State v. Crews

[Cite as State v. Crews, 2020-Ohio-3511.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ERICK L. CREWS : Case No. CT2020-0014
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2018-0506
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 29, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAYLOR BENNINGTON ERICK L. CREWS, PRO SE
27 North Fifth Street Ross Correctional Institution
P.O. Box 189 P.O. Box 7010
Zanesville, OH Chillicothe, OH 45601
Muskingum County, Case No. CT2020-0014 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Erick L. Crews appeals the February 10, 2020
judgment of the Muskingum County Court of Common Pleas which denied his motion for
a final appealable order. Plaintiff-Appellee is the state of Ohio.
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} Relevant to this matter are counts 1, 6 and 7. Count 1 charged appellant
with trafficking in cocaine, a felony of the first degree. This count 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.
{¶ 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
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.
Muskingum County, Case No. CT2020-0014 3
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. CT2020-0014 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 filed an appeal and the matter is now before this court for
consideration. He raises two assignments of error as follow:
I
{¶ 11} "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."
II
{¶ 12} "THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
PREJUDICE OF APPELLANT CREWS AND VIOLATED HIS DUE PROCESS RIGHTS
Muskingum County, Case No. CT2020-0014 5
GUARANTEED TO HIM BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES 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 MANDATORY DRIVERS LICENSE SUSPENSION FOR TRAFFICKING IN
DRUGS, A FELONY OF THE FIRST DEGREE."
I
{¶ 13} In his first assignment of error Crews argues the trial court erred in denying
his motion for a final appealable order because the firearm specification remains
unresolved. The state agrees with appellant's argument that the firearm specification
remains unresolved and therefore no final appealable order has been issued, but argues
this court has no authority to address the matter since there is no final appealable order.
Under the facts of this case, we disagree with both parties.
{¶ 14} "A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's
signature, and (4) the time stamp indicating the entry upon the journal by the clerk.
(Crim.R. 32(C), explained; State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893
N.E.2d 163, modified.)" State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958
N.E.2d142 (2011) at paragraph one of the syllabus.
{¶ 15} Relevant to this matter, in State ex rel. Davis v. Cuyahoga Cty Court of
Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728, 936 N.E.2d 41 (2010), the Supreme
Court of Ohio noted:
Muskingum County, Case No. CT2020-0014 6
As the court of appeals correctly concluded, our holding in State v.
Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163,
syllabus, “requires a full resolution of those counts for which there
were convictions. It does not require a reiteration of those counts and
specifications for which there were no convictions, but were resolved
in other ways, such as dismissals, nolled counts, or not guilty
findings.” (Emphasis added.) State ex rel. Davis v. Cuyahoga Cty.
Court of Common Pleas, Cuyahoga App. No. 93814, 2010-Ohio-
1066, 2010 WL 972808, ¶ 8."
Id. at ¶ 2.
{¶ 16} It is axiomatic that a court speaks only through its judgment entries. In this
matter, the judgment entry following appellant's pleas of guilty indicates the state agreed
to nolle the firearm specification. The state never disputed this fact. Indeed, the written
plea agreement, presumably created by the state and signed by appellant, does not
include the firearm specification in the list of offenses to which appellant agreed to enter
pleas of guilty.
{¶ 17} Accordingly, contrary to the arguments of the parties, we find the firearm
specification was nolled by the state. The trial court therefore issued a final appealable
order on August 1, 2019. The first assignment of error is overruled.
II
Muskingum County, Case No. CT2020-0014 7
{¶ 18} In his second assignment of error, appellant argues that because the trial
court was required to suspend his driver's license and failed to do so, his sentencing
judgment entry is not a final appealable order. We disagree.
{¶ 19} Appellant was convicted of trafficking in drugs pursuant to R.C.
2925.03(A)(1). In regard to license suspension, the version of R.C. 2925.03(D) in effect
when appellant entered his guilty pleas provides:
(D) In addition to any prison term authorized or required by division
(C) of this section and sections 2929.13 and 2929.14 of the Revised
Code, and in addition to any other sanction imposed for the offense
under this section or sections 2929.11 to 2929.18 of the Revised
Code, the court that sentences an offender who is convicted of or
pleads guilty to a violation of division (A) of this section may suspend
the driver's or commercial driver's license or permit of the offender in
accordance with division (G) of this section.
Emphasis added.
{¶ 20} Because this section includes discretionary language, the trial court was not
required to suspend appellant's driver's license. Accordingly, the second assignment of
error is overruled.
Muskingum County, Case No. CT2020-0014 8
{¶ 21} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Wise, John, J. concur.
EEW/rw