appealable order. See State v. Kuntz, 4th Dist. Ross No. 21CA3759, 2023-Ohio-669, ¶ 4, 7 (although trial court orally granted state‘s motion to dismiss two counts in first indictment, court failed to formally dismiss those counts via journal entry, so judgment entry of sentence regarding counts in second indictment was not a final appealable order); State v. Nesbitt, 4th Dist. Ross No. 22CA20, 2023-Ohio-1276, ¶ 10 (although trial court and parties appeared to have treated first indictment as if it had been dismissed and replaced by second indictment, court did not dispose of counts in first indictment via journal entry, so judgment entry of sentence was not a final
APPEAL DISMISSED.
It is ordеred that the APPEAL IS DISMISSED and that appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas 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 60 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 stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 dаys, 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.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: __________________________
Michael D. Hess, 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.