[Cite as State v. Black,
2021-Ohio-1490.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109853
v. :
DEASHAWN J. BLACK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 29, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-599913-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brandon Piteo, Assistant Prosecuting
Attorney, for appellee.
Deashawn J. Black, pro se.
MARY EILEEN KILBANE, J.:
Pro se defendant-appellant Deashawn J. Black (“Black”) appeals the
denial of his motion for sentencing. For the reasons that follow, we affirm.
I. PROCEDURAL BACKGROUND
On October 8, 2015, Black was indicted by a Cuyahoga County Grand
Jury for a total of seven counts against two separate victims, Jane and John Doe:
(1) Aggravated Robbery, felony of the first degree, in violation of R.C.
2911.01(A)(1) against Jane Doe;
(2) Aggravated Robbery, felony of the first degree, in violation of R.C.
2911.01(A)(1) against John Doe;
(3) Aggravated Robbery, felony of the first degree, in violation of R.C.
2911.01(A)(3) against Jane Doe;
(4) Felonious Assault, felony of the second degree, in violation of R.C.
2903.11(A)(1) against Jane Doe;
(5) Felonious Assault, felony of the second degree, in violation of R.C.
2903.11(A)(2) against Jane Doe; and
(6) Kidnapping, felony of the first degree, in violation of R.C.
2905.01(A)(2) against Jane Doe.
(7) Kidnapping, felony of the first degree, in violation of R.C.
2905.01(A)(2) against John Doe.
Each of the seven counts further included both a one- and three-year firearm
specification, pursuant to R.C. 2941.141(A) and 2941.145(A), respectively.
On November 17, 2015, Black entered guilty pleas to Counts 1 and 2,
amended to remove the one-year firearm specification on each count and amended
the victim’s names. As such, Black pleaded guilty to two counts of aggravated
robbery, a first-degree felony, against two separate victims with a three-year firearm
specification on each count. The journal entry from the trial court states, in relevant
part, that:
The defendant is advised that under R.C. 2929.14(B)(1)(G) the two
firearm specifications must be served consecutively to each other and
to any prison time on the underlying felonies, meaning there is a
mandatory minimum of six years in prison on the specifications before
any time is served on the aggravated robbery charges themselves.
Defendant advised of post release control for 5 years mandatory.
Defendant advised if/when post release control supervision is imposed
following his/her release from prison and if he/she violates that
supervision or condition of post release control under R.C. 2967.131(B),
parole board may impose a prison term as a part of the sentence of up
to one-half of the stated prison term originally imposed upon the
offender.
(Emphasis deleted.) Journal entry (Nov. 17, 2015).
On December 8, 2015, the court sentenced Black to a total term of 12
years. He was sentenced to six years on Count 1 and five years on Count 2 to be
served concurrently, to begin after the two, three-year terms for each firearm
specification, which were to be served consecutively.
On June 15, 2020, Black filed a “Motion For: Sentencing” with the
trial court in which he argued the trial court failed to “make necessary and required
findings” before imposing his sentence. The state filed a brief in opposition on July
1, 2020, and attached the sentencing hearing transcript as exhibit No. 1. On July 9,
2020, the trial court denied this motion.
On July 28, 2020, Black filed his notice of appeal from the July 9,
2020 trial court judgment denying his motion for sentencing. Because Black did not
timely file the transcript as required by App.R. 10, this court sua sponte granted an
extension to file the transcript. After a motion from Black, this court found that the
transcript for the hearing was attached to the state’s brief in opposition such that the
record from the trial court was complete.
In his brief, Black asserts the following assignment of error:
Assignment of Error No. 1
Where a trial court fails to make required and mandatory findings and
notifications prior to accepting a defendant’s guilty plea, the trial court
fails to strictly comply with the mandatory provisions of Crim. R. 11(C)
and the resulting guilty plea is not knowingly, intelligently, and
voluntarily made, see: State v. Sarkozy, 117 Ohio St. 3d 86; State v.
Boswell, 121 Ohio St. 3d 575; and, State v. Montez-Jones (5th Dist),
2001-Ohio-1202. see also U.S.C.A. Const. Amend. 14.
II. LAW AND ANALYSIS
Black’s sole assignment of error appears to take issue with the trial
court’s alleged failure to make required and mandatory findings and notifications
prior to accepting his guilty plea, such that his guilty plea was not knowingly,
intelligently, and voluntarily made. Pursuant to Crim.R. 32.1 which states: “A
motion to withdraw a plea of guilty or no contest may be made only before sentence
is imposed; but to correct manifest injustice the court after sentence may set aside
the judgment of conviction and permit the defendant to withdraw his or her plea.”
As such, the only way Black can challenge his guilty plea is for the December 8, 2015
judgment of conviction to be set aside.
Pursuant to App.R. 4(A) this court lacks jurisdiction to consider a
challenge to Black’s conviction, which was journalized as a final order on December
8, 2015, because he did not timely appeal that judgment. State v. Pollard, 8th Dist.
Cuyahoga No. 97468, 2012-Ohio-2311, ¶ 6 (“without a timely notice of appeal from
the order challenged, this court lacks jurisdiction to consider it.”), citing State v.
Lopez, 8th Dist. Cuyahoga No. 85306,
2005-Ohio-3711, ¶ 15 (internal citation
omitted). Instead, Black has appealed the trial court’s July 9, 2020 judgment entry
denying his motion for sentencing.
App.R. 3(D) states that a notice of appeal “shall designate the
judgment, order, or part thereof appealed from.” This court has consistently held
an appellate court is “without jurisdiction to review a judgment or order which is not
designated in the appellant’s notice of appeal.” Pollard at ¶ 9, quoting Parks v.
Baltimore & Ohio RR., 8th Dist. Cuyahoga No. 59894, 1991 Ohio App. LEXIS 4435,
428 (Sept. 30, 1991); see also State v. Kennedy, 8th Dist. Cuyahoga No. 79143,
2002-Ohio-42; State v. Millhouse, 8th Dist. Cuyahoga No. 79910,
2002-Ohio-2255,
¶ 51-52. As such, assignments of error that address issues outside the scope of the
present appeal cannot be addressed. State v. Wright, 8th Dist. Cuyahoga No. 95634,
2011-Ohio-3583, ¶ 7. Therefore, because Black appealed from the July 9, 2020
judgment entry, this court does not have jurisdiction to review the trial court’s
December 8, 2015 judgment of conviction.
Furthermore, even if Black had timely appealed from the December
8, 2015 journal entry, this court would still be unable to hear his appeal because
Black has failed to attach the transcript from the November 17, 2015 plea hearing.
Without a transcript, the record is inadequate to permit a review of the claimed
error. Black is required to provide a transcript for this court to review because he
must show error by pointing to matters in the record. State v. Briscoe, 8th Dist.
Cuyahoga No. 98414, 2012-Ohio-4943, ¶ 14, citing Knapp v. Edwards Laboratories,
61 Ohio St.2d 197, 199,
400 N.E.2d 384 (1980). As this court stated in Briscoe:
[w]hen portions of the transcript necessary for resolution of an
assigned error are omitted from the record, the reviewing court has
nothing upon which to pass judgment and thus, as to such an assigned
error, the court has no choice but to presume the validity of the lower
court’s proceedings, and affirm. Id.
Therefore, because Black’s assignment of error fails to point to any
error related to the trial court’s July 9, 2020 judgment, this court must overrule his
assignment of error.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___________________________________
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY
