State v. Wellington

[Cite as State v. Wellington, 2014-Ohio-4473.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100867, 100869, and 100870
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARQUIS L. WELLINGTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-13-571814-A, CR-13-573606-B, and CR-13-575269-A
BEFORE: McCormack, J., Blackmon, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: October 9, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James M. Price
Frank Romeo Zeleznikar
Assistant County Prosecutors
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Marquis L. Wellington, appeals from the judgment of
the trial court in three separate cases that included the forfeiture of several items in
connection with Wellington’s conviction of various drug offenses. For the following
reasons, we affirm the trial court’s judgment.
{¶2} Wellington pled guilty in three drug cases under a plea agreement. In
Cuyahoga C.P. No. CR-13-571814-A, he pled guilty to permitting drug abuse in violation
of R.C. 2925.13, a felony of the fifth degree, with forfeiture specifications; the state
nolled five other counts in the indictment. Under the plea agreement, Wellington agreed
to forfeit to the state cash in the amounts of $1,060, $217, and $700, an Apple iPhone and
several other cell phones, packaging materials, and certain personal papers.
{¶3} In Cuyahoga C.P. No. CR-13-573606-B, Wellington pled guilty to
permitting drug abuse in violation of R.C. 2925.13, a felony of the fifth degree, with
forfeiture specifications; the state nolled the other count in the indictment. Under the plea
agreement, he agreed to forfeit four cell phones, cash in the amounts of $265 and $95,
and a 2002 Volvo S-60.
{¶4} In Cuyahoga C.P. No. CR-13-575269, Wellington pled guilty to drug
trafficking in violation of R.C. 2925.03(A)(1), a felony of the fifth degree, with forfeiture
specifications. He also pled guilty to drug possession in violation of R.C. 2925.11 (A), a
felony of the fourth degree, with forfeiture specifications. The remaining five counts
were nolled. Under the plea agreement, he agreed to forfeit cash in the amounts of $935
and $298 and several cell phones.
{¶5} The trial court sentenced Wellington to 12 months in prison in CR-571814;
a concurrent 12-month term in CR-573606; and a term of 18 months in CR-575269, to
run concurrent with the first two cases. The judgment entry in each case also included
the items of forfeiture specified under the indictment and agreed to in the plea agreement.
{¶6} Wellington appeals from the trial court’s judgment in these three cases.
This court consolidated them for record, briefing, hearing, and disposition. Wellington
raises one assignment of error on appeal. He claims “the trial court was not permitted to
journalize forfeitures not ordered in open court.”
{¶7} Under the assignment of error, Wellington’s argument, in its entirety, states:
“The trial court was not permitted to journalize forfeitures unless it did so in open court
at the sentencing. It is axiomatic that the journal must reflect the sentencing that took
place in open court. Otherwise, the defendant’s Sixth Amendment right to be present at
all critical stages of the proceedings is violated.”
{¶8} Other than these generalized and conclusory remarks, Wellington does not
offer any explanation of how his rights were violated; nor does he cite to any statutory or
case law authority in support of his contention, as required by App.R. 16(A)(7).
Accordingly, we need not address his claim. See, e.g., Davis v. Cleveland, 8th Dist.
Cuyahoga No.99187, 2013-Ohio-2914, ¶ 31. Even if we were to address his contention,
however, we would overrule his assignment of error, because a similar claim has been
previously rejected by this court.
{¶9} In State v. Eppinger, 8th Dist. Cuyahoga No. 95685, 2011-Ohio-2404,
discretionary appeal not allowed, 130 Ohio St.3d 1419, 2011-Ohio-5605, 956 N.E.2d
310, appellant Eppinger claimed that the trial court violated his constitutional right to due
process by ordering the forfeiture of money in its journal entry when there was no
pronouncement of forfeiture at sentencing.
{¶10} In that case, at the plea hearing, the trial court specifically explained that the
counts Eppinger pled guilty to contained forfeiture specifications. After the court
accepted his guilty plea, the prosecutor reminded the court that forfeiture was part of the
plea agreement. The court then asked if Eppinger or his counsel wished to address the
court, and both indicated they had nothing to say.
{¶11} Given the record, we observed that it “‘cannot be said that appellant’s due
process rights were violated because by entering into the plea agreement, appellant clearly
had notice of and agreed to the forfeiture of his property.’” Id. at ¶ 9, quoting State v.
Gladden, 86 Ohio App.3d 287, 289, 620 N.E.2d 947 (1st Dist.1993). We reasoned that
in return for the state’s agreement to reduce the charges against him, appellant agreed not
to contest the forfeiture of the property listed in the indictment. When given the
opportunity to question the items being forfeited at the plea hearing, appellant did not
object. We therefore found no merit to appellant’s claim. See also State v. Wade, 8th
Dist. Cuyahoga No. 85444, 2005-Ohio-4823, ¶ 9 (where the forfeiture was effectuated by
the parties’ agreement, the trial court was without authority to alter the terms of the
agreement, particularly when the defendant acknowledged the validity of the agreement
and failed to object).
{¶12} Similarly here, Wellington was aware of the forfeiture by the notice
provided in the indictment and he agreed to it in exchange for the nolling of several
counts. Furthermore, the transcript of the plea hearing reflects that the trial court
explained to Wellington the specific items to be forfeited in each case and Wellington
repeatedly affirmed that he understood the forfeiture aspect of his plea. At sentencing,
when the court recited charges and the plea agreement for the record, it mentioned the
forfeiture specifications in each case, without any objections from Wellington or his
counsel. The trial court also incorporated the forfeiture of the specific items in the
journal entry. Under these circumstances, even if Wellington’s claim had been properly
presented, we cannot conclude he was prejudiced by the trial court’s inadvertent omission
at sentencing of an oral recitation of the forfeiture he had agreed to under a plea
agreement. Eppinger, 8th Dist. Cuyahoga No. 95685, 2011-Ohio-2404.
{¶13} Judgment affirmed.
It is ordered that appellee recover of 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. 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.
______________________________________________
TIM McCORMACK, JUDGE
PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR