State v. Coats , 2009 Ohio 3534 ( 2009 )


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  • [Cite as State v. Coats, 
    2009-Ohio-3534
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    MERCER COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                                    CASE NO. 10-09-04
    v.
    DOUGLAS N. COATS,                                            OPINION
    DEFENDANT-APPELLANT.
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                                    CASE NO. 10-09-05
    v.
    DOUGLAS N. COATS,                                            OPINION
    DEFENDANT-APPELLANT.
    Appeal from Mercer County Common Pleas Court
    Trial Court No. 05-CRM-077
    Trial Court No. 05-CRM-078
    Judgments Affirmed in Part, Reversed in Part and Cause Remanded
    Date of Decision: July 20, 2009
    APPEARANCES:
    Douglas Coats, Appellant
    Matthew K. Fox for Appellee
    Case No. 10-09-04, 05
    ROGERS, J.
    {¶1} Defendant-Appellant, Douglas Coats, appeals the judgments of the
    Mercer County Court of Common Pleas denying his Crim.R. 32.1 motions to
    withdraw his guilty pleas. On appeal, Coats argues that the trial court erred in
    denying his motions because it failed to advise him prior to accepting his guilty
    pleas of the mandatory term of postrelease control and that it was not bound by the
    State’s sentencing recommendation; and, because the trial court failed to conduct a
    proper inquiry into whether his pleas were voluntarily given after he informed the
    trial court that he was on anti-depressant medication. Finding that Coats’ claims
    are barred by res judicata, but that his sentence is void, we affirm in part, and
    reverse in part, the judgments of the trial court.
    {¶2} This case comes before us as a consolidated appeal of trial court
    cases numbered 05-CRM-077 and 05-CRM-078.1 In June 2005, in trial court case
    number 05-CRM-077, the Mercer County Grand Jury indicted Coats on thirteen
    counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of
    the third degree, and, in trial court case number 05-CRM-078, the Mercer County
    Grand Jury indicted Coats on one additional count of gross sexual imposition in
    violation of R.C. 2907.05(A)(4), also a felony of the third degree.
    1
    We note that appellate case number 10-09-04 corresponds to trial court case number 05-CRM-077, and
    appellate case number 10-09-05 corresponds to trial court case number 05-CRM-078.
    -2-
    Case No. 10-09-04, 05
    {¶3} In August 2005, Coats entered pleas of not guilty to all counts in
    both indictments.
    {¶4} In September 2005, pursuant to a plea agreement, Coats withdrew
    his not guilty pleas and entered a plea of guilty to counts one, seven, and thirteen
    of the indictment in trial court case number 05-CRM-077, and entered a plea of
    guilty to the one count indictment in trial court case number 05-CRM-078. The
    State then entered a nolle prosequi on the remaining counts. Additionally, as part
    of the plea agreement, the State agreed to recommend a three-year prison term on
    each count in case number 05-CRM-077, to be served consecutively to each other,
    and a three-year prison term in case number 05-CRM-078, to be served
    concurrently to the sentence in 05-CRM-077, for an aggregate nine-year prison
    term.   Prior to accepting Coats’ guilty pleas, the trial court conducted a full
    Crim.R. 11 plea colloquy, specifically stating:
    [Trial Court]: Despite the jointly recommended plea agreement,
    I need to advise you of the maximum penalty that the court
    could impose. For each charge of gross sexual imposition, a
    felony of the third degree, you could be sentenced to five years in
    prison and be fined $10,000. Do you understand that?
    [Coats]: Yes, your Honor.
    [Trial Court]: So the maximum penalty for these four charges,
    three in Case No. 77 and one in Case No. 78, would be four times
    that or twenty years in prison plus a fine of $40,000. Do you
    understand that?
    [Coats]: Yes, your Honor.
    -3-
    Case No. 10-09-04, 05
    ***
    [Trial Court]: Are you now under the influence of any kind of
    medication, drugs, alcohol, or anything that would cause you not
    to understand what we’re doing here today?
    [Coats]: No, your Honor.
    ***
    [Coats]: They’ve got me on some anti-depressant medicine, but
    that’s not what you’re talking about now. Right?
    [Trial Court]: If that doesn’t have any affect on you
    understanding what we’re doing here today.
    [Coats]: Okay.
    (Sept. 2005 Change of Plea Hearing, pp. 7-11). At no time did the trial court
    advise Coats on the record that he would be subject to a mandatory term of
    postrelease control at the conclusion of his prison sentence. However, prior to the
    change of plea hearing, Coats signed a waiver of constitutional rights which
    provided, in part:
    That if the Defendant is being sentenced for a felony of the first
    degree, or a felony of the second degree, for a felony sex offense,
    as defined in Section 2967.28 of the Revised Code, or for a felony
    of the third degree that is not a felony sex offense and in the
    commission of which the Defendant caused or threatened to
    cause physical harm to a person, that a period of post-release
    control pursuant to Section 2967.28 of the Revised Code will be
    imposed following the Defendant’s release from prison.
    (Sept. 2005 Waiver of Constitutional Rights, p. 2).
    -4-
    Case No. 10-09-04, 05
    {¶5} Additionally, prior to the change of plea hearing, Coats signed a
    negotiated plea agreement which provided:
    POST RELEASE CONTROL. In addition, a period of
    supervision by the Adult Parole Authority after release from
    prison may be mandatory in this case. If I am sentenced to
    prison for a felony 1 or felony sex offense, after my release from
    prison I will have a mandatory 5 years of post release control
    under conditions determined by the Parole Board.
    (Sept. 2005 Negotiated Plea Agreement, p. 3).
    {¶6} In November 2005, the trial court sentenced Coats to a three-year
    prison term on each of the counts in cases numbered 05-CRM-077 and 05-CRM-
    078, all to be served consecutively to each other, for a total twelve-year prison
    term. At the sentencing hearing, the trial court also advised Coats that he would
    be subject to five years of postrelease control upon the conclusion of his prison
    sentence. However, the trial court’s sentencing entry failed to include the term of
    postrelease control.
    {¶7} In July 2006, Coats filed a motion for resentencing, arguing that his
    sentence was void because the trial court failed to advise him of the mandatory
    term of postrelease control at sentencing.      However, in August 2006, Coats
    withdrew the motion.
    {¶8} In April 2007, Coats appealed to this Court; however, we
    subsequently denied his appeal as being untimely and for failing to set forth
    sufficient reasons for a delayed appeal pursuant to App.R. 5(A).
    -5-
    Case No. 10-09-04, 05
    {¶9} In July 2008, Coats filed a motion to withdraw his guilty pleas
    pursuant to Crim.R. 32.1, arguing that his pleas were not knowingly, voluntarily,
    and intelligently entered because the trial court failed to advise him that it was not
    bound by the State’s sentencing recommendation in the plea agreement, and
    because it failed to advise him that he would be subject to a mandatory term of
    postrelease control upon the conclusion of his prison term.
    {¶10} In January 2009, the trial court denied Coats’ Crim.R. 32.1 motion,
    finding the motion to be an untimely petition for postconviction relief pursuant to
    R.C. 2953.21; that his claims were barred by res judicata because he failed to raise
    them prior or subsequent to sentencing or on direct appeal; and, that he was aware
    that the trial court was not bound by the State’s sentencing recommendation in the
    plea agreement.
    {¶11} It is from the trial court’s denial of his motion to withdraw his guilty
    pleas that Coats appeals, presenting the following pro se assignment of error for
    our review.
    THE TRIAL COURT ERRED IN FAILING TO GRANT A
    PROPER MOTION FOR WITHDRAWAL OF PLEA,
    CONTRARY    TO    LAW  AND   CONSTITUTIONAL
    GAURANTEES. [SIC]
    {¶12} In his only assignment of error, Coats argues that the trial court erred
    in failing to grant his motion to withdraw his guilty pleas pursuant to Crim.R.
    32.1. Specifically, Coats argues that he should have been permitted to withdraw
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    Case No. 10-09-04, 05
    his guilty pleas because the trial court failed to advise him that he was subject to a
    mandatory term of postrelease control, as required by State v. Sarkozy, 
    117 Ohio St.3d 86
    , 
    2008-Ohio-509
    , and that it was not required to follow the State’s
    sentencing recommendation in the plea agreement, and because the trial court
    failed to properly inquire into whether his pleas were knowing, voluntary, and
    intelligent after he advised the trial court that he was taking prescription
    medications at the time of the pleas.
    {¶13} Appellate review of a trial court’s denial of a motion to withdraw a
    guilty plea pursuant to Crim.R. 32.1 is for an abuse of discretion. State v. Nathan
    (1995), 
    99 Ohio App.3d 722
    , 725, citing State v. Smith (1977), 
    49 Ohio St.2d 261
    .
    An abuse of discretion connotes more than an error of law or judgment and
    implies that the trial court acted unreasonably, arbitrarily, or unconscionably.
    State v. Nagle (2000), 11th Dist. No. 99-L-089, 
    2000 WL 777835
    , citing
    Blakemore v. Blakemore (1983), 
    5 Ohio St.3d 217
    , 219. When applying an abuse
    of discretion standard, a reviewing court may not simply substitute its judgment
    for that of the trial court. 
    Id.
    {¶14} Crim.R. 32.1 provides that:
    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.
    -7-
    Case No. 10-09-04, 05
    {¶15} A Crim.R. 32.1 motion to withdraw a guilty plea will be considered
    a presentence motion where the defendant filed the motion after the imposition of
    a void sentence. Boswell, 
    121 Ohio St.3d 575
    , at ¶9. A presentence motion to
    withdraw a guilty plea is to be freely and liberally granted. State v. Ramsey, 3d
    Dist. No. 1-06-01, 
    2006-Ohio-2795
    , ¶5; State v. Xie (1992), 
    62 Ohio St.3d 521
    ,
    526. However, the right to withdraw a plea is not absolute. State v. Fell, 3d Dist.
    No. 13-03-74, 
    2004-Ohio-1853
    , ¶4, citing Xie, 
    62 Ohio St.3d 521
    , at paragraph
    one of the syllabus.
    {¶16} Furthermore, “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. Szefcyk, 
    77 Ohio St.3d 93
    , 1996-
    Ohio-337, syllabus. Accordingly, res judicata will serve to bar all claims raised in
    a Crim. R. 32.1 motion that were raised or could have been raised in a prior
    proceeding. State v. Sanchez, 3d Dist. No. 4-06-31, 
    2007-Ohio-218
    , ¶18; State v.
    McDonald, 11th Dist. No. 2003-L-155, 
    2004-Ohio-6332
    , ¶22, citing State v.
    Young, 4th Dist. No. 03CA782, 
    2004-Ohio-2711
    .
    {¶17} Here, the trial court found Coats’ motion to withdraw his guilty
    pleas to be an untimely petition for postconviction relief pursuant to R.C. 2953.21.
    -8-
    Case No. 10-09-04, 05
    However, as the Supreme Court of Ohio has previously held, a Crim.R. 32.1
    motion to withdraw a guilty plea should not be construed as a petition for
    postconviction relief, as the two exist independently. State v. Bush, 
    96 Ohio St.3d 235
    , 238, 
    2002-Ohio-3993
    . See, also, State v. Driskill, 3d Dist. Nos. 10-08-10,
    10-08-11, 
    2009-Ohio-2100
    , ¶33. As such, the trial court erred when it categorized
    Coats’ motion as an untimely petition for postconviction relief. However, this
    error alone does not warrant reversal, as untimeliness under R.C. 2953.21 was not
    the only basis for the trial court’s denial of Coats’ motion. See Bonner v. Bonner,
    3d Dist. No. 14-05-26, 
    2005-Ohio-6173
    , ¶18 (“A judgment by the trial court
    which is correct, but for a different reason, will be affirmed on appeal as there is
    no prejudice to the appellant”).
    {¶18} The trial court also found Coats’ claims in his Crim.R. 32.1 motion
    barred by res judicata, as he failed to raise them prior or subsequent to sentencing,
    or on direct appeal. Coats was fully aware at the time of sentencing that the trial
    court, prior to accepting his plea, did not advise him on the record of the
    mandatory term of postrelease control. Furthermore, Coats was also aware at the
    time of sentencing of his two claimed errors: (1) that the trial court did not advise
    him that it was not bound to accept the State’s sentencing recommendation within
    the plea agreement, and (2) that it did not properly inquire into whether his pleas
    were knowing, voluntary, and intelligent after he informed the trial court that he
    was taking prescription medications at the time of the pleas.
    -9-
    Case No. 10-09-04, 05
    {¶19} Accordingly, we find that res judicata operates to bar Coats’ claims
    raised in his Crim.R. 32.1 motion, and, consequently, we find that the trial court
    was correct in denying Coats’ motion on the basis of res judicata.
    {¶20} Although we have found Coats’ claims to be barred by res judicata,
    in the interest of justice, we will summarily address his assignment of error. First,
    we find to be without merit Coats’ argument that the trial court did not thoroughly
    inquire into whether his pleas were knowing, voluntary, and intelligent after he
    informed the court that he was on anti-depressant medication. The trial court
    conducted a thorough Crim.R. 11 colloquy and specifically asked Coats whether
    the anti-depressant medication was affecting his understanding of the plea
    proceedings, to which Coats responded that it was not. Furthermore, the record
    contains no evidence suggesting that Coats did not understand the nature or
    significance of the proceeding or his pleas.   Consequently, because ‘“the record
    shows [the trial court] substantially complied with the requirements of Crim.R.
    11(C) and the totality of the circumstances shows the defendant subjectively
    understood the implications of his plea[s],”’ State v. McGuire, 8th Dist. No.
    86608, 
    2006-Ohio-1330
    , ¶14, quoting State v. Hyde, 8th Dist. No. 77592, 
    2001 WL 30205
    , we find no error in the trial court’s accepting of the pleas despite
    Coats’ assertion that he was on anti-depressant medication.
    {¶21} Second, we also find to be without merit Coats’ assertion that he
    should have been permitted to withdraw his pleas because the trial court did not
    -10-
    Case No. 10-09-04, 05
    inform him that it was not bound by the State’s sentencing recommendation in the
    plea agreement. Although the trial court did not specifically state that it was not
    bound by the sentencing recommendation, which would have been the preferred
    practice, the trial court clearly implied such when it informed Coats of the
    maximum possible penalty, stating that he could be sentenced to five years in
    prison for each count “despite the jointly recommended plea agreement.” (Sept.
    2005 Change of Plea Hearing, p. 7). Moreover, we have previously held that the
    trial court is under no obligation to inform a defendant that it is not bound by a
    sentencing recommendation, State v. Graham, 3d Dist. No. 14-04-28, 2005-Ohio-
    1431, ¶11, and there is no evidence in the record evidencing that Coats’ pleas were
    anything other than voluntary and intelligent. Consequently, we find that the trial
    court did not err in failing to permit Coats to withdraw his guilty pleas because the
    trial court did not specifically inform him that it was not obligated to follow the
    State’s sentencing recommendation.
    {¶22} Finally, we reject Coats’ argument that his pleas were not knowing,
    voluntary, and intelligent because the trial court failed to notify him that he would
    be subject to postrelease control at the conclusion of his prison term.          The
    Supreme Court of Ohio held in Sarkozy, 
    117 Ohio St.3d 86
    , that a reviewing court
    must vacate a plea and remand to the trial court when the trial court fails to advise
    a defendant during the plea colloquy that he will be subject to a mandatory term of
    postrelease control, as such failure to advise results in a violation of Crim.R.
    -11-
    Case No. 10-09-04, 05
    11(C)(2)(a)’s requirement that the defendant be notified of the maximum penalty
    involved. However, we have distinguished from Sarkozy the situation in which a
    defendant did not seek to withdraw his plea prior to sentencing or on direct appeal,
    and where the defendant was provided with actual notice of postrelease control
    through a signed, written plea agreement and a signed, written waiver of
    constitutional rights. See Driskill, 
    2009-Ohio-2100
    , at ¶37. In this situation, we
    found that the defendant was properly advised of the maximum penalty involved
    pursuant to Crim.R. 11(C)(2)(a), even though the trial court did not notify him
    during the plea colloquy that he would be subject to postrelease control upon the
    conclusion of his prison term. 
    Id.
    {¶23} Here, Coats waited over two years after he was sentenced to seek a
    withdrawal of his plea. Furthermore, although the trial court failed to advise Coats
    prior to accepting his pleas that he would be subject to a term of postrelease
    control, Coats signed both a written plea agreement and a waiver of constitutional
    rights which provided that he would be subject to a term of postrelease control
    following the expiration of his prison term. Consequently, we find that Coats was
    properly informed of the maximum penalty involved as required by Crim.R.
    11(C)(2)(a), and that the trial court did not err in denying his motion to withdraw
    his guilty pleas.
    {¶24} Accordingly, we overrule Coats’ assignment of error.
    -12-
    Case No. 10-09-04, 05
    {¶25} Although we have overruled Coats’ assignment of error, we also sua
    sponte address the trial court’s failure to impose a term of postrelease control in
    the sentencing entry, even though neither party has addressed the issue on appeal.
    {¶26} It is fundamental that “no court has the authority to substitute a
    different sentence for that which is required by law.” State v. Simpkins, 
    117 Ohio St.3d 420
    , 425, 
    2008-Ohio-1197
    , citing Colegrove v. Burns (1964), 
    175 Ohio St. 437
    , 438. Therefore, any sentence imposed that is unauthorized under the law is
    unlawful and, consequently, void. 
    Id.
    {¶27} R.C. 2929.14(F)(1) provides, in part:
    If a court imposes a prison term for a felony of the first degree,
    for a felony of the second degree, for a felony sex offense, or for
    a felony of the third degree that is not a felony sex offense and in
    the commission of which the offender caused or threatened to
    cause physical harm to a person, it shall include in the sentence a
    requirement that the offender be subject to a period of post-
    release control after the offender's release from imprisonment,
    in accordance with that division. * * * Section 2929.191 of the
    Revised Code applies if, prior to July 11, 2006, a court imposed a
    sentence including a prison term of a type described in this
    division and failed to include in the sentence pursuant to this
    division a statement regarding post-release control.
    {¶28} Additionally, R.C. 2967.28(B) provides:
    Each sentence to a prison term for a felony of the first degree,
    for a felony of the second degree, for a felony sex offense, or for
    a felony of the third degree that is not a felony sex offense and in
    the commission of which the offender caused or threatened to
    cause physical harm to a person shall include a requirement that
    the offender be subject to a period of post-release control
    imposed by the parole board after the offender's release from
    imprisonment. * * * Section 2929.191 of the Revised Code
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    Case No. 10-09-04, 05
    applies if, prior to July 11, 2006, a court imposed a sentence
    including a prison term of a type described in this division and
    failed to notify the offender pursuant to division (B)(3)(c) of
    section 2929.19 of the Revised Code regarding post-release
    control or to include in the judgment of conviction entered on
    the journal or in the sentence pursuant to division (F)(1) of
    section 2929.14 of the Revised Code a statement regarding post-
    release control. Unless reduced by the parole board pursuant to
    division (D) of this section when authorized under that division,
    a period of post-release control required by this division for an
    offender shall be of one of the following periods:
    (1)    For a felony of the first degree or for a felony sex offense,
    five years;
    {¶29} Furthermore, R.C. 2929.19(B)(3)(c) requires the trial court to notify
    the offender at sentencing if he will be supervised under R.C. 2967.28 after the
    offender serves his prison sentence. Moreover, R.C. 2929.191 authorizes the trial
    court to conduct a resentencing hearing and to correct the judgment of conviction
    to notify the defendant of any term of postrelease control or to include any term of
    postrelease control that should have been imposed pursuant to R.C. 2929.14(F)(1)
    and R.C. 2967.28(B).
    {¶30} In interpreting both R.C. 2929.14(F) and R.C. 2929.19(B)(3)(c), the
    Supreme Court of Ohio stated in State v. Jordan, 
    104 Ohio St.3d 21
    , 2004-Ohio-
    6085, paragraph one of the syllabus, that the trial court must provide notice to the
    defendant of postrelease control both at the sentencing hearing and by
    incorporating it into the sentencing entry. See, also, State v. Watt, 
    175 Ohio App.3d 613
    , 619, 
    2008-Ohio-1009
    .
    -14-
    Case No. 10-09-04, 05
    {¶31} Additionally in State v. Boswell, 
    121 Ohio St.3d 575
    , 577-578,
    
    2009-Ohio-1577
    , the Supreme Court held that a trial court’s failure to impose a
    mandatory term of postrelease control in the sentencing entry renders the sentence
    void, requiring a vacation of the sentence and a remand to the trial court for
    resentencing.
    {¶32} Here, Coats pled guilty to four felony sex offenses. As such, R.C.
    2929.14(F)(1) and R.C. 2967.28(B) required the imposition of a term of
    postrelease control. However, even though the trial court advised Coats at the
    sentencing hearing of the term of postrelease control, the trial court failed to
    include the term of postrelease control in the sentencing entry. Consequently,
    pursuant to Boswell, 
    121 Ohio St.3d 575
    , and R.C. 2929.191, Coats’ sentence is
    void.
    {¶33} Having found no error prejudicial to the appellant herein, in the
    particulars assigned and argued in his assignment of error, but having found error
    prejudicial to the appellant herein, in the trial court’s failure to include postrelease
    control in the sentencing entry, we affirm in part, reverse in part, and remand the
    cause to the trial court for further proceedings consistent with this opinion.
    Judgments Affirmed in Part, Reversed in Part, and Cause Remanded
    WILLAMOWSKI and SHAW, J.J., concur.
    /jnc
    -15-