[Cite as State v. Johnson, 2020-Ohio-2826.]

                                 COURT OF APPEALS OF OHIO

                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 108661
                 v.                                 :

KWAIMANE JOHNSON,                                   :

                 Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 7, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                  Case Nos. CR-18-633200-B and CR-18-635631-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory Ochocki, Assistant Prosecuting
                 Attorney, for appellee.

                 Joseph V. Pagano, for appellant.


LARRY A. JONES, SR., J.:

                   Defendant-appellant Kwaimane Johnson (“Johnson”) appeals his

convictions in two cases. Finding no merit to the appeal, we affirm.

                   In Cuyahoga C.P. No. CR-18-633200-B, Johnson was indicted on

two counts of aggravated robbery and one count each of theft, having weapons
while under disability, and grand theft. The aggravated robbery and theft counts

contained one- and three-year firearm specifications. Johnson was also indicted in

Cuyahoga C.P. No. CR-18-635631-A on one count each of aggravated robbery,

grand theft (motor vehicle), carrying a concealed weapon, having weapons under

disability, and theft. The aggravated robbery and grand theft counts contained

one- and three-year firearm specifications.

               In May 2019, Johnson entered guilty pleas in both cases. In Case

No. CR-18-633200-B, he pleaded guilty to an amended count of robbery, in

violation of R.C. 2911.02(A)(1), with a one-year firearm specification. In Case No.

CR-18-635631-A, Johnson pleaded guilty to one count of aggravated robbery, in

violation of R.C. 2911.01(A)(1), with a three-year firearm specification. The

remaining counts in both cases were nolled and the parties jointly recommended a

12-year sentence. The trial court imposed the recommended sentence at a

later sentencing hearing.

               It is from this plea and sentence that Johnson now appeals, raising

two assignments of error for our review:

   I.     Failure to advise Mr. Johnson of his appellate rights renders his
          sentence void.

   II.    Mr. Johnsons’ plea was not knowing, intelligent, or
          voluntary when he was never informed of his appellate rights or
          the implications that entering a jointly recommended sentence
          could have on his appellate rights.

               In the first assignment of error, Johnson contends that his sentence

is void because the trial court failed to advise him of his right to appeal.
               Crim.R. 32(B) provides that “[a]fter imposing sentence in a serious

offense, the court shall advise the defendant of the defendant’s right, where

applicable, to appeal or to seek leave to appeal the sentence imposed” and shall

also inform the defendant of certain rights, including the right to counsel and the

right to a timely appeal. This court has held that the trial court’s failure to advise a

defendant of his or her appellate rights renders the sentence voidable, not

void. State v. Nix, 8th Dist. Cuyahoga No. 106894, 2018-Ohio-4702, ¶ 6,

citing State v. Davner, 2017-Ohio-8862, 100 N.E.3d 1247 (8th Dist.). When a trial

court fails to advise a defendant of his or her appellate rights at sentencing, the

remedy is not a complete resentencing hearing, it is to have the trial court reenter

the judgment of conviction against the defendant, thereby reinstating the time

within which the defendant may file a notice of appeal pursuant to App.R.

4(A). Nix at ¶ 7.

               After sentencing, Johnson filed a timely notice of appeal and was

subsequently appointed counsel to represent him. Counsel secured a copy of the

transcript at the state’s expense. Thus, the trial court’s failure to advise Johnson of

his appellate rights was harmless and did not render his sentence void. See id.

               The first assignment of error is overruled.

               In the second assignment of error, Johnson contends that the trial

court’s failure to advise him of his appellate rights rendered his plea invalid.

               Johnson     argues   that   his guilty pleas   were    not   knowingly,

voluntarily, and intelligently made because the trial court failed to inform him that
he would be waiving his right to appeal his sentence. Johnson does not argue that

the trial court failed to comply with Crim.R. 11 during his plea hearing; his sole

argument is that the trial court’s failure to advise him of his appellate rights

rendered his plea void.

