State v. Green

[Cite as State v. Green, 2011-Ohio-1636.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Juilie A. Edwards, J.
-vs- :
:
MARCUS A. GREEN : Case No. 2010CA00198
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 2000CR0890(A)
JUDGMENT: Affirmed/Reversed in Part & Remanded
DATE OF JUDGMENT ENTRY: March 31, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO MARCUS A. GREEN, PRO SE
Prosecuting Attorney Inmate No. A397-368
Grafton Correctional Institution
RONALD MARK CALDWELL 2500 South Avon Beldon Road
Assistant Prosecuting Attorney Grafton, OH 44044
110 Central Plaza South
Suite 510
Canton, OH 44702
Stark County, Case No. 2010CA00198 2
Farmer, J.
{¶1} On September 1, 2000, the Stark County Grand Jury indicted appellant,
Marcus Green, on one count of murder with a firearm specification in violation of R.C.
2903.02 and R.C. 2941.145, and one count of tampering with evidence in violation of
R.C. 2921.12. Thereafter, the murder count was reduced to involuntary manslaughter
in violation of R.C. 2903.04.
{¶2} On November 3, 2000, appellant pled guilty to both counts. By judgment
entry filed November 8, 2000, the trial court sentenced appellant to a total term of
seventeen years in prison.
{¶3} On June 16, 2010, appellant filed a motion to withdraw his guilty pleas and
a motion to correct a void sentence and request for resentencing based upon a defect in
the imposition of postrelease control. By judgment entries filed July 6, 2010, the trial
court denied both motions.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ERRED BY DISMISSING DEFENDANT-
APPELLANT'S MOTION TO CORRECT A VOID SENTENCE AND REQUEST FOR
RESENTENCING, WHERE THE TRIAL COURT INCORRECTLY STATED, AT
DEFENDANT-APPELLANT'S CHANGE OF PLEA AND SENTENCING HEARING AND
RECORDED IN THE JUDGMENT ENTRY THAT POST-RELEASE CONTROL WAS A
DISCRETIONARY PERIOD OF UP TO A MAXIMUM OF 5 YEARS CONTRARY TO
THE PROVISIONS OF R.C. 2967.28."
Stark County, Case No. 2010CA00198 3
II
{¶6} "THE TRIAL COURT ERRED IN DISMISSING DEFENDANT-
APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA WHERE THE NEGOTIATED
PLEA AGREEMENT WAS RENDERED NULL AND VOID, AS THE AGREED
SENTENCE AS STATED IN THE NEGOTIATED PLEA AGREEMENT TERMS AND
CONDITIONS WAS UNAUTHORIZED BY LAW AND THE SENTENCE IMPOSED BY
THE TRIAL COURT WAS OUTSIDE OF THE TERMS AND CONDITIONS, AS WELL
AS BEING UNAUTHORIZED BY LAW, IN ITSELF. THE PLEA AGREEMENT WOULD
BE UNENFORCEABLE AND IN VIOLATION OF DEFENDANT-APPELLANT'S RIGHTS
OF DUE PROCESS AND EQUAL PROTECTION UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION."
I
{¶7} Appellant claims the trial court erred in denying his motion to correct a
void sentence and request for resentencing. We agree.
{¶8} "In 1996, the General Assembly imposed a duty on trial courts to notify an
offender at the sentencing hearing of the imposition of postrelease control and of the
authority of the parole board to impose a prison term for a violation; the General
Assembly also required that a court include any postrelease-control sanctions in its
sentencing entry. See former R.C. 2929.14(F) and former R.C. 2929.19(B)(3)(b)
through (d) and (B)(4), Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7470, 7486-
7487." State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, ¶22.
{¶9} The Singleton court at paragraph one of the syllabus held, "[f]or criminal
sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose
Stark County, Case No. 2010CA00198 4
postrelease control, trial courts shall conduct a de novo sentencing hearing in
accordance with decisions of the Supreme Court of Ohio." Appellant sub judice was
sentenced on November 8, 2000.
