State v. Moore

[Cite as State v. Moore, 2013-Ohio-4491.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99360
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILBERT MOORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-553535 and CR-554116
BEFORE: S. Gallagher, J., Stewart, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: October 10, 2013
FOR APPELLANT
Wilbert Moore, pro se
Inmate #620-551
P.O. Box 8107
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Marcus A. Henry
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Wilbert Moore appeals from his convictions for several
drug-related offenses. Finding no merit to the appeal, we affirm the decision of the trial
court.
{¶2} This appeal arises from two underlying cases, Cuyahoga C.P. Nos.
CR-553535 and CR-554116. Appellant was indicted on several drug-related counts in
each case. Following initial proceedings, appellant entered into a plea agreement with
the state.
{¶3} In CR-553535, appellant pleaded guilty to one count of drug trafficking, a
felony of the third degree, with forfeiture specifications, and the remaining counts were
nolled. The trial court sentenced appellant to 36 months in prison. In CR-554116,
appellant pleaded guilty to one count of drug trafficking, a felony of the fourth degree,
with forfeiture specifications, and the remaining counts were nolled. The trial court
sentenced appellant to 12 months in prison. The trial court also ordered appellant to
serve the prison sentences concurrently.
{¶4} This court granted appellant leave to file a delayed appeal and granted
appointment of counsel. Thereafter, appellant’s counsel filed a motion to withdraw with
an Anders brief in support. The motion was granted, and appellant was afforded time to
submit a pro se brief. Appellant’s brief raises five assignments of error for our review.
{¶5} Under his first three assignments of error, appellant argues that (1) the trial
court erred in failing to hold a hearing on defense counsel’s motion to withdraw as
counsel and denied him the right to the effective assistance of counsel; (2) the trial court
erred in failing to hold a forfeiture hearing; and (3) the trial court erred in failing to
compel the state to disclose the identity of a confidential informant. However, by
entering a valid guilty plea, appellant made a complete admission of guilt and waived his
right to raise these issues on appeal.
{¶6} The Ohio Supreme Court has held that a plea of guilty made pursuant to a
plea agreement effectively waives all appealable errors, unless such errors are shown to
have precluded the defendant from voluntarily entering his plea. State v. Kelley, 57 Ohio
St.3d 127, 130, 566 N.E.2d 658 (1991).
{¶7} In this case, there is nothing in the record to suggest that appellant’s plea was
coerced or involuntarily entered. In fact, appellant represented at the plea hearing that he
was satisfied with defense counsel’s representation and that his plea was being entered of
his own free will and desire. He also indicated that there had been no promises, threats,
or other inducements that caused him to enter his plea. The record reflects that the trial
court complied with the requirements of Crim.R. 11 and that appellant entered a valid
guilty plea. Further, appellant was informed of the forfeiture during the plea colloquy,
and as part of the plea bargain, he openly forfeited the agreed-upon items.
{¶8} Upon our review, we find that by entering a valid guilty plea, appellant
waived his right to raise the alleged presentence errors. Appellant’s first, second, and
third assignments of error are overruled.
{¶9} Under his fourth assignment of error, appellant claims the trial court erred by
failing to conduct a hearing into his alleged community control sanction violations. A
review of the record reflects that during the plea colloquy, appellant indicated he was on
probation at the time of the present offenses. The trial court advised appellant that he
could face a sentence for any probation violation that could run consecutive to any
sentence imposed for his plea in the case. However, during sentencing, the trial court did
not reference or otherwise determine appellant to be a community control violator, nor
did the court impose a sentence for any such violation. Therefore, we find no merit to
the fourth assignment of error.
{¶10} Under his fifth assignment of error, appellant asserts that the trial court
lacked subject matter jurisdiction for the case because there is no indication in the record
of a criminal complaint that was made under oath pursuant to Crim.R. 3. However, the
charges against appellant did not originate from a complaint, but rather, they were
brought under two separate indictments that were properly before the trial court. “A
criminal case may be instituted not only by a complaint, but also by an indictment or by
information.” Richardson v. Winston, 8th Dist. Cuyahoga No. 80425, 2001 Ohio App.
LEXIS 5083 (Nov. 15, 2001); see also Crim.R. 3 and 7. Further, even if there had been
a defect relating to the issuance of a criminal complaint, it would have been rendered
harmless by the issuance of the indictment and had no effect upon the subject matter
jurisdiction of the trial court. See State v. Porterfield, 11th Dist. Trumbull No.
2012-T-0039, 2013-Ohio-14, ¶ 11; State v. Henderson, 8th Dist. Cuyahoga No. 95655,
2012-Ohio-1040, ¶ 44. As the Ohio Supreme Court has recognized, the manner of
charging an accused with a crime is procedural in nature, as opposed to jurisdictional, and
the judgment on a conviction arising from an indictment is binding on the defendant.
Gotel v. Gansheimer, 116 Ohio St.3d 316, 2007-Ohio-6437, 878 N.E.2d 1041, ¶ 6.
Appellant’s fifth assignment of error is overruled.
{¶11} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
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.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR