State v. Craig , 2015 Ohio 5541 ( 2015 )

[Cite as State v. Craig, 2015-Ohio-5541.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103020
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRIUS CRAIG
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-14-588007-A and CR-15-593290-A
BEFORE: Keough, P.J., Boyle, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: December 31, 2015
ATTORNEY FOR APPELLANT
Thomas A. Rein
700 W. St. Clair Avenue, Suite 212
Cleveland, Ohio 44113
Demetrius Craig, pro se
Cuyahoga County Jail
PO Box 5600
Cleveland, OH 44101
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Demetrius Craig, appeals his convictions for attempted
felonious assault and having weapons while under disability. Craig’s appointed counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1997), and
now seeks leave to withdraw as counsel. After a thorough review of the record, we grant
counsel’s request to withdraw and we dismiss the appeal.
{¶2} In Cuyahoga C.P. No. CR-14-588007, Craig was charged with two counts of
felonious assault, each of which contained a notice of prior conviction and a repeat violent
offender specification. He was also indicted under Cuyahoga C.P. No. CR-15-593290 for
having a weapon while under disability, carrying a concealed weapon, and improperly handling a
firearm in a motor vehicle. The indictment also sought forfeiture of the firearm.
{¶3} Craig entered into a plea agreement with the state where he agreed to plead guilty to
attempted felonious assault in CR-14-588007 and having a weapon while under disability,
including the attendant forfeiture specification, as charged in CR-15-593290. All other charges
in both cases would be dismissed. As part of the plea agreement, Craig agreed to pay as
restitution one-third of the medical expenses, with his share not to exceed $3,300, incurred by the
victim in CR-14-588007.
{¶4} During sentencing and in open court, the trial court sentenced Craig on the
attempted felonious assault charge in Case No. CR-14-588007. The court ordered that Craig
serve 120 days in the county jail, less time served, and three years of community control
sanctions, to be served concurrently. However, when the trial court journalized the sentence, it
ordered Craig to serve 180 days in jail, less time served.1 Craig was also ordered to pay $1,333
in restitution to the victim.
{¶5} In Case No. CR-15-593290 and in open court, the trial court sentenced Craig to 180
days in the county jail, less time served, and three years of community control sanctions.
However, when the trial court journalized the sentence, it ordered Craig to serve only 120 days in
jail, less time served.2 The court also ordered the firearm forfeited. The sentences in both cases
were ordered to run concurrently; Craig was appointed appellate counsel.
{¶6} Based on the belief that no prejudicial error occurred below and that any grounds for
appeal would be frivolous, Craig’s appellate counsel filed a motion to withdraw pursuant to
Anders, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493.
{¶7} Anders outlines the procedure counsel must follow to withdraw as counsel due to the
lack of any meritorious grounds for appeal. In Anders, the United States Supreme Court held
that if counsel thoroughly reviews the record and concludes that the appeal is “wholly frivolous,”
he may advise the court of that fact and request permission to withdraw from the case. Anders at
744. However, counsel’s request to withdraw must “be accompanied by a brief referring to
anything in the record that might arguably support the [a]ppeal.” Id. Counsel must also furnish
a copy of the brief to his client in sufficient time to allow the appellant to file his own brief, pro
se. Id.1
This clerical error can be corrected nunc pro tunc at any time by the trial court. See Crim.R. 36 (“Clerical
mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or
omission, may be corrected by the court at any time.”). “Although trial courts generally lack authority to
reconsider their own valid final judgments in criminal cases, they retain continuing jurisdiction to correct clerical
errors in judgments by nunc pro tunc entry to reflect what the court actually decided.” State ex rel. Womack v.
Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 13, citing State ex rel. Cruzado v. Zaleski, 111
Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19.
2
This clerical error can be corrected nunc pro tunc at any time by the trial court. See Crim.R. 36; Womack
at id.{¶8} In this case, appointed counsel complied with the requirements of Anders and
Loc.R. 16(C). This court allowed Craig until October 2, 2015, to file a pro se brief; no brief has
been filed.
{¶9} Pursuant to Loc.R. 16(C) and Anders, the appellate court must complete an
independent examination of the trial proceedings to determine if any arguably meritorious issues
exist. Id.; Anders, 386 U.S. at 744, 87 S.Ct.1396, 18 L.Ed.2d 493.. If the appellate court
determines there are no meritorious issues, and the appeal is “wholly frivolous,” it may grant
counsel’s request to withdraw and address the merits of the case without affording the appellant
the assistance of counsel. Anders at id. If, however, the court finds the existence of a
meritorious issue, it must afford the appellant assistance of counsel before deciding the merits of
the case. Id.{¶10} Craig’s appointed counsel states in his Anders brief that he has reviewed the
record, including the transcripts of the proceedings, and concluded he could find no error by the
trial court that is prejudicial to Craig’s rights. Nevertheless, counsel presents one potential issue
for our review pursuant to Anders — whether Craig was properly and sufficiently advised of his
Crim.R. 11 rights prior to the trial court making a finding that Craig knowingly, voluntarily, and
intelligently entered his plea of guilty.
{¶11} Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony matter, a trial
court must personally address the defendant and (1) determine that the defendant is making the
plea voluntarily, with an understanding of the nature of the charges and the maximum penalty;
(2) inform the defendant of and determine that the defendant understands the effect of the plea,
and that the court may proceed with judgment after accepting the plea; and (3) inform the
defendant and determine that the defendant understands that he is waiving his constitutional
rights to a jury trial, to confront the witnesses against him, to call witnesses in his favor, and to
require the state to prove his guilt beyond a reasonable doubt at a trial where the defendant
cannot be forced to testify against himself.
{¶12} Counsel asserts that the trial court complied with the requirements of Crim.R.
11(C) and that Craig’s guilty plea was made knowingly, intelligently, and voluntarily. We have
conducted an independent examination of the record on this issue and also find that the trial court
complied with the requirements of Crim.R. 11(C) prior to accepting Craig’s pleas. Craig was
advised of his constitutional rights and potential penalties. He indicated at the plea hearing that
he understood the rights he was waiving by pleading guilty and that he understood the effect of
his plea. He also agreed to pay his share of restitution to the victim.
{¶13} Accordingly, no meritorious argument could be made that Craig’s plea was not
made knowingly, intelligently, and voluntarily. We therefore conclude that Craig’s appeal is
wholly frivolous pursuant to Anders; there is nothing in the record that might arguably support
the appeal. Counsel’s request to withdraw is granted, and the appeal is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR