State v. Johnson , 2020 Ohio 2826 ( 2020 )

[Cite as State v. Johnson, 2020-Ohio-2826.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108661
v. :
KWAIMANE JOHNSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 7, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-633200-B and CR-18-635631-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Ochocki, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
LARRY A. JONES, SR., J.:
Defendant-appellant Kwaimane Johnson (“Johnson”) appeals his
convictions in two cases. Finding no merit to the appeal, we affirm.
In Cuyahoga C.P. No. CR-18-633200-B, Johnson was indicted on
two counts of aggravated robbery and one count each of theft, having weapons
while under disability, and grand theft. The aggravated robbery and theft counts
contained one- and three-year firearm specifications. Johnson was also indicted in
Cuyahoga C.P. No. CR-18-635631-A on one count each of aggravated robbery,
grand theft (motor vehicle), carrying a concealed weapon, having weapons under
disability, and theft. The aggravated robbery and grand theft counts contained
one- and three-year firearm specifications.
In May 2019, Johnson entered guilty pleas in both cases. In Case
No. CR-18-633200-B, he pleaded guilty to an amended count of robbery, in
violation of R.C. 2911.02(A)(1), with a one-year firearm specification. In Case No.
CR-18-635631-A, Johnson pleaded guilty to one count of aggravated robbery, in
violation of R.C. 2911.01(A)(1), with a three-year firearm specification. The
remaining counts in both cases were nolled and the parties jointly recommended a
12-year sentence. The trial court imposed the recommended sentence at a
later sentencing hearing.
It is from this plea and sentence that Johnson now appeals, raising
two assignments of error for our review:
I. Failure to advise Mr. Johnson of his appellate rights renders his
sentence void.
II. Mr. Johnsons’ plea was not knowing, intelligent, or
voluntary when he was never informed of his appellate rights or
the implications that entering a jointly recommended sentence
could have on his appellate rights.
In the first assignment of error, Johnson contends that his sentence
is void because the trial court failed to advise him of his right to appeal.
Crim.R. 32(B) provides that “[a]fter 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” and shall
also inform the defendant of certain rights, including the right to counsel and the
right to a timely appeal. This court has held that the trial court’s failure to advise a
defendant of his or her appellate rights renders the sentence voidable, not
void. State v. Nix, 8th Dist. Cuyahoga No. 106894, 2018-Ohio-4702, ¶ 6,
citing State v. Davner, 2017-Ohio-8862, 100 N.E.3d 1247 (8th Dist.). When a trial
court fails to advise a defendant of his or her appellate rights at sentencing, the
remedy is not a complete resentencing 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). Nix at ¶ 7.
After sentencing, Johnson filed a timely notice of appeal and was
subsequently appointed counsel to represent him. Counsel secured a copy of the
transcript at the state’s expense. Thus, the trial court’s failure to advise Johnson of
his appellate rights was harmless and did not render his sentence void. See id.The first assignment of error is overruled.
In the second assignment of error, Johnson contends that the trial
court’s failure to advise him of his appellate rights rendered his plea invalid.
Johnson argues that his guilty pleas were not knowingly,
voluntarily, and intelligently made because the trial court failed to inform him that
he would be waiving his right to appeal his sentence. Johnson does not argue that
the trial court failed to comply with Crim.R. 11 during his plea hearing; his sole
argument is that the trial court’s failure to advise him of his appellate rights
rendered his plea void.
This court has consistently held that the failure to file a Crim.R. 32.1
motion to withdraw a plea or otherwise challenge a guilty plea at the trial court
level constitutes a waiver of the issue on appeal. State v. Carmon, 8th Dist.
Cuyahoga No. 75377, 1999 Ohio App. LEXIS 5458, 7 (Nov. 18, 1999); State v.
Betances, 8th Dist. Cuyahoga No. 70786, 1997 Ohio App. LEXIS 3011 (July 10,
1997); see also State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986).
Notwithstanding Johnson’s failure to properly preserve the issue, we
review this case for plain errors or defects affecting substantial rights
under Crim.R. 52(B). Carmon at 8. Crim.R. 52(B) provides that “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought
to the attention of the court.” Plain error will be recognized only where, but for the
error, the outcome of the case would clearly have been different. State v. Sanders,
92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001). The Ohio Supreme Court has
admonished courts to notice plain error “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,
¶ 23.
A trial court’s duty to advise a defendant of his or her right to appeal
does not arise until sentencing and, therefore, has no effect upon whether the
defendant’s guilty plea was entered knowingly, voluntarily, and intelligently. State
v. Allen, 9th Dist. Summit Nos. 27494 and 28213, 2017-Ohio-2831, ¶ 15,
citing State v. Jordan, 9th Dist. Summit No. 27690, 2015-Ohio-4354. “The failure
to inform a defendant that a guilty plea waives certain rights on appeal is not one
of the specifically enumerated rights the trial court is required to discuss during
the Crim.R. 11 colloquy.” State v. Reynolds, 12th Dist. Madison No. CA2018-02-
005, 2018-Ohio-4942, ¶ 12, citing State v. Moxley, 12th Dist. Madison No. CA2011-
06-010, 2012-Ohio-2572.
Additionally, we note that R.C. 2953.08(D)(1) limits an appellate
court’s ability to review an agreed sentence. The statute provides:
A sentence imposed upon a defendant is not subject to review under
this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the
case, and is imposed by a sentencing judge.
Id. “[A] sentence is ‘authorized by law’ and is not appealable within the meaning
of R.C. 2953.08(D)(1) only if it comports with all the mandatory sentencing
provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 21. The Ohio Supreme Court has stated that the “General Assembly
intended a jointly agreed-upon sentence to be protected from review precisely
because the parties agreed that the sentence is appropriate. Once a defendant
stipulates that a particular sentence is justified, the sentencing judge no longer
needs to independently justify the sentence.” State v. Porterfield, 106 Ohio St.3d
5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 25.
Finally, we note that a trial court is not required to advise a defend-
ant of the R.C. 2953.08(D) bar to appellate review before imposing a jointly
recommended sentence that falls within the statutory range of available
sentences. State v. Robinson, 8th Dist. Cuyahoga Nos. 89222 and 89223, 2008-
Ohio-224, ¶ 14, citing State v. Atchley, 10th Dist. Franklin No. 04AP-841, 2005-
Ohio-1124, ¶ 10; see also Nix, 8th Dist. Cuyahoga No. 106894, 2018-Ohio-4702 at
¶ 7 (because the appellant filed a delayed notice of appeal and was assigned
counsel, appellant was “able to effect a timely appeal through counsel” and was not
prejudiced by the trial court’s failure to advise him of his appellate rights). The
jointly recommended sentence imposed in this case fell within the statutory range
and complied with all mandatory sentencing provisions.
Accordingly, the second assignment of error is overruled.
The trial court was not required to inform Johnson of his appellate
rights at the plea hearing. Any error in the trial court’s failure to inform Johnson
of his appellate rights at his sentencing hearing was harmless because Johnson was
able to effectuate a timely appeal.
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. The defendant’s
convictions having been affirmed, any bail pending is terminated. 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.
____________________________
LARRY A. JONES, SR., JUDGE
ANITA LASTER MAYS, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR