State v. Brown

[Cite as State v. Brown, 2025-Ohio-1059.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 113879

v. :

KENNETH BROWN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED AND REMANDED

RELEASED AND JOURNALIZED: March 27, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-23-687408-A

Appearances:

Michael P. Maloney, for appellant.

WILLIAM A. KLATT, J.:

Defendant-appellant Kenneth Brown (“Brown”) appeals his

convictions and sentence after he pled guilty to multiple offenses. Brown’s appellate

counsel has filed a motion to withdraw pursuant to Anders v. California, 386 U.S.

738 (1967), asserting that following an examination of the record he has found no

arguably meritorious assignments of error to raise on appeal and an appeal would

be wholly frivolous. After conducting our own independent review, we grant

appellate counsel’s motion to withdraw and dismiss the appeal. Nevertheless, we

remand the matter to the trial court for the issuance of nunc pro tunc entries to

correct clerical errors in its March 20, 2024 and March 26, 2024 judgment entries

with respect to Brown’s guilty plea on amended Count 5 and the imposed indefinite

sentence.

Factual and Procedural History

On December 15, 2023, Brown was indicted on 15 counts for alleged

offenses that occurred on or about December 1, 2023, and a warrant was issued for

Brown. Brown pleaded not guilty to the charges on December 19, 2023.

The trial court conducted a change-of-plea hearing on March 20,

2024, at which Brown was represented by counsel. The assistant prosecuting

attorney stated the parties had engaged in extensive plea negotiations and the

parties had agreed that Brown would withdraw his not guilty pleas to the indictment

and enter guilty pleas to the following charges: amended Count 3, aggravated arson,

a felony of the second degree in violation of R.C. 2909.02(A)(2) with a notice of prior

conviction specification and a requirement to register annually with the arson

registry; amended Counts 4 and 5, felonious assault, felonies of the second degree

in violation of R.C. 2903.11(A)(2), each with notice of prior conviction specifications;

Counts 6, 8, 10, 12, and 14, menacing by stalking, felonies of the fourth degree in

violation of R.C. 2903.211(A)(1); and Count 16, telecommunications harassment, a

misdemeanor of the first degree in violation of R.C. 2917.21(A)(3). In exchange for

Brown’s guilty pleas, the remaining counts would be nolled.

After the terms of the plea agreement were stated on the record, the

trial court proceeded with the plea colloquy. In response to the trial court’s initial

questions, Brown stated that he was a U.S. citizen, he was able to read and write the

English language, and he completed “some college course work.” Brown denied he

was under the influence of any prescribed medications, drugs, or alcohol and denied

he was threatened, coerced, or forced to enter the plea agreement. Brown further

denied anyone made any promises to him with regard to sentencing. Brown

indicated he understood the charges against him as well as the plea agreement

negotiated by his attorney and he was satisfied with the representation provided by

his attorney.

The trial court then advised Brown of his constitutional rights and

confirmed that he understood he would be waiving those rights by entering his guilty

pleas. The trial court informed Brown of the potential penalties associated with each

of the charged offenses and the impact of the Reagan Tokes Act’s indefinite

sentence; Brown confirmed his understanding of those terms. The trial court

explained postrelease control and the potential consequences of violating

postrelease control. Defense counsel and the assistant prosecuting attorney both

indicated they were satisfied that the trial court had complied with Crim.R. 11.

Brown entered his guilty pleas consistent with the plea agreement,

and the trial court found that Brown had entered his guilty pleas knowingly,

intelligently, and voluntarily. The trial court accepted Brown’s guilty pleas, nolled

the remaining counts, and set a date for the sentencing hearing.

On March 25, 2024, the State filed a sentencing memorandum, and

the trial court conducted a sentencing hearing on March 26, 2024. Initially, the trial

court noted that Brown had considered withdrawing his guilty pleas but after

reviewing the case with his counsel, the defendant decided to go forward with

sentencing. At the hearing, the court heard from the State, a victim, Detective

Kenney, defense counsel, Brown’s mother, and Brown. Upon consideration of the

statements at the sentencing hearing, Brown’s criminal history, the principles and

purposes of felony sentencing pursuant to R.C. 2929.11, and the seriousness and

recidivism factors pursuant to R.C. 2929.12, the trial court sentenced Brown to eight

years on amended Count 3 with a four-year tail pursuant to the Reagan Tokes Act;

five years on amended Count 4 to be served consecutively to amended Count 3; five

years on amended Count 5 to be served concurrently to all sentences; one year each

on Counts 6, 8, 10, 12, and 14 to be served concurrently to each other and all

sentences; and credit for time served on Count 16. Thus, the sentences on amended

Count 3 and amended Count 4 amounted to an aggregate sentence of 13 to 17 years.

