State v. Jones , 2021 Ohio 1922 ( 2021 )

[Cite as State v. Jones, 2021-Ohio-1922.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2020-P-0061
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
ROBERT F. JONES, JR.,
Trial Court No. 2010 CR 0320
Defendant-Appellant.
OPINION
Decided: June 7, 2021
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Thomas Rein, 820 West Superior Avenue, Suite 800, Cleveland, OH 44113 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Robert F. Jones, Jr., filed the instant appeal of three motions to
vacate his 2010 sentence denied by the Portage County Court of Common Pleas on June
10, 16, and 22, 2020. For the reasons stated herein, the judgments are affirmed.
{¶2} On November 25, 2010, appellant entered guilty pleas on two counts of
attempted murder in violation of R.C. 2923.02, R.C. 2903.02(A), and R.C. 2929.02
against two separate victims. The trial court sentenced appellant to consecutive prison
terms of eight and seven years. No direct appeal was taken.
{¶3} Seven years later appellant sought to change the sentencing entry to reflect
that he pleaded guilty to one count attempted purposeful murder and one count attempted
felony murder, citing confusion in the written plea agreement. State v. Jones, 11th Dist.
Portage No. 2017-P-0058, 2018-Ohio-3534 (“Jones I”). Though the parties stipulated that
the transcript of the plea hearing was unavailable at that time, this court found the record
provided sufficient evidence that appellant pleaded guilty to two counts attempted
purposeful murder against two different victims, and ultimately affirmed the lower court’s
judgments. The transcript was recovered during the pendency of the instant appeal.
{¶4} Subsequent to our 2017 judgment, appellant filed various motions with the
lower court seeking to challenge his plea and convictions. He now appeals the trial court’s
denial of his June 1, 2020 motion to vacate plea, June 12, 2020 motion to vacate void
sentence, and June 17, 2020 motion to vacate illegal sentence.
{¶5} Appellant assigns two errors for our review. The first states:
{¶6} Appellant did not enter his guilty plea knowingly, intelligently, or
voluntarily because the trial court failed to advise of his constitutional
rights as required by Crim.R. 11(c) prior to having him change his
plea.
{¶7} During the November 10, 2010 plea hearing, the court first asked appellant
how he pleaded, then gave a full plea colloquy, and finally accepted his guilty pleas. He
does not argue that the colloquy was deficient in content but that his plea was not
knowingly, intelligently, and voluntarily made because the colloquy came after he entered
his plea. He made no direct appeal. Nevertheless, he argues this order of events
rendered his plea void, and thus not barred by res judicata. We disagree.
{¶8} While Ohio case law previously held that a defect in the trial court’s failure
to strictly comply with Crim.R. 11(C)(2) renders a plea void and thus subject to collateral
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attack at any time because the plea was not made knowingly, intelligently, and voluntarily,
the Supreme Court of Ohio has recently “realigned [its] jurisprudence with the traditional
understanding of void and voidable sentences.” State v. Harper, 160 Ohio St.3d 480,
2020-Ohio-2913, ¶43. In Harper, the Court held that a sentence is void only “when a
sentencing court lacks jurisdiction over the subject-matter of the case or personal
jurisdiction over the accused.” Id. at ¶42. Accordingly, even if we were to find error in the
order of the trial court’s plea hearing, it would be a voidable error. See State v. Greene,
3rd Dist. Crawford No. 3-20-06, 2020-Ohio-5133, ¶8.
{¶9} “Generally, a voidable judgment may be set aside only if successfully
challenged on direct appeal.” Harper, supra, at ¶26, citing State v. Payne, 114 Ohio St.3d
502, 2007-Ohio-4642, ¶28. Failure to do so renders future challenges to the assigned
error subject to the doctrine of res judicata. See id. at ¶41. This is so even when the
alleged error is constitutional in nature. State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-
5206, ¶36, (Kennedy, J., concurring separately) citing State v. Ketterer, 126 Ohio St.3d
448, 2010-Ohio-3831, ¶59-60 (“Res judicata bars the relitigation of constitutional issues,
State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, ¶19, including claims that the accused’s
guilty pleas were not knowingly, intelligently, and voluntarily made * * *.”)
{¶10} Here, there is no disagreement the court had the requisite subject-matter
jurisdiction and personal jurisdiction. Any claim that appellant’s plea was not knowingly,
intelligently, and voluntarily made could have been raised on direct appeal. As appellant
failed to appeal the issue, his first assignment of error is barred by res judicata.
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{¶11} Moreover, we note that Crim.R. 11(C)(2) requires that the plea colloquy
precede the court’s acceptance of the plea, not the entry of the plea. It is after the court
is satisfied that the defendant is aware of his rights that it accepts the plea.
{¶12} It is clear from the record here that the court accepted appellant’s guilty plea
after providing the necessary plea colloquy. There is no indication from the record that
appellant’s plea was not made knowingly, intelligently, and voluntarily.
{¶13} Appellant’s first assignment of error is without merit.
{¶14} His second states:
{¶15} The trial court erred by sentencing Appellant to a crime which does
not exist under Ohio law.
{¶16} Under this assignment of error, appellant argues that there is confusion as
to which counts appellant plead guilty. He asserts he pleaded guilty to Count 1, the
attempted purposeful murder of Jon Rotilie, and Count 2, the attempted felony murder of
Jon Rotilie. He then argues that attempted felony murder is not a cognizable crime in
Ohio pursuant to State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, and thus his
sentence is invalid. He also argues that because of the confusion with the plea
agreement, there was no meeting of the minds and therefore the bargain was
unenforceable. Though appellant has raised this issue several times before in various
ways, he appears to assert here that the newly recovered transcript of the plea hearing
merits additional review by this court.
{¶17} This court addressed the ambiguity of appellant’s plea agreement in Jones
I, ultimately affirming the lower court’s denial of appellant’s motion to correct the record.
For the purposes of Jones I, the parties agreed that the transcript of the plea hearing was
not available. Nevertheless, this court found that it was clear from the record that
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appellant pleaded guilty to Counts 1 and 3, the attempted purposeful murders of two
separate victims. Critically, in Jones I, the parties “agree[d] that, as part of the written
plea agreement, appellant was to plead guilty to an attempted murder count as to each
of the two victims.” Id. at ¶4. It is undisputed that Counts 1 and 2 involved Jon Rotilie as
the victim, and Counts 3 and 4, Cassandra Badini. The parties further agreed that the
written plea incorrectly stated Counts 1 and 2 and was corrected; the number “3” was
written over the errant “2” and initialed by appellant. Nothing in the record suggests that
appellant intended to or did plead guilty to Count 2.
{¶18} During the pendency of this appeal, the transcript of the plea hearing was
recovered. However, it does not constitute “newly discovered evidence” as it supports
the parties’ agreement and this court’s prior holding in Jones I, that appellant pleaded
guilty to Counts 1 and 3, the attempted purposeful murder of two separate victims. It
states, in pertinent part:
{¶19} PROSECUTOR: And in Case Number 2010-CR-320, I have had
discussions with [defense counsel] and also with Mr. Jones in regard
to that matter, and we reached the following agreement:
{¶20} Mr. Jones agrees to enter pleas of guilty of Counts 1 and 2 of the
indictment. Count 1 is a charge of attempted murder, felony of the
first degree; and Count 2 is a second victim, also a charge of
attempted murder, both of those in violation of 2923.02(A),
2903.02(A), and 2929.02. Those are both felony ones.
{¶21} * * *
{¶22} And Count 3 - - it should be Count 1 and 3 of attempted murder. So
there is a separate victim for each one. Count 2 was the same victim.
I apologize for that. So they would have merged for sentencing
purposes. One was felony murder and one was purposely. So it ends
up to be 1 and 3 then. I just checked the indictments.
{¶23} * * *
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{¶24} Your Honor, Mr. Jones has indicated on both those plea agreements
his initials, Your Honor, to the corrections there [sic] were made.
{¶25} As we noted in Jones I, the plea agreement contained a clerical error, which
was corrected, and it was clear from the record that all parties understood appellant to be
pleading guilty to Counts 1 and 3, that is two counts of attempted purposeful murder of
two separate victims. The recovered transcript supports this finding. As appellant has
already brought this challenge in Jones I, he is barred by res judicata from again raising
the issue here.
{¶26} Appellant’s second assignment of error is without merit.
{¶27} Accordingly, the judgments of the Portage County Court of Common Pleas
are affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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