[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