State v. AndersonState v. Anderson
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-510427
RELEASED: May 13, 2010
JOURNALIZED:
John P. Parker, Esq. 988 East 185th Street Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Katherine Mullin, Esq. Assistant County Prosecutor 1200 Ontario Street Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant LaTangia Anderson appeals from the trial court‘s denial of her motion to vacate her guilty plea to one count of murder. For the reasons set forth below, we affirm defendant‘s conviction but remand for correction of her sentence to delete the imposition of postrelease control.
{¶ 2} On May 8, 2008, defendant was indicted in connection with the death of Charles Gooden for one count of aggravated murder, one count of murder, and one count of felonious assault. On October 14, 2008, defendant entered into a plea agreement with the state of Ohio whereby the charges of aggravated murder and felonious assault were dismissed in exchange for defendant‘s guilty plea to the charge of murder. During these proceedings, her counsel stated:
{¶ 3} “I believe that, if she‘s released at some point in the future, she would be subject to postrelease control of up to five years.” In addition, after outlining the pertinent constitutional rights, the trial court stated:
{¶ 4} “You‘re pleading guilty to count two, which is a — it‘s a felony of the first degree, and its subject to a sentence of 15 years to life. Do you understand that?
{¶ 5} “DEFENDANT: Yes.
{¶ 6} “* * *
{¶ 7} “THE COURT: And you would be subject, upon any release from prison, to postrelease control of five years. Do you understand that?
{¶ 9} Thereafter, on October 30, 2008, prior to sentencing, defendant moved to vacate the guilty plea, contending that she did not understand the consequences of the plea, that exculpatory evidence was produced that she could not review, that her attorney forced her to plead guilty, and that she was innocent.
{¶ 10} The trial court held a hearing on the matter on November 21, 2008. At this time, defendant‘s counsel stated that the reference to postrelease control during the plea proceedings “may have been confusing to my client in that she felt that there may be an opportunity for her to receive postrelease control from the institution when that is incorrect. This is a parole situation. She would be facing 15 years to life and it would be determined by the Parole Board.”
{¶ 11} Defendant‘s trial counsel also stated that the trial court did not inquire further after defendant indicated in the plea proceedings that she takes prescription medication. Counsel additionally noted that during the plea hearing, defendant stated that she was not satisfied with the representation that her trial counsel had provided, then later said that she was satisfied with the representation. Finally, defendant‘s trial counsel noted that defendant stated on the record that she said “Some things I don‘t understand but they don‘t need to go - -[.]”
{¶ 12} The trial court denied the motion to vacate the guilty plea and
{¶ 13} For her first assignment of error, defendant contends that the trial court failed to comply with
{¶ 14} Both the Ohio and the United States Constitutions require that a defendant entering a guilty plea must do so knowingly, intelligently, and voluntarily. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450, 1996-Ohio-179.
{¶ 15}
{¶ 16} “In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
{¶ 18} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{¶ 19} “(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.”
{¶ 20} In determining whether the trial court has satisfied its duties under
{¶ 21} For non-constitutional rights, scrupulous adherence to
{¶ 22} If the trial judge imperfectly explained non-constitutional rights such as the right to be informed of the maximum possible penalty and the effect of the plea, a substantial-compliance rule applies. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462. In Clark, the Ohio Supreme Court noted that defendants who are sentenced for unclassified felonies are not subject to postrelease control, pursuant to
{¶ 23} The Clark Court additionally explained that because parole is not certain to occur, trial courts are not required to explain it as part of the maximum possible penalty in a
{¶ 25} The Clark Court further held that, because the defendant who is sentenced to an unclassified felony is not eligible for postrelease control, the trial court is not required to discuss postrelease control or parole in the defendant‘s plea colloquy under
{¶ 26} In this matter, the trial court erroneously indicated that defendant would be subject to five years of postrelease control but postrelease control is not applicable since murder is an unclassified felony. In State v. Douglass, Butler App. Nos. CA2008-08-199 and CA2008-07-168, 2009-Ohio-3826, the court
{¶ 27} “[B]ased on the facts of this case, we find the trial court‘s colloquy did not substantially comply with
{¶ 28} “Yet, that being said, there is simply nothing to suggest appellant‘s guilty plea would have been different had the trial court explicitly informed him that aggravated murder was not subject to a mandatory term of postrelease control at the plea hearing. As noted above, the trial court correctly informed appellant in the ‘Plea of Guilty and Jury Waiver’ form, as well as numerous occasions during the plea hearing, that entering a guilty plea to aggravated murder would carry the potential maximum penalty of life in prison without the possibility of parole. In addition, the record is devoid of any evidence indicating appellant misunderstood the ramifications of his decision. As a result, appellant
{¶ 29} Applying the foregoing to this matter, we note that the trial court‘s failure to advise defendant of parole does render the plea proceedings defective because parole is not certain to occur. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462. Nonetheless, insofar as the trial court informed defendant that she would be subject to five years of postrelease control, the trial court‘s colloquy did not substantially comply with
{¶ 30} Moreover, there is no evidence in the record suggesting that defendant‘s plea would have been otherwise had she known the actual conditions of parole. Without some evidence that defendant was motivated by the expectation of being subject to postrelease control upon release, we must affirm the plea. State v. Clark, Cuyahoga App. No. 2006-A-0004, 2008-Ohio-6768. However, because the trial court erroneously included a postrelease control provision in the sentencing entry, the matter must be remanded to correct the sentencing entry. State v. Jordan, Cuyahoga App. No. 91413, 2009-Ohio-4037.
{¶ 31} The assignment of error is without merit, but the matter is remanded for correction of the sentencing journal entry.
{¶ 32} For her second assignment of error, defendant asserts that the trial court erred in denying her motion to vacate her guilty plea.
{¶ 33} A motion to withdraw a guilty plea is governed by the standards set forth in
{¶ 35} The general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality. State v. Peterseim (1979), 68 Ohio App.2d 211, 214, 428 N.E.2d 863, citing Barker v. United States (C.A.10, 1978), 579 F.2d 1219, 1223. Nonetheless, a defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715. In ruling on a presentence withdrawal motion, the court must conduct a hearing and decide whether there is a reasonable and legitimate basis for the withdrawal of the plea. Id. The decision to grant or deny such a motion is within the sound discretion of the trial court. Id.
{¶ 36} It is not an abuse of discretion to deny a presentence motion to withdraw a guilty plea when a defendant: (1) is represented by competent counsel; (2) is given a full
{¶ 37} In this matter, we find no abuse of discretion in connection with the
{¶ 38} The second assignment of error is without merit.
{¶ 39} For her third assignment of error, defendant contends that the trial court‘s use of electronic signatures in this matter violated her rights as set forth in State ex rel. Drucker v. Reichle (1948), 81 N.E.2d 735, and her rights pursuant to
{¶ 40} Loc. R. 19 provides that “[t]he Court shall approve a journal entry deemed by it to be proper, sign it MANUALLY OR APPLY AN ELECTRONIC SIGNATURE TO THE JOURNAL ENTRY PURSUANT TO LOCAL RULE 19.1, and cause it to be filed with the Clerk, and notice of the filing of each journal entry for journalization shall on the day following such filing be published in the Daily Legal News.” (Emphasis in original.)
{¶ 41} In pertinent part,
{¶ 42} In State v. Pinkney, Cuyahoga App. No. 91861, 2010-Ohio-237, this court held that the use of electronic signatures does not violate
{¶ 44} “Defendant acknowledges that the journal entries he is challenging all contain electronic signatures. There is no evidence in this record, nor any contention by the defendant, that would lead us to suspect that the electronic signatures were authorized by anyone other than the judge in this case. Accordingly, the use of the electronic signature by the judge constituted the attestation of a judicial act. Accordingly, the journal entries at issue comply with the Local Rules, are not inconsistent with the criminal or civil rules of procedure, and were valid under the law of this jurisdiction. See State v. Nicholson, Cuyahoga App. No. 91652, 2009-Ohio-3592, ¶ 9-11.”
{¶ 45} In accordance with the foregoing, the third assignment of error is without merit.
{¶ 46} Defendant‘s guilty plea to murder is affirmed but the matter is remanded for correction of the sentencing journal entry to delete the reference to postrelease control.
It is ordered that appellee recover from appellant 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
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
ANN DYKE, JUDGE
JAMES J. SWEENEY, J., CONCURS;
SEAN C. GALLAGHER, A.J., CONCURS WITH ATTACHED CONCURRING OPINION
{¶ 47} I concur fully with the judgment and analysis of the majority. I write separately because I believe it is important to address the application of new technology when issues regarding its implementation, or use, are raised.
{¶ 48} Anderson asserts that the trial court‘s use of an “electronic signature” on many journal entries in her case is tantamount to the use of a “rubber stamp,” a practice that was disavowed by this court in State ex rel. Drucker v. Reichle (1948), 81 N.E.2d 735.
{¶ 49} The proponents of the use of “electronic signatures” in Cuyahoga
“19.1 ELECTRONICALLY SIGNED DOCUMENTS
“(A) The following definitions shall apply to this rule:
“‘Electronic’ and ‘Electronic Signature’ have the same meaning as used in section
1306.01 of the Ohio Revised Code .“The term ‘Document’ includes journal entries, notices, orders, opinions, and any other filing by a Judge or Magistrate of this Court.
“(B) Electronic transmission of a document with an electronic signature by a Judge or Magistrate that is sent in compliance with procedures adopted by the Court shall, upon the complete receipt of the same by the Clerk of Court, constitute filing of the document for all purposes of the Ohio Civil Rules, Ohio Criminal Rules, Rules of Superintendence, and the Local Rules of this Court.
“(C) Electronic transmission of an indictment with an electronic signature by a Grand Jury Foreperson that is sent in compliance with procedures adopted by the Court shall, upon the complete receipt of the same by the Clerk of Court, constitute filing of the document for all purposes of the Ohio Civil Rules, Ohio Criminal Rules, Rules of Superintendence, and the Local Rules of this Court.”
{¶ 50} The rule borrows language from law covering electronic financial transactions under
{¶ 51} Loc.R. 19.1(B) references the Ohio Criminal Rules, thus implying the use of such a process is in compliance with the requirements of
{¶ 52} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus, the Supreme Court of Ohio held that
{¶ 53} At issue here is what constitutes a “judge‘s signature” under the third tier of the Baker test on determining a valid journal entry and thus what constitutes a final appealable order. Other cases have similarly listed the judge‘s signature as a necessary component of a journal entry. State v. Brock, Hamilton App. No. C-020819, 2003-Ohio-3199. Appellant‘s claim that the use of an electronic signature today is no different than the use of rubber stamps in the 1940s is worthy of review. Indeed, if there is a distinction, we ought to identify it, and if not, we should state there is no difference. The use of this new
{¶ 54} I would note that while some may argue a rubber stamp is distinguishable from an electronic signature, no case interpreting Criminal Rule 32 has expressly defined the distinction.
{¶ 55} The definition referenced in