State v. Wright

[Cite as State v. Wright, 2011-Ohio-3583.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 95634

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

WILLIAM WRIGHT
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-534039

BEFORE: Celebrezze, J., Blackmon, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: July 21, 2011
ATTORNEY FOR APPELLANT

Eric Norton
Norton Law Firm Co., L.P.A.
12434 Cedar Road
Suite 6
Cleveland, Ohio 44106

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ALSO LISTED

William Wright
Inmate No. A591-063
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901

FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant, William Wright, brings this appeal challenging his

four-year prison sentence for having weapons while under disability and child

endangerment, and the denial of his motion to withdraw his guilty plea.

After a thorough review of the record and law, we affirm appellant’s sentence

and decline to address his other assigned error.
 {¶ 2} The record in this case is sparse, but the following facts were

gleaned from appellant’s affidavit, various pleadings, and journal entries.

On February 5, 2010, appellant was working with co-defendant, Loren Webb,

at a recording studio appellant had set up at the home of his girlfriend,

Felishia Robinson, where appellant also resided. A Cleveland police officer

posing as a Federal Express employee delivered a package to the address, and

Webb signed for and accepted the package. A few minutes later, Cleveland

police officers entered the home. Appellant avers that he, Webb, and

Robinson were placed in handcuffs. Officers showed appellant that the

package Webb had signed for contained marijuana. Appellant further stated

that a police officer asked him if there was anything in the house they should

know about. He told the officer about some guns located in the attic.

According to appellant, these guns were secured behind two locked doors and

stored in a locked gun safe. Appellant averred that he did not have a key to

the doors or the safe.

{¶ 3} Appellant was arrested and on, March 4, 2010, indicted along

with Webb for drug trafficking, drug possession, possession of criminal tools,

and individually for having weapons while under disability and child

endangerment. As part of a plea agreement, appellant pled guilty to having

weapons while under disability and child endangerment, and the remaining

counts were dismissed. On July 28, 2010, appellant was sentenced to a
four-year term of incarceration and a $250 fine for having a weapon while

under disability and fined $250 for child endangerment. Appellant was

ordered to forfeit two guns, and the court also suspended his driver’s license

until January 28, 2011.

{¶ 4} Appellant then appealed from his sentence, including the

sentencing entry, in his notice of appeal. After filing this notice, he filed a

motion to withdraw his guilty plea with the trial court on October 7, 2010.

The trial court denied this motion on October 13, 2010 without holding a

hearing. Appellant also assigns an error related to this denial, but failed to

separately appeal it or amend his notice of appeal.

Law and Analysis

Withdrawal of Plea

{¶ 5} Appellant first argues that “[t]he trial court abused its discretion

in denying [his] motion to withdraw guilty plea, thereby violating his rights to

substantive and procedural due process guaranteed by Article I, Section 10 of

the Ohio Constitution and the Fifth and Fourteenth Amendments to the

United States Constitution.” However, appellant’s notice of appeal does not

include the journal entry denying this motion. Appellant failed to separately

appeal this issue.

{¶ 6} App.R. 3(D) specifies that a notice of appeal “shall designate the

judgment, order or part thereof apealed [sic] from[.]” In Parks v. Baltimore
& Ohio RR. (1991), 77 Ohio App.3d 426, 428, 602 N.E.2d 674, this court noted

that it had previously held that a court of appeals is “without jurisdiction to

review a judgment or order which is not designated in the appellant’s notice

of appeal.” Id., citing Schloss v. McGinness (1984), 16 Ohio App.3d 96, 97-98,

474 N.E.2d 666. This court has applied this holding to cases similar to the

one here. See State v. Kennedy, Cuyahoga App. No. 79143, 2002-Ohio-42;

State v. Millhouse, Cuyahoga App. No. 79910, 2002-Ohio-2255, ¶51-52.

Appellant failed to amend his notice of appeal according to the procedures set

forth in App.R. 3(F) or file a separate notice from the denial of his motion to

withdraw his plea.

{¶ 7} Because this assignment of error addresses issues outside the

scope of the present appeal, it will not be addressed.

Length of Sentence

{¶ 8} Appellant next argues that “[t]he trial court abused its discretion

by sentencing [him] to a four-year prison term on his conviction for one count

of having weapons while under disability, thereby violating his rights to

substantive and procedural due process and cruel and unusual punishment

guaranteed by Article I, Section 10 of the Ohio Constitution and the Fifth,

Eighth and Fourteenth Amendments to the United States Constitution.”

{¶ 9} This court reviews sentencing errors under the two-prong

approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124. See State v. Brunning, Cuyahoga App. No. 95376,

2011-Ohio-1936, ¶16, fn. 2. Under Kalish, we first review whether the

sentence is clearly contrary to law. Our review of this issue is focused on the

permissible punishments for a given charge and applicable rules and statutes

to determine whether the sentence falls within those bounds. Id at ¶25. If

it is not clearly and convincingly contrary to law, we review the sentence for

an abuse of discretion. Id.

{¶ 10} Appellant pled guilty to possessing weapons while under

disability, a third degree felony, punishable by up to five years in prison.

R.C. 2923.13(B); R.C. 2929.14(A)(3). The court also imposed a $250 fine,

which is allowed under R.C. 2929.18(A)(3)(c). The four-year prison term falls

within the permissible penalty for a third degree felony; therefore, it is not

clearly contrary to law.

{¶ 11} The trial court also suspended appellant’s driver’s license until

January 28, 2011, which is not provided for by statute for a

weapon-under-disability conviction. This portion of appellant’s sentence is

contrary to law. While R.C. 2953.08(G)(2) provides that this court may

“increase, reduce or otherwise modify a sentence * * * or may vacate the

sentence and remand the matter to the sentencing court for resentencing”

upon finding it contrary to law, that part of appellant’s sentence that is

contrary to law has expired. Any remedy granted by this court would have
no effect. Therefore, the trial court’s error in suspending appellant’s drivers

license is moot.

{¶ 12} The remainder of appellant’s sentence is not clearly contrary to

law. Therefore, we proceed under the second prong of Kalish to determine

whether the trial court abused its discretion in crafting appellant’s sentence.

{¶ 13} The purposes and principles for felony sentencing are set forth in

R.C. 2929.11, and R.C. 2929.12 gives trial courts guidance in applying these

goals. Appellant urges this court to review the sentencing transcript “to

determine whether the trial court ever expressly states that it considered the

purposes of” these statutes. However, appellant failed to provide a copy of

the sentencing transcript.1 All we are left with to review is the sentencing

entry, which specifically states: “The court considered all required factors of

the law. The court finds that prison is consistent with the purpose of R.C.

2929.11.” In the absence of evidence in the record to the contrary, we must

uphold these pronouncements and find that the trial court considered the

purposes and principles of felony sentencing and did not abuse its discretion.

{¶ 14} Appellant’s second assignment of error is overruled.

Appellant filed a motion to supplement the record, which was granted by
1

this court on February 22, 2011, but it appears that appellant failed to file the
transcript. Appellant is tasked with providing the record for this court’s review
and, in the absence of such a record, this court must presume regularity of the
proceedings below. In re Guardianship of Muehrcke, Cuyahoga App. Nos. 85087
and 85183, 2005-Ohio-2627, ¶15-16.
 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. 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.

FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
MARY J. BOYLE, J., CONCUR