State v. WilsonState v. Wilson
John H. Lawson
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Marc Bullard
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Bryan Wilson, appeals his convictions following a guilty plea. Finding no merit to the appeal, we affirm.
{¶2} In October 2017, Wilson was named in a 39-count indictment with three other individuals — Jamal Commack, Allante Bush, and Rayshawn Foster. Wilson was charged with participating in a criminal gang (Count 1), drug trafficking (Counts 3 and 16), hаving a weapon while under disability (Count 15), drug possession (Counts 17 and 18), and possessing criminal tools (Count 19). Counts 3, 16, 17, and 18 contained one-year firearm specifications, and Counts 15 through 19 sought forfeiture of a gun, money, a cеll phone, a scale, and other property.
{¶3} The state amended Count 18 to delete the firearm specification, and Wilson pleaded guilty to Counts 1, 15, 16, 18 (as amended), and 19. An agreed recommended sеntence of eight years was presented to the trial court.
{¶4} At sentencing, the trial court did not impose the parties’ agreed recommended sentence, but imposed a seven-year sentence on Count 1; 18 months on Count 15; six months on Count 16, with the one-year firearm specification to be served prior and consecutive to the six-month sentence; twelve months on Count 18; and twelve months on Count 19. Counts 1 and 16 were оrdered to be served consecutively, and Counts 15, 18, and 19 were ordered to run concurrently, for a total sentence of eight and one-half years. Wilson now appeals, raising four assignments of error, which will be addressed out of order.
{¶5} In his second assignment of error, Wilson contends that the trial court erred in failing to grant his motion for relief from joinder. We initially note that the trial court did not rule on Wilson‘s motion for relief from joinder prior to his guilty plea. Accordingly, we presume that the motion was overruled. See State v. Duncan, 8th Dist. Cuyahoga No. 97208, 2012-Ohio-3683, ¶ 4 (motions not ruled on when a trial court enters final judgment are considered denied); State v. Ryerson, 12th Dist. Butler No. CA2003-06-153, 2004-Ohio-3353, ¶ 55 (there is a “general rule that pretrial motions not ruled upon will ordinarily be presumed to have been overruled“).
{¶6} When a defendant enters a guilty plea, he generally waives all appealable errors that may have occurred unless such errors are shown to have precluded the defendant from entering a knowing and voluntary plea. State v. Jabbaar, 8th Dist. Cuyahoga No. 98212, 2013-Ohio-2897, ¶ 5; State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5; State v. Kelly, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus. This waiver includes the right to challenge the denial of a
{¶7} Wilson contends on appeal that the trial court‘s failure to grant his motion affected the knowing and voluntary nature of his plea. However, Wilson fails to explain how the trial court‘s denial affected his plea. At the time Wilson entered his guilty plea,
{¶8} Accordingly, there is no indication in the record, and Wilson has fаiled to demonstrate, that joinder of the cases had any affect on Wilson‘s decision to enter into a plea, or that the trial court‘s subsequent “denial” to sever the cases rendered Wilson‘s plea involuntary. Wilson‘s second assignment of error is overruled.
II. Disqualification of Counsel and Plea
{¶9} Wilson contends in his third assignment of error that the trial court erred by failing to remove his appointed counsel and in accepting his plea, which was not made knowingly, voluntarily, or intelligently. Again, unless Wilson demonstrates how the trial court‘s alleged error precluded him from entering a knowing and voluntary plea, the issue is deemed waived.
{¶10} On appeal, Wilson maintains that the trial court should have granted his motion because the mere allegation of attorney misconduct demonstrates there was a “breakdown in the attorney client relationship of such magnitude as to jеopardize a defendant‘s right to effective assistance of counsel.” This argument does not challenge the nature of his plea, but merely the trial court‘s discretion in denying his motion.
{¶11} A review of the recоrd demonstrates that Wilson moved for his appointed counsel to be removed because he was dissatisfied with counsel‘s performance, and
{¶12} Wilson fails to explain on appeal how the trial court‘s decision denying his request for removal affected the knowing and voluntary nature of his plеa. The record demonstrates that the trial court engaged in a thorough and complete
{¶13} Accordingly, Wilson‘s third assignment of error is overruled.
III. Effective Assistance of Counsel
{¶14} Wilson contends in his fourth assignment of error that he was deprived of effective assistance of counsel because (1) the motion for joinder was deficient, (2) counsel should have been removed, and (3) counsel agreed to recommend eight years, but Wilson wanted to advocate for a shorter sentence. Wilson contends that but for these deficiencies, he “would likely not have entered into his guilty plea.”
{¶15} A claim of ineffective assistance of counsel is likewise waived by a guilty plea, excеpt to the extent the ineffective assistance of counsel caused the defendant‘s plea
{¶16} This court has already addressed Wilson‘s challenges regarding joinder and whether counsel should have been removed. With respect to Wilson‘s argument that he wanted to advocate for a shorter sentence, Wilson knew that the state and his counsel had agreed to recommend a sentence of еight years to the trial court. And nothing in the record demonstrates that he was prevented from presenting mitigating evidence on his behalf. In fact, when Wilson advised the court that he was promised an eight-year sentence, the trial court reminded him that the eight-year sentence was only an agreed recommendation, but was not binding on the court — “[t]he court could sentence you to anything below that or above that within thе range allowed by law of your plea.” (Tr. 55-56.) Accordingly, Wilson could have advocated for a lesser sentence than the agreed eight-year sentence.
{¶17} Finally, during the plea colloquy, Wilson stated that he was satisfied with his counsel‘s representation. He made no representations during the plea hearing or subsequently during sentencing that his plea was the result of inadequacies or deficiencies in his counsel‘s representations. Based on the foregoing, Wilson has failed to demonstrate how counsel‘s performance prejudiced him or rendered his plea involuntary.
{¶18} Accordingly, his fourth assignment of error is overruled.
{¶19} In his first assignment of error, Wilson contends that the trial court erred by sentencing him to multiple consecutive sentences. Wilson concedes that the trial court made the requisite
{¶20} However, the Ohio Supreme Court clearly stated in Bonnell that where a trial court makes the requisite findings prior to imposing consecutive sentences on the record at sentencing, its failure to incorporate those findings in the court‘s sentencing journal entry does not make the sentence contrary to law; rather, the remedy is to issue a nunc pro tunc to accurately reflect what transpired in open court at sentencing. Bonnell at ¶ 30. Accordingly, Wilson‘s argument lacks merit.
{¶21} Wilson alternatively argues that the imposition of consecutive sentences is contrary to law becausе the record does not support the trial court‘s findings. He makes no argument how or why the record does not support the sentences, but maintains that the recommended sentence of eight years would hаve been sufficient because his offenses “are not the most serious crimes of this nature.” These mere assertions do not satisfy
{¶22} Accordingly, the trial court made the appropriate consecutive sentence findings and engaged in the analysis required under
{¶23} Judgment аffirmed; case remanded for the issuance of a nunc pro tunc sentencing journal entry.
It is ordered that appellee recover from appellant 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. The defendant‘s cоnvictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for issuance of nunc pro tunc sentencing journal entry and execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., and
ANITA LASTER MAYS, J., CONCUR