[Cite as State v. Jackson, 2020-Ohio-491.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108364
v. :
DEREK DION JACKSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 13, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-629181-A and CR-18-629543-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jonathan Block, Assistant Prosecuting
Attorney, for appellee.
Rick L. Ferrera, for appellant.
RAYMOND C. HEADEN, J.:
Defendant-appellant Derek Dion Jackson (“Jackson”) appeals from
his conviction and sentence following a guilty plea. For the reasons that follow, we
affirm.
Procedural and Substantive History
This appeal stems from Jackson’s sentence in two separate cases. In
connection with Cuyahoga C.P. No. CR-18-629181-A, on May 30, 2018, the
Cuyahoga County Grand Jury indicted Jackson on four counts of trafficking in
violation of R.C. 2925.03(A)(2), three counts of drug possession in violation of
R.C. 2925.11(A), one count of improperly handling firearms in a motor vehicle in
violation of R.C. 2923.16(B), and one count of having weapons while under disability
in violation of R.C. 2923.13(A)(3). The trafficking and drug possession counts all
carried one-year firearm specifications and various forfeiture specifications. This
indictment stemmed from a traffic stop in which Jackson was the front-seat
passenger in a car and, upon being stopped, the driver and back-seat passenger both
fled. A gun was found in the backseat of the car.
In connection with Cuyahoga C.P. No. CR-18-629543-A, on June 19,
2018, the grand jury indicted Jackson on one count of failure to comply in violation
of R.C. 2921.331(B) with a furthermore specification, five counts of trafficking in
violation of R.C. 2925.03(A)(2), four counts of drug possession in violation of
R.C. 2925.11(A), and one count of possessing criminal tools in violation of
R.C. 2923.24(A). All of the counts except for failure to comply carried forfeiture
specifications.
Both cases were resolved with a plea agreement. On December 12,
2018, Jackson pleaded guilty to four amended counts of trafficking, two of which
were felonies of the fourth degree and two of which were felonies of the fifth degree,
and one count of having weapons while under disability as charged in
CR-18-629181-A. All firearm specifications and the remaining counts were nolled.
Jackson also pleaded guilty to one count of failure to comply as charged, one
amended count of attempted trafficking, and three counts of trafficking as charged
in CR-18-629543-A. The remaining counts and specifications were nolled.
The court referred Jackson to the probation department for
preparation of a presentence-investigation report (“PSI”). On February 27, 2019,
the court held a sentencing hearing. The court stated that it had reviewed the PSI
and the case file. The court heard from the prosecutor and defense counsel, who
both indicated that they had agreed that some term of prison, rather than probation,
was an appropriate sanction in the case. Defense counsel further asked the court to
consider sentencing Jackson to prison in one case and probation in the other, or at
most, to run his potential prison sentences concurrently. The court also heard from
Jackson.
In CR-18-629543-A, the court sentenced Jackson to nine months on
each of the four drug trafficking charges, to run concurrent to each other and to his
sentence in CR-18-629181-A. The court also sentenced Jackson to nine months on
the failure to comply charge, to be served consecutively. In CR-18-629181-A, the
court sentenced Jackson to 16 months on each of the fourth-degree felonies and 12
months on each of the fifth-degree felonies, and the court ordered that the sentence
for the fourth-degree felonies would be served consecutively to the sentence for the
fifth-degree felonies. The court further sentenced Jackson to 24 months on the
having weapons while under disability charge and ordered that sentence to be
served concurrently to the sentences for drug trafficking. At the sentencing hearing,
the trial court mistakenly referred to Jackson’s total sentence in CR-18-629181-A as
30 months rather than 28 months. The sentencing journal entry referred to
Jackson’s total sentence as both 28 months and 30 months.
On June 26, 2019, the trial court filed a nunc pro tunc entry in
CR-18-629181-A, stating that Jackson was sentenced to a total of 28 months, not 30
months as had previously been stated in the journal entry.
Jackson appeals, presenting two assignments of error for our review.
Law and Analysis
In his first assignment of error, Jackson argues that the trial court
failed to comply with Crim.R. 11 when it accepted a plea without confirming
Jackson’s agreement to a stipulated term of imprisonment. According to Jackson,
his plea is invalid because the court did not ask Jackson whether he acknowledged
that the parties had stipulated to a prison term.
