Case Information
*1
[Cite as
State v. Chandler
,
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2010-CA-00295 WILLIAM B. CHANDLER :
:
Defendant-Appellant : O P I N I O N CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2007- CR-0915
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 29, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO E. KELLY MIHOCIK Prosecuting Attorney Office of Ohio Public Defender By: RENEE M. WATSON 250 Broad St., Ste. 1400 Assistant Prosecuting Attorney Columbus, OH 43215 110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
[Cite as
State v. Chandler
,
Gwin, P.J.
{¶1} Appellant, William B. Chandler, appeals a judgment of the Stark County Common Pleas Court overruling his motion to withdraw his guilty plea to one count of escape (R.C. 2921.34(A)(1)(C)(2)(B)). Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE {¶2} In 2005, appellant entered a guilty plea to one count of domestic violence, a felony of the third degree. His plea form advised him that he would be subject to a mandatory period of post-release control for a maximum of three years. Similarly, his sentencing entry stated that “post-release control is mandatory in this case up to a maximum of three (3) years.” Appellant did not appeal. Follоwing his release from prison, appellant began serving his period of
post-release control. In March, 2007, he was charged with escape for failing to return to intermittent confinement. In June, 2007, he entered a plea of guilty and was sentenced to four years community control in August, 2007. Again he did not appeal the judgment. Appellant violated the terms of his community control in October 2009, when he was arrested for opеrating a vehicle under the influence, possession of drug paraphernalia and violating his curfew. In November of 2009, the trial court revoked appellant’s community control and sentenced him to five years’ incarceration. Appellant did not challenge this judgment. On March 24, 2010, appellant filed a motion to withdraw his 2007 guilty
plea to one count of escape. He argued that because post-release control was not properly imposed in 2005, that portion of the judgment imposing post release control was void. Because post release control was not properly imposed, he could not be *3 convicted of escape for violating the terms of a void judgment. The court overruled the motion, finding his challenge barred by res judicata. Appellant assigns a single error on appeal: “RES JUDICATA DOES NOT APPLY WHEN CHALLENGES ARE MADE
TO VOID SANCTIONS. IT WAS LEGALLY IMPOSSIBLE FOR MR. CHANDLER TO ESCAPE FROM POST RELEASE CONTROL BECAUSE THAT SANCTION WAS VOID. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RELIED ON PRINCIPLES OF RES JUDICATA WHEN IT DENIED MR. CHANDLER’S MOTION TO WITHDRAW HIS GUILTY PLEA.”
I. {¶7} In June 2007 аppellant was placed on community control when he pled guilty to Escape. At that time the trial court reserved a five year prison term. R.C. 2929.15(B) applies to offenders who were initially sentenced to community control sanctions and permits a trial court to newly impose a prison term upon an offender who later violates the community control sanctions. In 2009 appellant was sentenced to prison for a violation of the community control sanctions that were imposed in 2007. Appellant in this appeal seeks to avoid the five year prison sentence imposed for violating the community control sanctions by withdrawing the plea he entered in 2007 because the trial court imperfectly explained the three year period of post-release control for appellant’s convictiоn for domestic violence in 2005. The entry of a plea of guilty is a grave decision by an accused to dispense
with a trial and allow the state to obtain a conviction without following the otherwise
difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v.
*4
United States (1962), 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473. A plea of guilty
constitutes a complete admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of
guilty, the accused is not simply stating that he did thе discreet acts described in the
indictment; he is admitting guilt of a substantive crime.” United v. Broce (1989), 488
U.S. 563, 570,
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only "substantially comply" with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d at 475, 20 O.O.3d at 398,
rights would invalidate a guilty plea under a presumption that it was entered involuntarily
and unknowingly, failure to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice.[ State v. Nero (1990), 56 Ohio St.3d
106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have
otherwise been made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant’s] plea and determine whether he
subjectively understood [the effect of his plea].” See, State v. Sarkozy, 117 Ohio St.3d
86,
states: "[a] motion to withdraw a plea of guilty or no contest may be made only before
sentence is imposed; but to correct manifest injustice the court after sentence may set
aside the judgment of conviction and permit the defendant to withdraw his or her plea."
In the case at bar, because appellant's request was made post-sentence, the standard
by which the motion was to be considered was "to correct manifest injustice."
The accused has the burden of showing a manifest injustice warranting
the withdrawal of a guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d
1324, paragraph one of the syllabus. A manifest injustice has been dеfined as a "clear
or openly unjust act." State ex rel. Schneider v. Kreiner (1998),
958, the Supreme Court of Ohio held “thе de novo sentencing procedure detailed in the decisions of the Ohio Supreme Court is the appropriate method to correct a criminal sentence imposed prior to July 11, 2006, that lacks proper notification and imposition of post-release control.” Id. at ¶ 35. In the case at bar, appellant was originally sentenced May 19, 2005. At the outset, we note that appellant never chаllenged the imposition of post-release control in the case which imposed it, i.e. Stark County Court of Common *6 Pleas, Case No. 2005CR0526, by filing a motion to correct the sentence, or a direct appeal. As noted by the Ohio Supreme Court, a court imposing mandatory post-
release control is required “to include in the sentencing entry a statement that [the]
offender convicted of a first or second-degree felony offense will be subject to post-
release control after leaving prison.” State v. Bloomer,
statement indicating appellant was subject to a mandatory three-year term of post-
release control upon his release, it does not conform to statutory mandates, and
therefore, is void. See Id .; see, also, State v. Jordan, 104 Ohio St.3d 21, 817 N.E.2d
864,
11 in taking a plea, reviewing courts have distinguished between constitutional and non-
constitutional rights. State v. Clark , 119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio-
*7
3748 at ¶ 32; State v. Aleshire , Licking App. No. 2007-CA-1,
procedure for a reviewing court, “When the trial judge does not substantially comply with
Crim.R. 11 in regard to a non-constitutional right, reviewing courts must determine
whether the trial court partially complied or failed to comply with the rule. If the trial
judge partially complied, e.g., by mentioning mandatory post-release control without
explaining it, the plea may be vacated only if the defendant demonstrates a prejudiciаl
effect. See Nero ,
of the maximum possible penalty and the effect of the plea are subject to the substantial
compliance test. 119 Ohio St.3d at 244, 893 N.E.2d at 469,
failure of the trial court to mention that the defendant was subject to mandatory post-
release control (which is part of the maximum penalty) was a complete failure to comply
with Crim.R. 11 and required that the plea be vacated without consideration of the issue
of prejudice. See, also State v. Clark ,
Court concluded that “[i]f a trial judge, in conducting a plea colloquy, imperfectly
explains non-constitutional rights such as the right to be informed of the maximum
possible penalty and thе effect of the plea, a substantial-compliance rule applies on
appellate review; under this standard, a slight deviation from the text of the governing
rule is permissible, and so long as the totality of the circumstances indicates that the
defendant subjectively understands the implications of his plea and the rights he is
waiving, the plea may be upheld.” Id. at ¶ 31,
the appellant was advised that he 1). Was subject to mandatory post-release control;
and 2). That the period of post-release control would not exceed three years. Thus, the
case at bar concerns a misstatement not a complete failure to inform appellant that he
is subject to post-release control in 2005.
*9
Recently, the Ohio Supreme Court in State v. Fischer,
2010– Ohio– 6238 concluded that the defendant is only entitled to a hearing for the
proper imposition of post-release control. Accordingly, appellant may not raise new
issues, or issues he had previously raised on his direct appeal. See also, State v.
Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9,
in filing his motion to withdraw the negotiated guilty plea to the Escape charged which he entered in 2007 and the over five-year delay in contesting the imposition of post- release control in his original sentence entered in 2005. Nor has he provided any explanation for not filing a direct appeal in either case. In Fischer, the Supreme Court made clear that “[a]lthough the doctrine of
res judicata does not preclude review of a void sentence, res judicata still applies to
other aspects of the merits of a conviction, including the determination of guilt and the
lawful elements of the ensuing sentence.” Id. at paragraph three of the syllabus. The
application of res judicata to a motion to withdraw is not impacted by a void sentence.
In State v. Fountain, 8th Dist. Nos. 92772 and 92874, 2010–Ohio–1202
the appellant raised the issue that Chandler is raising here. Fountain argued “that his
plea was not voluntary because the trial court misinformed him at his plea hearing that
he may receive, rather than that he would receive, post-release control.” (Emphasis
added.) Id . at ¶ 11. The court rejected that argument, howevеr, because “Fountain
could have raised that issue on direct appeal.” Id. Therefore, the Court in Fountain
*11
concluded that Fountain's motion was barred by res judicata, and overruled his
assigned errors pertaining to his motion to withdraw. See also, State v. Bell, 8 th Dist. No.
95719,
{¶27}
In the case at bar, appellant attempts to leap-frog his 2007 plea by
invalidating the post-release control portion of his 2005 sentence. In this case appellant
could have raised the imprecise nature of the trial court’s post-release control language
in a direct appeal from his 2005 sentence for domestic violence or in a petition for post-
conviction relief while he was imprisoned. He did not. Had appellant raised the issue at
that time then the proper procedure would have been to simply hold a new sentencing
hearing limited to proper imposition of post release control. State v. Fischer, 128 Ohio
St.3d 92,
post-release control, appellant could have sought relief from the imposition of post release control. Again he did not. Appellant could again have raised any problem with the nаture of post-
release control in the trial court at the time he was charged with Escape in 2007. Again, he did not. Nor did he file an appeal from his conviction and sentence in that case. Rather than avail himself of any of these remedies appellant waited until he completed his sentence for domestic violence, was charged with a new offense, pled guilty to that offense, was sentenced and completed nearly two years of community control sanctions on that offense, and was sentenced to prison for violating the community control sanctions in that case before he made his first attempt to challenge the imposition of post-release control by the trial court in 2005. *12 The unfortunate result of the Supreme Court’s “void sentence” language is
that defendants are encouraged not to сhallenge technically incorrect post-release control orders until after they are released or until after they are charged with a violation or a new crime because the problem cannot then be rectified. In the case at bar, appellant pled guilty to Escape. A plea of guilty
constitutes a complete admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not simply stating that he did the discreet acts described in the indictment; he is admitting guilt of a substantive crime.” United v. Broce (1989), 488 U.S. 563, 570, 109 S.Ct. 757, 762. In this matter, appellant contends that his plea in 2007 was not voluntary because the trial court in 2005 misinformed him at his plea hearing that he may receive, rather than that he would receive, post-release control. However, appellant could have raised the issue that the trial court imprecisely informed appellant about the length of post-release control on direct appeal in 2005 or at least on a direct appeal in 2007. Therefore, his motion to withdraw his guilty plea filed in 2009 is barred by res judicata. Appellant’s sole Assignment of Error is overruled. *13 The judgment of the Stark County Common Pleas Court is affirmed.
By Gwin, P.J., and
Hoffman, J., concur
Edwards, J., dissents
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. WILLIAM B. HOFFMAN _________________________________ HON. JULIE A. EDWARDS WSG:clw 0808
EDWARDS, J., DISSENTING OPINION
{¶35} I dissent from the majority opinion. I agree with the majority that the postrelease control portion of aрpellant’s underlying sentence for domestic violence was void. However, I would find that because that portion of the sentence was void and because a violation of the void portion of the sentence gave rise to the charge of escape, appellant was not barred by res judicata from withdrawing his plea to escape.
{¶36} I find the majority’s discussion of Crim. R. 11 and whether the court substantially complied when informing appellant of postrelease control to be irrelevant in the instant case. This is not a case where he is seeking to withdraw a plea because he was not properly advised of postrelease control. Rather, he is seeking to withdraw the plea because it is impossible for him to commit the crime of escape when the criminal act is predicated on his violatiоn of a void sentence.
{¶37}
A sentence that does not include the statutorily mandated term of
postrelease 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 ,
{¶38}
In State v. Billiter , Stark App. No. 2010CA00292,
{¶39} I would find that because appellant was not validly advised of postrelease contrоl, that portion of his domestic violence sentence was void. Because this is the very portion of his domestic violence sentence which he pleaded guilty to have violated in his escape conviction and which may be challenged at any time, I would conclude that the trial court erred in finding his motion to withdraw his plea barred by res judicata.
___________________________________________ Judge Julie A. Edwards
[Cite as
State v. Chandler
,
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
: -vs- : JUDGMENT ENTRY
:
WILLIAM B. CHANDLER :
:
: Defendant-Appellant : CASE NO. 2010-CA-00295 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Common Pleas Court is affirmed. Costs to appellant.
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. WILLIAM B. HOFFMAN _________________________________ HON. JULIE A. EDWARDS