State v. Crews

[Cite as State v. Crews, 2021-Ohio-3799.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
ERICK L. CREWS, : Case No. CT2021-0011
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR-2018-0506
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 21, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH ERICK L. CREWS, Pro Se
Prosecuting Attorney Inmate Number A765-225
Muskingum County, Ohio Ross Correctional Institution
P.O. Box 7010
By: TAYLOR P. BENNINGTON Chillicothe, Ohio 45601
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2021-0011 2
Baldwin, P.J.
{¶1} Defendant-Appellant Erick L. Crews appeals from the February 3, 2021
Order of the Muskingum County Court of Common Pleas which granted plaintiff-appellee
State of Ohio’s Motion to Dismiss.
FACTS AND PROCEDURAL HISTORY
{¶2} A recitation of the underlying facts is unnecessary for our resolution of this
matter. On August 15, 2018, the Muskingum County Grand Jury returned an indictment
charging appellant and a co-defendant with various drug trafficking and drug-related
offenses. Appellant was named in counts 1, 3, 6, 7, 8, 11, and 12.
{¶3} Counts 1 and 3 charged appellant with trafficking in cocaine, a felony of the
first degree. Both counts included a forfeiture specification. Count 6 charged appellant
with permitting drug abuse, a felony of the fifth degree, and also contained a forfeiture
specification. Count 7 charged appellant with engaging in a pattern of corrupt activity, a
felony of the first degree. This count contained a major drug offender specification, a
firearm specification, and a forfeiture specification. Count 11 charged appellant with
having a weapons while under disability, a felony of the third degree, and Count 12
charged appellant with possession of drugs (methamphetamines), a felony of the third
degree. This Count also contained a firearm specification.
{¶4} A change of plea hearing was held on May 20, 2019. The state set forth the
status of its negotiations with appellant on the record stating appellant was prepared to
enter a “plea of guilty to Counts 1 of the indictment as amended and counts 6 and 7 as
contained in the indictment.” Transcript of plea (TP) at 4. The state further indicated it had
Muskingum County, Case No. CT2021-0011 3
agreed “to dismiss counts 11 and 12 and the major drug offender specifications only as
contained in counts 1 and 3 of the indictment at the time of sentencing.” TP 4.
{¶5} Appellant signed a written plea agreement outlining the agreed upon
charges. The agreement was presented to the trial court at the time of appellant's pleas.
Count seven of the agreement made no mention of the firearm specification. Moreover,
during the hearing the state made no mention of the firearm specification, nor did the trial
court include the specification during appellant's plea colloquy. Appellant entered no plea
to the firearm specification, and the state never raised an objection to the same. TP 4, 6-
7, 12-13. The matter was set over for sentencing following completion of a presentence
investigation.
{¶6} Following the plea hearing, on May 22, 2019 the trial court issued a
judgment entry containing the following language at paragraph three:
The Court finds the Defendant has had his constitutional rights fully
explained to him pursuant to Crim.R. 11, and now asks leave of this Court
to withdraw his former plea of “not guilty” and enter a plea of “guilty” to
Counts One and Seven as amended and Count Six as contained in the
indictment. Pursuant to plea negotiations, the State agrees to nolle Counts
Three, Eight, Eleven and Twelve as contained in the indictment and the
Major Drug Offender Specification attached to Count One and the Firearm
Specification attached to Count Seven at the time of sentencing.
{¶7} Neither the state nor appellant objected to this language.
{¶8} Appellant's sentencing hearing was held on July 22, 2019. He was
sentenced to an aggregate total of 15 years incarceration. At no point during the
Muskingum County, Case No. CT2021-0011 4
sentencing hearing was the firearm specification mentioned. Likewise, appellant's August
1, 2019 sentencing judgment entry makes no mention of the firearm specification.
{¶9} Appellant did not file a direct appeal. Instead, on February 7, 2020,
appellant filed a motion requesting the court to issue a final appealable order and conduct
a de novo sentencing hearing. Appellant cited the court's failure to dispose of the firearm
specification and its failure to address an allegedly mandatory driver's license
suspension. The state did not respond. On February 10, 2020, the trial court denied
appellant's motion.
{¶10} Appellant then filed an appeal, raising the following two assignments of
error:
{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
PREJUDICE OF APPELLANT CREWS AND VIOLATED HIS DUE PROCESS RIGHTS
GUARANTEED TO HIM BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ARTICLE I SECTION SIXTEEN OF THE OHIO
CONSTITUTION. WHEN THE TRIAL COURT DENIED APPELLANT'S MOTION TO
PROVIDE HIM WITH A FINAL APPEALABLE ORDER PURSUANT TO CRIM.R. 32(C)
AND R.C. 2505.02 OF THE OHIO REVISED CODE BY DISPOSING OF THE R.C.
2941.141 FIREARM SPECIFICATION ATTENDANT FOR COUNT 7 ENGAGING IN A
PATTERN OF CORRUPT ACTIVITY, A FELONY OF THE FIRST DEGREE.”
{¶12} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
PREJUDICE OF APPELLANT CREWS AND VIOLATED HIS DUE PROCESS RIGHTS
GUARANTEED TO HIM BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION. WHEN THE TRIAL COURT DENIED APPELLANT'S
Muskingum County, Case No. CT2021-0011 5
MOTION TO PROVIDE HIM WITH A FINAL APPEALABLE ORDER PURSUANT TO
CRIM.R. 32(C) AND R.C. 2505.02 OF THE OHIO REVISED CODE BY DISPOSING OF
THE MANDATORY DRIVERS LICENSE SUSPENSION FOR TRAFFICKING IN
DRUGS, A FELONY OF THE FIRST DEGREE.”
{¶13} While the appeal was pending, appellant, on April 1, 2020, filed a motion
asking the trial court to schedule a trial upon the undisposed charges/counts in the
indictment.
{¶14} Pursuant to an Opinion filed on June 29, 2020 in State v. Crews, Muskingum
App. No. CT2020-0014, 2020-Ohio-3511, this Court affirmed the February 10, 2020
judgment of the trial court, finding, in part, that there was a final appealable order.
{¶15} Appellee, on February 3, 2021, filed a Motion to Dismiss the Major Drug
Offender Specification and firearm specifications attached to specified counts in the
indictment as part of plea negotiations and in the interest of justice. The trial court,
pursuant to an Order filed on February 3, 2021, granted the motion.
{¶16} Appellant now appeals, raising the following assignments of error on
appeal:
{¶17} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
FUNDAMENTAL RIGHT TO BE PRESENT IN OPEN COURT AT ALL CRITICAL
STAGES OF HIS CRIMINAL PROCEEDINGS UNDER CRIM.R. 43(A) WHEN THE
TRIAL COURT PERMITTED THE STATE TO DISMISS COUNTS AND
SPECIFICATIONS IN THE INDICTMENT AND NOT IN OPEN COURT IN THE
PRESENCE OF APPELLANT.”
Muskingum County, Case No. CT2021-0011 6
{¶18} “II. THE TRIAL COURT ERRED IN NOT SCHEDULING [A] TRIAL DATE
UPON UNDISPOSED CHARGES/COUNTS IN THE INDICTMENT UNDER R.C.
[SECTION] 2945.02 OF THE OHIO REVISED CODE.”
{¶19} “III. THE TRIAL COURT ERRED WHEN IT RENDERED TWO SEPARATE
JUDGMENT ORDER ENTRIES UNDER THE SAME CASE NUMBER IN VIOLATION OF
THE BAKER ONE DOCUMENT RULE, CRIM.R. 32(C) AND ORC [SECTION] 2505.02,
THUS RENDERING THE JUDGMENT ORDER NON FINAL APPEALABLE ORDERS.”
I, II, III
{¶20} Appellant is appealing from the trial court’s February 3, 2021 Order granting
appellee’s February 3, 2021 Motion to Dismiss “Major Drug Offender Specification
attached to Count One, the Firearm Specification attached to Count Seven and Counts
Three Eight, Eleven and Twelve…”
{¶21} The trial court's February 3, 2021 Order dismissing specifications against
appellant does not fall under any of the categories in R.C. 2505.02 for being a final
appealable order. The State moved to dismiss the specifications in the indictment against
appellant which the trial court granted. As a result, appellant was placed in the same
position that he was in prior to filing of the State's charges against him. Thus, the February
3, 2021 Order is not a Final Appealable order. See City of Hudson/State v. Harger, 9th
Dist. Summit No. 26208, 2012-Ohio-2604, ¶ 8; State v. Williams, 9th Dist. Summit No.
25384, 2011-Ohio-6412, ¶ 11 and State v. Nixon, Portage Nos. 2021-P-0075, 2021-P-
0076, 2021-P-0082, 2021-P-0083, 2021-Ohio-3291, ¶ 7.
{¶22} Moreover, appellant claims that his right to be present at all critical stages
of the proceedings pursuant to Crim.R. 43 was violated because some charges and
Muskingum County, Case No. CT2021-0011 7
counts contained in the indictment remained unresolved. Appellant further claims that the
trial court erred by not scheduling a trial date upon undisposed counts in the indictment.
However, as part of his plea agreement, appellant entered a plea of guilty to three of the
charges. Pursuant to the plea negotiations, appellee agreed to nolle the remaining counts
and specifications. As noted by appellee, the written plea agreement, which appellant
signed on May 20, 2019, only lists the three charges and the specifications to which
appellant pled and does not include the counts and specifications that he claims are
unresolved. It can, therefore, be concluded that the same were dismissed by appellee.
Subsequently, on February 3, 2021, those counts and specifications were dismissed.
{¶23} Finally, while appellant asserts that there was no final appealable order in
this case because the trial court violated the one document rule set forth in State
v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, ¶ 17. Appellant argues that there was
both the August 1, 2019 sentencing Entry and the trial court’s February 3, 2021 Order
granting the Motion to Dismiss, this Court, in our Opinion filed on June 29, 2020 in State
v. Crews, Muskingum App. No. CT2020-0014, 2020-Ohio-3511, specifically held, in part,
that the trial court had issued a final appealable order on August 1, 2019.
{¶24} Appellant’s three assignments of error are, therefore, overruled.
Muskingum County, Case No. CT2021-0011 8
{¶25} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Baldwin, P.J.
Hoffman, J. and
Delaney, J. concur.