State v. Roper , 2019 Ohio 775 ( 2019 )

[Cite as State v. Roper, 2019-Ohio-775.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28965
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DARRNELL ROPER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2010-12-3374 (A)
CR 2011-11-3219 (A)
CR-2012-07-2095
DECISION AND JOURNAL ENTRY
Dated: March 6, 2019
TEODOSIO, Presiding Judge.
{¶1} Appellant, Darrnell Roper, appeals from an order denying his motion to vacate his
guilty pleas in the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} In August of 2012, Mr. Roper had three pending criminal cases before Judge
Elinore Marsh Stormer. He resolved all three cases simultaneously in the trial court by pleading
guilty to: (1) a charge of intimidation in CR 2012-07-2095; (2) charges of aggravated burglary
with firearm and criminal gang activity specifications, aggravated robbery with firearm and
criminal gang activity specifications, and participating in a criminal gang in CR 2011-11-
3219(A); and (3) a community control violation in CR 2010-12-3374(A), in which the
underlying conviction was trafficking in marijuana. The trial court accepted his guilty pleas,
found him guilty, and sentenced him to a total aggregate prison term of 9 years and 11 months,
2
which included a 4-year mandatory term. After his sentence was imposed, a discussion occurred
on the record as to when Mr. Roper would be eligible to file for judicial release, and he was
misinformed that he would be eligible to file after serving 4 years of his prison sentence. Mr.
Roper’s sentencing entries also incorrectly stated: “The Defendant will be eligible for judicial
release after serving Four (4) years.”
{¶3} On appeal by the State, this Court reversed and remanded the matter for
resentencing in case CR 2011-11-3219(A) because the trial court incorrectly sentenced Mr.
Roper on two specifications even though the underlying offense for those specifications had been
merged with another allied offense for purposes of sentencing. State v. Roper, 9th Dist. Summit
Nos. 26631 and 26632, 2013-Ohio-2176, ¶ 11-12. Upon remand, the trial court, now presided
over by Judge Jane Davis, resentenced Mr. Roper in accordance with our decision. The re-
sentencing entry again incorrectly stated: “The Defendant may apply for judicial release after
serving the mandatory Four (4) year sentence imposed in this case.” (Emphasis sic.)
{¶4} In March of 2016, Mr. Roper filed a motion for judicial release, which was denied
by the trial court, now presided over by Judge Todd McKenney, after a phase one hearing. In
November of 2016, Mr. Roper filed a motion to vacate his guilty pleas, claiming (1) the court
informed him he could file for judicial release after 4 years, (2) he would not have pled guilty if
he was not eligible for judicial release after 4 years, (3) it was his understanding that judicial
release would be granted after 4 years, and (4) a manifest injustice occurred when he relied on a
promise of judicial release after 4 years despite the fact that he would be ineligible to file for
judicial release at that time. After a hearing, the trial court, now presided over by Judge Alison
Breaux, denied the motion and this appeal followed.
3
{¶5} Mr. Roper now appeals from the order denying his motion to vacate his guilty
pleas and raises one assignment of error for this Court’s review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION TO VACATE HIS PLEA
{¶6} In his sole assignment of error, Mr. Roper argues that the trial court erred in
denying his motion to vacate his guilty plea because he was induced to plead guilty based on the
court’s unfulfilled or unfulfillable promise that he could file for judicial release after serving only
4 years of his sentence. We disagree.
{¶7} Pursuant to Crim.R. 11(C)(2)(a), a trial court shall not accept a guilty plea to a
felony offense unless it “[d]etermin[es] that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty involved, and, if
applicable, that the defendant is not eligible for probation or for the imposition of community
control sanctions at the sentencing hearing.” Judicial release eligibility “is not one of the items
in Crim.R. 11(C)(2)(a) that the trial court is required to determine a defendant’s understanding of
when he or she enters a guilty plea.” State v. Foster, 1st Dist. Hamilton No. C-170245, 2018-
Ohio-4006, ¶ 24. Thus, a trial court need not inform a defendant about his eligibility for judicial
release unless it is incorporated into a plea bargain. State v. Aguilar, 9th Dist. Wayne No.
10CA0051, 2011-Ohio-6008, ¶ 12. If the court chooses to offer an expanded explanation of the
law in a Crim.R. 11 plea colloquy, however, the information conveyed must be accurate. State v.
Clarke, 119 Ohio St. 3d 239, 2008-Ohio-3748, ¶ 39.
{¶8} “‘One who enters a guilty plea has no right to withdraw it.’” State v. Brown, 9th
Dist. Summit No. 24831, 2010-Ohio-2328, ¶ 8, quoting State v. Xie, 62 Ohio St. 3d 521, 526
4
(1992). Nevertheless, Crim.R. 32.1 provides: “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.” The defendant bears the burden of demonstrating the existence of a “manifest
injustice,” which has been defined as a “‘clear or openly unjust act.’” Brown at ¶ 9, quoting
State ex rel. Schneider v. Kreiner, 83 Ohio St. 3d 203, 208 (1998). “‘Manifest injustice relates to
some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is
inconsistent with the demands of due process.’” State v. Ruby, 9th Dist. Summit No. 23219,
2007-Ohio-244, ¶ 11, quoting State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-
6123, ¶ 5. “Under the manifest injustice standard, a post-sentence ‘withdrawal motion is
allowable only in extraordinary cases.’” Brown at ¶ 9, quoting State v. Smith, 49 Ohio St. 2d 261,
264 (1977).
{¶9} “Accordingly, ‘the decision whether to grant a motion to withdraw a guilty plea
rests within the sound discretion of the trial court,’ and this Court ‘will not reverse a trial court’s
denial of a motion to withdraw a plea absent an abuse of discretion.’” State v. Milano, 9th Dist.
Summit No. 28674, 2018-Ohio-1367, ¶ 6, quoting State v. Pippert, 9th Dist. Lorain No.
14CA010698, 2016-Ohio-1352, ¶ 16. An abuse of discretion “implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219
(1983). When applying an abuse of discretion standard, a reviewing court is precluded from
simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66
Ohio St. 3d 619, 621 (1993).
{¶10} A plea hearing was held on August 20, 2012, to resolve Mr. Roper’s three cases,
in which the prosecutor advised the court as to the Crim.R. 11 plea negotiations, specifically that
5
Mr. Roper would be pleading guilty with no agreement between the parties as to what sentence
he would receive. The prosecutor stated that he understood the court intended to impose a
sentence of 9 years and 11 months, but he was nonetheless requesting a longer sentence. The
prosecutor made no mention of any agreement as to the filing for or granting of judicial release.
Immediately following the prosecutor’s representation of the plea negotiations to the court,
defense counsel stated, “What the [p]rosecutor has told you is correct[,]” and made no mention
of any agreement as to the filing for or granting of judicial release. After a lengthy discussion
regarding the firearm specifications, the court asked defense counsel if there was “[a]nything
additional * * *?” Counsel replied, “No, Judge. I think you understand all the facts and
circumstances of the case. And I’d ask the Court to impose a sentence that you’ve indicated you
are thinking about.”
{¶11} The court accepted Mr. Roper’s guilty pleas in CR 2012-07-2095 and CR 2011-
11-3219(A) as knowingly, intelligently, and voluntarily made, found him guilty, and asked him
if there was anything he wished to say before sentence was imposed. Mr. Roper replied, “No[,]”
and made no mention of any agreement regarding the filing for or granting of judicial release.
{¶12} The court then addressed the community control violation in CR 2010-12-
3374(A), accepted Mr. Roper’s guilty plea as knowingly, intelligently, and voluntarily made, and
found him guilty of the community control violation. After a brief sidebar that was not made
part of the record, the court asked the attorneys if they had anything to add, but again neither one
mentioned the filing for or granting of judicial release.
{¶13} Although Mr. Roper faced a potential maximum sentence of over 40 years in
prison for these three cases, the court sentenced him to an aggregate total of 9 years and 11
6
months in prison. After the court imposed its sentence on all three cases, the following exchange
occurred between the court and Mr. Roper on the record:
THE COURT: Do you know why I have chosen the nine years and eleven months?
THE DEFENDANT: So I didn’t have to do ten? I was eligible for judicial?
THE COURT: What does that mean to you?
THE DEFENDANT: I need to go down and do what I’ve got to do. Change my life and
come home.
THE COURT: And show the world that you can be a different person. That is, frankly, a
gift to you.
But it also recognizes that no matter what your sentence is, you’re going to get out. And
my preference would be that you get out in a way that is very controlled so that you can
make a decision about changing your life that you need to make. Because one day, you
will be back with us, regardless.
{¶14} After further conversations, the following exchange occurred between the court
and the attorneys on the record:
THE COURT: Okay. You would be eligible, potentially, for judicial release after you
complete five years and six months, I believe is what we decided.
MR. WHITNEY: I believe it may be four.
THE COURT: But my understanding is that the minimum would be five.
MR. WHITNEY: I think it may be four.
THE COURT: No. He has to do five before he’s eligible. If he served - -
MR. HOWELL: It’s four now.
THE COURT: Is it four?
