State v. Moore

[Cite as State v. Moore, 2014-Ohio-3024.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, : Case No. 13CA965
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
JOHN D. MOORE, :
Defendant-Appellant. : RELEASED: 6/30/2014
APPEARANCES:
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Ohio Assistant Public
Defender, Columbus, Ohio, for appellant.
C. David Kelley, Adams County Prosecuting Attorney, and Mark R. Weaver, Adams
County Assistant Prosecuting Attorney, for appellee.
Harsha, J.
{¶1} John D. Moore pleaded guilty to a charge of murder in exchange for the
state of Ohio dismissing a charge of endangering children. The trial court accepted
Moore’s guilty plea, found him guilty of murder, sentenced him to a mandatory prison
term of 15 years to life and five years of postrelease control, and fined him $1,500.
{¶2} Moore asserts in his first assignment of error that the trial court erred in
accepting his plea. Moore claims that his plea was involuntary because it was based on
the material mutual mistake that the state’s dismissal of the endangering children
charge would benefit him. Moore argues that because the murder and endangering
children charges were allied offenses of similar import subject to merger, he could not
have been convicted and sentenced on both. Thus he contends he received no benefit
Adams App. No. 13CA965 2
for his part of the bargain, e.g. had he known he couldn't be sentenced on both charges,
he would not have pled guilty.
{¶3} Moore’s claim is meritless because he relies on a statement in a
competency evaluation to contend that he understood the purpose of the plea bargain
was to obtain a shorter prison sentence. However, that evaluation is not part of the
record on appeal. Moreover, a determination of allied offenses of similar import
requiring merger is not automatic based on the offenses involved—the defendant has
the burden to establish the appropriateness of merger based on the actual conduct
involved. Relieving him of that burden constituted consideration for the agreement.
Finally, even if Moore's plea did not result in a lesser sentence, he may have obtained
other benefits from the plea, i.e. the avoidance of a jury trial and further publicity. Under
the totality of the circumstances, the trial court properly determined that his guilty plea
was knowingly, intelligently, and voluntarily made. We overrule Moore’s first
assignment of error.
{¶4} In his second assignment of error, Moore claims that his trial counsel was
ineffective because he failed to explain that his plea offer had no value. For the
previously discussed reasons, the record does not establish that his plea of guilty had
no value. Because the premise of this assigned error is erroneous, Moore cannot
establish either that his trial counsel’s performance was deficient or that any deficient
performance prejudiced him. We overrule Moore’s second assignment of error.
{¶5} In his third assignment of error, Moore asserts that the trial court erred by
imposing five years of postrelease control. Because postrelease control does not apply
Adams App. No. 13CA965 3
to unclassified felonies like murder, the state candidly concedes that the trial court
erred, and we agree. Moore’s third assignment of error has merit.
{¶6} Therefore, we affirm the judgment of conviction and sentence in part,
reverse that portion of the sentence imposing postrelease control, and remand the
cause to the trial court to correct that portion of the sentence.
I. FACTS
{¶7} According to Moore he was watching his five-month-old son, Carson, at
his apartment because his girlfriend was gone. When Carson would not stop crying,
Moore became angry and frustrated. Moore shook Carson hard to stop him from crying.
By shaking his son, Moore caused Carson to suffer serious injuries that resulted in the
baby's death.
{¶8} An Adams County grand jury returned an indictment charging Moore with
one count of endangering children in violation of R.C. 2919.22(B)(1), a felony of the
second degree and one count of murder in violation of R.C. 2919.22(B)(1), a special
felony. Moore entered a plea of not guilty to the charges, and the trial court appointed
attorney C. Nicholas Ring to represent him. Moore subsequently entered a plea of not
guilty by reason of insanity, and the trial court ordered that Moore be evaluated for his
competence to stand trial, his mental condition at the time of the commission of the
offense, and his competence to understand and waive his Miranda rights. Following the
submission of a written report from clinical psychologist Kristen Haskins, the trial court
determined that Moore was competent to stand trial. The court also concluded Moore
did not have a severe mental disease or defect that prevented him from knowing the
Adams App. No. 13CA965 4
wrongfulness of his conduct when he committed it and that he understood his Miranda
rights.
{¶9} Moore then changed his plea to guilty to the charge of murder in exchange
for the state’s dismissal of the endangering children charge. Before accepting his plea
the trial court engaged in a detailed colloquy with Moore in accordance with Crim.R.
11(C)(2) to determine whether he was entering his guilty plea knowingly, intelligently,
and voluntarily. During this exchange Moore specifically informed the trial court that he
understood he was going to plead guilty to the murder charge, that the state would
dismiss the endangering children charge, that his mandatory sentence on the murder
charge would be 15 years to life, and that he was waiving his constitutional rights to a
jury trial, to confront his accusers, to compulsory process, to require the state to prove
guilt beyond a reasonable doubt, and the privilege against compulsory self-
incrimination. Moore also stated that he was satisfied with his trial counsel’s legal
representation and with the result of the plea agreement. He further specified that he
had not been threatened in any way to cause his plea to be involuntary. The trial court
also advised Moore that he would be subject to a mandatory five-year term of
postrelease control after being released from prison for his murder conviction.
{¶10} The trial court accepted Moore’s guilty plea, and after Moore testified
about the circumstances of his crime, the trial court found him guilty of murder. The trial
court sentenced Moore to a mandatory term of incarceration of 15 years to life, imposed
a five-year term of postrelease control, and fined him $1,500.
{¶11} This appeal ensued.
II. ASSIGNMENTS OF ERROR
Adams App. No. 13CA965 5
{¶12} Moore assigns the following errors for our review:
1. Did the trial court err by accepting an involuntary plea? Fifth, Sixth,
and Fourteenth Amendments to the United States Constitution; T.p. 4-
5 (Apr. 2, 2013); Plea of Guilty (Apr. 3, 2013)
2. The trial court erred by accepting a plea despite ineffective assistance
of counsel. Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution. T.p. 4-5 (Apr. 2, 2013); Plea of Guilty (Apr. 3,
2013)
3. The trial court erred by imposing postrelease control. T.p. 12-13 (Apr.
17, 2013); Judgment Entry on Sentence (Apr. 17, 2013).
III. LAW AND ANALYSIS
A. Involuntary Plea
{¶13} In his first assignment of error Moore asserts that the trial court erred in
accepting his guilty plea because it was involuntary. “‘When a defendant enters a plea
in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.
Failure on any of those points renders enforcement of the plea unconstitutional under
both the United States Constitution and the Ohio Constitution.’ ” State v. Veney, 120
Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio
St.3d 525, 527, 660 N.E.2d 450 (1996). An appellate court determining whether a guilty
plea was entered knowingly, intelligently, and voluntarily conducts a de novo review of
the record to ensure that the trial court complied with the constitutional and procedural
safeguards. State v. Smith, 4th Dist. Washington No. 12CA11, 2013-Ohio-232, ¶ 10.
{¶14} “Crim.R. 11(C) governs the process that a trial court must use before
accepting a felony plea of guilty or no contest.” Veney at ¶ 8. However Moore does not
claim that the trial court failed to comply with Crim.R. 11(C). Instead, Moore claims that
the trial court erred in determining that his guilty plea was involuntary because it was
Adams App. No. 13CA965 6
based on the material mutual mistake that the state’s dismissal of the endangering
children charge would benefit him. He also argues the plea agreement lacked
consideration. Moore contends that because the murder and endangering children
charges were allied offenses of similar import, he could not have been convicted and
sentenced on both; and had he known he would not receive any benefit from the
dismissal of endangering charges, he would not have pled guilty.
{¶15} “ ‘Principles of contract law are generally applicable to the enforcement
and interpretation of plea agreements.’ ” State v. Billingsley, 133 Ohio St.3d 277, 2012-
Ohio-4307, 978 N.E.2d 135, ¶ 26, quoting State v. Bethel, 110 Ohio St.3d 416, 2006-
Ohio-4853, 854 N.E.2d 150, ¶ 50; State v. Furnier, 4th Dist. Scioto No. 13CA3546,
2013-Ohio-5376, ¶ 9. The essential elements of a contract are an offer, acceptance,
contractual capacity, consideration (the bargained for legal benefit and/or detriment),
manifestation of mutual assent, and legality of the object and consideration. See
generally Williams v. Ormsby, 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶
14; Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16.
{¶16} In general, “if the parties and the trial court have made a mutual mistake
regarding the terms of a plea agreement,” the agreement should be rescinded. State v.
Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429, ¶ 14 (4th Dist.).
“When a defendant’s guilty plea is induced by erroneous representations as to the
applicable law, including eligibility for judicial release, the plea is not knowingly,
intelligently, and voluntarily made.” State v. Bryant, 4th Dist. Meigs No. 11CA19, 2012-
Ohio-3189, ¶ 8.
Adams App. No. 13CA965 7
{¶17} Moore cites Bryant in support of his argument that his plea was
involuntary. But in Bryant the defendant was misinformed that he would be eligible for
judicial release. Here, there was no misinformation apparent from our record - in
accordance with the terms of the plea agreement, the state dismissed Moore’s child
endangering charge in exchange for his guilty plea to the murder charge.
{¶18} Moore relies on a purported statement in the competency report of clinical
psychologist Haskins that Moore “thought a positive of a plea bargain would be less
time.” He points to this "statement" as evidence that the parties had a material
mistaken belief that Moore would receive a lesser prison sentence by pleading guilty to
murder. However, that report is not part of the record certified on appeal. Under these
circumstances, we must presume the validity of the trial court’s determination. See,
e.g., State v. Philon, 6th Dist. Erie No. E-93-15, 1994 WL 319058 (June 30, 1994), *3
(absent the inclusion of a competency evaluation in the record on appeal, appellate
court will presume the validity of the trial court’s proceedings); State v. Glenn, 4th Dist.
Adams Nos. 11CA931 and 11CA932, 2012-Ohio-3190, ¶ 6, fn. 4 (“under App.R. 9(B) it
is the duty of the appellant to order, in writing, from the court reporter, a complete
transcript of the parts of the proceedings not already on file as the appellant considers
necessary for inclusion in the record”). Moreover, even assuming that this statement
appears in the competency evaluation, it only states that a lesser sentence "was a
positive," not that this would be the only benefit to be garnered by Moore by pleading
guilty to murder.
{¶19} Moore claims that because the offenses were allied offenses of similar
import, the parties’ agreement to plead guilty to murder in exchange for the state’s
Adams App. No. 13CA965 8
dismissal of the child endangering charge lacked consideration as he received no
benefit from it. Normally, the dismissal of another criminal charge constitutes sufficient
consideration for a plea agreement. See State v. Smith, 2d Dist. Greene No. 90CA87,
1992 WL 206739 (Aug. 26, 1992), *7. Moore contends that this general rule is
inapplicable because the dismissal of the endangering children charge could not reduce
his sentence.
{¶20} Moore’s contention lacks merit for several reasons. First, although he
may have successfully argued that any convictions for murder and endangering children
should be merged as allied offenses of similar import, it would not have been automatic
based simply on the types of offenses charged. Rather, the court would have to
consider Moore’s specific conduct. See State v. Johnson, 128 Ohio St.3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061, syllabus (“When determining whether two offenses are
allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of
the accused must be considered”). Merger is a sentencing question, and the defendant
bears the burden of establishing his entitlement to the protection of R.C. 2941.25. State
v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18. That
burden was removed by the plea agreement. Relieving Moore of the burden constitutes
consideration for the agreement.
{¶21} Moore’s reliance on Johnson, which held that the offenses of murder and
child endangering were allied offenses of similar import based on the circumstances of
that case, is misplaced because the pertinent facts in Johnson were elicited in a jury
trial. By contrast any discussion of what evidence the state would have relied on to
Adams App. No. 13CA965 9
support each conviction at trial requires some speculation because of the plea
agreement.
{¶22} Furthermore, a lesser sentence is not the only benefit to be received by a
defendant deciding to plead guilty to a charged offense. The defendant could also
avoid the additional publicity that a trial might generate. Because some consideration
exists for the plea agreement, we cannot inquire into the adequacy of the consideration.
Williams, 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 17 (“long-established
precedent that courts may not inquire into the adequacy of consideration”).
{¶23} Based on a totality of the circumstances, Moore fails to establish that the
plea agreement should be rescinded based on either a material mutual mistake or lack
of consideration. The trial court did not err in determining that Moore’s plea of guilty to
the murder charge was knowingly, intelligently, and voluntarily made. We overrule
Moore’s first assignment of error.
B. Ineffective Assistance of Counsel
{¶24} In his second assignment of error, Moore argues that the trial court erred
in accepting his guilty plea despite ineffective assistance of counsel. Moore claims that
his trial counsel was ineffective because he failed to explain to him that the state’s plea
offer had no value.
{¶25} To prevail on a claim of ineffective assistance of counsel, a criminal
defendant must establish (1) deficient performance by counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that, but for counsel’s errors, the result of the proceeding would
have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d
Adams App. No. 13CA965 10
1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674; State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 23. The
petitioner has the burden of proof because in Ohio, a properly licensed attorney is
presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 62. Failure to satisfy either part of the test is fatal to the claim. Strickland
at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).
{¶26} For the reasons previously discussed in our disposition of his first
assignment of error, Moore’s claim is based on the erroneous premise that his plea had
no value. Moore has not established that his plea did not benefit him, and he thus has
also not established that his trial counsel’s performance was deficient or that any
deficient performance prejudiced him. We overrule Moore’s second assignment of
error.
C. Postrelease Control
{¶27} In his third assignment of error, Moore contends that the trial court erred in
imposing postrelease control as part of his sentence on his murder conviction.
Postrelease control is not required for persons convicted of special felonies like
aggravated murder or murder. State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124,
2010-Ohio-2671, 931 N.E.2d 110, ¶ 21, citing State v. Clark, 119 Ohio St.3d 239, 2008-
Ohio-3748, 893 N.E.2d 462, ¶ 36; State v. Lofton, 4th Dist. Pickaway No. 11CA16,
2012-Ohio-2274, ¶ 8, quoting State v. Silguero, 10th Dist. Franklin No. 11AP-274, 2011-
Ohio-6293, ¶ 8 (“[appellant] was convicted of murder, ‘which is an unclassified felony to
which the post-release control statute does not apply’ ”). Therefore, as the parties both
note, we must reverse this portion of Moore’s sentence and remand the matter to the
Adams App. No. 13CA965 11
trial court to correct the sentence by removing all references to postrelease control. A
de novo sentencing hearing is not required. Lofton at ¶ 11. We sustain Moore’s third
assignment of error.
IV. CONCLUSION
{¶28} Therefore, having overruled Moore’s first and second assignments of
error, we affirm the judgment of the trial court convicting him of murder on his guilty plea
and his sentence except for the imposition of postrelease control. Having sustained
Moore’s third assignment of error, we reverse that portion of the trial court’s sentence
imposing postrelease control and remand the cause to the trial court to correct the
sentencing entry by removing it.
JUDGMENT AFFIRMED IN
PART AND REVERSED IN PART
AND CAUSE REMANDED.
Adams App. No. 13CA965 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split 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 the Adams
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.
Hoover, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
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.