State v. McBride , 2017 Ohio 891 ( 2017 )

[Cite as State v. McBride, 2017-Ohio-891.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-T-0006
- vs - :
CHRISTOPHER L. McBRIDE, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2002 CR
00517.
Judgment: Affirmed in part; reversed in part and remanded.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Christopher McBride, appeals the judgment of the Trumbull
County Court of Common Pleas denying his motion to withdraw his guilty plea to
multiple counts of aggravated robbery, aggravated burglary, kidnapping, rape, and
related felonies. At issue is whether the trial court abused its discretion in denying the
motion. For the reasons that follow, we affirm in part; reverse in part and remand.
{¶2} On August 26, 2002, appellant was charged in a ten-count indictment with
two counts of aggravated robbery, each being a felony-one; two counts of aggravated
burglary, each being a felony-one; two counts of rape, each being a felony-one;
kidnapping, a felony-one; kidnapping, a felony-two; burglary, a felony-two; and receiving
stolen property, a felony-four. Following a change-of-plea hearing, appellant pled guilty
to each count as charged.
{¶3} On March 31, 2003, the case came on for sentencing. The court noted in
its sentencing entry that appellant “terrorized a minor, a 71-year-old widow, and a 51-
year-old professional woman, whom he raped in her own house.” The court also noted
appellant has an extensive criminal history. The court sentenced appellant to seven
years in prison on five of the felony-ones, and five years on one of the felony-twos, each
of which was ordered to be served consecutively to the other, for a total of 40 years.
The court also sentenced appellant to seven years on two other felony-ones, six years
on one felony-two, and one year on the one felony-four, each of which was to be served
concurrently.
{¶4} Appellant did not file a direct appeal of his conviction. Rather, some 13
years after his sentencing, on October 30, 2015, he filed the instant pro se motion to
withdraw his guilty plea pursuant to Crim.R. 32.1. Appellant did not argue his plea was
involuntary or otherwise invalid; rather, he requested a re-sentencing, arguing the trial
court in its sentencing entry failed to set forth the order in which his consecutive
sentences were to be served. The trial court denied the motion without a hearing.
Appellant appeals the trial court’s judgment, asserting the following as his sole
assignment of error:
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{¶5} “The trial court erred and abused its discretion by denying the appellant’s
motion to withdraw his guilty plea.”
{¶6} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty * * * 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 a defendant to
withdraw his plea.” “A defendant who seeks to withdraw a guilty plea after sentence has
the burden of establishing a manifest injustice.” State v. Dudas, 11th Dist. Lake Nos.
2008-L-081 and 2008-L-082, 2008-Ohio-7043, ¶23. Under that standard, a post-
sentence withdrawal motion is allowable only in extraordinary cases to correct a
manifest injustice. Id.; State v. Glenn, 11th Dist. Lake No. 2003-L-022, 2004-Ohio-2917,
¶26; State v. Mack, 11th Dist. Portage No. 2005-P-0033, 2006-Ohio-1694, ¶15. The
logic behind this high standard is “to discourage a defendant from pleading guilty to test
the weight of potential reprisal, and later withdraw the plea if the sentence was
unexpectedly severe.” State v. Caraballo, 17 Ohio St. 3d 66, 67 (1985).
{¶7} “Manifest injustice is determined by examining the totality of the
circumstances surrounding the guilty plea. Paramount in this determination is the trial
court’s compliance with Crim.R. 11(C), evidence of which must show in the record that
the accused understood his rights accordingly.” State v. Padgett, 8th Dist. Cuyahoga
No. 64846, 1993 WL 243101, *1 (Jul. 1, 1993). “A Crim.R. 32.1 motion to withdraw a
guilty plea provides a means for challenging the knowing, voluntary, and intelligent
nature of a plea.” State v. Temaj-Felix, 1st Dist. Hamilton No. C-140138, 2015-Ohio-
3967, ¶7.
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{¶8} The decision whether to grant or deny a post-sentence motion to withdraw
a guilty plea is within the sound discretion of the trial court. State v. Smith, 49 Ohio
St.2d 261 (1977), paragraph two of the syllabus; State v. Pearson, 11th Dist. Geauga
Nos. 2002-G-2413 and 2002-G-2414, 2003-Ohio-6962, ¶7. The good faith, credibility,
and weight of the movant’s assertions in support of the motion are to be resolved by the
trial court. Smith, supra; State v. Jordan, 10th Dist. Franklin No. 04AP-42, 2004-Ohio-
6836, ¶5. Accordingly, appellate review of the trial court’s denial of a post-sentence
motion to withdraw a guilty plea is limited to a consideration of whether the lower court
abused its discretion. Pearson, supra; Glenn, supra, at ¶27. The term “abuse of
discretion” is one of art, connoting judgment exercised by a court, which does not
comport with reason or the record. State v. Underwood, 11th Dist. Lake No. 2008-L-
113, 2009-Ohio-2089, ¶30.
{¶9} Appellant has failed to provide us with the transcript of his guilty plea
hearing. Without a transcript of this hearing, this court must presume its regularity.
State v. Mack, 11th Dist. Portage No. 2005-P-0033, 2006-Ohio-1694, ¶17. “‘When
portions of the transcript necessary for resolution of assigned errors are omitted from
the record, the reviewing court has nothing to pass on and thus, as to those assigned
errors, the court has no choice but to presume the validity of the lower court’s
proceedings, and affirm.’” Jordan, supra, at ¶6, quoting Knapp v. Edwards
Laboratories, 61 Ohio St. 2d 197, 199 (1980). “[Where] a transcript of the guilty plea
hearing is not available, we cannot adequately determine whether appellant fully
understood the * * * consequences of his guilty plea * * *. As a result, we cannot
conclude that a manifest injustice has occurred.” Mack, supra, at ¶19.
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{¶10} “Because [the defendant] failed to provide us with a transcript of the plea
hearing, we presume that his plea was entered in accordance with Crim.R. 11(C), and
was thus a voluntary and knowingly entered plea.” State v. Griffith, 8th Dist. Cuyahoga
No. 84760, 2005-Ohio-1500, ¶11.
{¶11} As appellant has failed to provide us with the transcript of his guilty plea
hearing, we must presume regularity of that proceeding and affirm. As such, we
presume that appellant’s plea was knowing and voluntary and that no manifest injustice
occurred.
{¶12} We note that appellant filed in the trial court a “motion for copy or use of
court transcripts at the state’s expense for preparation of motion to withdraw plea.” The
trial court denied the motion and appellant does not assign error to this ruling on appeal.
{¶13} In any event, even if appellant had filed the transcript of his guilty plea
hearing, his motion to withdraw would still lack merit because he does not argue that his
guilty plea was not knowingly, intelligently, and voluntarily entered or that a manifest
injustice occurred. Instead, the sole ground urged by appellant below and on appeal in
support of his motion to withdraw his guilty plea is that the trial court failed to state the
order in which his consecutive sentences were to be served. However, appellant does
not cite any case law holding an ambiguous sentencing entry provides legal grounds to
withdraw a guilty plea. A sentencing error is properly raised in the trial court at
sentencing or via a motion to vacate or correct the sentence, not in a motion to withdraw
a guilty plea.
{¶14} However, because appellant’s motion raised the issue of the ambiguity of
his sentence, in the interest of justice, we address the argument.
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{¶15} The cases on which appellant relies are distinguishable because they
involved a claim of prejudice resulting from the order of the defendant’s sentences,
which is not the case here. First, in State v. Cvijetinovic, 8th Dist. Cuyahoga No. 99316,
2013-Ohio-5121, the court sentenced the defendant in one case to four years and, in
another case, to 12 years, each to be served consecutively to the other. The
sentencing entries were ambiguous as to which sentence was to be served first.
Twelve years later, the court was advised it had not imposed post-release control.
During a hearing to impose this sanction, the defendant argued that he had already
served the 12-year sentence (which would have included a five-year term of post-
release control) and that he was now serving the four-year sentence (which would only
include a three-year term of post-release control). He argued post-release control
should be imposed on the four-year sentence. The court disagreed and imposed the
five-year term on the 12-year sentence. The defendant moved to vacate post-release
control, which the court denied. On appeal, the Eighth District held that because it was
unclear from the sentencing entries which sentence was to be served first, the sentence
was ambiguous and must be construed in the defendant’s favor. Id. at ¶23. Thus, the
Eighth District held the 12-year sentence was served first and thus completed by the
time the court imposed post-release control. As a result, the five-year term of post-
release control was reversed and the case was remanded to determine the appropriate
term of post-release control, if any, to be imposed on the other case. Id. at ¶26.
{¶16} Appellant also relies on State v. Broughton, 6th Dist. Lucas Nos. L-06-
1213 and L-06-1214, 2007-Ohio-5312. In that case, the defendant was sentenced to a
mandatory term of six months for one crime and a non-mandatory one-year term for
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another, the two terms to be served consecutively to the other. Later, after appellant
was released and committed a probation violation, the court re-imposed the defendant’s
original sentence on the mandatory six-month term. The defendant appealed. The
Sixth District held that because the two sentences were imposed consecutively with no
sequence stated, an ambiguity was created as to which sentence was to be served first.
The court held the ambiguity should have been construed in the defendant’s favor and,
thus, when his sentence was re-imposed for his probation violation, the mandatory six-
month term should have been construed as having been served first and thus credited
first. Id. at ¶12-14. Since the defendant was in jail for more than six months, the
mandatory sentence was completed and any remaining jail time should have been
credited against the one-year, non-mandatory sentence. Id. at ¶14.
{¶17} In contrast to the foregoing cases, appellant does not argue he was
prejudiced due to, e.g., the imposition of post-release control or the re-imposition of
sentence following a probation violation. He simply argues that because the sentencing
entry did not state the order in which his consecutive sentences were to be served, the
entry was ambiguous and he is entitled to withdraw his guilty plea.
{¶18} However, several Ohio Appellate Districts have held that “[a] trial court
does not err by not expressly setting forth the order for service of consecutive
sentences as there are statutes and rules that govern the order of how sentences are to
be served.” State v. Mundy, 9th Dist. Medina No. 15CA0001-M, 2016 WL 3570367,
¶13. Accord State v. Jackson, 7th Dist. Mahoning No. 13 MA 121, 2014-Ohio-2249,
¶43-45; State v. Robinson, 8th Dist. Cuyahoga No. 103559, 2016-Ohio-2931, ¶11.
{¶19} In Jackson, supra, the Seventh District persuasively stated:
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{¶20} [T]he required content of a sentencing entry is governed by statute,
rule, or case law interpreting a statute or rule, not by an appellate
court's concern about * * * future potentialities. In fact, the cases
cited by appellant [Cvijetinovic, supra, and Broughton, supra,] do
not support his claim that a sentencing entry is reversible if it does
not specifically explain the order of service. Read in context, the
statement in Cvijetinovic that “the sentencing journal entries should
dictate how sentences are served” just means that, if an issue
arises later, the court will read the entries themselves and will not
utilize other material or mere case numbers, to determine the order
of sentences. It does not stand for the proposition that all
sentencing entries imposing consecutive sentences must contain a
statement regarding the sequence of the sentences or they are
reversible.
{¶21} Thus, appellant provides no support for his argument that a
sentencing court commits reversible error by not expressly
providing the order of consecutive sentences. * * * The two cases
appellant relies upon dealt with issues that arose later, upon a trial
court’s construction of sentencing time where such construction
actually affected the defendant.
{¶22} Whether an issue will actually arise in appellant’s case is mere
conjecture that is not even theorized by appellant. There are no
concerns as to any discernible issues raised here. We cannot make
predictions on the assorted latent issues that may or may not arise
under various statutes that may or may not affect appellant in the
future. This argument is therefore overruled. (Emphasis added.)
Jackson, supra, at ¶43-45.
{¶23} As noted above, appellant does not argue he was prejudiced as a result of
the court not specifying the order of his consecutive sentences. Moreover, the
resolution of any ambiguity in the sentencing entry is not properly before us because, in
the present circumstances, regardless of whether appellant serves the felony-ones or
the lesser-degree felonies first, he will have to serve his 40-year consecutive sentence
followed by five years of post-release control.
{¶24} Further, while appellant does not argue the trial court improperly notified
him regarding post-release control, we sua sponte consider the issue as it affects his
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substantial rights. State v. Hartson, 8th Dist. Cuyahoga No. 91610, 2009-Ohio-1603,
¶38. Specifically, the trial court failed to properly notify appellant in the sentencing entry
that (1) he was subject to a mandatory five-year period of post-release control, and that
(2) the parole board could impose an additional prison term of up to one-half of his
original prison sentence for a violation of post-release control.
{¶25} R.C. 2929.19(B)(3)(c) and (e) provide that if the sentencing court
determines at the sentencing hearing that a prison term is necessary, the court shall
notify the offender that he will be under post-release control after he leaves prison if he
is being sentenced for a felony of the first or second degree, and that the parole board
may impose a prison term, as part of the sentence, of up to one-half of his original
sentence.
{¶26} In addition, R.C. 2967.28(B) provides that each prison term for a felony of
the first or second degree shall include a requirement that the offender be subject to a
period of post-release control. That period “shall be one of the following periods: (1)
For a felony of the first degree * * *, five years; (2) For a felony of the second degree * *
*, three years.” Further, “[a]ny sentence to a prison term for a felony of the * * * fourth *
* * degree * * * shall include a requirement that the offender be subject to a period of
post-release control of up to three years after the offender’s release from imprisonment,
if the parole board * * * determines that a period of post-release control is necessary for
that offender.” R.C. 2967.28(C).
{¶27} R.C. 2967.28(F)(4)(c) mandates that in multiple offense cases, “only one
post-release control sanction (the longest term) can be imposed for all of the offenses.”
State v. Reed, 6th Dist. Erie No. E-11-049, 2012-Ohio-5983, ¶12. Accord State v.
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Patterson, 5th Dist. Stark No. 2014CA00220, 2015-Ohio-1714, ¶18. Thus, “the court
only has the duty in multiple offense cases to notify the defendant of and impose the
longest term of postrelease control applicable under R.C. 2967.28(B).” Reed, supra.
Further, “the trial court need not announce at the sentencing hearing nor include in the
sentencing judgment the applicable postrelease control sanction for each individual
offense irrespective of whether the terms of control are identical or different.” Id.
{¶28} Appellant pled guilty to and was sentenced on seven first-degree felonies,
two second-degree felonies, and one fourth-degree felony. Thus, he was subject to a
period of mandatory post-release control of five years.
{¶29} A trial court must properly impose post-release control at the sentencing
hearing and in the sentencing entry. State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-
1111, ¶18-19. Here, in its sentencing entry, the trial court stated, “[t]he court has further
notified the Defendant that post release control is mandatory in this case up to a
maximum of 5 years, as well as the consequences for violating conditions of post
release control imposed by the Parole Board * * *.” (Emphasis added.)
{¶30} This court in State v. Gaut, 11th Dist. Trumbull No. 2010-T-0059, 2011-
Ohio-1300, considered language in a sentencing entry that was virtually identical to the
language employed by the trial court here. This court in Gaut stated:
{¶31} The trial court’s statement that “postrelease [control] is mandatory
in this case up to a maximum of five years” implies Mr. Gaut could
be subjected to less than five years of postrelease control, when in
fact he is required to serve a definite term of five years. Therefore,
the court did not properly impose the postrelease control. See State
v. O’Neal, 9th Dist. [Medina] No. 09CA0045-M, 2010-Ohio-1252, ¶6
(the trial court’s statement that “postrelease control is mandatory up
to a maximum of 5 years” does not conform to the statutory
requirement); * * * State v. Ericson, 7th Dist. [Mahoning] No. 09 MA
109, 2010-Ohio-4315[, ¶40] (statement that the defendant is
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subject to a postrelease control of “up to five years” is incorrect
because it implies the term is not mandatory). Gaut, supra, at ¶20.
{¶32} Further, this court in State v. Young, 11th Dist. Trumbull No. 2009-T-0130,
2011-Ohio-4018, in considering basically the same language used in the sentencing
entry here, held that the sentence must also be corrected to state that the parole board
may impose a prison term of up to one-half of the defendant’s prison sentence for any
violation. Id. at ¶96.
{¶33} With respect to the remedy for improperly imposed post-release control,
the General Assembly enacted R.C. 2929.191, effective July 11, 2006, to establish a
simple procedure. However, the Supreme Court of Ohio in State v. Singleton, 124 Ohio
St.3d 173, 2009-Ohio-6434, held that R.C. 2929.191 could not be applied retroactively
to offenders sentenced before its enactment and that a de novo hearing is required in
those cases. Id. at paragraph one of the syllabus and ¶1.
{¶34} Here, appellant was sentenced on March 31, 2003, long before the
effective date of R.C. 2929.191. In State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-
6238, the Supreme Court of Ohio considered the imposition of post-release control on a
defendant who was sentenced before the enactment of R.C. 2929.191. The Court held
that “when a judge fails to impose statutorily mandated post release control as part of a
defendant’s sentence, [it is] that part of the sentence that is void and must be set aside.”
Fischer, supra, at ¶26. The Fischer court held that “the new sentencing hearing to
which an offender is entitled * * * is limited to proper imposition of postrelease control.”
Id. at ¶29. Further, in Qualls, supra, the Ohio Supreme Court held that when a
defendant is notified about post-release control at the sentencing hearing, but
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notification is omitted from the sentencing entry, the omission can be corrected with a
nunc pro tunc entry and the defendant is not entitled to a new sentencing. Id. at ¶23.
{¶35} Because appellant failed to provide a transcript of the sentencing hearing
as required by App.R. 9, we presume regularity of the sentencing hearing, i.e., that the
trial court properly advised appellant concerning post-release control. State v. Tanksley,
2d Dist. Clark No. 2015-CA-90, 2016-Ohio-2963, ¶12. Based on that presumption, the
mistake in the sentencing entry is subject to correction by nunc pro tunc entry. Id.;
Qualls, supra. Therefore, on remand, the trial court shall prepare and issue a nunc pro
tunc entry to reflect that it properly advised appellant regarding the specifics of these
two aspects of post-release control at the sentencing hearing.
{¶36} In view of the foregoing, we hold the trial court did not abuse its discretion
in denying appellant’s motion to withdraw his guilty plea. However, the court did err in
imposing post-release control and, on remand, the court shall correct this part of the
court’s sentencing entry pursuant to the instructions set forth herein.
{¶37} For the reasons stated in the opinion of this court, it is the judgment and
order of this court that the judgment of the Trumbull County Court of Common Pleas is
affirmed in part and reversed in part; and this case is remanded for further proceedings
consistent with the opinion.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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