State v. Stewart, 2013 Ohio 753

Background

Stewart pled guilty in 2002 to involuntary manslaughter (Thomas Brown) and attempted murder (Clinton Brown), with firearm specifications, resulting in a total sentence of 25 years with no post-release control notice in the judgment entry.
The March 6, 2002 judgment entry did not inform Stewart of post-release control; no transcript of plea or sentencing hearings is in the record.
In 2011, Stewart filed a pro se motion for sentencing arguing his sentence was void for the post-release control omission; the trial court held a hearing and issued a nunc pro tunc entry correcting the sentence to include post-release control.
Stewart then filed a pro se motion to withdraw his 2002 guilty plea, alleging irregularities in the 2002 sentencing and resentencing; the trial court denied the motion.
On appeal, Stewart asserts five assignments of error challenging the validity of his plea and sentencing, but the record lacking transcripts precludes detailed review; the court ultimately upholds the trial court’s rulings.
The appellate court confirms the 2011 nunc pro tunc sentence corrected the defect and that the prior pre-sentencing and post-sentencing issues do not render the original plea void.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Motion to withdraw plea abuse of discretion	Stewart contends the trial court abused its discretion in denying Crim.R. 32.1 motion to withdraw his guilty plea.	State argues no manifest injustice shown and record insufficient to prove defects in the 2002 plea.	Denied; no manifest injustice shown; record lacks plea hearing transcript to support defect claims.
Void judgment due to no journalization	Stewart claims the 2002 sentence is void for not being journalized.	State contends the entry was properly filed and journalized.	Not void; proper entry and journalization; remedy was resentencing if needed.
Allied offenses under R.C. 2941.25	Stewart argues the counts are allied offenses requiring merger.	State maintains two separate offenses with different victims and elements.	Not allied offenses; convictions stand as two separate offenses with distinct victims.
Consecutive sentencing under Foster	Stewart contends consecutive sentencing and related statutes were unconstitutional or improperly applied.	State notes issues pertain to sentencing rather than plea validity; Foster limits do not invalidate the prior sentence.	Raised issues are barred by res judicata and Foster; cannot modify plea-based relief on direct appeal.
Ineffective assistance of counsel	Stewart alleges counsel failed to inform him of appeal rights and failed to file an appeal.	State asserts no record evidence of deficient performance; lack of transcripts prevents evaluation.	Not proven; record insufficient to establish deficient performance.

Key Cases Cited

State v. Ellington, 36 Ohio App.3d 76 (1987) (journalization requires writing, signing, and filing to become part of the record)
State v. Fischer, 128 Ohio St.3d 92 (2010) (remedy for void sentence due to missing post-release control is resentencing; limited scope)
State v. Smith, 49 Ohio St.2d 261 (1977) (Crim.R. 32.1 requires manifest injustice to withdraw plea after sentencing)
State v. Caraballo, 17 Ohio St.3d 66 (1985) (review of Crim.R. 32.1 motion is within the trial court’s discretion)
State v. Ketterer, 111 Ohio St.3d 70 (2006) (plea is a complete admission; governing considerations for withdrawal)
State v. Wilson, 58 Ohio St.2d 52 (1979) (plea counsel and record considerations in withdrawal of plea)
In re Sublett, 169 Ohio St. 19 (1959) (presumption of regularity; absence of transcript requires deferential review)
State v. Summers, 3 Ohio App.3d 234 (1981) (presumption of regularity in appellate review of trial court proceedings)
State v. Muhleka, 7th Dist. No. 05 BE 4 (2005) (regularity presumption in the absence of transcripts)
State v. Bush, 2002-Ohio-3993 (2002) (role of transcript in evaluating plea adequacy; non-constitutional concerns)
State v. Calhoun, 86 Ohio St.3d 279 (1999) (importance of record in evaluating ineffective assistance and plea validity)
State v. Hill, 2001-Ohio-571 (2001) (evidence required to support claims not part of record cannot be considered on direct appeal)
State v. Johnson, 2010-Ohio-6314 (2010) (allied offenses; conduct and victims considered for R.C. 2941.25)
Rance v. Johnson, 85 Ohio St.3d 632 (1999) (initial framework for allied offenses analysis (overruled in Johnson))
State v. Szefcyk, 77 Ohio St.3d 93 (1996) (res judicata doctrine in post-conviction contexts)
State v. Foster, 109 Ohio St.3d 1 (2006) (unconstitutional aspects of sentencing statutes; judges’ discretion post-Foster)