State v. Wright , 2011 Ohio 3583 ( 2011 )

[Cite as State v. Wright, 2011-Ohio-3583.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95634
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM WRIGHT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-534039
BEFORE: Celebrezze, J., Blackmon, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: July 21, 2011
ATTORNEY FOR APPELLANT
Eric Norton
Norton Law Firm Co., L.P.A.
12434 Cedar Road
Suite 6
Cleveland, Ohio 44106
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ALSO LISTED
William Wright
Inmate No. A591-063
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, William Wright, brings this appeal challenging his
four-year prison sentence for having weapons while under disability and child
endangerment, and the denial of his motion to withdraw his guilty plea.
After a thorough review of the record and law, we affirm appellant’s sentence
and decline to address his other assigned error.
{¶ 2} The record in this case is sparse, but the following facts were
gleaned from appellant’s affidavit, various pleadings, and journal entries.
On February 5, 2010, appellant was working with co-defendant, Loren Webb,
at a recording studio appellant had set up at the home of his girlfriend,
Felishia Robinson, where appellant also resided. A Cleveland police officer
posing as a Federal Express employee delivered a package to the address, and
Webb signed for and accepted the package. A few minutes later, Cleveland
police officers entered the home. Appellant avers that he, Webb, and
Robinson were placed in handcuffs. Officers showed appellant that the
package Webb had signed for contained marijuana. Appellant further stated
that a police officer asked him if there was anything in the house they should
know about. He told the officer about some guns located in the attic.
According to appellant, these guns were secured behind two locked doors and
stored in a locked gun safe. Appellant averred that he did not have a key to
the doors or the safe.
{¶ 3} Appellant was arrested and on, March 4, 2010, indicted along
with Webb for drug trafficking, drug possession, possession of criminal tools,
and individually for having weapons while under disability and child
endangerment. As part of a plea agreement, appellant pled guilty to having
weapons while under disability and child endangerment, and the remaining
counts were dismissed. On July 28, 2010, appellant was sentenced to a
four-year term of incarceration and a $250 fine for having a weapon while
under disability and fined $250 for child endangerment. Appellant was
ordered to forfeit two guns, and the court also suspended his driver’s license
until January 28, 2011.
{¶ 4} Appellant then appealed from his sentence, including the
sentencing entry, in his notice of appeal. After filing this notice, he filed a
motion to withdraw his guilty plea with the trial court on October 7, 2010.
The trial court denied this motion on October 13, 2010 without holding a
hearing. Appellant also assigns an error related to this denial, but failed to
separately appeal it or amend his notice of appeal.
Law and Analysis
Withdrawal of Plea
{¶ 5} Appellant first argues that “[t]he trial court abused its discretion
in denying [his] motion to withdraw guilty plea, thereby violating his rights to
substantive and procedural due process guaranteed by Article I, Section 10 of
the Ohio Constitution and the Fifth and Fourteenth Amendments to the
United States Constitution.” However, appellant’s notice of appeal does not
include the journal entry denying this motion. Appellant failed to separately
appeal this issue.
{¶ 6} App.R. 3(D) specifies that a notice of appeal “shall designate the
judgment, order or part thereof apealed [sic] from[.]” In Parks v. Baltimore
& Ohio RR. (1991), 77 Ohio App.3d 426, 428, 602 N.E.2d 674, this court noted
that it had previously held that a court of appeals is “without jurisdiction to
review a judgment or order which is not designated in the appellant’s notice
of appeal.” Id., citing Schloss v. McGinness (1984), 16 Ohio App.3d 96, 97-98,
474 N.E.2d 666. This court has applied this holding to cases similar to the
one here. See State v. Kennedy, Cuyahoga App. No. 79143, 2002-Ohio-42;
State v. Millhouse, Cuyahoga App. No. 79910, 2002-Ohio-2255, ¶51-52.
Appellant failed to amend his notice of appeal according to the procedures set
forth in App.R. 3(F) or file a separate notice from the denial of his motion to
withdraw his plea.
{¶ 7} Because this assignment of error addresses issues outside the
scope of the present appeal, it will not be addressed.
Length of Sentence
{¶ 8} Appellant next argues that “[t]he trial court abused its discretion
by sentencing [him] to a four-year prison term on his conviction for one count
of having weapons while under disability, thereby violating his rights to
substantive and procedural due process and cruel and unusual punishment
guaranteed by Article I, Section 10 of the Ohio Constitution and the Fifth,
Eighth and Fourteenth Amendments to the United States Constitution.”
{¶ 9} This court reviews sentencing errors under the two-prong
approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124. See State v. Brunning, Cuyahoga App. No. 95376,
2011-Ohio-1936, ¶16, fn. 2. Under Kalish, we first review whether the
sentence is clearly contrary to law. Our review of this issue is focused on the
permissible punishments for a given charge and applicable rules and statutes
to determine whether the sentence falls within those bounds. Id at ¶25. If
it is not clearly and convincingly contrary to law, we review the sentence for
an abuse of discretion. Id.{¶ 10} Appellant pled guilty to possessing weapons while under
disability, a third degree felony, punishable by up to five years in prison.
R.C. 2923.13(B); R.C. 2929.14(A)(3). The court also imposed a $250 fine,
which is allowed under R.C. 2929.18(A)(3)(c). The four-year prison term falls
within the permissible penalty for a third degree felony; therefore, it is not
clearly contrary to law.
{¶ 11} The trial court also suspended appellant’s driver’s license until
January 28, 2011, which is not provided for by statute for a
weapon-under-disability conviction. This portion of appellant’s sentence is
contrary to law. While R.C. 2953.08(G)(2) provides that this court may
“increase, reduce or otherwise modify a sentence * * * or may vacate the
sentence and remand the matter to the sentencing court for resentencing”
upon finding it contrary to law, that part of appellant’s sentence that is
contrary to law has expired. Any remedy granted by this court would have
no effect. Therefore, the trial court’s error in suspending appellant’s drivers
license is moot.
{¶ 12} The remainder of appellant’s sentence is not clearly contrary to
law. Therefore, we proceed under the second prong of Kalish to determine
whether the trial court abused its discretion in crafting appellant’s sentence.
{¶ 13} The purposes and principles for felony sentencing are set forth in
R.C. 2929.11, and R.C. 2929.12 gives trial courts guidance in applying these
goals. Appellant urges this court to review the sentencing transcript “to
determine whether the trial court ever expressly states that it considered the
purposes of” these statutes. However, appellant failed to provide a copy of
the sentencing transcript.1 All we are left with to review is the sentencing
entry, which specifically states: “The court considered all required factors of
the law. The court finds that prison is consistent with the purpose of R.C.
2929.11.” In the absence of evidence in the record to the contrary, we must
uphold these pronouncements and find that the trial court considered the
purposes and principles of felony sentencing and did not abuse its discretion.
{¶ 14} Appellant’s second assignment of error is overruled.
Appellant filed a motion to supplement the record, which was granted by
1
this court on February 22, 2011, but it appears that appellant failed to file the
transcript. Appellant is tasked with providing the record for this court’s review
and, in the absence of such a record, this court must presume regularity of the
proceedings below. In re Guardianship of Muehrcke, Cuyahoga App. Nos. 85087
and 85183, 2005-Ohio-2627, ¶15-16.
Judgment affirmed.
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. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA ANN BLACKMON, P.J., and
MARY J. BOYLE, J., CONCUR