{¶10} In his motion to correct a void sentence and request for resentencing filed
June 16, 2010, appellant argued during his sentencing, the trial court erred in imposing
postrelease control because he was informed postrelease control was mandatory "up to
a maximum of 5 years" when in fact five years was the mandatory time:
{¶11} "The trial court in defendant's sentencing entry only journalized the post
release control period for 'maybe the Maximum term of five years.' (sic) on page (2) of
the sentencing entry. As required by R.C. 2967.28 the period for a first degree felony is
the maximum of five mandatory years, the notice given by the trial court indicates that
defendant can and would be given post release control by the parole board for any
period of 1, 2, 3 or 5 years of post release control which is contrary to law and therefore
void in this case."
{¶12} In the trial court's judgment entry on sentencing filed November 8, 2000,
postrelease control was imposed as follows:
{¶13} "The 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 under Revised
Code Section 2967.28. The defendant is ordered to serve as part of this sentence any
term of post release control imposed by the Parole Board, and any prison term for
violation of that post release control."
Stark County, Case No. 2010CA00198 5
{¶14} Attached to this judgment entry is appellant's plea of guilty which is signed
by appellant and includes the following language:
{¶15} "I have been advised by my attorney and the court that in addition to my
sentence, a period of control or supervision by the Adult Parole Authority after my
release from prison is mandatory in this case. The control period may be a maximum
term of five years. A violation of any post-release control rule or condition can result in
a more restrictive sanction while released, an increased duration of supervision or
control, up to the maximum set out above and/or re-imprisonment even though I have
served the entire stated prison sentence imposed upon me by this court for all offenses
set out above. Re-imprisonment can be imposed in segments of up to 9 months but
cannot exceed a maximum of ½ of the total term imposed for all of the offenses set out
above. If I commit another felony while subject to this period of control or supervision I
may be subject to an additional prison term consisting of the maximum period of
unserved time remaining on post release control as set out above or 12 months
whichever is greater. This prison term must be served consecutively to any term
imposed for the new felony I am convicted of committing."
{¶16} There is no doubt that appellant was notified of mandatory postrelease
control and assented to it. However, appellant argues his sentence is void because he
was not informed that the mandatory term was five years as opposed to "up to" five
years. R.C. 2967.28(B)(1). We agree with appellant's argument. The trial court failed
to satisfy "our existing precedent - that it notify the offender of the mandatory nature of
the term of postrelease control and the length of that mandatory term and incorporate
that notification into its entry." State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462,
Stark County, Case No. 2010CA00198 6
¶69.1 As such, appellant's sentence is void. See, State v. Jordan, 104 Ohio St.3d 21,
2004-Ohio-6085; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250; State v.
Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197.
{¶17} Upon review, we find the trial court erred in denying appellant's motion to
correct a void sentence and request for resentencing. Appellant is entitled to a de novo
sentencing hearing as mandated in Singleton, supra. We note the new sentencing
hearing "is limited to proper imposition of postrelease control." State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, paragraph two of the syllabus.
{¶18} Assignment of Error I is granted.
II
{¶19} Appellant claims the trial court erred in denying his Crim.R. 32.1 motion to
withdraw his guilty plea as postrelease control was not included in the plea agreement.
We disagree.
{¶20} Crim.R. 32.1 governs withdrawal of guilty plea and states "[a] motion to
withdraw a plea of guilty or no contest 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 the defendant to withdraw his or her plea." The right to withdraw
a plea is not absolute and a trial court's decision on the issue is governed by the abuse
of discretion standard. State v. Smith (1977), 49 Ohio St.2d 261. In order to find an
abuse of discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217.
1
We note in State v. Miller, Stark App. No. 2010CA00175, 2010-Ohio-6001, this court,
on nearly identical facts, found such an error to be harmless.
Stark County, Case No. 2010CA00198 7
{¶21} Although appellant now argues the plea agreement omitted any reference
to postrelease control (Appellant's Brief at 9-12), in his motion to withdraw guilty plea
filed June 16, 2010, appellant argued he was prejudiced because he was not properly
informed of postrelease control:
{¶22} "In the instant case, the defendant's plea agreement (at pg. 2) states that
'the control period may be a maximum of five years.' (emphasis added). This
notification in the agreed upon sentence constitutes a notification of a discretionary
period of post release control for a period of 1, 2, 3, or 5, years of supervised released
by the parole authority after defendant's release from incarceration.
{¶23} "In fact, R.C. 2967.28 (B)(1) requires that for a first degree felony the term
of post release control is for a period of mandatory five years, thus, the agreed upon
sentence did not comply with the maximum penalty component of Crim. Rule 11
(C)(2)(a) and R.C. 2967.28 (B)(1). See State v. Cleveland, (9th dist.) 2008-Ohio-1319.
{¶24} "***
{¶25} "When defendant's agreed upon sentence only informed him of a
discretionary period of post release control, it failed to comply with the mandates of
Crim. Rule 11 (C)(2)(a) and R.C. 2967.28 (B)(1). Thus, the defendant did not enter his
plea knowingly, intelligently or voluntarily, because he was not fully informed of the
maximum penalty involved in his case, before he pleaded guilty to the amended
charges."
{¶26} In State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶30-32, the
Supreme Court of Ohio explained the following:
Stark County, Case No. 2010CA00198 8
{¶27} "If a trial court fails to literally comply with Crim.R. 11, reviewing courts
must engage in a multitiered analysis to determine whether the trial judge failed to
explain the defendant's constitutional or nonconstitutional rights and, if there was a
failure, to determine the significance of the failure and the appropriate remedy.
{¶28} "When a trial judge fails to explain the constitutional rights set forth in
Crim.R. 11(C)(2)(c), the guilty or no-contest plea is invalid 'under a presumption that it
was entered involuntarily and unknowingly.' Griggs, 103 Ohio St.3d 85, 2004-Ohio-
4415, 814 N.E.2d 51, ¶12; see also Nero, 56 Ohio St.3d at 107, 564 N.E.2d 474, citing
Boykin, 395 U.S. at 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274. However, if the trial judge
imperfectly explained nonconstitutional rights such as the right to be informed of the
maximum possible penalty and the effect of the plea, a substantial-compliance rule
applies. Id. Under this standard, a slight deviation from the text of the rule is
permissible; so long as the totality of the circumstances indicates that 'the defendant
subjectively understands the implications of his plea and the rights he is waiving,' the
plea may be upheld. Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474.
{¶29} "When the trial judge does not substantially comply with Crim.R. 11 in
regard to a nonconstitutional right, reviewing courts must determine whether the trial
court partially complied or failed to comply with the rule. If the trial judge partially
complied, e.g., by mentioning mandatory postrelease control without explaining it, the
plea may be vacated only if the defendant demonstrates a prejudicial effect. See Nero,
56 Ohio St.3d at 108, 564 N.E.2d 474, citing State v. Stewart (1977), 51 Ohio St.2d 86,
93, 5 O.O.3d 52, 364 N.E.2d 1163, and Crim.R. 52(A); see also Sarkozy, 117 Ohio
St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶23. The test for prejudice is 'whether the
Stark County, Case No. 2010CA00198 9
plea would have otherwise been made.' Nero at 108, 564 N.E.2d 474, citing Stewart, id.If the trial judge completely failed to comply with the rule, e.g., by not informing the
defendant of a mandatory period of postrelease control, the plea must be vacated. See
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d, 1224, paragraph two of the
syllabus. 'A complete failure to comply with the rule does not implicate an analysis of
prejudice.' Id. at ¶22."
{¶30} As cited under Assignment of Error I, postrelease control language was
included in the plea agreement, albeit incorrectly. We note a transcript of the November
3, 2000 plea/sentencing hearing was not provided for our review.
{¶31} Appellant has not demonstrated that but for the trial court's error, he would
not have entered the guilty plea and gone to trial instead. Appellant has not shown "a
prejudicial effect." We do not find a manifest injustice mandating a withdrawal of
appellant's guilty plea.
{¶32} Upon review, we find the trial court did not abuse its discretion in denying
appellant's Crim.R. 32.1 motion to withdraw his guilty plea.
{¶33} Assignment of Error II is denied.
Stark County, Case No. 2010CA00198 10
{¶34} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed in part and reversed in part.
By Farmer, J.
Gwin, P.J. and
Edwards, J. concur.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ Julie A. Edwards__________________
JUDGES
SGF/sg 203
Stark County, Case No. 2010CA00198 11
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MARCUS A. GREEN :
:
Defendant-Appellant : CASE NO. 2010CA00198
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed in part and
reversed in part, and the matter is remanded to said court for further proceedings
consistent with this opinion. Costs to be divided equally between the parties.
s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ Julie A. Edwards__________________
JUDGES
Stark County, Case No. 2010CA00198 12