State v. Alford

[Cite as State v. Alford, 2011-Ohio-4811.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95946
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARRYL ALFORD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-469026
BEFORE: Jones, J., Blackmon, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: September 22, 2011
ATTORNEY FOR APPELLANT
Thomas E. Conway
75 Public Square, Suite 700
Cleveland, Ohio 44113
Darryl Alford, Pro se
Inmate No. 493-759
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030-8000
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} Defendant-appellant, Darryl Alford, appeals from the trial court’s judgment
denying his motion to withdraw his plea. We affirm.
I.
{¶ 2} In 2005, Alford pleaded guilty to failure to comply with an order or signal of a
police officer and two counts of felonious assault with one-year firearm and body armor
specifications. The trial court sentenced Alford to 12 years in prison.
{¶ 3} Alford appealed pro se, but the appeal was dismissed for failure to file the
record. A second pro se appeal was dismissed as untimely.
1 2
{¶ 4} Alford subsequently filed a motion to withdraw his guilty plea, which was
denied. Alford appealed, contending that the trial court erred by not granting his
postsentence motion to withdraw his plea. This court affirmed the conviction, but held that
the trial court did not “adequately set forth postrelease control advisements in its judgment
entry,” and remanded for “resentencing in accordance with State v. Singleton, 124 Ohio St.3d
173, 2009-Ohio-6434, 920 N.E.2d 958.” State v. Alford, Cuyahoga App. No. 93911,
2010-Ohio-4130, ¶19.
{¶ 5} On remand, prior to the resentencing hearing, Alford, pro se, filed a motion to
withdraw his plea. The trial court denied the motion and resentenced Alford to a 12-year
prison term. The court imposed postrelease control and advised him of the penalties for
1
State v. Alford, Cuyahoga App. No. 87275, motion nos. 379031 and 382174.
2
State v. Alford, Cuyahoga App. No. 87856, motion no. 383933.
violating it. Alford now appeals and for his sole assignment of error contends that “[t]he trial
court erred when it failed to grant appellant’s presentence motion to withdraw his guilty
pleas.”
II.
{¶ 6} On appeal, this court affirmed the convictions, but remanded only for
resentencing for compliance with postrelease control advisements. Alford, 2010-Ohio-4130,
at ¶1, 19. In State v. Pruitt, Cuyahoga App. No. 91205, 2009-Ohio-859, this court held that
“‘[a] trial court lacks jurisdiction, upon remand, to consider a Crim.R. 32.1 motion to
withdraw a guilty plea after affirmance by the appellate court of a judgment of conviction.’”
Id. at ¶11, quoting State ex rel. Special Prosecutors v. Judges, Court of Common Pleas
(1978), 55 Ohio St.2d 94, 378 N.E.2d 162.
{¶ 7} Alford contends that Pruitt is not controlling here because it relied on the
distinguishable Special Prosecutors case. According to Alford, Special Prosecutors is
distinguishable from this case because Special Prosecutors involved a postsentence, rather than
a presentence, motion to withdraw a guilty plea. Special Prosecutors is not distinguishable
from this case. There, the defendant’s plea and conviction were upheld on appeal. The
defendant then filed a motion to vacate his plea in the trial court, and the court granted the
motion. The Ohio Supreme Court held in part that:
“The trial court’s granting of the motion to withdraw the guilty plea and the order to
proceed with a new trial were inconsistent with the judgment of the Court of Appeals
affirming the trial court’s conviction premised upon the guilty plea. The judgment of
the reviewing court is controlling upon the lower court as to all matters within the
compass of the judgment. * * *
“Furthermore, Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and
determine a motion to withdraw the guilty plea subsequent to an appeal and an
affirmance by the appellate court. While Crim.R. 32.1 apparently enlarges the power
of the trial court over its judgments * * * it does not confer upon the trial court the
power to vacate a judgment which has been affirmed by the appellate court, for this
action would affect the decision of the reviewing court, which is not within the power
of the trial court to do.” Id. at 97-98.
{¶ 8} In light of the above, this case is on point with Special Prosecutors. As there,
this court in this case affirmed the plea and conviction; therefore, the trial court did not have
the power to affect that decision.
{¶ 9} Alford relies on State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906
N.E.2d 422. In Boswell, the Ohio Supreme Court held that “[a] motion to withdraw a plea of
guilty or no contest made by a defendant who has been given a void sentence must be
considered as a presentence motion under Crim.R. 32.1.” (Emphasis added.) Id. at
syllabus. There, the trial court failed to include postrelease control as required by statute, and
the Ohio Supreme Court vacated the void sentence, remanded the case to the trial court to
consider the defendant’s motion to withdraw his plea, and ordered resentencing if the motion
to withdraw the plea was denied.
{¶ 10} Here, this court did not find Alford’s sentence void and therefore this case is
distinguishable from Boswell. Moreover, in State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court, modifying its earlier position in
State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, held that if a “judge
fails to impose statutorily mandated postrelease control as part of a defendant’s sentence,
[only] that part of the sentence is void and must be set aside.” Id. at ¶26. Further, in
Fischer, the Court specifically held that “although the doctrine of res judicata does not
preclude review of a void sentence, res judicata still applies to other aspects of the merits of a
conviction including the determination of guilt and the lawful elements of the ensuing
sentence. The scope of an appeal from a resentencing hearing in which a mandatory term of
postrelease control is imposed is limited to issues arising at the resentencing hearing.” Id. at
¶40.
{¶ 11} Although the Ohio Supreme Court did not discuss Boswell in Fischer, it appears
Fischer calls the Court’s prior holding in Boswell into question. A sentence that fails to
properly include postrelease control is void only in “part,” the “new sentencing hearing to
which an offender is entitled * * * is limited to proper imposition of postrelease control,” and
res judicata applies “to other aspects of the merits of a conviction including the determination
of guilt and the lawful elements of the ensuing sentence.” Fischer at ¶26, 29, 40. It does
not follow that a trial court has jurisdiction to consider a motion to withdraw a plea after
appellate remand for resentencing only.
{¶ 12} In light of the above, we find Special Prosecutors controlling and overrule
Alford’s sole assignment of error.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, JUDGE
PATRICIA A. BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR