Parma v. Hardimon

[Cite as Parma v. Hardimon, 2021-Ohio-4430.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF PARMA, :
Plaintiff-Appellee, :
No. 110296
v. :
ROMIR JEYMONTE HARDIMON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: December 16, 2021
Criminal Appeal from the Parma Municipal Court
Case No. 20CRB01634
Appearances:
Timothy G. Dobeck, Parma Law Director and Chief
Prosecutor, and Jennifer M. Meyer, Assistant Law
Director, for appellee.
Milton A. Kramer Law Clinic Center; Case Western
Reserve University School of Law; Andrew S. Pollis and
Joseph Shell, Supervising Attorneys; Gregory Hilbert,
Paul Willison, and Alexandra L. Raleigh, Certified Legal
Interns, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Romir Jeymonte Hardimon appeals his
conviction for misdemeanor assault and criminal damaging in the Parma Municipal
Court. Because we find that the magistrate’s order accepting his plea in this matter
did not conform to Crim.R. 19(D) requirements and the trial court did not hold a
hearing on Hardimon’s presentence motion to vacate his plea, we vacate
Hardimon’s convictions and remand this matter to allow Hardimon to file
objections to the magistrate’s decision accepting his plea and recommending
sentence. We further remand this matter for the trial court to conduct a hearing on
Hardimon’s presentence motion to vacate his plea.
I. Facts and Procedural History
Hardimon was charged with misdemeanor assault and criminal
damaging in the Parma Municipal Court. On September 23, 2020, he signed a
waiver of counsel, proceeded with his case pro se, and entered a plea of guilty to the
charges before a magistrate. On that same day, the magistrate issued a journal entry
accepting the guilty plea and recommending a sentence. That entry was later
amended on December 22, 2020. Neither the September 23, 2020, nor the
amended December 22, 2020 entry signed by the magistrate contained a notice of
the effect of a party’s failure to file objections with the trial court.
On November 10, 2020, before the trial court had adopted the
magistrate’s decision regarding the plea and sentence, Hardimon filed a motion to
vacate his plea. On that same day, the magistrate filed a journal entry denying the
motion to vacate plea without conducting a hearing. Appellant appealed that entry.
This court dismissed that appeal because the magistrate’s order was not adopted by
the trial court and did not become a final appealable order.
On February 11, 2021, the trial court adopted the magistrate’s order
that contained the entry of plea and the recommended sentence. The trial court did
not hold a hearing upon, adopt, or rule upon the magistrate’s decision denying
Hardimon’s motion to vacate plea. It is from the trial court’s February 11, 2021
journal entry of conviction that Hardimon appeals. After the record was filed in this
court by Hardimon, we allowed the city to supplement the record with a transcript
of the September 23, 2020 joint arraignment conducted by the magistrate at which
the magistrate provided a general announcement advising defendants of their rights
prior to Hardimon’s individual appearance.
II. Law and Argument
Appellant assigns two assignments of error for our review. His first
assignment of error provides:
The trial court erred in accepting Mr. Hardimon’s plea without
complying with the criminal rules applicable to plea hearings.
The second assignment of error provides:
The trial court erred in implicitly denying Mr. Hardimon’s
presentence motion to withdraw his plea.
Hardimon makes several arguments regarding the propriety of the
procedures in the trial court regarding his plea, including the lack of a valid
assignment of his case to the magistrate, a failure to follow Crim.R. 11 during the
plea colloquy, as well as error in the magistrate’s filed entries. We find his argument
that the decisions filed by the magistrate in this case failed to comply with Crim.R. 19
to be definitive of this appeal.
Crim.R. 19 (D)(3)(a)(iii) provides:
A magistrate’s decision shall be in writing, identified as a magistrate’s
decision in the caption, signed by the magistrate, filed with the clerk,
and served by the clerk on all parties or their attorneys no later than
three days after the decision is filed. A magistrate’s decision shall
indicate conspicuously that a party shall not assign as error on
appeal the court’s adoption of any factual finding or legal
conclusion, whether or not specifically designated as a finding of fact
or conclusion of law under Crim. R. 19(D)(3)(a)(ii), unless the party
timely and specifically objects to that factual finding or legal
conclusion as required by Crim.R. 19(D)(3)(b).
(Emphasis added.)
The entries signed by the magistrate do not comply with
Crim.R. 19(D)(3)(a)(iii) because there is no indication on the entries of the effect of
failing to timely file objections.
Where a magistrate’s decision does not conform with
Crim.R. 19(D)(3)(a)(iii), courts have employed varying remedies by examining the
circumstances of each case to determine the remedy to be employed on appeal. In
State v. Wheeler, 2016-Ohio-2964, 65 N.E.3d 182, ¶ 11-15 (2d Dist.), the court noted
that where prejudice occurs because of the failure to conform to
Crim.R. 19(D)(3)(a)(iii), courts either remand the matter to allow objections to be
filed or allow an appellant to raise issues for the first time on appeal. In Wheeler,
the court elected to address the claimed errors on appeal. Id. However, in a later
case, the same appellate court reversed a judgment of the lower court and remanded
the matter to allow for the filing of objections to the deficient magistrate’s decision.
Gerken v. Barber, 2d Dist. Clark No. 2018-CA-65, 2019-Ohio-641.
In this case, Hardimon acted pro se at the time of his plea. He was not
informed that the failure to object to the magistrate’s decision would forfeit all but
plain error on appeal. Further, we note that Hardimon’s counsel first appeared in
this matter after the time for the filing of objections to the plea entry expired.
Hardimon could not file objections to the plea procedures and was left only with the
ability to file a motion to vacate plea pursuant to Crim.R. 32.1 to challenge the
magistrate’s decision. Under these circumstances, we elect to vacate the conviction
issued in this case and remand the matter to allow Hardimon an opportunity to file
objections to the magistrate’s decision accepting his plea and recommending
sentence.
As to Hardimon’s second assignment of error, his motion to vacate
plea was a presentence motion because the trial court had not adopted or ratified
the magistrate’s decision accepting the plea and recommending sentence. The
motion was denied without a hearing being held. When a presentence motion to
withdraw plea has been filed, “‘the trial court must conduct a hearing to determine
whether there is a reasonable and legitimate basis for the withdrawal of the plea.’”
State v. Jones, 2018-Ohio-2055, 110 N.E.3d 1049, ¶ 13 (8th Dist.), quoting State v.
Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). In this case, because no hearing
was held on the presentence motion to vacate plea either before the magistrate or
the trial court, we sustain appellant’s second assignment of error and remand the
matter for the trial court to conduct a hearing on Hardimon’s motion to vacate plea.
III. Conclusion
The magistrate’s order accepting Hardimon’s plea and recommending
sentence did not conform to Crim.R. 19(D) because it did not contain notice of the
consequences of failing to file a timely objection. Further, after Hardimon filed a
presentence motion to vacate his plea, the trial court did not hold a hearing on the
motion as required by law. Hardimon’s convictions for misdemeanor assault and
criminal damaging in the Parma Municipal Court are vacated. We remand this
matter to allow Hardimon to file objections to the magistrate’s decision accepting
his plea and recommending sentence. We further remand this matter for the trial
court to conduct a hearing on Hardimon’s presentence motion to vacate his plea.
Judgment vacated and remanded for further proceedings consistent
with this opinion.
It is ordered that appellant recover of appellee 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
municipal 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.
_____________________________
MICHELLE J. SHEEHAN, JUDGE
MARY J. BOYLE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR