State v. Hammock , 2019 Ohio 127 ( 2019 )

[Cite as State v. Hammock, 2019-Ohio-127.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 18CA104
BRUCE HAMMOCK :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2015-
CR-0858
JUDGMENT: January 16, 2019
DATE OF JUDGMENT ENTRY:
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP BRUCE A. HAMMOCK
PROSECUTING ATTORNEY Inmate No. 682-596
BY: JOSEPH C. SNYDER TRUMBULL CORRECTIONAL INST.
38 South Park Street Box 901
Mansfield, OH 44902 Leavittsburg, OH 44430
[Cite as State v. Hammock, 2019-Ohio-127.]
Gwin, P.J.
{¶1} Appellant Bruce Hammock appeals the October 5, 2018 judgment entry of
the Richland County Court of Common Pleas overruling his motion to withdraw plea.
Appellee is the State of Ohio.
Facts & Procedural History
{¶2} In 2015, appellant was charged by indictment with cocaine possession with
a firearm specification, having weapons while under disability with a forfeiture
specification, fleeing and eluding with a firearm specification, two counts of improper
handling of a firearm in a motor vehicle, carrying a concealed weapon, and OVI.
{¶3} On February 8, 2016, appellant entered pleas of guilty. On April 11, 2016,
the trial court sentenced appellant to an aggregate prison term of 4 years in addition to a
term of community control. Appellant was advised he was subject to 5 years of mandatory
post-release control.
{¶4} On July 8, 2016, this Court denied appellant’s motion for delayed appeal.
Appellant’s motion for reconsideration was overruled and his appeal to the Ohio Supreme
Court was declined. State v. Hammock, 147 Ohio St.3d 1438, 2016-Ohio-7677, 63
N.E.3d 157.
{¶5} On December 4, 2017, appellant filed a motion for resentencing in the trial
court and made the following arguments: (1) the sentencing entry was not a final
appealable order because the trial court failed to impose a separate sentence on each
individual offense; (2) the trial court erred in ordering the community-control sanction to
be served consecutively to the prison term; and (3) post-release control was not properly
imposed.
Richland County, Case No. 18CA104 3
{¶6} The trial court overruled the motion on March 15, 2018, finding the motion
was an untimely petition for post-conviction relief. Appellant appealed from the trial
court’s decision, arguing: the trial court erred by sentencing him to community control on
a matter the General Assembly has clearly declared to be a non-probationable offense;
the trial court erred by failing to impose a separate sentence on each individual offense;
the trial court erred by ordering his community control sanction be served consecutively
to his prison term; and the trial court erred by not properly notifying him of post-release
control. State v. Hammock, 5th Dist. Richland No. 18CA27, 2018-Ohio-3914. We
overruled appellant’s first three assignments of error, but found the trial court failed to
inform appellant of the consequences of violating post-release control at the sentencing
hearing. Id. Thus, we remanded the matter to the trial court for the limited purpose of
holding a sentencing hearing to address appellant in regard to his post-release control
sanction. Id.{¶7} On June 7, 2018, while appellant’s appeal was pending, he filed a motion
to withdraw plea pursuant to Criminal Rule 32.1. Appellant argued his plea was not made
knowingly, intelligently, or voluntarily in compliance with Criminal Rule 11. Appellee filed
a memorandum in response on June 11, 2018. Appellant filed a reply on June 20, 2018.
{¶8} On October 5, 2018, the trial court issued a judgment entry overruling
appellant’s motion to withdraw plea. The trial court found it was without jurisdiction to
consider appellant’s motion and that appellant’s arguments otherwise lacked merit. The
trial court stated it did not have jurisdiction to rule upon any motion to withdraw plea under
Criminal Rule 32.1 after a defendant’s conviction has been upheld on appeal.
Additionally, that appellant had not demonstrated manifest injustice.
Richland County, Case No. 18CA104 4
{¶9} Appellant appeals the October 5, 2018 judgment entry of the Richland
County Court of Common Pleas and assigns the following as error:
{¶10} “I. THE TRIAL COURT ERRED WHEN IT ACCEPTED HAMMOCK’S
GUILTY PLEA WHICH WAS NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY MADE IN VIOLATION OF HAMMOCK’S DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{¶11} “II. THE TRIAL COURT ERRED WHEN IT OVERRULED HAMMOCK’S
CRIM.R. 32.1 MOTION TO WITHDRAW GUILTY PLEA AND ABUSED ITS DISCRETION
BY FAILING TO CONSIDER HIS MOTION AS A PRESENTENCE MOTION UNDER
CRIM.R. 32.1.”
{¶12} For ease of discussion, we will address appellant’s assignments of error out
of sequence.
II.
{¶13} In his second assignment of error, appellant makes two arguments. First,
appellant contends the trial court erred in failing to consider his motion as a pre-sentence
motion under Criminal Rule 32.1.
{¶14} Appellant seeks to characterize his motion to withdraw as a pre-sentence
motion on the premise that his entire sentence is void and argues the trial court erred in
applying the “manifest injustice” standard which is applied to a post-sentence motion to
withdraw plea pursuant to Criminal Rule 32.1. However, the Ohio Supreme Court has
held that in a resentencing to properly impose post-release control, only the portion of the
sentence concerning post-release control is void. State v. Fischer, 128 Ohio St.3d 92,
Richland County, Case No. 18CA104 5
2010-Ohio-6238, 942 N.E.2d 332. Further, this Court has concluded that because the
conviction and remaining portion of the original sentence remain valid pursuant to Fischer,
a motion to withdraw plea made prior to resentencing to correct the post-release control
portion of the sentence is properly addressed as a post-sentence motion. State v.
Montgomery, 5th Dist. Guernsey No. 10CA42, 2011-Ohio-6145; State v. Johnson, 5th
Dist. Delaware No. 12 CAA 08 0050, 2013-Ohio-2416. Accordingly, the trial court did not
err in addressing appellant’s motion based on the “manifest injustice” standard. Id.{¶15} Second, appellant argues the trial court erred when it overruled his motion
to withdraw his guilty plea.
{¶16} As noted by the trial court, “Crim.R. 32.1 does not vest jurisdiction in the
trial court to maintain and determine a motion to withdraw guilty plea subsequent to an
appeal and an affirmance by an appellate court.” State ex rel. Special Prosecutors v.
Judges, Court of Common Pleas, 55 Ohio St.2d 94, 378 N.E.2d 162 (1978); State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9. In this case, we remanded
the matter to the trial court for the limited purpose of holding a sentencing hearing to
address appellant in regard to his post-release control sanction. We affirmed appellant’s
conviction on appeal and did not vacate his underlying conviction. Therefore, the trial
court did not have jurisdiction to consider appellant’s motion to withdraw guilty plea. State
v. Long, 5th Dist. Richland No. 15CA93, 2016-Ohio-671; State v. Hendricks, 5th Dist.
Muskingum No. CT2017-0023, 2017-Ohio-8526.
{¶17} Appellant cites State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959
N.E.2d 516, in support of his argument that Special Prosecutors does not apply in this
case. However, in Davis, the Ohio Supreme Court held that “a trial court retains
Richland County, Case No. 18CA104 6
jurisdiction to decide a motion for a new trial based on newly discovered evidence when
the specific issue has not been decided upon direct appeal.” Id. However, this case is
factually distinguishable from Davis because it does not involve a motion for new trial
pursuant to Criminal Rule 33(A)(6), there is no newly-discovered evidence, and, unlike in
Davis, the issues presented by appellant in this case could have been raised on direct
appeal. See State v. Hendricks, 5th Dist. Muskingum No. CT2017-0023, 2017-Ohio-
8526; State v. Patterson, 5th Dist. Stark No. 2015CA00125, 2015-Ohio-4325.
{¶18} Additionally, even assuming arguendo the trial court did have jurisdiction,
the doctrine of res judicata bars this Court from considering appellant’s arguments. The
doctrine of res judicata bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from that judgment, any issue
which was raised or could have been raised on direct appeal. State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104 (1967). “Ohio courts of appeals have applied res judicata to
bar the assertion of claims in a motion to withdraw guilty plea that were or could have
been raised at trial or on appeal.” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831,
935 N.E.2d 9; see also State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d
332 (holding res judicata does not preclude review of a void sentence, but still applies to
other aspects of the merits of a conviction, including the determination of guilt and the
lawful elements of the ensuing sentence). Further, this Court has held that res judicata
applies in a defendant’s appeal from a Fischer-based or R.C. 2929.191-based
resentencing to impose post-release control where the issue being appealed did not arise
from the resentencing hearing. State v. Williams, 5th Dist. Licking No. 14 CA 82, 2015-
Ohio-1125; State v. Norris, 5th Dist. Muskingum No. CT2012-0055, 2013-Ohio-1010.
Richland County, Case No. 18CA104 7
{¶19} Appellant contends his plea was not knowingly, intelligently, and voluntarily
made because he could have been sentenced to mandatory prison terms on several
counts, but was only sentenced to community control on these counts. This is an
argument appellant could have included in a direct appeal. Accordingly, his argument is
barred by the doctrine of res judicata.
{¶20} In arguing the trial court should have granted his motion, appellant relies
upon the Supreme Court of Ohio’s decisions in State v. Sarkozy, 117 Ohio St.3d 86, 2008-
Ohio-509 (holding that “if a trial court fails during a plea colloquy to advise a defendant
that the sentence will include a mandatory term of post-release control, the defendant
may dispute the knowing, intelligent, and voluntary nature of the plea either by filing a
motion to withdraw the plea or upon direct appeal”) and State v. Boswell, 121 Ohio St.3d
575, 2009-Ohio-1577, 906 N.E.2d 422 (holding a motion to withdraw guilty plea following
the imposition of a void sentence must be considered a presentence motion and be freely
and liberally granted). However, in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
942 N.E.2d 332, the Ohio Supreme Court modified its earlier decisions to clarify that only
the offending portion of the sentence is subject to review and correction. See also R.C.
2929.191 (providing for the correction of sentences in which the defendant did not receive
proper post-release control notifications).
{¶21} Finally, even if we were to consider appellant’s argument, we find the trial
court did not err in denying appellant’s motion to withdraw the guilty plea. The accused
has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea.
State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977). The Ohio Supreme Court
has stated a post-sentence withdrawal motion is allowable only in extraordinary
Richland County, Case No. 18CA104 8
circumstances. Id. “A manifest injustice comprehends a fundamental flaw in the path of
justice so extraordinary that the defendant could not have sought redress from the
resulting prejudice through any form of application reasonably available to him.” Id.{¶22} We review a trial court’s denial of a motion to withdraw guilty plea under an
abuse of discretion standard. State v. Carabello, 17 Ohio St.3d 66, 477 N.E.2d 627(1985). “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. Smith, 49 Ohio
St.2d 261, 361 N.E.2d 1324 (1977). Here, appellant alleges a manifest injustice because
the trial court sentenced him to community control when he was not eligible for community
control for those offenses and the statutes require imposition of mandatory prison terms.
However, even if the trial court could have sentenced appellant to a mandatory prison
sentence greater than four years, it did not. Accordingly, we find appellant has failed to
demonstrate, nor does the record reflect, a manifest injustice.
{¶23} Appellant’s second assignment of error is overruled.
I.
{¶24} In his first assignment of error, appellant argues the trial court erred by
accepting his plea because his plea was not made knowingly, intelligently, or voluntarily.
As detailed above, we find this assignment of error is barred by res judicata and the finality
of appellate judgments. Appellant’s first assignment of error is overruled.
{¶25} Based on the foregoing, appellant’s assignments of error are overruled.
Richland County, Case No. 18CA104 9
{¶26} The October 5, 2018 judgment entry of the Richland County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Delaney, J, and
Baldwin, J., concur