State v. Hagerman

[Cite as State v. Hagerman, 2019-Ohio-5170.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-19-12
v.
CARL M. HAGERMAN, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-19-13
v.
CARL M. HAGERMAN, OPINION
DEFENDANT-APPELLANT.
Appeals from Defiance County Common Pleas Court
Trial Court Nos. 18-CR-13026 and 18-CR-13111
Judgments Affirmed
Date of Decision: December 16, 2019
APPEARANCES:
Timothy C. Holtsberry for Appellant
Russell R. Herman for Appellee
Case Nos. 4-19-12, 4-19-13
SHAW, J.
{¶1} Defendant-appellant, Carl Hagerman (“Hagerman”), brings these
appeals from the July 8, 2019, judgments of the Defiance County Common Pleas
Court denying Hagerman’s post-sentence motions to withdraw his guilty pleas in
trial court case numbers 18CR13026 and 18CR13111. On appeal, Hagerman argues
that the trial court erred in denying his motions to withdraw his guilty pleas because
he claims there was a violation of his statutory speedy trial rights.
Background
{¶2} On January 26, 2018, Hagerman was indicted in trial court case
18CR13026 for Trafficking in Cocaine in violation of R.C.
2925.03(A)(1)/(C)(4)(c), a felony of the fourth degree, and Trafficking in Cocaine
in violation of R.C. 2925.03(A)(1)/(C)(4)(d), a felony of the third degree. The first
count alleged that Hagerman sold 6.11 grams of cocaine to a confidential informant
(“CI”) on Nov 30, 2017, and the second count alleged that Hagerman then sold
11.32 grams of cocaine to a CI on December 7, 2017. After an attorney was
appointed for him, Hagerman proceeded to arraignment wherein he pled not guilty
to the charges. At that time, he was released on his own recognizance. A pretrial
hearing was scheduled for March 15, 2018.
{¶3} Hagerman failed to appear for the March 15, 2018, pretrial hearing and
a bench warrant was issued for his arrest. Hagerman was then indicted in trial court
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Case Nos. 4-19-12, 4-19-13
case 18CR13111 for Failure to Appear in violation of R.C. 2937.99(A), a felony of
the fourth degree.
{¶4} After Hagerman was located, on June 11, 2018, Hagerman made an
initial appearance on the newly filed 18CR13111 case. The same attorney that
represented Hagerman in trial court case 18CR13026 was appointed to represent
him. Hagerman pled not guilty to the Failure to Appear charge. The court set bond
and another pretrial hearing was scheduled on both cases.1
{¶5} On July 2, 2018, a pretrial hearing was held wherein Hagerman
requested on the record to have a new attorney appointed for him. He stated that he
was unsatisfied with his attorney for not being able to secure electronic home
monitoring and for failing to get the State to change its plea offer. The trial court
then attempted to appoint an attorney who was next on the court’s appointment list,
but Hagerman rejected the attorney, stating that the proposed attorney was not a
good lawyer and that the proposed attorney had failed to catch a statutory speedy
trial issue in one of Hagerman’s prior cases. The trial court then went to the next
person on the list and appointed Hagerman a new attorney.
{¶6} After being appointed, Hagerman’s new attorney filed inter alia, a
discovery demand; however, upon receiving discovery, the attorney filed a motion
1
On June 28, 2018, the State filed a “Notice to the Court and Motion for Imposition of PRC time” arguing
that Hagerman was on post-release control at the time of the commission of the offenses in these matters.
The State requested that maximum prison terms be imposed under R.C. 2929.141.
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Case Nos. 4-19-12, 4-19-13
to withdraw as counsel because she realized she represented the CI. The trial court
granted the motion to withdraw and appointed another new attorney.
{¶7} On September 5, 2018, a hearing was held on both indictments. At the
hearing, the parties advised the trial court that a plea agreement had been reached.
Pursuant to the agreement, Hagerman would plead guilty to all three counts against
him in both pending indictments. In exchange, the State agreed to a joint sentencing
recommendation of an aggregate forty-eight month prison term. In addition, the
State agreed not to oppose an “OR” bond while a presentence investigation was
prepared for sentencing.
{¶8} A Criminal Rule 11 dialogue was conducted, and the trial court
determined that Hagerman was entering knowing, intelligent, and voluntary pleas.
Hagerman expressly stated that he was satisfied with his attorney, and that no
promises had been made to him other than those that were recited on the record. A
factual basis for the charges was read into the record, Hagerman admitted that the
facts were true when asked by the trial court, and the trial court then found him
guilty. The trial court set sentencing for a later date and ordered a presentence
investigation, though the trial court cautioned Hagerman that he had a history of
failing to appear for hearings and that if he did not attend his sentencing hearing, he
could face a harsher sentence and/or additional charges. Hagerman stated that he
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Case Nos. 4-19-12, 4-19-13
understood. Sentencing was set for October 30, 2018, and Hagerman was released
on his own recognizance.
{¶9} On October 30, 2018, the matter proceeded to sentencing but Hagerman
did not appear. A bench warrant was issued for his arrest. Although unrelated to
the appeals before us, Hagerman was indicted in trial court case 18CR13372 for two
counts of Failure to Appear, both fourth degree felonies.
{¶10} On January 23, 2019, Hagerman’s then-current attorney filed a motion
to withdraw as counsel indicating that Hagerman failed to appear for the sentencing
hearing and the attorney had been unable to contact Hagerman despite numerous
attempts. The motion to withdraw was granted.
{¶11} The record indicates that Hagerman was located and served with the
outstanding arrest warrant on February 6, 2019.
{¶12} On February 11, 2019, a hearing was held wherein Hagerman was
informed of the charges against him in the newly filed trial court case 18CR13372.
An attorney was appointed for Hagerman and the matter was continued for
arraignment until Hagerman could speak with his appointed counsel. Prior to the
conclusion of the February 11, 2019, hearing, Hagerman stated that he had not
shown up previously to the sentencing hearing because his attorney had lied to him
and because Hagerman found out that his “rights were violated.” Hagerman claimed
that he was “Way over [his] ninety day mark” for statutory speedy trial purposes.
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Hagerman asked if there was any way he could withdraw his pleas, and the trial
court told Hagerman to talk to his newly appointed attorney about doing that and it
would then be addressed.
{¶13} On February 21, 2019, another hearing was held, which began with
Hagerman’s arraignment on the newest case against him, 18CR13372. Regarding
that case, Hagerman pled not guilty and a pretrial hearing was set for a later date.
{¶14} The trial court then asked if there was any reason not to proceed to
sentencing in the other cases, and defense counsel formally requested that
Hagerman be allowed to withdraw his guilty pleas. Hagerman’s attorney stated that
Hagerman was under the impression that his attorney would attempt to renegotiate
the State’s sentencing recommendation prior to sentencing but the attorney did not.
Hagerman’s attorney also argued that Hagerman felt there was a “time issue that his
lawyer didn’t look into.”
{¶15} After Hagerman’s attorney made the request, the trial court stated that
it had conducted a full and complete Criminal Rule 11 inquiry, which included
asking whether any promises were made other than what had been stated on the
record. The trial court emphasized that Hagerman expressly denied that there was
any inducement other than what had been stated on the record. Having denied
Hagerman’s motion, the trial court proceeded to sentencing.
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Case Nos. 4-19-12, 4-19-13
{¶16} Despite Hagerman’s failure to appear at sentencing, and the
subsequent charges that had been filed, the State maintained its sentencing
recommendation. Hagerman made a statement on his own behalf indicating that he
now had a second degree felony pending in the Tipp City area. The trial court
recited Hagerman’s lengthy criminal history and stated that the forty-eight months
was a low recommendation given that Hagerman was facing a potential ninety-nine
months when factoring in PRC time. Nevertheless, the trial court indicated it would
give Hagerman the “benefit of [his] negotiated resolution.” (Tr. at 12). The trial
court then imposed the forty-eight month prison term the parties had previously
recommended.2
{¶17} Judgment entries memorializing Hagerman’s convictions and
sentence were filed February 26, 2019. Importantly, Hagerman did not file direct
appeals from the trial court’s judgments.
{¶18} On April 3, 2019, Hagerman, proceeding pro se, filed motions to
withdraw his guilty pleas in trial court cases 18CR13026 and 18CR13111.
Hagerman argued that he received inadequate representation because his attorney
did not have the purity of the cocaine tested, because his attorney did not investigate
2
That sentence consisted of twelve months in prison on the fourth degree felony Trafficking charge, twenty-
four months in prison on the third degree felony trafficking charge, and twelve months in prison on the Failure
to Appear charge, all to be served consecutive to each other, for an aggregate forty-eight months in prison.
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Case Nos. 4-19-12, 4-19-13
“lies” that the CI made to law enforcement, and because his attorney did not press
his statutory speedy trial rights.
{¶19} On July 8, 2019, the trial court held a hearing wherein it first dealt with
Hagerman’s post-sentence motions to withdraw his guilty pleas. The trial court
indicated that it had reviewed the motions and determined that no “manifest
injustice” existed in this matter, so the motions to withdraw were denied.3
{¶20} On July 9, 2019, the trial court filed judgment entries memorializing
the denials of Hagerman’s post-sentence motions to withdraw his pleas. Hagerman
filed appeals from the trial court’s entries denying his post-sentence motions to
withdraw his guilty pleas, asserting the following assignments of error for our
review.
Assignment of Error No. 1
Trial Court violated the constitutional and statutory speedy trial
rights of the appellant.
Assignment of Error No. 2
The trial court erred in denying appellant’s motion to withdraw
his guilty plea.
{¶21} Due to the nature of the discussion, we elect to address the assignments
of error together.
3
The trial court then proceeded to a hearing on multiple other cases against Hagerman, which were disposed
of, specifically 18CR13372, and 19CR13500. Those cases are not subject to this appeal and we will not
further address them.
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First and Second Assignments of Error
{¶22} In Hagerman’s assignments of error, he argues that the trial court erred
by denying his post-sentence motions to withdraw his guilty pleas. Specifically he
contends that his statutory speedy trial rights were violated.
Standard of Review
{¶23} Criminal Rule 32.1 provides that “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 of establishing a manifest injustice. State v.
Smith, 49 OhioSt.2d 261 (1977) at paragraph 1 of the syllabus. A trial court’s
decision on a post-sentence motion to withdraw a guilty plea is reviewed under an
abuse of discretion standard. Id. at paragraph 2 of the syllabus. An abuse of
discretion is a decision that is unreasonable, arbitrary, or capricious. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
Analysis
{¶24} At the outset of our analysis, we emphasize that Hagerman did not file
timely direct appeals from his convictions and sentence. Rather, after his time for
filing a direct appeal had passed, he filed post-sentence motions to withdraw his
guilty pleas. All of Hagerman’s claims in these appeals, and those he made in his
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Case Nos. 4-19-12, 4-19-13
motions to withdraw his guilty pleas, could have been raised in timely direct appeals
but they were not, therefore they are barred by the doctrine of res judicata. State v.
Grimes, 2d Dist. Montgomery No. 26636, 2017-Ohio-25, ¶ 11, citing State v.
Owens, 4th Dist. Scioto No. 14CA3641, 2015–Ohio–1509, ¶ 15, citing State v.
Lofton, 4th Dist. Pickaway No. 12CA21, 2013–Ohio–1121, ¶ 8 (“We further point
out that the ineffective assistance from trial counsel issue and the speedy trial rights
issue are matters that could have been raised in a first appeal of right. However, they
were not raised and appellant is barred from raising them here by the doctrine
of res judicata.”); State v. Ketterer, 126 Ohio St.3d 448, 2010–Ohio–3831, ¶ 59
(“Ohio courts of appeals have applied res judicata to bar the assertion of claims in a
motion to withdraw a guilty plea that were or could have been raised at trial or on
appeal.”).
{¶25} Notwithstanding the application of res judicata to Hagerman’s
arguments, Hagerman waived his right to contest his convictions on statutory
speedy trial grounds when he entered guilty pleas in this matter. Montpelier v.
Greeno, 25 Ohio St.3d 170, 171 (1986) (“We are in agreement with the legion view
that generally a guilty plea waives a defendant’s right to raise the statutory right to
a speedy trial on appeal.”); State v. Robertson, 5th Dist. Stark No. 2002CA00156,
2002-Ohio-4272, ¶ 12; State v. Johnson, 10th Dist. Franklin No. 16AP-134, 2016-
Ohio-5904, ¶ 18; see also State v. Spates, 64 Ohio St.3d 269, 1992-Ohio-130 (1992)
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Case Nos. 4-19-12, 4-19-13
(“When a criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.”). Thus Hagerman’s guilty pleas waived his
ability to challenge his convictions under statutory speedy trial grounds.
{¶26} We note that in his brief, Hagerman devotes a significant amount of
space to argument regarding the denial of his presentence motions to withdraw his
guilty pleas; however, these issues are also barred by res judicata as they were not
appealed. Even if they were not barred by res judicata, the record merely reflects a
change of heart on Hagerman’s part. Hagerman’s claim that his attorney promised
to negotiate down the “jointly recommended sentence” that had been presented at
the plea hearing is wildly spurious and directly contrary to statements made by
Hagerman at the plea hearing.
{¶27} Finally, it is Hagerman’s burden to establish a manifest injustice and
he has not done so based on the briefs and the record here. There were numerous
tolling events and numerous cases pending against Hagerman for which he was
being held, including a post-release control holder at one point.4
4
Hagerman also argues summarily that the cocaine’s purity had not been tested and if it had he could not
have been convicted of the level of offenses that he was. Even ignoring that this could have been raised on
direct appeals, the purity argument was flatly rejected in State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-
777.
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{¶28} In sum, there are numerous reasons why Hagerman has failed to
demonstrate a manifest injustice in these matters. Therefore, his first and second
assignments of error are overruled.
Conclusion
{¶29} For the foregoing reasons, Hagerman’s assignments of error are
overruled and the judgments of the Defiance County Common Pleas Court are
affirmed.
Judgments Affirmed
ZIMMERMAN, P.J. and PRESTON, J., concur.
/jlr
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