State v. Mullen
947 N.E.2d 762
Ohio Ct. App.2011Background
- Indictment included eight Counts: Counts 1-2 attempted murder with firearm specs, Count 3 aggravated burglary with firearm spec, Counts 4-7 abductions with firearm specs, Count 8 felonious assault with firearm spec.
- Mullen pled not guilty by reason of insanity initially; competency found in October 2007.
- In April 2008, Mullen pled no contest to Count 3 (gun spec) and Counts 4, 5, 8; State dismissed Counts 1, 2, 6, 7 under a plea agreement.
- Trial court sentenced June 2008 to 7 years on Count 3 plus 3-year gun spec, 3 years on Count 4, 3 years on Count 5, and 5 years on Count 8, all consecutive; aggregate 21 years; restitution $620.
- November 2009: Mullen moved to withdraw plea due to lack of postrelease control notification; February 2010: court denied withdrawal but resentenced to address postrelease control; March 2010: further pre-sentence motion to withdraw denied; April 2010: resentencing confirmed same terms and postrelease control set at 5 years.
- April 2011 appellate decision affirmed some rulings and reversed abduction convictions, remanding for unlawful restraint convictions and resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Felonious assault validity with no contest plea | Mullen argues facts in prosecutor's statement negate felonious assault | State's facts do not absolutely negate element; plea valid | Felonious assault conviction affirmed |
| Abduction Counts Four and Five validity | No contest plea means indictment must prove all elements; lack of 'creating risk' not stated | Abduction elements insufficient; could be unlawful restraint | Abduction convictions reversed; remanded to enter unlawful restraint convictions and resentence |
| Due process and sufficiency review of abduction convictions | Trial court should review indictments first and ensure facts do not negate indictment | Prosecutor's facts did not negate indictment; felonious assault proper | Due process not violated for felonious assault; abduction convictions reversed moot regarding due process |
| Remand relief and residual issues | Remand for unlawful restraint convictions; resentence accordingly |
Key Cases Cited
- State v. Cohen, 60 Ohio App.2d 182 (Ohio App. 1978) (no contest plea must reflect indictment elements; can’t negate essential element)
- State v. Wooldridge, 2000 WL 1475699 (Ohio 2d Dist. 2000) (no contest plea cannot be used to negate essential offense element when facts negate it)