[Cite as State v. Simpson, 2024-Ohio-3161.]

COURT OF APPEALS

MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. Patricia A. Delaney, P.J.

 Plaintiff-Appellee : Hon. Craig R. Baldwin, J.

: Hon. Andrew J. King, J.

-vs- :

:

NUKIYUS SIMPSON : Case No. CT2024-0006

:

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case 2023-04442

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 19, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH A. PALMER NUKIYUS SIMPSON - PRO SE

27 North Fifth Street # 825-765

Zanesville, OH 43702 Southeast Correctional Institution

Lancaster, OH 43130
Muskingum County, Case No. CT2024-0006 2

King, J.

{¶ 1} Defendant-Appellant, Nukiyus Simpson, appeals his December 15, 2023 

judgment of conviction and sentence from the Court of Common Pleas of Muskingum 

County, Ohio. Appellee is the State of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On July 13, 2023, the Muskingum County Grand Jury returned a seventeencount indictment charging Simpson and his two codefendants with various crimes related 

to drug trafficking. Simpson was charged with one count of engaging in a pattern of 

corrupt activity, a felony of the first degree; one count of aggravated possession of 

methamphetamine with a firearm specification, a felony of the second degree; one count 

of aggravated trafficking in drugs with a firearm specification, a felony of the second 

degree; one count of possession of cocaine with a firearm specification, a felony of the 

second degree; two counts of trafficking in cocaine with a firearm specification, a felony 

of the second degree; two counts of possession of cocaine with a firearm specification, a 

felonies of the first degree; one count of tampering with evidence, a felony of the third 

degree; one count of illegal manufacture of drugs with a firearm specification, a felony of 

the second degree; one count of possessing criminal tools, a felony of the fifth degree;

and two counts of having weapons under disability, felonies of the third degree. 

{¶ 3} The charges stemmed from Simpson's involvement in an enterprise with his 

codefendants wherein he collected debt in relation to drug trafficking and the manufacture 

of drugs. These activities took place in June and July of 2023. 

{¶ 4} Simpson entered pleas of not guilty at his arraignment. Thereafter, he 

engaged in plea negotiations with the state. The parties agreed that Simpson would enter 
Muskingum County, Case No. CT2024-0006 3

a plea of guilty to engaging in a pattern of corrupt activity, a felony of the first degree. In 

exchange, the state agreed to dismiss the remaining counts and specifications. The 

parties further agreed to jointly recommend a sentence of 11 years incarceration and 

stipulated to the judicial findings necessary for imposition of a maximum sentence. Signed 

plea form, December 14, 2023, docket item 41. 

{¶ 5} Simpson's plea hearing took place on December 14, 2023. The trial court 

engaged Simpson in a thorough Crim.R. 11 plea colloquy. Simpson acknowledged he 

understood the rights he was giving up by entering his guilty plea and the potential 

penalties involved. Transcript of plea hearing, 5-13.

{¶ 6} Simpson returned to the trial court for sentencing on December 18, 2023. 

Per the plea negotiations, the parties jointly recommended a sentence of 11 years. The 

trial court followed the recommendation of the parties and imposed an indefinite sentence 

of 11 to 16 and a half years.

{¶ 7} Simpson filed an appeal and was appointed counsel. Thereafter, Simpson's 

attorney filed an Anders brief under Anders v. California, 386 U.S. 738 (1967). In Anders, 

the United States Supreme Court held that if, after a conscientious examination of the 

record, the defendant's counsel concludes that the case is wholly frivolous, then counsel 

should so advise the court and request permission to withdraw. Id. at 744. Counsel must 

accompany the request with a brief identifying anything in the record that could arguably 

support the defendant's appeal. Id. Counsel also must: (1) furnish the defendant with a 

copy of the brief and request to withdraw; and (2) allow the defendant sufficient time to 

raise any matters that the defendant chooses. Id. Once the defendant's counsel satisfies 

these requirements, the appellate court must fully examine the proceedings below to 
Muskingum County, Case No. CT2024-0006 4

determine if any arguably meritorious issues exist. If the appellate court also determines 

that the appeal is frivolous, it may grant counsel's request to withdraw and dismiss the 

appeal without violating constitutional requirements, or may proceed to a decision on the 

merits if state law so requires. Id.

{¶ 8} On April 18, 2024, Simpson's counsel filed a motion to withdraw and 

indicted she sent Simpson a copy of the Anders brief and the relevant transcripts. By 

judgment entry filed April 19, 2024, this court noted counsel had filed an Anders brief and 

indicated to the court that she had served Simpson with the brief. Accordingly, this court 

notified Simpson via certified U.S. Mail that he "may file a pro se brief in support of the 

appeal within 60 days from the date of this entry." After receiving and extension of time 

in which to file his brief, Simpson filed a brief on July 11, 2024. He raises one assignment 

of error for our consideration as follows:

I

{¶ 9} "THE TRIAL COURT ERRED BY IMPOSING A MAXIMUM SENTENCE 

BASED UPON FACTORS THAT ARE NOT SUPPORTED BY THE RECORD."

{¶ 10} In her Anders brief, counsel for Simpson raised one potential assignment of 

error as follows:

I

{¶ 11} THE TRIAL COURT ERRED IN ACCEPTING SIMPSON'S GUILTY PLEA 

UNDER CRIM.R. 11, AND ERRED IN SENTENCING SIMPSON.

Simpson's Assignment of Error

{¶ 12} Simpson's sole assignment of error argues the trial court failed to make the 

appropriate findings on the record before imposing a maximum sentence. We disagree.
Muskingum County, Case No. CT2024-0006 5

{¶ 13} Simpson entered a negotiated plea and received an agreed upon sentence. 

R.C. 2953.08(D)(1) limits an appellate court's ability to review an agreed upon sentence. 

"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." State v. Holman, 2023-

Ohio-716, ¶ 10.

{¶ 14} Simpson's negotiated plea involved certain agreements between himself 

and the state including the following:

Upon a plea of "guilty" to Count One as contained in the indictment, 

the parties agree to a joint recommendation that the defendant be 

sentenced to eleven (11) years in prison and forfeit all items seized 

in this matter. The parties stipulate to Judicial Findings necessary for 

the imposition of a maximum sentence. The State agrees to dismiss 

Counts Seven through Seventeen of the indictment at the time of 

sentencing.

{¶ 15} This agreement was reiterated on the record during Simpson's plea hearing

and Simpson and his counsel agreed that the signed plea agreement was accurate. 

Transcript of plea hearing 4-5. The agreement was recited once again during Simpson's 

sentencing hearing and Simpson requested that the trial court follow the joint 

recommendation. Transcript of sentencing 3-4. Simpson's sentence was within the 

recommended sentencing range for a first-degree felony which is punishable by 3, 4, 5, 
Muskingum County, Case No. CT2024-0006 6

6, 7, 8, 9, 10, or 11 years incarceration and was therefore authorized by law. R.C. 

2929.14.(A)(1)(a).

{¶ 16} Because Simpson's sentence is not reviewable and because he stipulated 

to the judicial findings necessary for imposition of a maximum sentence, we reject 

Simpson's sentencing complaint. 

{¶ 17} Under the same assignment of error, Simpson appears to challenge the 

constitutionality of the Reagan Tokes Law. In State v. Hacker, 2023-Ohio-2535, however, 

the Supreme Court of Ohio found the law is constitutional. Id, ¶ 41. Simpson presents no 

new or novel challenge to the law which was left unaddressed by the Court in Hacker.

Counsel's Proposed Assignment of Error

{¶ 18} We next address the potential assignment of error raised by counsel for 

Simpson. Counsel's potential assignment of error points to the trial court's compliance 

with Crim.R. 11 during Simpson's plea colloquy and the lawfulness of Simpson's 

sentence.

{¶ 19} We have already addressed Simpson's sentence above and therefore move 

directly to the trial court's plea colloquy. 

{¶ 20} When reviewing a plea's compliance with Crim.R. 11(C), we apply a de novo 

standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109 (1990); State v. Groves, 

2019-Ohio-5025, ¶ 7 (5th Dist.).

{¶ 21} Crim.R. 11 requires guilty pleas to be made knowingly, intelligently, and 

voluntarily. Although literal compliance with Crim.R. 11 is preferred, the trial court need 

only "substantially comply" with the rule when dealing with the non-constitutional 

elements of Crim.R. 11(C), and strictly comply with the constitutional notifications. State 
Muskingum County, Case No. CT2024-0006 7

v. Ballard, 66 Ohio St.2d 473, 475 (1981), citing State v. Stewart, 51 Ohio St.2d 86 (1977); 

State v. Veney, 2008-Ohio-5200, ¶ 31.

{¶ 22} As to the constitutional notifications, before accepting a plea, a trial court 

must inform a defendant that by entering a plea, the defendant waives important 

constitutional rights, specifically: (1) the right to a jury trial; (2) the right to confront one's 

accusers; (3) the privilege against compulsory self-incrimination; (4) the right to 

compulsory process to obtain witnesses; and (5) the right to require the state to prove the 

defendant's guilt beyond a reasonable doubt at trial. Veney at ¶ 19. If the trial court fails 

to strictly comply with these requirements, then the defendant's plea is invalid. Id. at ¶ 31.

{¶ 23} As to the non-constitutional rights, a trial court must notify a defendant of: 

(1) the nature of the charges; (2) the maximum penalty involved, which includes, if 

applicable, an advisement on post-release control; (3) if applicable, that the defendant is 

not eligible for probation or the imposition of community control sanctions; and (4) that 

after entering a guilty plea or a no contest plea, the court may proceed directly to judgment 

and sentencing. Crim.R. 11(C)(2)(a) and (b); Veney at ¶ 10-13.

{¶ 24} For these non-constitutional rights, the trial court must substantially comply 

with the mandates of Crim.R. 11. State v. Nero, 56 Ohio St.3d 106, 108 (1990). 

"Substantial compliance means that under the totality of the circumstances the defendant 

subjectively understands the implications of his plea and the rights he is waiving." Veney 

at ¶ 15.

{¶ 25} We have reviewed the transcript of Simpson's plea and find it reflects the 

trial court's strict compliance with each constitutional notification and its substantial 

compliance with each non-constitutional notification. Transcript of plea 5-10.
Muskingum County, Case No. CT2024-0006 8

{¶ 26} After a full and complete examination of the record, including a transcript of 

the proceedings below, we further find this appeal is wholly frivolous. The record, 

including the plea hearing and sentencing hearings, is lacking any legal points arguable 

on the merits.

{¶ 27} This Court therefore grants the motion of Simpson's counsel to withdraw 

from the case, dismisses the appeal, and affirms the conviction and sentence of the trial 

court.

By King, J., 

Delaney, P.J. and

Baldwin, J. concur.