State v. Bendson , 2013 Ohio 5157 ( 2013 )

[Cite as State v. Bendson, 2013-Ohio-5157.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
MARCUS D. BENDSON : Case No. 2013CA00147
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No.
2012CR1143
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 18, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO MARCUS BENDSON, PRO SE
Prosecuting Attorney Inmate 633-750
Lorain Correctional Institution
BY: KATHLEEN O. TATARSKY 2075 South Avon-Beldon Road
Assistant Prosecuting Attorney Grafton, OH 44044
110 Central Plaza South, Suite 510
Canton, OH 44702
Stark County, Case No. 2012CA00147 2
Baldwin, J.
{¶1} Appellant Marcus D. Bendson appeals a judgment of the Stark County
Common Pleas Court overruling his motion to withdraw his guilty plea to aggravated
burglary (R.C. 2911.11(A)(1),(2)) with a repeat violent offender specification and firearm
specification, aggravated robbery (R.C. 2911.01(A)(1),(3)) with a repeat violent offender
specification and firearm specification, felonious assault (R.C. 2903.11(A)(1),(2)) with a
repeat violent offender specification and firearm specification, and having weapons
under disability (R.C. 2923.13(A)(2),(3)). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On November 21, 2012, appellant was charged by a superseding
indictment with aggravated robbery, aggravated burglary, kidnapping, felonious assault
and having weapons under disability. All of the counts except having weapons under
disability included firearm specifications and repeat violent offender specifications.
{¶3} Appellant’s trial was scheduled for November 27, 2012. On that day, he
entered a plea of guilty to all charges except kidnapping pursuant to a negotiated plea
agreement. The prosecutor dismissed the kidnapping charge. The trial court informed
appellant of his constitutional rights to trial by jury or by a judge, to confront witnesses,
to subpoena witnesses, and to require the state to prove his guilt beyond a reasonable
doubt. The trial court explained his right against self-incrimination. The trial court
reviewed the charges and potential penalties. Appellant indicated that he understood all
of his rights, as well as the charges and possible penalties. Appellant entered a guilty
plea as negotiated and the trial court sentenced him to fifteen years incarceration.
Appellant did not file an appeal, and his delayed appeal was dismissed by this Court.
Stark County, Case No. 2012CA00147 3
{¶4} On May 29, 2013, appellant filed a motion to withdraw his guilty plea on
the grounds of manifest injustice. He argued that the plea form he signed had the
wrong judge’s name printed on the top, his original attorney’s name was crossed out
and the name of his attorney at the plea hearing was handwritten in its place, there was
a handwritten notation of the sentence in the corner, and the plea form does not have a
time stamp. The trial court overruled the motion. Appellant assigns one error on
appeal:
{¶5} “TRIAL COURT ERRED IN DENYING APPELLANT’S RULE OF
CRIMINAL PROCEDURE, RULE 32.1 MOTION TO WITHDRAW HIS GUILTY PLEA:
UNDER THE MANIFEST INJUSTICE CLAUSE.”
{¶6} The instant case comes to us on the accelerated calendar. App.R. 11.1
governs accelerated-calendar cases and states in pertinent part:
{¶7} “(E) Determination and judgment on appeal. The appeal will be
determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.
12(A) for the statement of the reason for the court's decision as to each error to be in
brief and conclusionary form.”
{¶8} One of the most important purposes of the accelerated calendar is to
enable an appellate court to render a brief and conclusory decision more quickly than in
a case on the regular calendar where the briefs, facts, and legal issues are more
complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App. 3d 158, 463
N.E.2d 655 (1983).
{¶9} The doctrine of res judicata bars a defendant from making claims in a
motion to withdraw a guilty plea which he could have raised on direct appeal. See State
Stark County, Case No. 2012CA00147 4
v. Walters, 4th Dist. Scioto No. 12CA3482, 2013-Ohio-695, ¶12. In the instant case,
appellant could have raised his claims of irregularities in the plea form on direct appeal.
He failed to do so, and his claims are therefore barred by res judicata.
{¶10} Further, Crim.R. 32.1, which governs motions to withdraw guilty pleas,
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.”
{¶11} Thus, a defendant who wishes to withdraw a plea of guilt after the court
has passed sentence must demonstrate a “manifest injustice.” State v. Smith, 49 Ohio
St.2d 261, 361 N.E.2d 1324, at paragraph one of the syllabus (1977). The Supreme
Court of Ohio has defined “manifest injustice” as a “clear or openly unjust act.” State ex
rel. Schneider v. Kreiner, 83 Ohio St. 3d 203, 208, 699 N.E.2d 83 (1998). “[U]nder such
standard, a postsentence withdrawal motion is allowable only in extraordinary cases.”
Smith at 264; citing United States v. Semel (C.A.4, 1965), 347 F.2d 228 [subsequent
history omitted].
{¶12} The movant bears the burden of establishing a manifest injustice. Id. The
decision of whether to grant or deny a motion to withdraw a guilty plea 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.”
Id., citing United States v. Washington (C.A.3, 1965), 341 F.2d 277 [subsequent history
omitted]. Thus, we will not reverse a trial court's decision to grant or deny a
postsentence motion to withdraw a guilty plea unless the trial court abused its
Stark County, Case No. 2012CA00147 5
discretion, i.e., the court's decision was “unreasonable, arbitrary or unconscionable.”
State v. Adams, 62 Ohio St. 2d 151, 157–158, 404 N.E.2d 144 (1980).
{¶13} Appellant did not make any claim that his plea was not knowing, voluntary,
and intelligent. The record reflects that appellant was informed of the rights he was
waiving and of the charges and potential penalties. He did not indicate at the time of
the plea that he did not understand his rights or the charges and possible penalties, nor
did he file an affidavit or other evidence to support his claim of manifest justice. Despite
the minor irregularities in the plea form, the judgment reflecting appellant’s guilty plea,
the judgment of sentence and the transcript of the plea hearing do not reflect any error
in the plea proceedings. The trial court did not abuse its discretion in overruling his
motion to withdraw his guilty plea.
{¶14} The assignment of error is overruled. The judgment of the Stark County
Common Pleas Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
CRB/rad
[Cite as State v. Bendson, 2013-Ohio-5157.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff - Appellee :
:
-vs- : JUDGMENT ENTRY
:
MARCUS D. BENDSON :
:
Defendant – Appellant : CASE NO. 2013CA00147
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs
assessed to appellant.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY