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State v. Echols

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
THEO ECHOLS, DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-600873-A.

          ATTORNEY FOR APPELLANT Ruth R. Fischbein-Cohen

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Kelly N. Mason Assistant County Prosecutor

          BEFORE: Blackmon, J., Keough, A.J., and Kilbane, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE

         {¶1} Theo Echols ("Echols") appeals from his felonious assault conviction and associated seven-year prison sentence, and assigns the following errors for our review:

I. The court violated Theo Echols' due process guarantee by neglecting to advise him that he has a right to appeal; and that he has other Crim.R. 32(B) rights.
II. The court erred when it imposed a prison sentence which is contrary to law.

         {¶2} Having reviewed the record and pertinent law, we affirm. The apposite facts follow.

         {¶3} On April 10, 2015, Echols and three other males entered the Broadview Sports Tavern. Echols walked up to Henry L. Smith, IV ("Smith") who allegedly was in a volatile relationship with Echols's sister, and tapped him on the shoulder. When Smith turned around, Echols fired several shots at Smith, hitting him with four bullets. Smith survived the shooting.

         {¶4} On January 27, 2016, Echols pled guilty to one count of felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with a one-year firearm specification. On March 2, 2016, the court sentenced Echols to six years in prison for the assault, to run consecutively to one year in prison for the firearm specification. On May 26, 2016, this court granted Echols's motion for leave to file a delayed appeal, appointed appellate counsel, and ordered a transcript of the lower court proceedings at the state's expense.

         {¶5} In his first assigned error, Echols argues that, after imposing his prison sentence, the court failed to advise him of his appellate rights in violation of Crim.R. 32(B). The state acknowledges that the court failed to follow the mandates of Crim.R. 32(B); however, the state argues this failure amounts to harmless error because this court accepted Echols's delayed appeal, appointed counsel, and provided for the transcript at no cost to Echols.

         {¶6} This court has consistently held that when a motion for delayed appeal is granted and appellate counsel is appointed, an appellant is not prejudiced and any error under Crim.R. 32(B) is harmless. State v. Thomas, 8th Dist. Cuyahoga No. 94788, 2011-Ohio-214; State v. Hunter, 8th Dist. Cuyahoga No. 99472, 2013-Ohio-5022.

         {¶7} Accordingly, we find harmless error, and Echols's first ...


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