MR. HOWELL: It’s four.
THE COURT: Okay.
MR. HOWELL: He’s eligible.
7
And I also just want to put on the record the State is going to oppose any judicial release
for Mr. Roper.
After further discussions as to the ramifications of his crimes, Mr. Roper remarked, “I probably
won’t even get the judicial.” The trial court’s sentencing entries also state that Mr. Roper would
be eligible to file for judicial release after serving 4 years of his prison sentence.
{¶15} On appeal, the parties do not dispute that Mr. Roper is, in fact, not eligible to file
for judicial release after serving only 4 years of his prison sentence. The trial court recognized
this as well in its order denying Mr. Roper’s motion to withdraw his guilty plea by stating, “This
[c]ourt acknowledges its prior Journal Entries are incorrect and contrary to law with regard to the
Defendant’s eligibility to apply for judicial release.” At the time of his plea and sentencing
hearing, Former R.C. 2929.20(C)(4) permitted eligible offenders in Mr. Roper’s situation to file
a motion for judicial release under the following guidelines:
If the aggregated nonmandatory prison term or terms is more than five years but
not more than ten years, the eligible offender may file the motion not earlier than
five years after the eligible offender is delivered to a state correctional institution
or, if the prison term includes a mandatory prison term or terms, not earlier than
five years after the expiration of all mandatory prison terms.
(Emphasis added.) Mr. Roper’s 9-year and 11-month sentence included a 4-year mandatory
term, thus enabling him under Ohio law to file for judicial release only after serving 9 years of
his total aggregate prison term.
{¶16} Mr. Roper argues that the trial court’s misstatement of the law regarding judicial
release induced him to plead guilty, and because this promise of eligibility to file for judicial
release after 4 years was unfulfilled or unfulfillable, a manifest injustice has occurred.
{¶17} “A plea is invalid where it has not been entered in a knowing, intelligent, and
voluntary manner.” State v. Farnsworth, 9th Dist. Medina No. 15CA0038-M, 2016-Ohio-7919,
¶ 4. Moreover, “[a] guilty plea induced by ‘unfulfilled or unfulfillable promises,’ made by either
8
the prosecution, the court, or defendant’s counsel is not voluntary.” State v. Hawk, 81 Ohio
App.3d 296, 299 (9th Dist.1992), quoting Brady v. United States, 397 U.S. 742, 755 (1970).
{¶18} Although the record includes discussions in open court as to when Mr. Roper
would be eligible to file for judicial release—and the attorneys and court incorrectly determined
that Mr. Roper would be eligible after only serving 4 years—those discussions occurred after the
court had already conducted its Crim.R. 11 plea colloquy with Mr. Roper, accepted his guilty
pleas, found him guilty, and imposed its sentence. The record does not include any discussions
regarding judicial release on the record prior to the trial court’s acceptance of Mr. Roper’s guilty
pleas and imposition of his sentence. Furthermore, Mr. Roper signed written pleas of guilty in
cases CR 2012-07-2095 and CR 2011-11-3219(A), both of which include the following
statement:
I have been fully advised by my attorney of the Criminal Rule 11(F) plea
negotiations which have also been stated in open court and I accept those
negotiations as my own. I understand the nature of these charges and the possible
defenses I might have. I am satisfied with my attorney’s advice and competence.
I am not under the influence of drugs or alcohol. No threats have been made to
me. No promises have been made except as part of this plea agreement stated
entirely as follows:
(Emphasis added.) The above paragraph is immediately followed by three blank lines, an area
provided for the parties to indicate any essential terms of the plea agreement in writing. That
entire area in both of Mr. Roper’s written pleas of guilty remains blank, making no reference to
any agreement permitting Mr. Roper to file for judicial release after serving 4 years or any other
noteworthy terms of the negotiated plea agreement.
{¶19} Mr. Roper attached his own signed affidavit to the motion to vacate his guilty
pleas, in which he avers: (1) the trial court promised he would be eligible for judicial release
after 4 years; (2) he pled guilty based on that representation by the court; (3) he would not have
9
pled guilty if he was not eligible for judicial release after 4 years; and (4) he understood that he
was going to receive judicial release after 4 years. We note that, “[g]enerally, a self-serving
affidavit or statement is insufficient to demonstrate manifest injustice.” State v. Croskey, 5th
Dist. Richland No. 2017 CA 0102, 2018-Ohio-2078, ¶ 17. At the evidentiary hearing on August
22, 2017, Mr. Roper’s trial counsel testified that he discussed judicial release with both the
prosecutor and trial court “in chambers” and then again privately with Mr. Roper prior to his
plea. Counsel believed that Mr. Roper’s eligibility for judicial release was a factor in his
decision to plead guilty. Counsel conceded that there was no promise judicial release would be
granted, but he testified that the court indicated there “could be substantial consideration” for
judicial release. Mr. Roper also testified at the hearing that he decided to enter a guilty plea once
his attorney told him he could receive judicial release. He further testified that the trial court’s
promise of judicial release induced him to plead guilty and that he would not have pled guilty
without that promise of judicial release.
{¶20} Contrary to appellate counsel’s assertion during oral arguments, the trial court, in
its order denying Mr. Roper’s motion to vacate his pleas, did not find that a manifest injustice
had occurred. Instead, the trial court determined that Mr. Roper failed to show his plea was
actually induced by any misinformation relayed to him at his plea and sentencing hearing.
Although defense counsel testified that the topic of judicial release was discussed in chambers
between the court and attorneys, and later between defense counsel and Mr. Roper, the trial court
concluded that no actual agreement that Mr. Roper could file for judicial release after serving 4
years could be found anywhere in the record. During the extensive plea colloquy, neither Mr.
Roper nor his attorney indicated any promises were made regarding the filing for or granting of
judicial release. The trial court further noted that, on the record, the court and attorneys
10
expressed a difference of opinion as to when Mr. Roper would be eligible to file for judicial
release, which would have been “unnecessary and illogical” had there been an agreement. The
court ultimately concluded that Mr. Roper was not induced to enter his pleas of guilty by any
promises related to judicial release.
{¶21} After a review of the entire record, we cannot conclude that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. Mr. Roper’s affidavit and the
testimony presented at the evidentiary hearing do not establish that a manifest injustice occurred,
but instead simply conflict with the evidence gleaned from the two written pleas of guilty and
transcript of the plea and sentencing hearing. No discussion occurred on the record regarding the
filing for or granting of judicial release prior to Mr. Roper entering his guilty pleas and being
sentenced. Mr. Roper signed two written pleas of guilty explicitly stating that no promises were
made to him as a part of his plea agreement, and the area reserved for the parties to note any
specific terms of the plea agreement is conspicuously blank in both documents. Although he
faced over 40 years in prison, Mr. Roper was aware that the court intended to only sentence him
to 9 years and 11 months in prison if he pled guilty in these three cases, despite the State’s
recommendation for a longer sentence. During the post-sentence discussion regarding judicial
release, Mr. Roper stated that he “probably won’t even get [judicial release,]” strongly indicating
that any ability to file for judicial release after a certain number of years did not induce him to
plead guilty. Therefore, we find no merit in Mr. Roper’s argument that the misinformation
provided by the trial court as to the filing or granting of judicial release somehow induced him to
plead guilty, as those statements were only made after he pled guilty and was sentenced. See
State v. Stewart, 4th Dist. Lawrence No. 09CA33, 2011-Ohio-181, ¶ 8, fn. 2 (determining that a
11
trial court’s misstatement regarding judicial release eligibility does not induce a guilty plea when
it occurs during sentencing, after a guilty plea was entered).
{¶22} We conclude that Mr. Roper has failed to meet his burden of demonstrating that a
manifest injustice has occurred. The trial court’s conclusion that Mr. Roper was not induced to
plead guilty by any judicial release promises is supported by competent and credible evidence
within the record. We therefore conclude that the trial court did not err or abuse its discretion in
denying Mr. Roper’s motion to vacate his guilty pleas.
{¶23} Accordingly, Mr. Roper’s sole assignment of error is overruled.
III.
{¶24} Mr. Roper’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
12
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
CALLAHAN, J.
CONCURS.
CARR, J.
DISSENTING.
{¶25} I respectfully dissent. There is no dispute that the trial court misinformed Roper
at the sentencing hearing that he would be eligible for judicial release after serving four years of
his sentence. It is further undisputed that his sentencing entries contained inaccuracies regarding
his eligibility for judicial release. Relying on those statements, Roper would not have contested
that issue on direct appeal.
{¶26} A review of the transcript reveals that at the time Roper entered his guilty pleas,
he was proceeding with the understanding that he would be eligible for judicial release after four
years. While the majority stresses that the judicial release discussion occurred after Roper was
sentenced, that conversation provides a window into the parties’ mindset at the time of the plea
colloquy. Roper’s statements on the record indicate that he believed that the trial court
intentionally fashioned his sentence with the judicial release date in mind. Both the prosecutor
and defense counsel were operating with that understanding as well. Under these circumstances,
I would conclude that a manifest injustice occurred and I would sustain Roper’s assignment of
error.
13
APPEARANCES:
ANGELA M. KILLE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.