State v. Jackson

[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