[Cite as State v. Nix, 2018-Ohio-4702.]



                     Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106894



                                          STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                          BOBBY NIX, II

                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CR-16-623461

        BEFORE: E.A. Gallagher, A.J., Laster Mays, J., and Jones, J.

        RELEASED AND JOURNALIZED: November 21, 2018
ATTORNEY FOR APPELLANT

Amichai Eitan Zukowsky
Zukowsky Law Firm L.L.C.
23811 Chagrin Boulevard, Suite 160
Beachwood, Ohio 44122


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Khalilah Lawson
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113



EILEEN A. GALLAGHER, A.J.:

       {¶1} Defendant-appellant Bobby Nix, appeals his sentence after he pled guilty to one

count of drug possession and was sentenced accordingly.      Nix contends his sentence should be

vacated because the trial court failed to advise him of his right to appeal as set forth in Crim.R.

32(B). Finding no merit to his appeal, we affirm.

       {¶2} On January 30, 2018, Nix pled guilty to one count of drug possession in violation of

R.C. 2925.11 and the trial court sentenced him to 11 months in prison, plus three years’

discretionary postrelease control.

       {¶3} On March 5, 2018, Nix filed, pro se, a notice of appeal, a motion for leave to file a

delayed appeal based on the trial court’s failed to advise him of his appellate rights at sentencing

and a motion for appointment of counsel. This court granted Nix’s motion for leave to file a

delayed appeal and appointed counsel to represent him. In his sole assignment of error, Nix
contends that his sentence should be vacated because the trial court failed to notify him of his

appellate rights after sentencing, in violation of Crim.R. 32(B).

        {¶4} Crim.R. 32(B) provides, in relevant part:

        (2) After 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.

        (3) If a right to appeal or a right to seek leave to appeal applies under division
        (B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the
        following:

                (a) That if the defendant is unable to pay the cost of an appeal, the
                defendant has the right to appeal without payment;

                (b) That if the defendant is unable to obtain counsel for an
                appeal, counsel will be appointed without cost;

                (c) That if the defendant is unable to pay the costs of documents
                necessary to an appeal, the documents will be provided without
                cost;

                (d) That the defendant has a right to have a notice of appeal
                timely filed on his or her behalf.

                Upon defendant’s request, the court shall forthwith appoint counsel for

                appeal.

        {¶5}    In this case, the transcript from the sentencing hearing contains no advisement of

Nix’s appellate rights under Crim.R. 32(B). However, we find the trial court’s failure to notify

Nix of his appellate rights to be harmless. Nix has not claimed (much less demonstrated) any

prejudice as a result of the trial court’s error.

        {¶6} As this court has previously held, a trial court’s failure to advise a defendant of his

or her appellate rights at sentencing renders the sentence voidable, not void.     See, e.g., State v.

Davner, 2017-Ohio-8862, 100 N.E.3d 1247, ¶ 36, fn. 6 (8th Dist.), citing State v. Gum, 8th Dist.
Cuyahoga No. 101496, 2015-Ohio-1539, ¶ 8. Where the trial court fails to advise a defendant

of his appellate rights at sentencing, the remedy is not “a complete re-sentencing 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). See,

e.g., Davner at ¶ 36, fn.6; State v. Gum, 8th Dist. Cuyahoga No. 100156, 2014-Ohio-401, ¶ 5, fn.

2.

          {¶7} In this case, after his sentencing, Nix filed, pro se, a motion for leave to file a

delayed appeal. Because Nix’s motion to file a delayed appeal was granted and counsel was

appointed to represent him in the appeal, Nix was “able to effect a timely appeal through

counsel” and has not been prejudiced by the trial court’s failure to advise him of his appellate

rights.    State v. El, 8th Dist. Cuyahoga No. 105089, 2017-Ohio-8165, ¶ 13. Accordingly, the

trial court’s failure to notify Nix of his right to appeal his sentence is, therefore, harmless. See,

e.g., id. at ¶ 12-13; State v. Hunter, 8th Dist. Cuyahoga No. 99472, 2013-Ohio-5022, ¶ 24; see

also State v. Thomas, 8th Dist. Cuyahoga No. 94788, 2011-Ohio-214, ¶ 38 (defendant’s

argument that the trial court failed to advise him of his appellate rights under Crim.R. 32(B) was

“moot” where appellate court granted defendant’s motion for delayed appeal and subsequently

appointed appellate counsel to represent him in the appeal).

          {¶8} Further, the only error Nix has claimed in this appeal is the trial court’s failure to

notify him of his appellate rights. Nix has not claimed the existence of any other error for

which he contends relief would be warranted on appeal.

          {¶9} Nix’s assignment of error is overruled.

          {¶10} Judgment affirmed.

          It is ordered that appellee recover from appellant the costs herein taxed.
       It is ordered that a special mandate issue out of this court directing the Cuyahoga County

Court of Common Pleas 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.



____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR
