State v. Stewart

[Cite as State v. Stewart, 2013-Ohio-753.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 MA 195
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
TROMMONE STEWART )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 00 CR 1184A
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Trommone Stewart, Pro se
#424-224
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: March 1, 2013
[Cite as State v. Stewart, 2013-Ohio-753.]
WAITE, J.
{¶1} Appellant, Trommone Stewart, pleaded guilty to one count of attempted
murder and one count of attempted manslaughter in 2002. Both counts included
firearm specifications. The judgment entry sentencing Appellant to a total of twenty-
five years for the two crimes and two firearm specifications failed to inform Appellant
that he would be subject to post-release control. Appellant filed a pro se “motion for
sentencing” in 2011, seeking to have his sentence declared void due to this
omission. The trial court held a hearing on Appellant’s motion and subsequently
issued a nunc pro tunc entry that corrected the original entry by including post-
release control information. Appellant then filed a pro se motion to withdraw his guilty
plea alleging additional irregularities in his original 2002 sentencing hearing and his
resentencing, which the trial court denied. Appellant has not identified any material
in the record that supports his claims of irregularities in either hearing and his appeal
of the trial court’s decision to deny his pro se motion is upheld.
Factual and Procedural History
{¶2} On December 14, 2000, Appellant was indicted on charges of
complicity to murder in violation of R.C. 2923.03(A)(2) and 2903.02(A)(D) with a
firearms specification, R.C. 2941.145(A); two counts of complicity to attempted
murder, in violation of R.C. 2923.03(A)(2)(F), 2023.02(A)(E) and 2903.02(A)(D) with
firearm specifications, R.C. 2941.145(A); two counts of attempted murder, R.C.
2923.03(A)(2) and 2923.02(A)(D), with firearm specifications, R.C. 2941.145(A); and
one count of murder, R.C. 2923.02(A)(D) which carried a penalty of fifteen years to
life. According to the indictment, Appellant “did purposefully cause the death of
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Thomas Brown” and “did purposefully attempt to cause the death of Clinton Brown.”
(12/14/00 Indictment.)
{¶3} Appellant waived his speedy trial rights and the matter continued
through discovery and various motions for continuance until February of 2002. On
February 1, 2002, the trial court apparently held a plea hearing, which was followed
by a sentencing hearing on February 2, 2002. No transcript of either hearing
appears in the record.
{¶4} On March 6, 2002 the trial court filed a judgment entry. According to
the entry, pursuant to a Crim.R. 11 agreement Appellant pleaded guilty to an
amended indictment which included one count of involuntary manslaughter, in
violation of R.C. 2903.04(A)(C), a first degree felony with a firearms specification.
The victim of this first offense was Thomas Brown. Appellant also pleaded guilty to
one count of attempted murder, in violation of R.C. 2923(A)(E), a first degree felony,
with a firearms specification. The victim of this second offense was Clinton Brown.
One remaining count apparently in the amended indictment was dismissed. The
court found that Appellant’s offenses represented the most serious form of the crimes
charged. According to the court, Appellant stipulated to the imposition of the
sentence imposed: ten years of imprisonment for involuntary manslaughter plus an
additional three years of mandatory imprisonment for the firearms specification on the
involuntary manslaughter charge; nine years for attempted murder with an additional
mandatory three years for the firearms specification on this charge. The court
ordered all time to be served consecutively and stated that Appellant was “given
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notice under R.C. 2929.19(B)(3) and of appellate rights under R.C. 2953.08.” (3/6/02
J.E., p. 2.) The order did not include any indication that Appellant would be subject
to post-release control.
{¶5} On July 20, 2011, more than nine years after his sentencing hearing,
Appellant filed a “motion for sentencing” and claimed his original sentence was void
because the entry imposing his sentence did not include information concerning post-
release control. Appellant conceded in his motion that he pleaded guilty on all counts
in the amended indictment, signed a plea agreement, and waived the preparation of
a pre-sentencing report. Appellant claimed, however, that the March 6, 2002
judgment entry regarding his sentence had never been journalized.
{¶6} On October 13, 2011 the trial court held a hearing on Appellant’s
motion for sentencing. The trial court discussed the original sentence and
acknowledged that the judgment entry did not include a statement informing
Appellant that he would be subject to post-release control on each count. The trial
court also heard Appellant’s pro se argument concerning his sentence and gave
Appellant the opportunity to supplement his statements. The trial court informed
Appellant that post-release control was mandated by statute for both attempted
murder and involuntary manslaughter.
{¶7} On October 18, 2011, the trial court issued a nunc pro tunc entry
correcting and supplanting the original sentencing entry. In the nunc pro tunc entry,
the trial court acknowledged the original guilty plea, imposed the same sentence, and
included the proper notification concerning post-release control.
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{¶8} On October 18, 2011, Appellant filed a pro se motion to withdraw his
2002 guilty plea. Appellant filed this appeal from the trial court’s November 2, 2011
entry denying his motion to withdraw his guilty plea.
Argument and Law
Assignment of Error No. 1
THE TRIAL COURT COMMITTED ABUSE OF DISCRETION WHEN IT
OVERRULED TROMMONE STEWART’S MOTION TO WITHDRAW
GUILTY PLEA.
Assignment of Error No. 3
THE TRIAL COURT COMMITTED PLAIN, PREJUDICIAL, AND
REVERSIBLE ERROR WHEN IT FAILED TO VACATE THE VOID
JUDGMENT.
{¶9} As a preliminary matter, Appellant contends that the trial court’s original
March 6, 2002 sentencing entry was not journalized and is therefore void. The
judgment entry itself appears in the record, is signed by the judge, and sets forth in
writing the decision of the court. The clerk of court’s dated stamp appears in the
upper right hand corner of the entry, indicating that it was filed with the clerk on
March 6, 2002. “To journalize a decision means that certain formal requirements
have been met, i.e., the decision is reduced to writing, it is signed by a judge, and it is
filed with the clerk so that it may become a part of the permanent record of the court.”
State v. Ellington, 36 Ohio App.3d 76, 78 (1987). The original sentencing entry in
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this matter meets with these requirements and is not void for any defect in
journalization.
{¶10} Criminal Rule 32.1 governs the withdrawal of a guilty or no contest plea.
Ordinarily a motion to withdraw a plea may be made only prior to sentencing,
however, the trial court is permitted to “set aside the judgment of conviction and
permit the defendant to withdraw his or her plea” to “correct manifest injustice.” A
defendant seeking to withdraw a plea after the imposition of sentence “has the
burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio
St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. “The logic behind
this precept is to discourage a defendant from pleading guilty to test the weight of
potential reprisal, and later withdraw the plea if the sentence was unexpectedly
severe.” State v. Caraballo, 17 Ohio St.3d 66, 67, 47 N.E.2d 627 (1985).
{¶11} When a defendant seeks to withdraw a guilty plea the request 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.” Smith, supra, paragraph two of the syllabus. The review of a
trial court’s decision in these matters “is somewhat limited as a motion made
pursuant to Crim. R. 32.1 is left to the sound discretion of the trial court. It is that
court which determines the credibility of a defendant’s claim in support of the motion.”
Caraballo at 67, citing Smith, supra, paragraph two of the syllabus. “An undue delay
between the occurrence of the alleged cause for withdrawal of a guilty plea and the
filing of a motion under Crim. R. 32.1 is a factor adversely affecting the credibility of
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the movant and militating against the granting of the motion.” Id., paragraph three of
the syllabus, also State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-5643, 773 N.E.2d
522, ¶14. “Under Crim.R. 11(B)(1), ‘[t]he plea of guilty is a complete admission of the
defendant’s guilt’ * * * ‘a counseled plea of guilty is an admission of factual guilt which
removes issues of factual guilt from the case.” (Internal citation deleted.) State v.
Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶92, citing State v.
Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), paragraph one of the syllabus. In
cases involving non-capital offenses, where the death penalty is not sought by the
prosecution, a guilty plea waives any challenge to the sufficiency of the evidence.
{¶12} Appellant contends that he should be allowed to withdraw his 2002 plea
because he was not informed that post-release control would be imposed for both of
the counts in the amended indictment. Appellant is correct that the original
sentencing entry does not include any statement concerning post-release control.
Any discussion of the effect of a plea and the penalty to be imposed would have
taken place during his plea hearing. Although Appellant concedes that he received a
plea hearing and concedes that he was present during the hearing, and
acknowledges that he entered a plea pursuant to a plea agreement during this
hearing, he has not submitted a transcript of that hearing in the record to allow the
trial court or this Court to evaluate his new claims concerning irregularities that may
have occurred during the hearing. Under these circumstances, the only irregularity
demonstrated by the record has been corrected in his resentencing hearing and the
nunc pro tunc entry informing him of his post-release control. “[W]here a sentence is
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void because it does not contain a statutorily mandated term, the proper remedy is * *
* to resentence the defendant.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, ¶10.
{¶13} Where, as here, the omission of post-release control is the only
apparent defect in an entry, “the postrelease-control component of the sentence is
fully capable of being separated from the rest of the sentence as an independent
component, and the limited resentencing must cover only the postrelease control.”
Id. at ¶17. The remainder of the sentence “remains valid under the principles of res
judicata.” Id. “A motion to correct an illegal sentence ‘presupposes a valid conviction
and may not, therefore, be used to challenge alleged errors in proceedings that occur
prior to the imposition of sentence.” Id. at ¶25. For these reasons, Appellant was
entitled to an entry that included notice to Appellant that he was subject to post-
release control sanctions. Appellant received a new sentencing hearing in 2011, a
transcript of which does appear in the record. During his second sentencing hearing,
Appellant was clearly informed on the record that post-release control was a
component of his sentence. The court then issued a nunc pro tunc entry that
contained all statutorily required elements of sentencing. Pursuant to Fischer,
Appellant has received his remedy. Because a motion for a corrected sentence
presupposes a valid conviction existed in the first instance, it cannot be used to
challenge any aspect of pre-sentencing proceedings.
{¶14} Since Appellant received the appropriate remedy for the defect in his
original sentencing entry, but apparently not the remedy he sought, Appellant then
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filed a motion to withdraw his 2002 guilty plea. The validity of a challenged plea rests
solely on whether the plea itself was knowingly, voluntarily, and intelligently entered
by a defendant who understood the charges against him or her, in compliance with
Crim.R. 11(C). For this reason the only issue before a court when considering a
motion to withdraw a plea is whether the record reflects that all the necessary
information was provided to a defendant and that the defendant sufficiently
understood the charges and the effect of his or her plea.
{¶15} To reduce the extent to which an exercise of discretion is necessary to
evaluate the quality of a plea, Crim.R. 11 requires a colloquy between the trial court
and the defendant entering a plea. “Crim. R. 11 * * * remedies the problems inherent
in a subjective judgment by the trial court as to whether a defendant has intelligently
and voluntarily waived his constitutional rights and ensures an adequate record on
review by requiring the trial court to personally inform the defendant of his rights and
the consequences of his plea and determine if the plea is understandably and
voluntarily made.” Crim.R. 11; State v. Stone, 43 Ohio St.2d 163, 167-168, 331
N.E.2d 411 (1975). The presence of a Crim.R. 11 colloquy in the record “does not
absolutely immunize a guilty plea from collateral attack,” State v. Kapper, 5 Ohio
St.3d 36, 38, 448 N.E.2d 823 (1983), but “a record reflecting compliance with Crim.R.
11 has greater probative value than contradictory affidavits.” State v. Calhoun, 86
Ohio St.3d 279, 288-289, 714 N.E.2d 905 (1999). For these reasons, our review of a
motion to withdraw a plea must begin with a review of the record to determine
whether the trial court conducted the necessary colloquy. Here, however, Appellant
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has provided nothing to review. No transcript of a plea hearing was entered in the
record. Appellant’s 2011 praecipe for the transmission of the record reflects that,
although he filed a motion to withdraw his 2002 plea, Appellant requested only a
transcript of his 2011 resentencing hearing, not his original sentencing hearing.
Appellant’s decision not to provide the evidence required to support his motion
results in a complete failure to satisfy his burden.
{¶16} Absent a record which supports Appellant’s claims, “all reasonable
presumptions consistent with the record will be indulged in favor of the validity of the
judgment under review and of the regularity and legality of the proceeding below.” In
re Sublett, 169 Ohio St. 19, 20, 157 N.E. 2d 324 (1959). Hence, without a transcript
we must presume the regularity of the proceedings. This presumption extends to the
trial court’s colloquy pursuant to Crim.R. 11(C). Where there is no demonstration “on
the record that the trial court failed to comply substantially with [the criminal rules] in
a manner reasonably intelligible to [the] defendant during the hearing when it
accepted his * * * plea * * * the presumption of regularity * * * must prevail.” State v.
Summers, 3 Ohio App.3d 234, 237, 444 N.E.2d 1041 (1981), see also State v.
Muhleka, 7th Dist. No. 05 BE 4, 2005-Ohio-6447, ¶18. For these reasons the trial
court was correct to overrule Appellant’s motion to withdraw his guilty plea.
Appellant’s first and third assignments of error are overruled as they rely on alleged
defects in the trial court’s colloquy during his 2002 plea hearing.
{¶17} In addition to alleging that defects existed in his 2002 plea hearing,
Appellant bases his motion to withdraw his guilty plea on conversations he alleges
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occurred at the time of his resentencing in 2011. These alleged conversations did
not occur in the courtroom and, thus, do not appear on the record. Appellant argues
that in these conversations he received ineffective assistance of counsel which
should result in voiding the judgment against him. Appellant is incorrect as to the
effect of these conversations for a myriad of reasons. Appellant’s claim of ineffective
assistance of counsel relies in part on an a meeting alleged to have taken place with
counsel in September 2011, prior to his hearing on the motion for resentencing.
Appellant claims that due to his use of certain drugs, he did not understand counsel’s
advice given at that time. While the denial of a post-sentencing motion to withdraw a
guilty plea may be directly appealed, Appellant’s claim concerning alleged conduct in
2011 raises issues that are outside the record which ordinarily cannot be evaluated
on direct appeal. State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d
522. More importantly, despite the fact that these claims are not properly before us,
even if they had been properly raised the effectiveness of counsel in 2011 and
Appellant’s mental state at that time have absolutely no bearing on the validity of a
plea entered in 2002. To the extent that Appellant’s first and third assignments of
error rely on events alleged to have occurred outside of the record in 2011, both
assignments are overruled.
{¶18} Finally, in Appellant’s motion to withdraw his guilty plea he alleges the
existence of an off the record conversation between the prosecutor, defense counsel,
and the court, to which he was not a party. Appellant claims that after this private, off
the record, discussion, counsel instructed him to agree with everything the court said.
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Appellant’s motion does not specify whether the off the record conversation and
instruction occurred in 2011 during resentencing or in 2002 at the time he entered his
plea and was originally sentenced. However, it appears that Appellant may be
referring to his original plea, because in his motion he later claims that he was “never
[advised] by [counsel] of what was actually taking place so fast back on February 1,
2002.” (10/18/11 Motion to Withdraw Plea, Tr., p. 2.) Appellant provides no evidence
in any form to support his allegations. Appellant does not even attempt to provide his
own affidavit in support. Bearing in mind that these unsworn statements have no
evidentiary significance, and are wholly unsupported by the material in the record, it
appears that Appellant is alleging that he was tricked by counsel into entering his
plea. What Appellant describes is not a claim that can be made on direct appeal of
his motion to withdraw his plea because “[a] reviewing court cannot add matter to the
record before it, which was not a part of the trial court’s proceedings, and then decide
the appeal on the basis of the new matter.” State v. Hill, 90 Ohio St.3d 571, 572, 740
N.E. 2d 282 (2001).
{¶19} To the extent that Appellant now contends that he entered his guilty
plea in 2002 due to some trickery amounting to ineffective assistance of counsel and
the material on which he relies for this contention would not appear in the record
even had he filed the appropriate transcripts, his remedy lies solely by means of a
petition for post-conviction relief under R.C. 2953.21. R.C. 2953.21(A)(1)(a);
Coleman, supra at 134: “Any allegations of ineffectiveness based on facts not
appearing in the record should be reviewed through the post[-]conviction remedies of
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R.C. 2953.21.” We note, however, that such a claim on Appellant’s part is facially
untimely, and he would be required to identify an applicable exception to R.C.
2953.21(A)(2) to attempt to establish the trial court’s jurisdiction over the matter.
Even if Appellant is able to establish jurisdiction, he must then provide the trial court
“sufficient operative facts to establish substantive grounds for relief.” State v.
Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus.
{¶20} With regard to the motion to withdraw his plea, Appellant has not
satisfied his burden in this Court, or in the trial court, to identify any sort of manifest
injustice apparent on the record to merit the extraordinary relief he seeks. Although
we have the discretionary power to address “[p]lain errors or defects affecting
substantial rights” even where they were not brought to the attention of the trial court,
that discretion is limited to where the “rights and interests involved may warrant it.” In
re M.D., 38 Ohio St.3d 149, 151, 527 N.E.2d 286 (1988) and State v. Zuern, 32 Ohio
St.3d 56, 63, 512 N.E.2d 585 (1987). Appellant has supplied nothing for either court
to review in this matter. In the absence of any material supporting Appellant’s
statements, the trial court was correct to deny his post-sentencing motion to withdraw
his guilty plea.
{¶21} Appellant received a hearing on his motion for resentencing and the
trial court entered the necessary nunc pro tunc entry correcting his sentence.
Appellant’s successful challenge to his sentence did not affect in any way the validity
of his original plea. Appellant has not even attempted to satisfy his burden to
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demonstrate error affecting his substantial rights. In re M.D., supra. Appellant’s first
and third assignments are wholly without merit and therefore overruled.
Assignment of Error No. 2
THE TRIAL COURT COMMITTED PLAIN, PREJUDICIAL, AND
REVERSIBLE ERROR WHEN IT FAILED TO FOLLOW THE
MANDATE OF O.R.C. 2941.25 AND State v. Johnson [SIC] IN
VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHT TO
FUNDAMENTALLY FAIR PROCEEDINGS AND RIGHTS TO BE
SENTENCED IN COMPLIANCE WITH ALL STATUTES.
{¶22} Appellant filed his appeal from the judgment entry denying his motion to
withdraw his plea, and not from the trial court’s 2011 resentencing entry. Hence, this
issue is not properly directly before us. However, to avoid any confusion or
duplication of effort, we will briefly address Appellant’s concerns. Appellant is raising
the issue of allied offenses. “Allied offenses” are defined by R.C. 2941.25 which
provides: “Where the same conduct by defendant can be construed to constitute two
or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.” R.C.
2941.25(A). Determining whether offenses are allied within the meaning of the
statute is a two-step process. A court must first determine whether, when the
elements of the two crimes are compared, the elements “correspond to such a
degree that the commission of one crime will result in the commission of the other.”
State v. Rance, 85 Ohio St.3d 632, 638, 710 N.E.2d 699 (1999) (reversed on other
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grounds). When conducting this analysis a court must consider both the elements of
the offenses and the conduct of the accused. State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, paragraph one of the syllabus, (explicitly
overruling paragraph one of the syllabus in Rance, supra, which provided that the
statutorily defined elements of offenses would be compared in the abstract, without
reference to the conduct of the accused, and holding that two offenses were “allied
under R.C. 2941.25 because the same conduct constituted the commission of two
offenses of similar import under the facts” of the case. Johnson at ¶9.).
{¶23} We first begin by noting that Appellant appears to have agreed to the
sentence imposed and cannot then challenge it on appeal. That said, in 2002,
Appellant pleaded guilty to two counts in the amended indictment: one count of
involuntary manslaughter in which the victim was Thomas Brown and one count of
attempted murder, in which the victim was Clinton Brown. There is no
correspondence between the elements of involuntary manslaughter with regard to
one person and attempted murder with regard to a second, they are wholly separate
crimes. There is no instance in which “the commission of one crime will result in the
commission of the other.” Rance at 638. Even if the specific conduct of Appellant
with regard to each offense was as a result of a single course of conduct, the fact that
the conduct resulted in harm to different victims negates any finding that the crimes
are allied offenses pursuant to R.C. 2941.25. Appellant was convicted of two
separate crimes with two different victims. Different crimes with different penalties
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and different victims are not allied offenses. Appellant’s second assignment of error
is overruled.
Assignment of Error No. 4
THE TRIAL COURT COMMITTED PLAIN, PREJUDICIAL, AND
REVERSIBLE ERROR WHEN IT SENTENCED TROMMONE
STEWART IN VIOLATION OF O.R.C. 5145.01.
{¶24} Again, Appellant has not filed a direct appeal of his resentencing.
Appellant sought and received postconviction relief in 2011 remedying the omission
of post-release information in his original sentencing entry. The instant appeal was
filed from the denial of Appellant’s subsequent motion to withdraw his 2002 guilty
plea. Any defect in the resentencing entry is not properly before us at this time. The
only relevant issues in this appeal are those affecting whether the original plea was
entered in compliance with Crim.R. 11(C)(2)(a), (b), and (c), and as a result was
knowing, intelligent, and voluntary on Appellant’s part. The party seeking to withdraw
a plea must identify both a defect in the entry of the plea and demonstrate prejudice
resulting from the defect. Under this assignment of error, Appellant does not
challenge any aspect of the entry of his plea and instead claims an error in his
sentence. The imposition of consecutive sentences is wholly irrelevant to the
knowing, intelligent, and voluntary aspects of the entry of his plea because
sentencing does not happen until after a plea has been entered. An event that had
not occurred when the plea was entered can have no bearing on whether the plea
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was valid. Appellant has identified no sentencing issue as a condition of his plea
under this assignment of error that would undermine the validity of his plea.
{¶25} Appellant did not appeal his original sentence or his resentencing.
“Under the doctrine of res judcata, a final judgment of conviction bars a convicted
defendant who was represented by counsel from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the defendant at trial,
which resulted in that judgment of conviction, or on an appeal from that judgment.”
State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus. This
assignment of error, which directly challenges the trial court’s ability to impose
consecutive sentences, is precisely the type of issue which could have been raised in
an appeal from the original 2002 final judgment and is therefore barred by the
doctrine of res judicata. We again must note that if Appellant entered an agreed
sentence, as the record reflects, he is barred from appealing this sentence for this
reason, alone.
{¶26} Moreover, even if this challenge were somehow within our scope of
review on an appeal from the denial of a postsentencing motion to withdraw a plea,
Appellant’s argument would require application of the portions of R.C. 2929.14 which
were found unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, paragraph three of the syllabus: “Because R.C. 2929.14(E)(4) and
2929.41 (A) require judicial finding of facts not proven to a jury beyond a reasonable
doubt or admitted by the defendant before the imposition of consecutive sentences,
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they are unconstitutional.” Under the Supreme Court’s Foster decision, “[t]rial courts
have full discretion to impose a prison sentence within the statutory range and are no
longer required to make findings or give their reasons for imposing maximum,
consecutive, or more than minimum sentences.” Id. at paragraph seven of the
syllabus. We cannot apply an unconstitutional law, because “an unconstitutional law
must be treated as having no effect whatsoever from the date of its enactment.”
Middletown v. Ferguson, 25 Ohio St.3d 71, 80, 495 N.E.2d 380 (1986). Any
requirement in R.C. 5145.01 and R.C. 2929.14 limiting a trial court’s ability to impose
consecutive sentences which was found unconstitutional in Foster must be regarded
in light of the Supreme Court’s determination that “[a]n unconstitutional act is not a
law; it confers no rights; it impose no duties; it affords no protection; it creates no
office; it is, in legal contemplation, as inoperative as though it had never been
passed.” Middletown at 80, quoting Norton v. Shelby County, 118 U.S. 425, 442, 6
S.Ct. 1121, 30 L.Ed. 178 (1886). Thus, even if Appellant had properly appealed the
entry of consecutive sentences, the law he cites is a nullity and cannot form the basis
of the relief he seeks. For all of these reasons Appellant’s fourth assignment of error
is overruled.
Assignment of Error No. 5
TROMMONE STEWART’S COUNSEL WAS INEFFECTIVE.
{¶27} To prevail on a claim of ineffective assistance of counsel, Appellant
must show not only that counsel's performance was deficient, but also that he was
prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
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2052, 80 L.Ed.2d 674, (1984) see also State v. Williams, 99 Ohio St.3d 493, 2003-
Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” means performance falling
below an objective standard of reasonable representation. “Prejudice,” in this
context, means a reasonable probability that but for counsel's errors the result of the
proceeding would have been different. Strickland at 687-688, 694.
{¶28} Appellant argues that the performance of counsel in this instance was
deficient because counsel failed to inform him of his right to appeal in 2002 and
because counsel did not file an appeal on his behalf in 2002. The court, not counsel,
is required to inform Appellant of his right to appeal, and although Appellant also
alleges that the court failed to inform him of this right, nothing in the record supports
Appellant’s claim. Again, the alleged omission would have occurred during the
original sentencing hearing, but Appellant has not included any transcript or a
substitute for the record pursuant to App.R. 9. In the absence of a transcript or other
evidence of the alleged defect, we are constrained to presume the regularity of the
proceedings in the trial court. Yarbrough v. Maxwell, 174 Ohio St. 287, 189 N.E.2d
136 (1963). Without evidence in support of his claim, Appellant has clearly failed to
show counsel was deficient.
{¶29} Appellant also alleges that trial counsel was deficient because trial
counsel did not file a direct appeal on his behalf. Counsel is not required to file an
appeal for Appellant unless counsel is retained or appointed to do so. Appellant has
not produced any evidence suggesting, and nothing appears in the record to support,
a claim that counsel was retained or appointed for the purpose of filing a direct
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appeal in 2002. Appellant has availed himself of both his right to appointed counsel
as well as his right to represent himself pro se at various times in this matter.
Nothing in this record suggests that counsel violated a duty to file an appeal on
Appellant’s behalf, or that Appellant was otherwise unable to protect his rights.
{¶30} Appellant has not met the elements of the Strickland test on either of
his claims that he received ineffective assistance of counsel. His fifth assignment of
error is without merit and is overruled.
Conclusion
{¶31} Appellant argues on appeal that his 2002 plea was not knowing or
voluntary on his part because he was not told that he would be subject to post-
release control as a result of his plea. Appellant also argues that his 2002 guilty plea
should be vacated due to his attorney’s alleged failure to file a direct appeal and
some trickery on counsel’s part based on an off the record conversation alleged to
have occurred. Appellant has not provided the transcript of his original plea or
sentencing hearings necessary to allow us to even evaluate his various claims.
Appellant, inexplicably, also claims his 2002 plea was invalid because of his
substance abuse in 2011 at the time of his resentencing. Appellant did not file a
direct appeal of either his sentencing or his resentencing, so to the extent he
challenges issues arising out of those entries, these are not properly before us.
Further, Appellant also relies on (unsupported) evidence that is not of record. This is
also not appropriate for the direct appeal of the denial of his motion to withdraw his
2002 plea. Appellant’s five assignments of error are without merit and are overruled.
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The judgment of the trial court denying Appellant’s motion to vacate his guilty plea is
affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.