State v. Alexander ( 2014 )

[Cite as State v. Alexander, 2014-Ohio-2351.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2013 CA 00151
:
MONDELL ALEXANDER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2010 CR
1217
JUDGMENT: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART
DATE OF JUDGMENT ENTRY: May 27, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO MONDELL ALEXANDER, PRO SE
STARK COUNTY PROSECUTOR Inmate No. 594-547
M.C.I.
KATHLEEN O. TATARSKY P.O. Box 57
110 Central Plaza South, Suite 510 Marion, OH 43301
Canton, Ohio 44702-1413
Stark County, Case No. 2013 CA 00151 2
Delaney, J.
{¶1} Defendant-Appellant Mondell Alexander appeals the July 16, 2013
judgment entry of the Stark County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} In 1990, Defendant-Appellant Mondell Alexander was convicted of rape, a
first-degree felony. Alexander did not appeal his conviction or sentence. On August 31,
2004, the Alexander stipulated to the trial court’s finding that he be classified as a
sexual predator pursuant to R.C. 2950.09.
{¶3} On September 17, 2010, the Stark County Grand Jury indicted Alexander
on one count of failure to register a change of address, in violation of R.C.
2950.05(A)(E)(1), and on one count of periodic verification of current address, in
violation of R.C. 2950.06(F). Alexander pleaded not guilty to the charges at his
arraignment.
{¶4} On October 18, 2010, Alexander appeared before the trial court and
changed his plea to guilty. The Crim.R. 11(C) plea form notified Alexander he was
subject to mandatory post-release control for a period of five years. The trial court
accepted his plea and by judgment entry filed on October 22, 2010, the trial court
sentenced Alexander to a prison term of four years on each count, to be served
concurrently. At the sentencing hearing, the trial court failed to verbally inform
Alexander of the mandatory period of post-release control. The judgment entry,
however, stated that Alexander was ordered to serve a mandatory period of five years
of post-release control on each count, also to be served concurrently. Alexander did not
file a direct appeal of his sentence.
Stark County, Case No. 2013 CA 00151 3
{¶5} The trial court allowed Alexander a two-week reprieve before he was to
report to prison. During the two-week period, Alexander committed two aggravated
robberies with a firearm. Alexander was indicted by the Stark County Grand Jury on two
counts of aggravated robbery, first-degree felonies in violation of R.C. 2911.01(A)(1).
Alexander pleaded guilty to the charges and the trial court sentenced Alexander to ten
years in prison and notified Alexander he was subject to mandatory post-release control
for five years. Alexander did not file a direct appeal of his sentence. On May 1, 2012, he
filed a Motion for Sentencing and Leave to Withdraw Guilty Plea(s) with the trial court,
arguing the trial court failed to give proper notification of post-release control during his
plea hearing. The trial court denied the motions and Alexander appealed to this Court in
State v. Alexander, 5th Dist. Stark No. 2012CA00115, 2012-Ohio-4843. In Alexander,
we affirmed the judgment of the trial court to deny the motion for sentencing and leave
to withdraw guilty pleas because we found the trial court complied with Crim.R.
11(C)(2)(a) in informing Alexander of his post-release control during his plea hearing.
{¶6} On July 11, 2013, Alexander filed a Motion for Sentencing and Leave to
Withdraw Guilty Plea arguing the trial court failed to notify him of mandatory post-
release control at his plea hearing. On July 16, 2013, the trial court denied the motion
because it found Alexander signed a Crim.R. 11(C) plea form, which informed
Alexander of the five-year term of mandatory post-release control.
{¶7} It is from this decision Alexander now appeals.
Stark County, Case No. 2013 CA 00151 4
ASSIGNMENTS OF ERROR
{¶8} Alexander raises three Assignments of Error:
{¶9} “I. WHETHER A COMPLETE FAILURE TO NOTIFY APPELLANT (AND
THE PLEA COLLOQUY) WHAT A ‘MANDATORY’ (5) FIVE YEAR PERIOD OF
POSTRELEASE CONTROL (INCLUDING THE CONSEQUENCES OF A VIOLATION
OF A POSTRELEASE CONTROL SANCTION) IMPLICATES BOTH: CRIM.R.
11(C)(2)(A); AND THE ‘ORAL PRONOUNCEMENT’ REQUIREMENT OF: O.R.C. §
2929.19(B)(3)(E) THEREBY RENDERING THE RESULTING PLEA
UNCONSTITUTIONAL.
{¶10} “II. WHETHER THE TRIAL COURT’S FAILURE TO ACCORD AN
‘ALLIED OFFENSE DETERMINATION’ PURSUANT TO: O.R.C. § 2941.25, PRIOR TO
SENTENCING IMPLICATES DUE PROCESS AND WHETHER THAT ‘PLAIN ERROR’
WAS CURED BY ORDERING THE SENTENCES TO BE RAN [SIC]
‘CONCURRENTLY’ WITH ONE ANOTHER. SEE: STATE V. COLLINS, 2013 OHIO
3726 (OHIO APP. 8 DIST.), AT: HN6.
{¶11} “III. WHETHER THE RETROACTIVE APPLICATION OF MEGAN’S LAW,
IN LIEU OF: O.R.C. § 2950. AS IT EXISTED AT THE TIME OF DEFENDANT’S
CONVICTIONS, IMPLICATES THE STATE AND FEDERAL PROHIBITION AGAINST
EX POST FACTO LAWS.”
ANALYSIS
I.
{¶12} Alexander argues in his first Assignment of Error that the trial court erred
in denying his motion for sentencing and leave to withdraw guilty plea. We agree in part.
Stark County, Case No. 2013 CA 00151 5
Motion to Withdraw Guilty Plea
{¶13} Alexander argues he should be entitled to withdraw his guilty plea
because the trial court failed to verbally inform him at his October 18, 2010 sentencing
hearing of his mandatory five-years post-release control. A trial court’s decision
regarding a motion to withdraw a guilty plea is governed by Crim.R. 32.1. The rule
states, “[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.”
Alexander has the burden to establish the existence of manifest injustice. Further, an
“undue delay between the occurrence of the alleged cause for withdrawal of a guilty
plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the
credibility of the movant and militating against the granting of the motion.” State v.
Hoover, 3rd Dist. Seneca No. 13-13-47, 2014-Ohio-1881, ¶16 quoting State v. Smith,
49 Ohio St. 2d 261, 361 N.E.2d 1324 (1977).
{¶14} “Withdrawal of a guilty plea after sentencing is permitted only in the most
extraordinary cases.” State v. Perkins, 2nd Dist. Montgomery No. 25808, 2014-Ohio-
1863, ¶ 30 quoting State v. Sage, 2nd Dist. Montgomery No. 25453, 2013–Ohio–3048,
at ¶ 16, citing State v. Smith, 49 Ohio St. 2d 261, 264, 361 N.E.2d 1324 (1977). “The
postsentence ‘manifest injustice’ standard is aimed at cases where a defendant pleads
guilty without knowing what his sentence will be, finds out that his sentence is worse
than he had hoped and expected, and then seeks to vacate his plea.” Perkins, at ¶30
quoting State v. Fugate, 2nd Dist. Montgomery No. 21574, 2007-Ohio-26, ¶ 13.
{¶15} We review the trial court’s denial of a motion to withdraw a guilty plea
under an abuse of discretion standard of review. State v. Pepper, 5th Dist. Ashland No.
Stark County, Case No. 2013 CA 00151 6
13 COA 019, 2014-Ohio-364, ¶31 citing State v. Caraballo, 17 Ohio St. 3d 66, 477
N.E.2d 627 (1985). In order to find an abuse of discretion, we must determine the trial
court's decision was unreasonable, arbitrary, or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140
(1983). “A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion
of the trial court, and the good faith, credibility and weight of the movant's assertions in
support of the motion are matters to be resolved by that court.” State v. Pepper, 2014-
Ohio-364, ¶ 31 quoting State v. Smith, 49 Ohio St. 2d 261, 361 N.E.2d 1324 (1977),
paragraph two of the syllabus.
{¶16} We cannot find that manifest injustice occurred by the trial court’s failure to
verbally notify Alexander of post-release control. First, Alexander was notified of the
mandatory five-years of post-release control through the Crim.R. 11(C) plea form.
Alexander signed the plea form. Second, Alexander waited approximately two years to
file his motion to withdraw his guilty plea. We find no abuse of discretion for the trial
court to deny Alexander’s motion to withdraw his guilty plea.
Motion for Sentencing
{¶17} Alexander also filed a motion for sentencing. As stated above, Alexander
contends and the State concedes the trial court did not verbally inform Alexander that
he was subject to mandatory post-release control as part of his sentence during his
October 18, 2010 sentencing hearing.
{¶18} Alexander was found guilty of two first-degree felonies, which require a
period of five-years mandatory post-release control. R.C. 2967.28(B)(1). R.C.
2929.19(B)(2)(c) states that at the sentencing hearing, the trial court shall, “[n]otify the
Stark County, Case No. 2013 CA 00151 7
offender that the offender will be supervised under section 2967.28 of the Revised Code
after the offender leaves prison if the offender is being sentenced for a felony of the first
degree * * *.”
{¶19} “A sentence that does not include the statutorily mandated term of post
release control is void, is not precluded from appellate review by principles of res
judicata, and may be reviewed at any time, on direct appeal or by collateral attack.”
State v. Fischer, 128 Ohio St. 3d 92, 2010–Ohio–6238, 942 N.E.2d 332, paragraph one
of the syllabus.