The underlying purpose of Crim.R. 11 is to convey certain information
to a defendant so that they can make a voluntary and intelligent decision regarding
whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d
115 (1981). “The standard for reviewing whether the trial court accepted a plea in
compliance with Crim.R. 11(C) is a de novo standard of review.” State v. Cardwell,
8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51
Ohio St.2d 86, 364 N.E.2d 1163 (1977).
In order to ensure that a defendant enters a plea knowingly,
voluntarily, and intelligently, a trial court must engage in an oral dialogue with the
defendant in accordance with Crim.R. 11(C). State v. Engle, 74 Ohio St.3d 525, 527,
660 N.E.2d 450 (1996). Crim.R. 11(C) outlines the trial court’s duties in accepting
guilty pleas:
(2) In felony cases the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally and doing all of the
following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible for
probation or for the imposition of community control sanctions at the
sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury
trial, to confront witnesses against him or her, 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 or herself.
With respect to the nonconstitutional aspects of Crim.R. 11(C), including an
understanding of the nature of the charges and the maximum penalty involved, the
trial court must substantially comply with the rule. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14. Substantial compliance means that
under the totality of the circumstances, the defendant subjectively understands the
implication of his or her plea and the rights he or she is waiving. State v. Nero, 56
Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
Following a review of the record, we conclude that the trial court
substantially complied with Crim.R. 11. The court conducted a full plea colloquy
with Jackson before accepting his plea, and the court discussed the charges Jackson
faced, the maximum penalties for the charges, and the effects of Jackson’s plea.
Specifically, the court went through each charge to which Jackson would plead guilty
and outlined the potential terms of incarceration or fines he faced.
Jackson argues that because the prosecutor and defense counsel had
represented to the court that they agreed that a prison term was an appropriate
sanction in this case, the court somehow erred by not explaining this to Jackson. As
an initial matter, we must note that this case did not contain an agreed sentence. An
agreed sentence is one in which “the defendant and the state have agreed to be
mutually bound to a specific sentence or a sentence authorized by law within a
prescribed range.” State v. Huffman, 8th Dist. Cuyahoga No. 105805, 2018-Ohio-
1192, ¶ 17. Further, an agreed sentence authorized by law is not appealable pursuant
to R.C. 2953.08(D)(1). Id. Here, the parties presented a joint nonbinding
recommendation to the court that prison was an appropriate sanction in this case.
The court, therefore, was not required to accept or even comment on that
recommendation as long as the court has indicated that no promises, threats, or
coercion was used to induce the plea. Id. at ¶ 16. The court confirmed this with
Jackson during his plea colloquy. Moreover, regardless of any agreements between
the parties that prison was an appropriate sanction, the record makes clear that
Jackson knew that a prison term was a potential sentence. Therefore, Jackson’s first
assignment of error is overruled.
In his second assignment of error, Jackson argues that the trial court
failed to correctly journalize his sentence in CR-18-629181-A. Jackson points out
that in the sentencing journal entry, the court referred to the total sentence as both
28 months and 30 months. The trial court corrected this error in a June 26, 2019
nunc pro tunc entry in which it noted that Jackson’s total sentence in
CR-18-629181-A was 28 months.
Although trial courts generally lack authority to reconsider their own
valid final judgments in criminal cases, they retain continuing jurisdiction to correct
certain types of errors in judgments by nunc pro tunc entry to reflect what the court
actually decided. State v. Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-
3882, ¶ 15, citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d
718, ¶ 13. Crim.R. 36 provides that “[c]lerical mistakes in judgments, orders, or
other parts of the record * * * may be corrected by the court at any time.” Further,
nunc pro tunc entries can be used to correct mathematical calculations and
typographical errors, although they are limited to memorializing what the trial court
actually did at an earlier point in time. Id., citing State v. Spears, 8th Dist. Cuyahoga
No. 94089, 2010-Ohio-2229, ¶ 10. Here, the nunc pro tunc served to correct the
trial court’s earlier mathematical error in calculating the total number of months in
Jackson’s sentence. Although the trial court incorrectly calculated the total sentence
both on the record at the sentencing hearing and in the original sentencing journal
entry, the trial court’s explanation of Jackson’s sentence for each count confirms
that this was a mathematical error. Therefore, we conclude that it was appropriately
corrected by the trial court in its June 26, 2019 nunc pro tunc entry and find
Jackson’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from 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. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. 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.
RAYMOND C. HEADEN, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR