State v. Nolin

[Cite as State v. Nolin, 2013-Ohio-477.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 12CA40
CRYSTAL NOLIN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 12CR0026D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. KRISTIN E. BROWN
PROSECUTING ATTORNEY Calhoun, Kademenos & Childress, LPA
RICHLAND COUNTY, OHIO Suite 200
6 West Third Street
BY: JILL M. COCHRAN Mansfield, Ohio 44901
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 12CA40 2
Hoffman, J.
{¶1} Defendant-appellant Crystal Nolin appeals her conviction and sentence
entered by the Richland County Court of Common Pleas. Plaintiff-appellee is the state
of Ohio.
STATEMENT OF THE CASE1
{¶2} On February 13, 2012, Appellant entered a plea of no contest to the
charges of illegal conveyance of weapons or prohibited items onto the grounds of a
specified governmental facility, in violation of R.C. 2921.36(A)(2), and trafficking in
marijuana, in violation of R.C. 2925.03(A), pursuant to a negotiated plea agreement.
Appellant agreed to proffer and testify truthfully and usefully against her co-defendant, if
necessary, in exchange for the State’s recommendation of probation or community
correction at sentencing.
{¶3} On April 23, 2012, the trial court conducted a sentencing hearing. At the
sentencing hearing, Appellant maintains the trial court informed her a failing score on
her presentence investigation for placement into a community based correctional
facility, denied her entrance into the program. Further, her prior history of violence,
most recently demonstrated while awaiting sentencing in jail, and her high risk for drugs,
antisocial behavior, violence and stress, precluded her acceptance into a community
based correctional facility. The trial court informed Appellant the only way she could
have been granted community control would have been if she had been placed in a
residential treatment program, which she was not; therefore, the trial court sentenced
Appellant to prison.
1
A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Richland County, Case No. 12CA40 3
{¶4} The trial court proceeded to sentence Appellant to twenty-four months in
prison on the charge of illegal conveyance and eight months in prison on the trafficking
count, the terms to be served concurrently. The trial court further informed Appellant
she would be released from prison early should she be accepted into a community
based correctional facility.
{¶5} Appellant did not object to her sentence at the sentencing hearing, and did
not request to withdraw her plea.
{¶6} Appellant now appeals, assigning as error:
{¶7} “I. THE TRIAL COURT ERRED BY FAILING TO GIVE NOLIN THE
OPPORTUNITY TO WITHDRAW HER ‘NO CONTEST’ PLEA PRIOR TO
SENTENCING ONCE IT BECAME APPARENT THAT THE COURT INTENDED TO
DEVIATE FROM THE TERMS OF THE PLEA AGREEMENT IN SENTENCING.”
{¶8} In the sole assignment of error, Appellant maintains the trial court abused
its discretion in deviating from the terms of the plea agreement without giving Appellant
the opportunity to withdraw her plea.
{¶9} Initially, we note, Appellant has failed to include a transcript of the
February 13, 2012 change of plea hearing as part of the record in this appeal.
{¶10} In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384,
the Ohio Supreme Court held: "The duty to provide a transcript for appellate review falls
upon the appellant. This is necessarily so because an appellant bears the burden of
showing error by reference to matters in the record."
{¶11} If the trial court accepted a plea agreement prior to accepting Appellant's
plea, it would have occurred during and been recorded in the change of plea hearing.
Richland County, Case No. 12CA40 4
Similarly, if the trial court informed Appellant the court was not bound to accept the
recommended sentence, it would have done so at the sentencing hearing.
{¶12} However, the transcript of the change of plea hearing is not included in the
record on appeal.
{¶13} Without the transcript of the proceedings, Appellant is unable to
affirmatively demonstrate violation of a plea agreement. Absent a formal motion to
withdraw the plea, the trial court did not error in proceeding to sentence Appellant.
{¶14} The sole assignment of error is overruled.
{¶15} Appellant's conviction and sentence in the Richland County Court of
Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur
s/ William B. Hoffman_________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
Richland County, Case No. 12CA40 5
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CRYSTAL NOLIN :
:
Defendant-Appellant : Case No. 12CA40
For the reason stated in our accompanying Opinion, Appellant's conviction and
sentence entered by the Richland County Court of Common Pleas is affirmed. Costs to
Appellant.
s/ William B. Hoffman_________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER