STATE OF OHIO, Plаintiff-Appellee -vs- MONDELL ALEXANDER, Defendant-Appellant
Case No. 2013 CA 00151
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 27, 2014
[Cite as State v. Alexander, 2014-Ohio-2351.]
Hon. William B. Hoffman, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2010 CR 1217; JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART
For Plaintiff-Appellee: JOHN D. FERRERO, STARK COUNTY PROSECUTOR; KATHLEEN O. TATARSKY, 110 Central Plaza South, Suite 510, Canton, Ohio 44702-1413
For Defеndant-Appellant: MONDELL ALEXANDER, PRO SE, Inmate No. 594-547, M.C.I., P.O. Box 57, Marion, OH 43301
Delaney, J.
{¶1} Defendant-Appellant Mondell Alexander appeals the July 16, 2013 judgment entry of the Stark County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} In 1990, Defendant-Appellant Mondell Alexander was convicted of rapе, a first-degree felony. Alexander did not appeal his conviction or sentence. On August 31, 2004, the Alexander stipulated to the trial court‘s finding that he be classified as a sexual predator pursuant to
{¶3} On September 17, 2010, the Stark County Grand Jury indicted Alexander on one count of failure to register a change of address, in violation of
{¶4} On October 18, 2010, Alexander appeared before the trial court and changed his plea to guilty. The
{¶5} The trial court allowed Alexander a two-week reprieve before he was to report to prison. During the two-week period, Alexander committed two aggravated robberies with a firearm. Alexander was indicted by the Stark County Grand Jury on two counts of aggravated robbery, first-dеgree felonies in violation of
{¶6} On July 11, 2013, Alexander filed a Motion for Sentencing and Leave to Withdraw Guilty Plea arguing the trial court failed to notify him of mandatory post-release control at his plea hearing. On July 16, 2013, the trial court denied the motion because it found Alexander signed a
{¶7} It is from this decision Alexander now appeals.
ASSIGNMENTS OF ERROR
{¶8} Alexander raises three Assignments of Error:
{¶9} “I. WHETHER A COMPLETE FAILURE TO NOTIFY APPELLANT (AND THE PLEA COLLOQUY) WHAT A ‘MANDATORY’ (5) FIVE YEAR PERIOD OF POSTRELEASE CONTROL (INCLUDING THE CONSEQUENCES OF A VIOLATION OF A POSTRELEASE CONTROL SANCTION) IMPLICATES BOTH:
{¶10} “II. WHETHER THE TRIAL COURT‘S FAILURE TO ACCORD AN ‘ALLIED OFFENSE DETERMINATION’ PURSUANT TO:
{¶11} “III. WHETHER THE RETROACTIVE APPLICATION OF MEGAN‘S LAW, IN LIEU OF:
ANALYSIS
I.
{¶12} Alexander argues in his first Assignment of Error that the trial court erred in denying his motion for sentencing and leave to withdraw guilty plea. We agree in part.
Motion to Withdraw Guilty Plea
{¶13} Alexander argues he should be entitled to withdraw his guilty plea because thе trial court failed to verbally inform him at his October 18, 2010 sentencing hearing of his mandatory five-years post-release control. A trial court‘s decision regarding a motion to withdraw a guilty plea is governed by
{¶14} “Withdrawal of a guilty plea after sentencing is permitted only in the most extraordinary cases.” State v. Perkins, 2nd Dist. Montgomery No. 25808, 2014-Ohio-1863, ¶ 30 quoting State v. Sage, 2nd Dist. Montgomery No. 25453, 2013-Ohio-3048, at ¶ 16, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “The postsentence ‘manifest injustice’ standard is aimed at cases where a defendant pleads guilty without knowing what his sentence will be, finds out that his sentence is worse than he had hoped and expected, and then seeks to vacate his plea.” Perkins, at ¶30 quoting State v. Fugate, 2nd Dist. Montgomery No. 21574, 2007-Ohio-26, ¶ 13.
{¶15} We review the trial court‘s denial of a motion to withdraw a guilty plea under an abuse of discretion standard of review. State v. Pepper, 5th Dist. Ashland No. 13 COA 019, 2014-Ohio-364, ¶31 citing State v. Caraballo, 17 Ohio St.3d 66, 477 N.E.2d 627 (1985). In order to find an abuse of discretion, we must determine the trial court‘s decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). “A motion made pursuant to
{¶16} We cannot find that manifest injustice occurred by the trial court‘s failure to verbally notify Alexander of post-release control. First, Alexander was notified of the mandatory five-years of post-release contrоl through the
Motion for Sentencing
{¶17} Alexander also filed a motion for sentencing. As stated above, Alexander contends and the State concedes the trial court did not verbally inform Alexander that he was subject to mandatory post-releаse control as part of his sentence during his October 18, 2010 sentencing hearing.
{¶18} Alexander was found guilty of two first-degree felonies, which require a period of five-years mandatory post-release control.
{¶19} “A sentence that does not include the statutorily mandated term of post-release control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus.
{¶20} While the trial court did include mandatory post-release control information in its written sentencing entry, it is uncontested that Alexander was not verbally informed of these provisions at his sentencing hearing. After July 11, 2006, pursuant to
On and after July 11, 2006, a court that wishes to prepare and issue a correction to a judgment of conviction of a type described in division (A)(1) or (B)(1) of this sеction shall not issue the correction until after the court has conducted a hearing in accordance with this division. Before a court holds a hearing pursuant to this division, the court shall provide notice of the date, time, рlace, and purpose of the hearing to the offender who is the subject of the hearing, the prosecuting attorney of the county, and the department of rehabilitation and correction. The offender has the right to bе physically present at the hearing, except that, upon the court‘s own motion or the motion of the offender or the prosecuting attorney, the court
may permit the offender to appear at the hearing by video conferencing equipment if available and compatible. An appearance by video conferencing equipment pursuant to this division has the same force and effect as if the offender were physicаlly present at the hearing. At the hearing, the offender and the prosecuting attorney may make a statement as to whether the court should issue a correction to the judgment of conviction.
{¶21} A trial court may correct its оmission to inform a defendant about post-release control sanctions by complying with
{¶22} Because the trial court did not verbally inform Alexander of mandatory post-release control sanctions at sentencing, his first Assignment of Error has merit in part. Alexander is entitled to a new limited sentencing hearing during whiсh the court will explain the mandatory period of post-release control included in his sentence. Appellant‘s first Assignment of Error is sustained in part and the matter is remanded to the trial court for the limited purpose of holding а sentencing hearing to address Alexander in regards to his post-release control sanctions.
II.
{¶23} Alexander argues in his second Assignment of Error that the trial court erred when it did not conduct an allied offense analysis of his convictiоns for violations of
{¶24} Alexander did not file a direct appeal of his convictions and sentences for violations of
Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who wаs 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 the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.”
State v. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, ¶ 17.
{¶25} Alexander‘s argument regarding allied offenses could have been raised on direct appeal from the trial court‘s sentеncing entry, and res judicata applies even though Alexander never pursued a direct appeal. State v. Jones, 5th Dist. Richland No. 12CA22, 2012-Ohio-4957, ¶ 23 citing State v. Barfield, 6th Dist. Nos. L-06-1262, L-06-1263, 2007-Ohio-1037, ¶ 6.
{¶26} Alexander‘s second Assignment of Error is overruled.
III.
{¶27} Alexander argues in his third Assignment of Error that the retroactive application of Megan‘s Law to designate Alexander аs a sexual predator implicates state and federal prohibitions against ex post facto law. Alexander was convicted of rape in 1990. On August 31, 2004, Alexander waived his right to a hearing and stipulated to a finding that he be classified as a sexual predator.
{¶28} Alexander did not file a direct appeal of his convictions and sentences, nor did he directly challenge his classification as a sexual predator. We find that Alexander‘s claims are bаrred by res judicata.
{¶29} Even if Alexander‘s claim was not barred by res judicata, his argument still fails as a matter of law. “While there has been some confusion in recent years regarding the constitutionality of the amended sex offender registrаtion law under the Adam Walsh Act, see State v. Bodyke, 126 Ohio St.3d 266, 933 N.E.2d 753, 2010-Ohio-2424, the Ohio Supreme Court has consistently held that the pre-Adam Walsh Act versions of
{¶30} Alexander‘s third Assignment of Error is overruled.
CONCLUSION
{¶31} The judgment of the Stark County Court of Common Pleas is affirmed in part and reversed and remanded in part to conduct a hearing pursuant to
By: Delaney, J., Hoffman, P.J. and Wise, J., concur.