{¶20} While the trial court did include mandatory post-release control information
in its written sentencing entry, it is uncontested that Alexander was not verbally
informed of these provisions at his sentencing hearing. After July 11, 2006, pursuant to
R.C. 2929.191, the trial court's omission of post-release control information during the
sentencing hearing may be remedied as follows:
On and after July 11, 2006, a court that wishes to prepare and issue a
correction to a judgment of conviction of a type described in division (A)(1)
or (B)(1) of this section shall not issue the correction until after the court
has conducted a hearing in accordance with this division. Before a court
holds a hearing pursuant to this division, the court shall provide notice of
the date, time, place, and purpose of the hearing to the offender who is
the subject of the hearing, the prosecuting attorney of the county, and the
department of rehabilitation and correction. The offender has the right to
be physically present at the hearing, except that, upon the court's own
motion or the motion of the offender or the prosecuting attorney, the court
Stark County, Case No. 2013 CA 00151 8
may permit the offender to appear at the hearing by video conferencing
equipment if available and compatible. An appearance by video
conferencing equipment pursuant to this division has the same force and
effect as if the offender were physically present at the hearing. At the
hearing, the offender and the prosecuting attorney may make a statement
as to whether the court should issue a correction to the judgment of
conviction.
R.C. 2929.191(C).
{¶21} A trial court may correct its omission to inform a defendant about post-
release control sanctions by complying with R.C. 2929.191 and issuing a corrected
sentence. However, in cases like the one before us where no corrected entry is
necessary, only a hearing is required. State v. Freeman, 7th Dist. Mahoning No. 12 MA
112, 2014-Ohio-1013, ¶ 26 citing State v. Adams, 7th Dist. Mahoning No. 11 MA 65,
2012–Ohio–432; State v. Singleton, 124 Ohio St. 3d 173, 2009–Ohio–6434, 920 N.E.2d
958.
{¶22} Because the trial court did not verbally inform Alexander of mandatory
post-release control sanctions at sentencing, his first Assignment of Error has merit in
part. Alexander is entitled to a new limited sentencing hearing during which the court will
explain the mandatory period of post-release control included in his sentence.
Appellant's first Assignment of Error is sustained in part and the matter is remanded to
the trial court for the limited purpose of holding a sentencing hearing to address
Alexander in regards to his post-release control sanctions.
Stark County, Case No. 2013 CA 00151 9
II.
{¶23} Alexander argues in his second Assignment of Error that the trial court
erred when it did not conduct an allied offense analysis of his convictions for violations
of R.C. 2950.05(A)(E)(1) and R.C. 2950.06(F).
{¶24} Alexander did not file a direct appeal of his convictions and sentences for
violations of R.C. 2950.05(A)(E)(1) and R.C. 2950.06(F). “In State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus states:
Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and
litigating in any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have
been raised by the defendant at the trial, which resulted in that judgment
of conviction, or on an appeal from that judgment.”
State v. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, ¶ 17.
{¶25} Alexander’s argument regarding allied offenses could have been raised on
direct appeal from the trial court's sentencing entry, and res judicata applies even
though Alexander never pursued a direct appeal. State v. Jones, 5th Dist. Richland No.
12CA22, 2012-Ohio-4957, ¶ 23 citing State v. Barfield, 6th Dist. Nos. L–06–1262, L–
06–1263, 2007–Ohio–1037, ¶ 6.
{¶26} Alexander’s second Assignment of Error is overruled.
Stark County, Case No. 2013 CA 00151 10
III.
{¶27} Alexander argues in his third Assignment of Error that the retroactive
application of Megan’s Law to designate Alexander as a sexual predator implicates
state and federal prohibitions against ex post facto law. Alexander was convicted of
rape in 1990. On August 31, 2004, Alexander waived his right to a hearing and
stipulated to a finding that he be classified as a sexual predator.
{¶28} Alexander did not file a direct appeal of his convictions and sentences, nor
did he directly challenge his classification as a sexual predator. We find that Alexander’s
claims are barred by res judicata.
{¶29} Even if Alexander’s claim was not barred by res judicata, his argument still
fails as a matter of law. “While there has been some confusion in recent years regarding
the constitutionality of the amended sex offender registration law under the Adam Walsh
Act, see State v. Bodyke, 126 Ohio St. 3d 266, 933 N.E.2d 753, 2010–Ohio–2424, the
Ohio Supreme Court has consistently held that the pre-Adam Walsh Act versions of
R.C. Chapter 2950 applicable here ‘are remedial, not punitive, and that retroactive
application of them does not violate the Ohio or United States Constitutions.’ State v.
Lay, 2d Dist. Champaign No.2012–CA–7, 2012–Ohio–4447, ¶ 7; State v. Cook, 83 Ohio
St.3d 404, 700 N.E.2d 570 (1998), paragraph one of the syllabus. The same is true
regarding the numerous challenges invoking the Ex Post Facto Clause as found in the
United States Constitution. See Cook at paragraph two of the syllabus; see also
Smallwood v. State, 12th Dist. Butler No. CA2011–02–021, 2011–Ohio–3910, ¶ 21;
State v. Wilson, 5th Dist. Stark No. 2011 CA 00266, 2012–Ohio–2164, ¶ 9.” State v.
Elder, 12th Dist. Butler No. CA2013-01-008, 2013-Ohio-3574, ¶8.
Stark County, Case No. 2013 CA 00151 11
{¶30} Alexander’s third Assignment of Error is overruled.
CONCLUSION
{¶31} The judgment of the Stark County Court of Common Pleas is affirmed in
part and reversed and remanded in part to conduct a hearing pursuant to R.C.
2929.191.
By: Delaney, J.,
Hoffman, P.J. and
Wise, J., concur.