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State v. Smith

Court of Appeals of Ohio, Fifth District, Stark

June 10, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JEREMY BERNARD SMITH Defendant-Appellant

          Criminal appeal from the Stark County Court of Common Pleas, Case No. 2017-CR-1252(A)

          For Plaintiff-Appellee JOHN D. FERRERO Stark County Prosecutor BY: KRISTINE W. BEARD Assistant Prosecutor

          For Defendant-Appellant JEREMY BERNARD SMITH PRO SE Inmate No. A702-979 Lake Erie Correctional Institution

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, J.

          OPINION

          GWIN, P.J.

         {¶1} Appellant appeals the December 17, 2018 judgment entry of the Stark County Common Pleas Court. Appellee is the State of Ohio.

         Facts & Procedural History

         {¶2} On July 24, 2017, appellant Jeremey Bernard Smith was indicted on multiple felony drug offenses. The indictment stated that appellant did and/or did aid and abet co-defendants Robert L. Williams, Megan M. McGraw, Cornelius D. Gomez, Antonio N. Nekoa, Tiffany Carioti, and Jesse N. Burns in committing one or more of the offenses in the multi-count indictment, i.e., engaged in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1). Count Two alleged, in pertinent part, that appellant was complicit with others and/or did sell or distribute cocaine in an amount equaling or exceeding one hundred grams. Count Two also included a major drug offender specification pursuant to R.C. 2941.1410. Appellant was also charged with: complicity to trafficking in heroin, aggravated possession of drugs, aggravated trafficking in drugs, having weapons while under disability, and complicity to aggravated trafficking in drugs.

         {¶3} On September 22, 2017, appellant pled guilty to the indictment counts. The trial court ordered a pre-sentence investigation and set a sentencing date of November 1, 2017. Appellant signed a plea of guilty, Criminal Rule 11(C) form on September 22, 2017. Appellant acknowledged he was represented by counsel and that his counsel and the trial court advised him of the counts for which he was charged and, additionally, that he understood the maximum penalty as to each count. Appellant acknowledged he understood: that a prison sentence is presumed necessary on Count One, a prison sentence is mandatory for Count Two, and the specification to Count Two could result in an additional prison term of up to eleven years consecutive to that charge. Further, that his attorney and the trial court advised him that by entering a plea of guilty he is waiving (giving up) his: right to a jury trial, right to confront witnesses against him, right to have compulsory process for obtaining witnesses in his favor, his right to require the State to prove his guilt beyond a reasonable doubt; and his right not to be compelled to testify against himself. The trial court issued a judgment entry on appellant's change of plea on September 29, 2017.

         {¶4} The trial court sentenced appellant on November 1, 2017. The trial court issued a sentencing judgment entry on November 22, 2017. The trial court denied appellant's request for community control and sentenced him to an aggregate mandatory prison term of eighteen years. The trial court issued a nunc pro tunc sentencing entry on December 8, 2017 to include a term omitted from the original sentencing entry. Appellant did not file a direct appeal from his conviction or sentence and appellant has not petitioned this Court to file a delayed appeal.

         {¶5} Appellant filed a petition for post-conviction relief on December 3, 2018. Appellant sought to vacate his guilty plea and the resulting sentence due to ineffective assistance of counsel. In his petition, appellant alleges his trial counsel told appellant he would file a direct appeal and that his trial counsel "misadvised" him as to the scope and reach of Count Two. The fifth section of appellant's petition for post-conviction relief is titled "Affidavit of Petitioner Smith" and states each fact asserted in his petition is true and he is filing the petition in good faith.

         {¶6} Appellee filed a detailed response to appellant's petition on December 11, 2018. The trial court issued a judgment entry on December 17, 2018. The trial court denied and dismissed appellant's petition.

         {¶7} Appellant appeals the December 17, 2018 judgment entry of the Stark County Common Pleas Court and assigns the following as error:

         {¶8} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN THE TRIAL COURT DENIED PETITIONER-APPELLANT'S TIMELY FILED PETITION FOR POSTCONVICTION RELIEF PURSUANT TO O.R.C. 2953.21 ...


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