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State v. Gordon

Court of Appeals of Ohio, Third District, Allen

December 18, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE/ CROSS-APPELLANT,
v.
COREY D. GORDON, DEFENDANT-APPELLANT/ CROSS-APPELLEE.

         Appeal from Allen County Common Pleas Court Trial Court No. CR2016-0262

          Scott A. Kelly for Appellant

          Jana E. Emerick for Appellee

          OPINION

          WILLAMOWSKI JUDGE.

         {¶1} Defendant-appellant/cross-appellee Corey D. Gordon ("Gordon") brings this appeal from the judgment of the Court of Common Pleas of Allen County finding him to be a major drug offender. Gordon argues that the trial court failed to make an independent finding that he was a major drug offender. Additionally, the plaintiff-appellee/cross-appellant the State of Ohio ("the State") appeals the judgment of the trial court modifying a final judgment of conviction and sentencing alleging that the trial court lacked jurisdiction to do so. For the reasons set forth below, the judgments are affirmed in part and reversed in part.

         {¶2} On August 11, 2016, the Allen County Grand Jury indicted Gordon on one count of Possession of Cocaine in violation of R.C. 2925.11(A), 2925.11(C)(4)(f), a felony of the first degree. Doc. 3. This count contained a firearm specification and a major drug offender specification. Id. Gordon was also indicted on one count of Having Weapons While Under Disability in violation of R.C. 2923.13(A)(2), a felony of the third degree. Gordon entered pleas of not guilty to the charges. Doc. 10. On December 16, 2016, Gordon changed his plea to one of guilty as part of a negotiated plea agreement. Doc. 82. In exchange for his plea of guilty to Count 1, including the major drug offender specification, the State agreed to dismiss the firearm specification and Count 2 of the indictment. Id. The trial court personally addressed Gordon and determined that the plea of guilty was a voluntary act. Doc. 83. The trial court then accepted the plea of guilty to one count of possession of cocaine with a major drug offender specification and dismissed all remaining specifications and charges. Id.

         {¶3} On February 23, 2017, a sentencing hearing was held. Doc. 90. The trial court ordered Gordon to serve a mandatory prison term of 11 years. Id. The trial court also imposed a mandatory fine of $10, 000.00. Id. On March 8, 2017, Gordon filed a motion to modify his sentence requesting that the mandatory fine be waived because he was indigent. Doc. 93. The trial court granted this motion on March 9, 2017, and ordered the mandatory fine to be waived. Doc. 94. On that same day, the State filed its response to the motion. Doc. 95. On March 10, 2017, the State filed a motion for the trial court to reconsider its modification of sentence. Prior to a ruling on this motion, Gordon filed his notice of appeal from the sentencing entry. Doc. 97. The State filed its notice of cross-appeal on March 29, 2017. Doc. 101. On appeal, Gordon raised the following assignment of error.

         The State then raised the following assignment of error in its cross-appeal.

The trial court erred in filing an order purporting to modify a final judgment of conviction and sentencing, as the trial court lacked jurisdiction to do so.


         Finding that Defendant was a Major Drug Offender

         {¶4} Gordon claims in his assignment of error that the trial court erred by finding him to be a major drug offender pursuant to R.C. 2941.1410(B). A major drug offender is defined as a defendant who "pleads guilty to the possession of * * * any drug, compound, mixture, preparation, or substance that contains * * * at least one hundred grams of cocaine * * *. R.C. 2929.01(W). R.C. 2941.1410 requires the specification to be contained in the indictment and that the trial court "shall determine the issue of whether an offender is a major drug offender." R.C. 2941.1410(A), (B). Gordon argues that the trial court erred because it did not specifically find that he was a major drug offender. We disagree.

         {¶5} Initially, this Court notes that Gordon entered a plea of guilty to Possession of Cocaine based upon the facts that he had cocaine equal to or in excess of one hundred grams of cocaine. Doc. 3 and 83. Gordon also entered a plea of guilty to the major drug offender specification. Doc. 83. At the plea hearing, the trial court specifically addressed the specification with Gordon and Gordon acknowledged that he understood what the trial court told him. Tr. 7-8. The trial court also informed Gordon that because of the specification, he would be required to serve a mandatory term of eleven years in prison and Gordon acknowledged this fact. Tr. 9-11. The trial court then conducted the following dialogue.

The Court: * * * I want to make it clear. There's a separate plea of guilty required both on the possession of cocaine as well as the major drug offense so I'll have to hear both pleas of ...

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