State v. Nelson

2016 Ohio 5131

Opinion

[Cite as State v. Nelson, 2016-Ohio-5131.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 102671 and 102672

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

PEDRO F. NELSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-13-580784-B and CR-14-584735-A

BEFORE: Keough, J., Jones, A.J., and Stewart, J.

RELEASED AND JOURNALIZED: July 28, 2016 ATTORNEYS FOR APPELLANT

Michael B. Telep 4438 Pearl Road Cleveland, Ohio 44109

Rick L. Ferrara 2077 East 4th Street Second Floor Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Patrick J. Lavelle Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} In these consolidated appeals, defendant-appellant, Pedro F. Nelson,

appeals from the trial court’s judgment, rendered after a guilty plea, finding him guilty of

drug trafficking and drug possession, and sentencing him to four years in prison. Nelson

contends that his guilty plea should be vacated because it was not knowingly, voluntarily,

and intelligently made, and that the journal entry of sentencing does not reflect what

actually happened at the sentencing hearing. We affirm Nelson’s convictions but remand

the matter to the trial court to correct nunc pro tunc the journal entry of conviction to

accurately reflect the sentence imposed by the court at the sentencing hearing.

I. Background

{¶2} Nelson was charged in two cases with drug offenses. In Cuyahoga C.P.

No. CR-13-580784-B, he was indicted on three counts. Count 1 charged drug trafficking

in violation of R.C. 2925.03(A)(2), with a major drug offender specification and

forfeiture specifications. Count 2 charged drug possession in violation of R.C.

2925.11(A), with a major drug offender specification and forfeiture specifications, and

Count 3 charged possessing criminal tools in violation of R.C. 2923.24(A), with

forfeiture specifications. In Cuyahoga C.P. No. CR-14-584735-B, Nelson was charged

with drug possession in violation of R.C. 2925.11(A).

{¶3} Nelson subsequently pleaded guilty in CR-13-580784 to Count 1 as

amended to trafficking, a felony of the first degree, with forfeiture specifications. Counts 2 and 3, and the major drug offender specification in Count 1 were nolled. In

CR-14-584735, Nelson pleaded guilty to drug possession as charged, a felony of the fifth

degree.

{¶4} At the sentencing hearing, the trial court sentenced Nelson to the

agreed-upon four-year sentence in CR-13-580784, and ordered that he pay a mandatory

$10,000 fine, and forfeit three cell phones, a scale, $3,536 in cash, packing material, and

personal papers. In CR-14-584735, the trial court sentenced Nelson to six months

incarceration, to be served concurrently with the sentence in CR-13-580784. The

subsequent journal entry of sentencing, however, sentenced Nelson to 12 months

incarceration in CR-14-584735.

{¶5} This appeal followed.

II. Law and Analysis

A. Variance Between What Was Announced at Sentencing and the Journal Entry

{¶6} In his first assignment of error, Nelson contends that the trial court erred

because the journal entry of sentencing differs from the sentence announced at the

sentencing hearing. Specifically, Nelson asserts that at the sentencing hearing, the trial

court announced a sentence of six months incarceration in CR-14-584735, to be served

concurrently with the four-year term in CR-13-580784, but then imposed a sentence of 12

months incarceration in its journal entry of sentencing.

{¶7} We agree. The sentencing transcript reflects that the trial court sentenced

Nelson to six months incarceration in CR-14-584735, to be served concurrently with the four-year term in CR-13-580784. The court’s journal entry does not accurately reflect

what happened at sentencing, however, and instead imposes a 12-month term of

incarceration. The state concedes the error.

{¶8} Under Crim.R. 36, clerical mistakes in judgments, orders, or other parts of the

record may be corrected by the court at any time. The error in the journal entry is

obviously a clerical error that may be corrected nunc pro tunc. Accordingly, we remand

for the trial court to issue a nunc pro tunc order of sentencing that reflects the six-month

sentence in CR-14-584735, to be served concurrently with the sentence in CR-13-580784,

that was imposed at sentencing. State v. Spears, 8th Dist. Cuyahoga No. 94089,

2010-Ohio-2229, ¶ 10 (a nunc pro tunc entry may be used to correct a sentencing entry to

reflect the sentence a trial court imposed upon a defendant at a sentencing hearing).

{¶9} The first assignment of error is sustained.

B. The Guilty Plea

{¶10} When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States and Ohio

Constitutions. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). In his

second assignment of error, Nelson contends that his plea should be vacated because it

was not knowingly, voluntarily, and intelligently made.

{¶11} Crim.R. 11(C)(2) governs the acceptance of guilty pleas in felony cases.

Under Crim.R. 11(C)(2), in a felony case, a trial court shall not accept a guilty plea without first addressing the defendant personally and (1) determining that the defendant is

making the plea voluntarily, with an understanding of the nature of the charges and the

maximum penalty involved, (2) informing the defendant of and determining that the

defendant understands the effect of the guilty plea and that the court, upon accepting the

plea, may proceed with judgment and sentence, and (3) informing the defendant and

determining that the defendant understands that by the plea, the defendant is waiving the

rights to a jury trial, to confront witnesses against him, to have compulsory process for

obtaining witnesses in the defendant’s favor, and to require the state to prove the

defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be

compelled to testify against himself.

{¶12} A trial court must strictly comply with the Crim.R. 11(C)(2) requirements

regarding the waiver of constitutional rights, which means that the court must actually

inform the defendant of the constitutional rights he is waiving and make sure the

defendant understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 18. For nonconstitutional rights, we review for substantial compliance

with the rule. Id. at ¶ 14, citing State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163

(1977). Substantial compliance means that under the totality of the circumstances the

defendant understands the implications of his plea and the rights he is waiving. State v.

Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979).

{¶13} Nelson concedes that the trial court properly advised him of the

constitutional rights he would be waiving by pleading guilty, but asserts with respect to nonconstitutional rights that the trial court did not adequately inquire whether he had any

mental handicaps or whether he was under the influence of any substances that would

affect his ability to comprehend the plea. Specifically, Nelson contends that when he

told the judge that he had only completed the tenth grade, the trial court should have

inquired further to determine whether his failure to complete high school was due to any

mental deficiency. He also asserts that because this case involved drug trafficking and

possession, the trial court should have inquired more diligently regarding whether he was

under the influence of any drugs at the time of the plea. Nelson’s arguments are without

merit.

{¶14} In considering whether a plea was knowingly, intelligently, and voluntarily

made, “an appellate court examines the totality of the circumstances through a de novo

review of the record.” State v. McClendon, 8th Dist. Cuyahoga No. 103202,

2016-Ohio-2630, ¶ 19. Here, there is nothing whatsoever in the record to suggest that

Nelson suffered from a mental handicap or that he was under the influence of any

substances when he entered into the plea. No one raised an issue as to Nelson’s

competence to enter a guilty plea or requested a mental health or substance evaluation at

or prior to the plea hearing. In fact, when the judge specifically inquired at the plea

hearing whether there was a need for substance abuse or mental health assessments, only

Nelson’s co-defendant asked for a substance abuse evaluation.

{¶15} A trial court may determine that a defendant understands his plea “by

considering the surrounding circumstances such as the dialogue between the court and the defendant and the defendant’s demeanor.” State v. McDowell, 8th Dist. Cuyahoga No.

70799, 1997 Ohio App. LEXIS 113, *4 (Jan. 16, 1997). Our review of the record

demonstrates that Nelson acted appropriately throughout the hearing and gave appropriate

responses to the questions the trial judge asked of him. His conduct and answers at the

plea hearing demonstrate that he fully understood the implications of his plea and the

nature of the rights he was waiving by pleading guilty. Accordingly, we find that the

trial court substantially complied with its Crim.R. 11(C)(2) duties regarding the

nonconstitutional rights Nelson waived by pleading guilty.

{¶16} Moreover, even if the trial court does not substantially comply, a defendant

must show prejudice before a plea will be vacated for a trial court’s error involving

Crim.R. 11(C) procedure when nonconstitutional aspects of the colloquy are at issue.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 18. The test for

prejudice is whether the plea would have otherwise been made. State v. Owens, 8th Dist.

Cuyahoga Nos. 100398 and 100399, 2014-Ohio-2275, ¶ 12, citing State v. Clark, 119

Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32.

{¶17} Nelson has failed to demonstrate any prejudice. He does not argue that he

would not have pleaded guilty if the court had made further inquiry about his mental state

or whether he was under the influence of drugs, nor did he ever try to withdraw his plea.

Without any showing of prejudice, his claim necessarily fails. The second assignment of

error is therefore overruled.

{¶18} Judgment affirmed and remanded. It is ordered that the parties share equally 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., A.J., and MELODY J. STEWART, J., CONCUR