State v. Nolin

2013 Ohio 477

Opinion

[Cite as State v. Nolin, 2013-Ohio-477.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12CA40 CRYSTAL NOLIN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 12CR0026D

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 13, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. KRISTIN E. BROWN PROSECUTING ATTORNEY Calhoun, Kademenos & Childress, LPA RICHLAND COUNTY, OHIO Suite 200 6 West Third Street BY: JILL M. COCHRAN Mansfield, Ohio 44901 Assistant Richland County Prosecutor 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 12CA40 2

Hoffman, J.

{¶1} Defendant-appellant Crystal Nolin appeals her conviction and sentence

entered by the Richland County Court of Common Pleas. Plaintiff-appellee is the state

of Ohio.

STATEMENT OF THE CASE1

{¶2} On February 13, 2012, Appellant entered a plea of no contest to the

charges of illegal conveyance of weapons or prohibited items onto the grounds of a

specified governmental facility, in violation of R.C. 2921.36(A)(2), and trafficking in

marijuana, in violation of R.C. 2925.03(A), pursuant to a negotiated plea agreement.

Appellant agreed to proffer and testify truthfully and usefully against her co-defendant, if

necessary, in exchange for the State’s recommendation of probation or community

correction at sentencing.

{¶3} On April 23, 2012, the trial court conducted a sentencing hearing. At the

sentencing hearing, Appellant maintains the trial court informed her a failing score on

her presentence investigation for placement into a community based correctional

facility, denied her entrance into the program. Further, her prior history of violence,

most recently demonstrated while awaiting sentencing in jail, and her high risk for drugs,

antisocial behavior, violence and stress, precluded her acceptance into a community

based correctional facility. The trial court informed Appellant the only way she could

have been granted community control would have been if she had been placed in a

residential treatment program, which she was not; therefore, the trial court sentenced

Appellant to prison.

1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Richland County, Case No. 12CA40 3

{¶4} The trial court proceeded to sentence Appellant to twenty-four months in

prison on the charge of illegal conveyance and eight months in prison on the trafficking

count, the terms to be served concurrently. The trial court further informed Appellant

she would be released from prison early should she be accepted into a community

based correctional facility.

{¶5} Appellant did not object to her sentence at the sentencing hearing, and did

not request to withdraw her plea.

{¶6} Appellant now appeals, assigning as error:

{¶7} “I. THE TRIAL COURT ERRED BY FAILING TO GIVE NOLIN THE

OPPORTUNITY TO WITHDRAW HER ‘NO CONTEST’ PLEA PRIOR TO

SENTENCING ONCE IT BECAME APPARENT THAT THE COURT INTENDED TO

DEVIATE FROM THE TERMS OF THE PLEA AGREEMENT IN SENTENCING.”

{¶8} In the sole assignment of error, Appellant maintains the trial court abused

its discretion in deviating from the terms of the plea agreement without giving Appellant

the opportunity to withdraw her plea.

{¶9} Initially, we note, Appellant has failed to include a transcript of the

February 13, 2012 change of plea hearing as part of the record in this appeal.

{¶10} In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384,

the Ohio Supreme Court held: "The duty to provide a transcript for appellate review falls

upon the appellant. This is necessarily so because an appellant bears the burden of

showing error by reference to matters in the record."

{¶11} If the trial court accepted a plea agreement prior to accepting Appellant's

plea, it would have occurred during and been recorded in the change of plea hearing. Richland County, Case No. 12CA40 4

Similarly, if the trial court informed Appellant the court was not bound to accept the

recommended sentence, it would have done so at the sentencing hearing.

{¶12} However, the transcript of the change of plea hearing is not included in the

record on appeal.

{¶13} Without the transcript of the proceedings, Appellant is unable to

affirmatively demonstrate violation of a plea agreement. Absent a formal motion to

withdraw the plea, the trial court did not error in proceeding to sentence Appellant.

{¶14} The sole assignment of error is overruled.

{¶15} Appellant's conviction and sentence in the Richland County Court of

Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

s/ William B. Hoffman_________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Richland County, Case No. 12CA40 5

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : CRYSTAL NOLIN : : Defendant-Appellant : Case No. 12CA40

For the reason stated in our accompanying Opinion, Appellant's conviction and

sentence entered by the Richland County Court of Common Pleas is affirmed. Costs to

Appellant.

s/ William B. Hoffman_________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER