State v. Darget , 2013 Ohio 603 ( 2013 )

[Cite as State v. Darget, 2013-Ohio-603.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case No. 12CA3487
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
RONTEZ L. DARGET, :
: RELEASED 02/06/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Teresa Villarreal, Canal Winchester, Ohio, for appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, Pat Apel, Scioto County First
Assistant Prosecuting Attorney, and Matthew A. Wisecup, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Rontez Darget pleaded guilty to tampering with evidence and trafficking in
drugs and now appeals the trial court’s denial of his motion to withdraw his plea. First,
he claims his plea was not voluntary, i.e. that he did not understand that he must serve
five years of his sentence before becoming eligible for judicial release, and that the trial
court failed to fully advise him of the rights he would be waiving by pleading guilty.
However, because Darget did not make these arguments in his motion with the trial
court, he has forfeited them for purposes of appeal.
{¶2} Darget also claims that the trial court erred by denying his motion for
judicial release. The record shows that Darget never made such a motion and therefore
the matter is not properly before us.
Scioto App. No. 12CA3487 2
{¶3} Finally, Darget argues that he was denied the effective assistance of
counsel during his change of plea hearing, that the trial court erred in denying his
motion for post-conviction relief and that the trial court erred by denying him relief under
Ohio House Bill 86. However, again Darget did not raise these issues in his motion with
the trial court and therefore has waived these claims on appeal.
I. FACTS
{¶4} This case arises from a traffic stop involving Darget and two other
individuals. After observing a minor traffic infraction, a state trooper stopped a vehicle
in which Darget was a passenger. As the trooper approached the vehicle, he saw
Darget making furtive movements and in response asked Darget to get out of the
automobile, subjecting him to an unfruitful frisk for weapons. A search of the vehicle
produced a small amount of marijuana, a schedule IV narcotic in the driver’s purse and
a bag of marijuana in the other passenger’s pants. Subsequently, the driver confessed
that she was concealing drugs and the officers found 80 Oxycodone pills in her
undergarments. As a result of this stop, Darget was charged with two counts of
trafficking in drugs, possession of drugs, conspiracy to traffic drugs and tampering with
evidence.
{¶5} Darget filed an unsuccessful motion to suppress all evidence recovered as
a result of the traffic stop. Darget then entered into plea negotiations with the state. As
a result he agreed to plead guilty to one count of trafficking in drugs and one count of
tampering with evidence and in exchange the state agreed to dismiss the remaining
charges. The court accepted his guilty plea and sentenced Darget to five years
imprisonment for his trafficking in drugs conviction and four years imprisonment for his
Scioto App. No. 12CA3487 3
tampering with evidence conviction, to run consecutively for an aggregate term of nine
years.
{¶6} Subsequently, Darget filed what the trial court construed as a motion to
withdraw his guilty plea under Crim.R. 32.1. The court overruled his motion, finding that
he did not demonstrate a manifest injustice and this appeal followed.
II. ASSIGNMENTS OF ERROR
{¶7} Darget raises five assignments of error for our review:
{¶8} 1. “THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT
RONTEZ DARGET’S MOTION TO WITHDRAW HIS GUILTY PLEA PURSUANT TO
OHIO CRIM. PROC. R. 32.1.”
{¶9} 2. “THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT
RONTEZ DARGET’S MOTION FOR JUDICIAL RELEASE.”
{¶10} 3. “THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT
RONTEZ DARGET’S MOTION FOR RELIEF FROM JUDGMENT ON THE GROUNDS
OF INEFFECTIVE ASSISTANCE OF COUNSEL.”
{¶11} 4. “THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT
RONTEZ DARGET’S MOTION FOR POST-CONVICTION RELIEF PURSUANT TO
OHIO R.C. 2953.21, ET SEQ.”
{¶12} 5. “THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT
RONTEZ DARGET RELIEF UNDER OHIO HOUSE BILL 86.”
III. PROCEDURAL HISTORY
{¶13} Before addressing Darget’s assignments of error we review the procedural
history of the case because it affects the outcome of Darget’s appeal. On August 10,
2009, Darget filed a pro se motion to withdraw his guilty plea. Although the record
shows there was a hearing on the motion, the court never filed an entry journalizing its
decision. On November 10, 2009, Darget then filed a pro se motion asking the court to
journalize its decision on his August 10, 2009 motion, along with what we construe as a
Scioto App. No. 12CA3487 4
renewed motion to withdraw his guilty plea. Once again, the record does not contain an
entry journalizing the court's decision on these motions.
{¶14} Then on November 22, 2011, through counsel Darget filed a “Post-hearing
Supplemental Memorandum in Support of his Motion to Withdraw Guilty Plea Pursuant
to Ohio Crim. Proc. R. 32.1, or in the Alternative, for Post-Conviction Relief Pursuant to
Ohio R.C. 2953.21 and the Ohio and the United States Constitutions or, in the
Alternative, for Relief Pursuant to Ohio House Bill 86.” This supplemental memorandum
is identical to Darget’s appellate brief and in it he makes the same arguments he
presents on appeal. However, as we will explain later, a decision on that motion is not
before us here.
{¶15} On January 23, 2012, Darget's counsel filed a “Motion for Leave to File a
Delayed Motion to Withdraw Guilty Plea Pursuant to Ohio Crim. R. 32.1, and for Non-
Oral Hearing or in the Alternative for Judicial Determination.” The face of the motion
states:
Rontez L. Darget moves the Court pursuant to Ohio Crim. R. 32.1 for
leave to file a delayed motion to withdraw his guilty plea pursuant to Ohio
Crim. R. 32.1 on the grounds of manifest injustice. The motion arises from
Darget’s discovery of the conflict of interests of his trial counsel, Michael
Mearan. Darget’s constitutional rights were violated when his trial counsel
acted under a serious conflict of interest prior to and during Darget’s case,
and Darget was “unavoidably prevented from discovering the evidence”
upon which he relies until well after one hundred twenty days has elapsed.
Ohio Crim. R. 33(B).
Darget’s Memorandum in Support is submitted herewith.
FURTHER, Defendant moves the Court to hear this matter on Non-Oral
Hearing or in the alternative, on Judicial Determination before the Court.
{¶16} However, there was no memorandum in support attached to the motion
filed with the court. The state filed a “Memorandum Contra Motion to Withdraw Plea” on
Scioto App. No. 12CA3487 5
February 29, 2012, and argued that Darget did not show a manifest injustice and
accordingly, he should not be permitted to withdraw his guilty plea.
{¶17} Subsequently, on March 29, 2012, the court filed an entry denying
Darget’s “request for leave to file his motion to withdraw his guilty plea,” because Darget
had the burden to show a manifest injustice and he failed to do so. It is from this entry
that Darget now appeals.
{¶18} The motions filed by Darget in this case are confusing for several reasons.
Initially, he filed a pro se motion to withdraw his guilty plea. Over two years later he filed
a supplemental memorandum in support of his motion to withdraw his guilty plea
through counsel. Then without a response from the court on either filing, Darget filed a
motion for leave to file a delayed motion to withdraw his guilty plea. However, he had
already filed a motion to withdraw his guilty plea. Although Darget may have cleared up
some of this confusion in his memorandum in support of his motion, that memorandum
is not contained in the record.
{¶19} Even more confusing, in his motion for leave to file a delayed motion to
withdraw his guilty plea he claims that he discovered new evidence and cites Crim.R.
33(B), which deals with motions for a new trial. Under Crim.R. 33(B), a defendant has
120 days after the verdict was rendered to file an application for a new trial based on
newly discovered evidence. Conversely, Crim.R. 32.1 deals with motions to withdraw a
plea of guilty or no contest and Darget also cites this rule in the caption of his motion.
Although, timeliness “‘is a factor adversely affecting the credibility of the movant and
militating against the granting of the motion,’” the rule itself does not impose a time limit
for filing a motion to withdraw a guilty plea after the trial court has sentenced the
Scioto App. No. 12CA3487 6
defendant. State v. Bush, 96 Ohio St. 3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 14,
quoting State v. Smith, 49 Ohio St. 2d 261, 361 N.E.2d 1324 (1977), paragraph three of
the syllabus. Thus, it is unclear why Darget filed a motion requesting leave to file a
“delayed” motion to withdraw his guilty plea, after he already filed such a motion and
there is no time limit imposed under Crim.R. 32.1.
{¶20} With this plethora of pending motions, it is difficult to determine which
one(s) the court finally decided. However, looking at the March 29, 2012 judgment
entry from which Darget appeals, the court stated that “[t]his matter comes before the
Court upon Defendant Rontez L. Darget’s Motion for Leave to File a Delayed Motion to
Withdraw Guilty Plea Pursuant to Ohio Criminal Rule 32.1, and State’s Memorandum
Contra filed February 29, 2012.” Thus, it is clear that the court was ruling on Darget’s
January 23, 2012 motion. A review of the court’s judgment entry shows that it applied
Crim.R. 32.1 and concluded that Darget had not shown a manifest injustice. In doing
so, the court treated the filing as a simple motion to withdraw his guilty plea and denied
it on the merits.
IV. LAW AND ANALYSIS
{¶21} 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.” A defendant seeking to withdraw a guilty plea after
sentencing has the burden to establish that a manifest injustice will occur if the plea
stands. Smith, 49 Ohio St. 2d 261, 361 N.E.2d 1324 (1977), at paragraph one of the
syllabus. A manifest injustice is “a clear or openly unjust act.” State v. Dotson, 4th Dist.
Scioto App. No. 12CA3487 7
No. 03CA53, 2004-Ohio-2768, ¶ 5, citing State ex rel. Schneider v. Kreiner, 83 Ohio
St.3d 203, 208, 699 N.E.2d 83 (1998). This is an extremely high standard that permits
a defendant to withdraw his guilty plea only in extraordinary cases. State v. Whitaker,
4th Dist. No. 10CA3349, 2011-Ohio-6923, ¶ 8.
{¶22} “[T]he decision to grant or deny a Crim.R. 32.1 motion is committed to the
sound discretion of the trial court * * *. Appellate review of the denial of a post-sentence
motion to withdraw a guilty plea is therefore limited to a determination of whether the
trial court abused its discretion. The term ‘abuse of discretion’ connotes an attitude on
the part of the court that is unreasonable, unconscionable, or arbitrary.” Id. at ¶ 9.
{¶23} Now turning to the merits of Darget’s appeal, he claims that the trial court
erred by denying his motion to withdraw his guilty plea for several reasons, including: 1)
he did not understand that he would not be eligible for judicial release until he served
five years of his sentence; 2) the trial court failed to inform him of all the constitutional
and nonconstitutional rights he was waiving by pleading guilty; and 3) that the court
should have merged his convictions because they are allied offenses of similar import
committed with the same animus. However, he did not raise any of these issues in the
January 23, 2012 motion that is the subject of this appeal. And because Darget failed
to raise these issues in the trial court, he has forfeited them for purposes of appeal.
Portsmouth Ins. Agency v. Med. Mut. of Ohio, 4th Dist. No. 10CA3405, 2012-Ohio-
2046, ¶ 87.
{¶24} The only argument made by Darget in his Crim.R. 32.1 motion was that
his trial counsel “acted under a serious conflict of interest prior to and during [his] case.”
We have held that a claim of ineffective assistance of counsel is improperly brought
Scioto App. No. 12CA3487 8
under Crim.R. 32.1 when it relies on matters outside the record. State v. Ables, 4th
Dist. No. 11CA22, 2012-Ohio-3377, ¶ 11. This includes claims of ineffective assistance
of counsel based on a conflict of interest. Id. at ¶ 12. Rather, such claims should be
raised in a petition for post-conviction relief. Id. Accordingly, the trial court did not
abuse its discretion by denying Darget’s motion and we overrule his first assignment of
error.
{¶25} In Darget’s second assignment of error, he argues that the trial court erred
in denying his motion for judicial release. However, we can find no record of Darget
making such a motion. Therefore, this matter is not before us and we overrule his
second assignment of error.
{¶26} In his remaining assignments of error Darget claims that he was denied
the effective assistance of counsel during his change of plea hearing, that the trial court
erred in denying his motion for post-conviction relief and that the trial court erred by
denying him relief under Ohio House Bill 86. However, Darget did not raise these
issues in his January 23, 2012 motion and therefore he has forfeited these claims on
appeal. Although Darget did present these same arguments in his November 22, 2011
motion, as we have already discussed, the trial court never ruled on that motion.
Therefore, that motion is technically still pending. Darget’s remedy for the trial court’s
delay in issuing a ruling on that motion is to seek a writ of procedendo. A petition for
“‘[the] writ of procedendo is appropriate when a court has either refused to render a
judgment or has unnecessarily delayed proceeding to judgment.’” State ex rel. CNG
Financial Corp. v. Nadel, 111 Ohio St. 3d 149, 2006-Ohio-5344, 855 N.E.2d 473, ¶ 20,
quoting State ex rel. Weiss v. Hoover, 84 Ohio St. 3d 530, 532, 705 N.E.2d 1227 (1999).
Scioto App. No. 12CA3487 9
Because this appeal deals only with issues decided under the January 23, 2012 motion,
issues raised in the November 22, 2011 motion are not properly before us. Accordingly,
we overrule his third, fourth and fifth assignments of error.
{¶27} In summary, we overrule Darget’s five assignments of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
Scioto App. No. 12CA3487 10
Kline, J., concurring.
{¶28} I concur in judgment and opinion. I write separately to note that,
ordinarily, “the denial of a motion for judicial release is not a final appealable order.”
State v. Christner, 5th Dist. No. 2012 CA 00135, 2012-Ohio-4790, ¶ 11; see also State
v. Francis, 4th Dist. No. 10CA2, 2011-Ohio-4497, ¶ 13-14 (finding an exception to the
general rule).
Scioto App. No. 12CA3487 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing Scioto
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
McFarland, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion with Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.