State v. Nix , 2018 Ohio 4702 ( 2018 )

[Cite as State v. Nix, 2018-Ohio-4702.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106894
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BOBBY NIX, II
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-623461
BEFORE: E.A. Gallagher, A.J., Laster Mays, J., and Jones, J.
RELEASED AND JOURNALIZED: November 21, 2018
ATTORNEY FOR APPELLANT
Amichai Eitan Zukowsky
Zukowsky Law Firm L.L.C.
23811 Chagrin Boulevard, Suite 160
Beachwood, Ohio 44122
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Khalilah Lawson
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, A.J.:
{¶1} Defendant-appellant Bobby Nix, appeals his sentence after he pled guilty to one
count of drug possession and was sentenced accordingly. Nix contends his sentence should be
vacated because the trial court failed to advise him of his right to appeal as set forth in Crim.R.
32(B). Finding no merit to his appeal, we affirm.
{¶2} On January 30, 2018, Nix pled guilty to one count of drug possession in violation of
R.C. 2925.11 and the trial court sentenced him to 11 months in prison, plus three years’
discretionary postrelease control.
{¶3} On March 5, 2018, Nix filed, pro se, a notice of appeal, a motion for leave to file a
delayed appeal based on the trial court’s failed to advise him of his appellate rights at sentencing
and a motion for appointment of counsel. This court granted Nix’s motion for leave to file a
delayed appeal and appointed counsel to represent him. In his sole assignment of error, Nix
contends that his sentence should be vacated because the trial court failed to notify him of his
appellate rights after sentencing, in violation of Crim.R. 32(B).
{¶4} Crim.R. 32(B) provides, in relevant part:
(2) After imposing sentence in a serious offense, the court shall advise the
defendant of the defendant’s right, where applicable, to appeal or to seek leave to
appeal the sentence imposed.
(3) If a right to appeal or a right to seek leave to appeal applies under division
(B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the
following:
(a) That if the defendant is unable to pay the cost of an appeal, the
defendant has the right to appeal without payment;
(b) That if the defendant is unable to obtain counsel for an
appeal, counsel will be appointed without cost;
(c) That if the defendant is unable to pay the costs of documents
necessary to an appeal, the documents will be provided without
cost;
(d) That the defendant has a right to have a notice of appeal
timely filed on his or her behalf.
Upon defendant’s request, the court shall forthwith appoint counsel for
appeal.
{¶5} In this case, the transcript from the sentencing hearing contains no advisement of
Nix’s appellate rights under Crim.R. 32(B). However, we find the trial court’s failure to notify
Nix of his appellate rights to be harmless. Nix has not claimed (much less demonstrated) any
prejudice as a result of the trial court’s error.
{¶6} As this court has previously held, a trial court’s failure to advise a defendant of his
or her appellate rights at sentencing renders the sentence voidable, not void. See, e.g., State v.
Davner, 2017-Ohio-8862, 100 N.E.3d 1247, ¶ 36, fn. 6 (8th Dist.), citing State v. Gum, 8th Dist.
Cuyahoga No. 101496, 2015-Ohio-1539, ¶ 8. Where the trial court fails to advise a defendant
of his appellate rights at sentencing, the remedy is not “a complete re-sentencing hearing”; it is to
have the trial court reenter the judgment of conviction against the defendant, thereby reinstating
the time within which the defendant may file a notice of appeal pursuant to App.R. 4(A). See,
e.g., Davner at ¶ 36, fn.6; State v. Gum, 8th Dist. Cuyahoga No. 100156, 2014-Ohio-401, ¶ 5, fn.
2.
{¶7} In this case, after his sentencing, Nix filed, pro se, a motion for leave to file a
delayed appeal. Because Nix’s motion to file a delayed appeal was granted and counsel was
appointed to represent him in the appeal, Nix was “able to effect a timely appeal through
counsel” and has not been prejudiced by the trial court’s failure to advise him of his appellate
rights. State v. El, 8th Dist. Cuyahoga No. 105089, 2017-Ohio-8165, ¶ 13. Accordingly, the
trial court’s failure to notify Nix of his right to appeal his sentence is, therefore, harmless. See,
e.g., id. at ¶ 12-13; State v. Hunter, 8th Dist. Cuyahoga No. 99472, 2013-Ohio-5022, ¶ 24; see
also State v. Thomas, 8th Dist. Cuyahoga No. 94788, 2011-Ohio-214, ¶ 38 (defendant’s
argument that the trial court failed to advise him of his appellate rights under Crim.R. 32(B) was
“moot” where appellate court granted defendant’s motion for delayed appeal and subsequently
appointed appellate counsel to represent him in the appeal).
{¶8} Further, the only error Nix has claimed in this appeal is the trial court’s failure to
notify him of his appellate rights. Nix has not claimed the existence of any other error for
which he contends relief would be warranted on appeal.
{¶9} Nix’s assignment of error is overruled.
{¶10} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County
Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR