STATE OF OHIO, Plaintiff-Appellee, v. JEPHTHAH ISRAEL MONTGOMERY, Defendant-Appellant.
Case No. 10CA42
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
November 28, 2011
2011-Ohio-6145
W. Scott Gwin, P.J., Sheila G. Farmer, J., Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Criminal Appeal from Guernsey County Court of Common Pleas Case No. 00-CR-155; JUDGMENT: Affirmed
For Plaintiff-Appellee
DANIEL G. PADDEN
Guernsey County Prosecuting Attorney
139 West 8th Street,
P.O. Box 640
Cambridge Ohio, 43725
For Defendant-Appellant
MELISSA M. PRENDERGAST
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
{1} Appellant, Jephthah Israel Montgomery, appeals a judgment of the Guernsey County Common Pleas Court overruling his motion to withdraw his pleas of no contest to two counts of aggravated murder (
STATEMENT OF FACTS AND CASE
{2} On May 8, 2001, appellant pleaded no contest to two counts of aggravated murder with capital specifications, one count of aggravated robbery and one count of aggravated burglary, pursuant to a negotiated plea. In exchange for the plea, the State dismissed the remaining counts of the indictment and agreed to not seek the death penalty.
{3} The court held a sentencing hearing on November 6, 2001. The court imposed concurrent terms of life imprisonment with parole eligibility after twenty-five years for the aggravated murder convictions, and concurrent terms of nine years imprisonment on the aggravated robbery and aggravated burglary convictions. Appellant did not appeal this judgment.
{4} On August 9, 2010, appellant filed a pro se motion to withdraw his guilty plea pursuant to Crim. R. 32.1. Appellant claimed that his sentence was void because the court improperly imposed postrelease control, and that his plea was not knowing, intelligent, and voluntary because it was based on “race-based threats regarding false information in indictment by defense counsel.” The trial court overruled the motion. Appellant assigns two errors on appeal:
{6} “II. THE TRIAL COURT ERRED BY ACCEPTING MR. MONTGOMERY‘S NO CONTEST PLEA AND SENTENCING HIM FOR AGGRAVATED MURDER WITH CAPITAL SPECIFICATIONS WITHOUT ANY RECORDED DELIBERATION OR DETERMINATION BY A THREE-JUDGE PANEL AS TO THE APPROPRIATENESS OF THE CHARGE, WITHOUT ANY FINDING ON THE RECORD THAT AGGRAVATED MURDER HAD BEEN PROVEN BEYOND A REASONABLE DOUBT, AND WITHOUT JOURNALIZING A FINDING OF GUILT. ACCORDINGLY, HE HAS NO VALID CONVICTION AND HIS SENTENCE IS VOID.”
I
{7} In his first assignment of error, appellant argues that the court erred in applying the “manifest injustice” standard which is applied to a postsentence motion to withdraw a plea pursuant to Crim. R. 32.1. Appellant argues that because the trial court failed to impose postrelease control at the time he was sentenced for aggravated robbery and aggravated burglary, his sentence is void and the court should have applied the more liberal presentence standard to his motion to withdraw his plea, citing State v. Boswell, 121 Ohio St. 3d 575, 906 N.E.2d 422, 2009-Ohio-1577.1
{9} “We similarly hold that when a judge fails to impose statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence is void and must be set aside. Neither the Constitution nor common sense commands anything more.
{10} “This principle is an important part of the analysis of void sentences that we have not focused upon in prior cases involving postrelease control, including Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Thus, we reaffirm the portion of the syllabus in Bezak that states ‘[w]hen a defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void,’ but with the added proviso that only the offending portion of the sentence is subject to review and correction.
{11} “However, we now modify the second sentence in the Bezak syllabus as ill-considered. That sentence states that the offender is entitled to a new sentencing hearing for the offense for which postrelease control was not imposed properly. 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. It does not recognize a principle that we overlooked in Bezak: when an appellate court concludes that a sentence imposed
{12} “Therefore, we hold that the new sentencing hearing to which an offender is entitled under Bezak is limited to proper imposition of postrelease control.” State v. Fischer, 128 Ohio St.3d 92, 99, 942 N.E.2d 332, 340-341, 2010-Ohio-6238, ¶26-29.
{13} This Court has concluded that because the convictions and remaining portion of the original sentence remain valid based on the Supreme Court‘s holding in Fischer, a motion to withdraw a plea made prior to resentencing to correct the postrelease control portion of the sentence is properly addressed as a post-sentence motion. Accordingly, the court in the instant case did not err in addressing appellant‘s motion based on the “manifest injustice” standard applicable to a post-sentence motion to withdraw a plea.
{14} The first assignment of error is overruled.
II
{15} In his second assignment of error, appellant argues that the trial court erred in accepting his no contest plea and sentencing him to two counts of aggravated murder with capital specifications without complying with
{16} The Ohio Supreme Court has recently modified Baker:
{18} An alleged violation of
{19} The second assignment of error is overruled.
The judgment of the Guernsey County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and Farmer, J. concur.
FIFTH APPELLATE DISTRICT
STATE OF OHIO, Plaintiff-Appellee
-vs-
JEPHTHAH ISRAEL MONTGOMERY, Defendant-Appellant
JUDGMENT ENTRY
CASE NO. 10CA42
For the reasons stated in our accompanying Memorandum-Opinion on file, the appeal of the Guernsey County Court of Common Pleas is affirmed. Costs assessed to appellant.
JUDGES