The trial court also imposed postrelease control and ordered restitution by the

defendant.

On the same date, the trial court issued its sentencing judgment entry,

erroneously setting forth, in part and verbatim:

On a former day of court the defendant pleaded guilty to attempted,

felonious assault R.C. 2923.02/R.C. 2903.11(A)(2) F1 with repeat

violent offender specification(s) 2941.149 as amended in Count(s) 5 of

the indictment.

...

The court imposes a prison sentence at the Lorain Correctional

Institution of 13 year(s). 8 yrs on Count 3, and 5 years on Count 4, both

consecutive with all other counts. 5 years on Count 5, 1 year each on

Counts 6, 8, 10, 12, and 14 concurrent and concurrent with Count 5.

Time served in Count 16.

March 26, 2024 sentencing judgment entry.

On April 29, 2024, Brown, pro se, filed a notice of appeal and a motion

for appointment of counsel. On May 3, 2024, this court granted Brown’s motion for

appointment of counsel and, sua sponte, found that the notice of appeal was filed

untimely. A motion for delayed appeal was filed on May 8, 2024, and the State filed

a brief in opposition. This court granted Brown’s motion for delayed appeal on June

6, 2024.

On August 26, 2024, based on the belief that no prejudicial error

occurred in the trial court and that any grounds for relief would be frivolous, Brown’s

appellate counsel filed a motion for leave to withdraw and a brief in support

(“Anders brief”). Appellate counsel provided Brown with a copy of his motion and

Anders brief, and on November 25, 2024, Brown, pro se, filed an appellate brief. On

December 2, 2024, this court, sua sponte, struck Brown’s appellate brief because it

failed to include a legal analysis in support of the assigned errors and statement of

issues and, therefore, did not comply with the appellate rules. This court granted

Brown leave to file a pro se brief in compliance with the appellate rules but no

subsequent brief was filed.

Legal Analysis

In Anders, 386 U.S. 738, the United States Supreme Court outlined

the procedure attorneys must follow to withdraw due to the lack of any arguably

meritorious grounds for appeal.1 Anders at 744. Appointed counsel must first

complete a conscientious examination of the entire record. If counsel believes the

appeal is “wholly frivolous,” counsel should advise the court of that fact and request

permission to withdraw. Id. Counsel’s request to withdraw must “be accompanied

by a brief referring to anything in the record that might arguably support the

appeal.” Id. Counsel must also furnish a copy of the brief to the appellant, who must

then be allowed sufficient time to file his or her own pro se appellate brief. Id.

Once these requirements are satisfied, the appellate court must

complete an independent examination of the trial proceedings to determine if any

arguably meritorious issues exist. Id. “‘“An issue lacks arguable merit, if, on the

facts and law involved, no responsible contention can be made that it offers a basis

for reversal.”’” State v. Corbo, 2024-Ohio-5484, ¶ 9 (8th Dist.), quoting State v.

Walton, 2018-Ohio-1963, ¶ 11 (8th Dist.), quoting State v. Marbury, 2003-Ohio-

1 We acknowledge that other courts of appeals no longer accept motions to withdraw

pursuant to Anders. State v. Holbert, 2023-Ohio-3272 (2d Dist.); State v. Wilson, 2017-

Ohio-5772 (4th Dist.), State v. Wenner, 2018-Ohio-2590 (6th Dist.); State v. Cruz-Ramos,

2018-Ohio-1583 (7th Dist.). However, this court continues to adhere to the procedures

outlined in Anders. State v. Garrison, 2023-Ohio-1039, ¶ 9 (8th Dist.), quoting State v.

Phillips, 2022-Ohio-375, ¶ 9 (8th Dist.), citing State v. Taylor, 2015-Ohio-420 (8th Dist.).

3242, ¶ 8 (2d Dist.). If the appellate court concludes the appeal is wholly frivolous,

it may grant counsel’s request to withdraw and dismiss the appeal. Anders at 744;

see also Garrison at ¶ 7-8; Phillips at ¶ 7-8.

In his Anders brief, appellate counsel asserts that his review of the

record below did not “disclose any errors by the trial court prejudicial to the rights

of [Brown] upon which an assignment of error may be predicated.” However, in

accordance with Anders, appellate counsel raises whether Brown’s guilty pleas were

made knowingly, intelligently, and voluntarily as a potential issue for review.

Appellate counsel also notes the sentencing judgment entry contains a clerical error

that should be corrected through a nunc pro tunc journal entry. Specifically, counsel

states that the sentencing judgment entry references Count 5 as attempted felonious

assault, a felony of the first degree, rather than correctly citing Count 5 as felonious

assault, a felony of the second degree.

“Due process requires that a defendant’s plea be made knowingly,

intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.” State v.

Bishop, 2018-Ohio-5132, ¶ 10, citing State v. Clark, 2008-Ohio-3748, ¶ 25; see also

State v. Engle, 74 Ohio St. 3d 525, 527 (1996) (“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 Constitution and the Ohio Constitution.”). Before

accepting a guilty plea to a felony offense, the trial court must ensure the defendant

enters such plea knowingly, intelligently, and voluntarily. State v. Holmes, 2023-

Ohio-2585, ¶ 5 (8th Dist.). “The trial court does so by personally engaging the

defendant and determining if the defendant understands the nature of the charges

faced, the maximum penalty to be imposed, the effect of the guilty plea, and the

constitutional rights being waived by entering a guilty plea.” Corbo, 2024-Ohio-

5484 at ¶ 12 (8th Dist.), citing Holmes at ¶ 5 and Crim.R. 11.

“The underlying purpose of Crim.R. 11(C) is to convey certain

information to a defendant so that he or she can make a voluntary and intelligent

decision regarding whether to plead guilty.” State v. Ballard, 66 Ohio St. 2d 473,

479-480 (1981). Under Crim.R. 11(C)(2), a trial court shall not accept a guilty plea

in a felony case without first personally addressing the defendant and completing all

the following:

(C)(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 either in-person or

by remote contemporaneous video in conformity with Crim.R. 43(A)

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.

Crim.R. 11(C)(2)(a)-(c).

We conduct a de novo review to determine whether the trial court

accepted the defendant’s plea in compliance with Crim.R. 11(C). State v. Cardwell,

2009-Ohio-6827, ¶ 26 (8th Dist.), citing State v. Stewart, 51 Ohio St.2d 86 (1977).

The focus in reviewing pleas is not “on whether the trial judge has ‘[incanted] the

precise verbiage’ of the rule, * * * but on whether the dialogue between the court and

the defendant demonstrates that the defendant understood the consequences of his

plea.” State v. Dangler, 2020-Ohio-2765, ¶ 12, quoting Stewart at 92.

Further, the applicable standard when determining whether a

defendant’s plea was made understandingly and voluntarily in compliance with

Crim.R. 11(C) is no longer one of strict or substantial compliance. Dangler. Instead,

the Ohio Supreme Court identified these questions to be asked when reviewing a

trial court’s Crim.R. 11(C) plea colloquy:

(1) has the trial court complied with the relevant provision of the rule?

(2) if the trial court has not complied fully with the rule, is the

purported failure of a type that excuses a defendant from the burden of

demonstrating prejudice? and (3) if a showing of prejudice is required,

has the defendant met that burden?

Id. at ¶ 17.

There are two exceptions when a defendant is entitled to have his or

her plea vacated without first showing prejudice by the trial court’s failure to comply

with Crim.R. 11(C). Id. at ¶ 16. The first exception occurs when “a trial court fails to

explain the constitutional rights [set forth in Crim.R. 11(C)(2)(c)] that a defendant

waives by pleading guilty or no contest[.]” Id. at ¶ 14. Under such circumstances, it

is presumed that the defendant entered a plea involuntarily and unknowingly, and

no showing of prejudice to the defendant is required. The second exception occurs

if there is a complete failure by the trial court to comply with the nonconstitutional

aspects of the plea colloquy. Id. at ¶ 15, citing State v. Sarkozy, 2008-Ohio-509,

¶ 22. When a trial court completely fails to comply with Crim.R. 11(C)(2)(a) or

(C)(2)(b), the defendant need not show prejudice. Id.

Neither of these exceptions apply in the instant case. Therefore, to

invalidate his plea, Brown must establish (1) the trial court did not fully comply with

Crim.R. 11(C), and (2) Brown was prejudiced by the failure to fully comply. Dangler,

2020-Ohio-2765, at ¶ 14, citing State v. Veney, 2008-Ohio-5200, ¶ 17. “The test for

prejudice is ‘whether the plea would have otherwise been made.’” Dangler at ¶ 16,

quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).

As detailed above, the trial court advised Brown regarding the

constitutional rights he would waive by pleading guilty, and Brown acknowledged

his understanding of those rights and his waiver of those rights. The court reviewed

with Brown each offense to which he would be pleading guilty, identified the

potential penalties he could receive on each count, and confirmed that Brown

understood. The court established that Brown was satisfied with defense counsel’s

representation, that no threats or promises were made to induce Brown to change

his pleas, and that the parties were satisfied that the trial court complied with

Crim.R. 11 in accepting Brown’s guilty pleas.

The trial court did not directly instruct Brown that upon acceptance

of his guilty pleas, it could proceed to judgment and sentence. However, during the

change-of-plea hearing, the trial court referenced that it would conduct a sentencing

hearing and the court held a sentencing hearing at a later date. Even assuming the

trial court failed to notify Brown that it could proceed to judgment and sentence

upon acceptance of his guilty pleas, no prejudice resulted and, therefore, Brown’s

plea was not invalid. See State v. Davis, 2021-Ohio-352, ¶ 14 (5th Dist.) (Where trial

court conducted sentencing hearing separately from change-of-plea hearing,

defendant-appellant could not demonstrate the court’s failure to inform him that it

could immediately proceed to judgment and sentencing prejudiced him.).

We also note that Brown pleaded guilty to amended Count 3, arson,

rather than aggravated arson. The record demonstrates that the parties and the

court correctly referenced the offense of aggravated arson throughout the plea

hearing. The only time the charged offense was incorrectly referenced as arson was

at the time Brown entered his plea. We cannot find the trial court’s single reference

to arson prejudiced Brown and, thus, this error did not invalidate Brown’s plea. See

State v. Woodall, 2016-Ohio-294, ¶ 13 (8th Dist.), citing State v. Davis, 2007-Ohio-

3944, ¶ 29 (4th Dist.) (“Generally, reviewing courts have upheld pleas even though

the trial court supplied the defendant with incorrect information,

mischaracterizations, or misstatements when the erroneous statement occurred in

isolation or when the written plea agreement contained the correct information.”).

The record contains nothing to suggest that, prior to entering his

guilty pleas, Brown did not understand the proceedings, the nature of the offenses

to which he would be pleading guilty, the rights he would waive by pleading guilty,

or the penalties associated with the offenses to which he would be pleading guilty.

Following a thorough, independent examination of the record, we

agree there is no arguable merit to the potential assignment of error where the trial

court complied with Crim.R. 11(C) and Brown’s guilty pleas were entered knowingly,

intelligently, and voluntarily. Accordingly, any appeal would be wholly frivolous.

Pursuant to Anders, appellate counsel’s request to withdraw is granted, and the

appeal is dismissed.

Nevertheless, we remand the case to the trial court for the issuance of

nunc pro tunc entries to correct clerical errors in the March 20, 2024 and March 26,

2024 judgment entries. Trial courts retain jurisdiction to correct clerical errors in

judgment entries so that the entries accurately reflect the trial court’s decision. State

ex rel. Cruzado v. Zaleski, 2006-Ohio-5795, ¶ 19; Crim.R. 36 (“Clerical mistakes in

judgments, orders, or other parts of the record, and errors in the record arising from

oversight or omission, may be corrected by the court at any time.”). Clerical

mistakes refer to mistakes or omissions that are “mechanical in nature and apparent

on the record” and do not address a legal decision or judgment. State v. Brown, 136

Ohio App.3d 816, 820 (3d Dist. 2000), citing Dentsply Internal., Inc. v. Kostas, 26

Ohio App.3d 116, 118 (8th Dist. 1985).

Although the transcript reflects that Brown pled guilty to, and was

sentenced to, amended Count 5 for felonious assault, a felony of the second degree

in violation of R.C. 2903.11(A)(2), the trial court’s March 20, 2024 and March 26,

2024 judgment entries state that Brown pled to and was sentenced to amended

Count 5, attempted felonious assault, a felony of the first degree in violation of R.C.

2923.02 and 2903.11(A)(2). Additionally, the transcript shows that amended Count

3 was subject to a Reagan Tokes indefinite term with a four-year tail but the March

26, 2024 judgment entry does not reflect those terms of the sentence.

Because these errors are clerical errors, having no impact on the

merits of Brown’s appeal, we grant counsel’s motion to withdraw but remand the

case to the trial court for the issuance of nunc pro tunc entries to correct the errors.

Specifically, both judgment entries need to show that Brown pleaded guilty to and

was sentenced to amended Count 5, felonious assault, in violation of R.C.

2903.11(A)(2), a felony of the second degree. The March 26, 2024 sentencing

judgment entry also needs to incorporate this wording to reflect the imposed prison

sentence, including the Reagan Tokes indefinite sentence:

The court imposes a prison sentence at the Lorain Correctional

Institution of 13-17 years.

Amended Count 3 — a minimum stated term of eight years and a

maximum term of 12 years.

Amended Count 4 — five years to be served consecutively to the

sentence imposed on amended Count 3.

Amended Count 5 — five years to be served concurrent to all sentences.

Counts 6, 8, 10, 12, and 14 — one year each, to be served concurrent to

all sentences.

Count 16 — time served.

In summary, the defendant shall serve the aggregate minimum term of

13 years up to the maximum term under S.B. 201 of 17 years.

Appeal dismissed and case remanded.

It is ordered that appellee recover the 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_____________________

WILLIAM A. KLATT, JUDGE*

KATHLEEN ANN KEOUGH, P.J., and

DEENA R. CALABRESE, J., CONCUR

(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court

of Appeals.)