               This court has consistently held that the failure to file a Crim.R. 32.1

motion to withdraw a plea or otherwise challenge a guilty plea at the trial court

level constitutes a waiver of the issue on appeal. State v. Carmon, 8th Dist.

Cuyahoga No. 75377, 1999 Ohio App. LEXIS 5458, 7 (Nov. 18, 1999); State v.

Betances, 8th Dist. Cuyahoga No. 70786, 1997 Ohio App. LEXIS 3011 (July 10,

1997); see also State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986).

              Notwithstanding Johnson’s failure to properly preserve the issue, we

review this case for plain errors or defects affecting substantial rights

under Crim.R. 52(B). Carmon at 8. Crim.R. 52(B) provides that “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought

to the attention of the court.” Plain error will be recognized only where, but for the

error, the outcome of the case would clearly have been different. State v. Sanders,

92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001). The Ohio Supreme Court has

admonished courts to notice plain error “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,

¶ 23.
              A trial court’s duty to advise a defendant of his or her right to appeal

does not arise until sentencing and, therefore, has no effect upon whether the

defendant’s guilty plea was entered knowingly, voluntarily, and intelligently. State

v. Allen, 9th Dist. Summit Nos. 27494 and 28213, 2017-Ohio-2831, ¶ 15,

citing State v. Jordan, 9th Dist. Summit No. 27690, 2015-Ohio-4354. “The failure

to inform a defendant that a guilty plea waives certain rights on appeal is not one

of the specifically enumerated rights the trial court is required to discuss during

the Crim.R. 11 colloquy.” State v. Reynolds, 12th Dist. Madison No. CA2018-02-

005, 2018-Ohio-4942, ¶ 12, citing State v. Moxley, 12th Dist. Madison No. CA2011-

06-010, 2012-Ohio-2572.

              Additionally, we note that R.C. 2953.08(D)(1) limits an appellate

court’s ability to review an agreed sentence. The statute provides:

      A sentence imposed upon a defendant is not subject to review under
      this section if the sentence is authorized by law, has been
      recommended jointly by the defendant and the prosecution in the
      case, and is imposed by a sentencing judge.

Id. “[A] sentence is ‘authorized by law’ and is not appealable within the meaning

of R.C. 2953.08(D)(1) only if it comports with all the mandatory sentencing

provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d

923, ¶ 21. The Ohio Supreme Court has stated that the “General Assembly

intended a jointly agreed-upon sentence to be protected from review precisely

because the parties agreed that the sentence is appropriate. Once a defendant

stipulates that a particular sentence is justified, the sentencing judge no longer
needs to independently justify the sentence.” State v. Porterfield, 106 Ohio St.3d

5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 25.

               Finally, we note that a trial court is not required to advise a defend-

ant of the R.C. 2953.08(D) bar to appellate review before imposing a jointly

recommended sentence that falls within the statutory range of available

sentences. State v. Robinson, 8th Dist. Cuyahoga Nos. 89222 and 89223, 2008-

Ohio-224, ¶ 14, citing State v. Atchley, 10th Dist. Franklin No. 04AP-841, 2005-

Ohio-1124, ¶ 10; see also Nix, 8th Dist. Cuyahoga No. 106894, 2018-Ohio-4702 at

¶ 7 (because the appellant filed a delayed notice of appeal and was assigned

counsel, appellant was “able to effect a timely appeal through counsel” and was not

prejudiced by the trial court’s failure to advise him of his appellate rights). The

jointly recommended sentence imposed in this case fell within the statutory range

and complied with all mandatory sentencing provisions.

               Accordingly, the second assignment of error is overruled.

               The trial court was not required to inform Johnson of his appellate

rights at the plea hearing. Any error in the trial court’s failure to inform Johnson

of his appellate rights at his sentencing hearing was harmless because Johnson was

able to effectuate a timely appeal.

               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.        The defendant’s

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

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

27 of the Rules of Appellate Procedure.


____________________________
LARRY A. JONES, SR., JUDGE

ANITA LASTER MAYS, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR
