State v. Driskill, 10-08-10 (5-4-2009)State v. Driskill, 10-08-10 (5-4-2009)
{¶ 1} Defendant-Appellant, Ricky Driskill, appeals the judgment of the Mercer County Court of Common Pleas denying his motion to withdraw his guilty plea and motion to declare his sentence void and for resentencing in consolidated cases numbered 10-08-10 and 10-08-11. On appeal, Driskill contends that, pursuant to State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, he should be permitted to withdraw his pleas and his sentence should be declared void because he was not advised at his change of plea hearing that he was subject to a mandatory five-year term of postrelease control. Finding that Driskill‘s arguments are barred by res judicata, we affirm the judgment of the trial court.
{¶ 2} In May 2005, in case 10-08-101, the Mercer County Grand Jury indicted Driskill on two counts of felonious assault in violation of
{¶ 3} In August 2005, Driskill entered a plea of not guilty by reason of insanity and a plea of not guilty as to each count in case 10-08-10.
{¶ 4} In July 2006, in case 10-08-112, the Mercer County Grand Jury indicted Driskill on one count of aggravated vehicular assault in violation of
{¶ 5} In August 2006, Driskill entered into plea agreements with the State in both case 10-08-10 and 10-08-11. Under the agreements, Driskill agreed to withdraw his prior pleas of not guilty and not guilty by reason of insanity and to enter pleas of guilty to one count of felonious assault and one count of theft of a motor vehicle, and the State agreed to request a nolle prosequi on the remaining count of felonious assault. Additionally, Driskill agreed to plead no contest to the vehicular assault count, and the State agreed to request a nolle prosequi on the aggravated vehicular assault count. Both plea agreements signed by Driskill provided, in pertinent part:
POST RELEASE CONTROL. In addition, a period of supervision by the Adult Parole Authority after release from prison may be mandatory in this case. If I am sentenced to prison for a felony 1 or felony sex offense, after my prison release I will have a mandatory 5 years of post release control under conditions determined by the Parole Board. If I am
sentenced to prison for a felony 2 or 3 which involved causing or threatening physical harm, I will have mandatory post release control of 3 years. If I receive prison for any other felony 3, felony 4, or felony 5, I may be given up to 3 years of post release control. A violation of any post-release control rule or condition can result in a more restrictive sanction while I am under post release control, AND/OR increased duration of supervision or control, up to the maximum term, OR re-imprisonment even though I have served the entire state prison term imposed upon me by this Court for all offenses. If I violate conditions of supervision while under post release control, the Parole Board could return me to prison for up to nine months for each new violation, for a total of ½ of my originally stated prison term. If the violation is a new felony, I could receive a prison term of the greater of one year or the time remaining on post release control, in addition to any other prison term imposed for the offense.
(Aug. 2006 Plea Agreements, p. 3).
{¶ 6} Subsequently, the trial court held a plea hearing, during which Driskill executed a “Waiver of Constitutional Rights Prior to Entering a Plea of Guilty” in each case, which included notifications that, if he was sentenced for a first or second degree felony, he would be subject to a period of postrelease control pursuant to
{¶ 7} On October 13, 2006, the trial court held a sentencing hearing for both cases. Shortly thereafter, on October 19, 2005, the trial court conducted a “Pronouncement of Sentence.” In case 10-08-10, the trial court sentenced Driskill to a four-year prison term on the felonious assault conviction and to a sixteen-month prison term on the theft of a motor vehicle conviction, to be served consecutively to each other and to his sentence in case 10-08-11. In case 10-08-11, the trial court sentenced him to a two-year prison term for vehicular assault. At the pronouncement of sentence, the trial court orally informed Driskill of the following:
I need to advise you that when you complete your prison sentences for these offenses, the total of which would be seven years and four months, you are — you will be subject to what‘s called post-release control for a term of up to five years. And during that period of time, you will be subject to supervision if placed on post-release control by the Adult Parole Authority. And if you violate those conditions, the law requires me to notify you at this time that you are subject to being re-incarcerated for a term of up to one-half of the total prison terms hereby imposed in these two cases, so that would be a total of three years and eight months.
(Oct. 2006 Pronouncement of Sentence, p. 7). Additionally, the trial court filed judgment entries of sentence in both cases, providing that Driskill “may” be required to serve a term of postrelease control. Shortly thereafter, Driskill appealed his conviction and sentence in both cases, each of which this Court dismissed in April 2007 for want of prosecution.
2006 Postconviction Petitions
{¶ 8} In December 2006, Driskill filed petitions for postconviction relief in both case 10-08-10 and 10-08-11, seeking to vacate his plea on the basis that his trial counsel was ineffective for failing to convey to him the chances of receiving jail time; for promising him probation; and, for failing to raise possible defenses. Additionally, Driskill requested an oral hearing.
{¶ 9} In March 2007, the trial court denied both petitions for postconviction relief as well as the request for an oral hearing, which Driskill appealed.
{¶ 10} In March 2008, this Court affirmed the trial court‘s overruling of Driskill‘s petitions for postconviction relief in State v. Driskill, 3d Dist. Nos. 10-07-03, 10-07-04, 2008-Ohio-827.
Motion to Withdraw Guilty Plea/ Motion for Resentencing
{¶ 11} In May 2008, Driskill filed a motion to withdraw his guilty plea pursuant to
{¶ 12} In September 2008, the trial court found that Driskill‘s motion to withdraw his guilty plea and his motion to declare his sentence void were untimely
{¶ 13} It is from the trial court‘s denial of his motion to withdraw his guilty plea and motion to declare his sentence void that Driskill appeals, presenting the following assignment of error for our review.
THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT DENIED APPELLANT‘S MOTION TO WITHDRAW THE PLEA AND MOTION TO DECLARE HIS SENTENCE NULL AND VOID[.]
{¶ 14} In his sole assignment of error, Driskill contends that the trial court abused its discretion when it denied his motion to withdraw his plea and his motion to declare his sentence void. Specifically, Driskill argues that State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, requires that his sentence be declared void, and that the trial court should not have construed his motion to withdraw his plea as a postconviction relief petition because it was filed pursuant to
{¶ 15} As Driskill‘s argument is two-fold, we will discuss his motion to declare his sentence void and his motion to withdraw his plea separately, preceded by an overview of
Crim. R. 11, State v. Sarkozy, and State v. Boswell
{¶ 16}
(2) 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:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(Emphasis added).
{¶ 17} Generally, where a defendant asserts that his plea was not entered voluntarily and knowingly because he was not adequately advised of his
{¶ 18} The Supreme Court of Ohio recently discussed the requirements of
1. If a trial court fails during a plea colloquy to advise a defendant that the sentence will include a mandatory term of
postrelease control, the defendant may dispute the knowing, intelligent, and voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct appeal. 2. If the trial court fails during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the court fails to comply with Crim. R. 11, and the reviewing court must vacate the plea and remand the cause.
Sarkozy, 2008-Ohio-509, at paragraphs one and two of the syllabus. Additionally, the Supreme Court differentiated the situation in Sarkozy from other situations implicating a substantial compliance analysis. The Court held that, where the trial court completely failed to even mention postrelease control during the plea colloquy, substantial compliance could not be accomplished, as “[a] complete failure to comply with [Crim. R. 11] does not implicate an analysis of prejudice.” Id. at ¶ 22. But, see, Id. at ¶¶ 27-30 (Lanzinger, J., and Cupp, J., concurring in part and dissenting in part) (finding that the traditional test under Nero, 56 Ohio St.3d at 108, requiring the defendant to demonstrate prejudice should apply in these circumstances).
{¶ 19} Additionally, the Supreme Court very recently addressed
Motion to Declare Sentence Void
{¶ 20} First, we address Driskill‘s argument that his sentence should be declared void because he was not advised at his plea hearing that he would be
{¶ 21} Initially, we note that Driskill‘s motion to declare his sentence void was not filed pursuant to a specific rule of criminal procedure. The Supreme Court of Ohio has held that, “[w]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶ 22} An appellate court reviews a trial court‘s denial of a petition for postconviction relief under an abuse of discretion standard. State v. Jones, 3d Dist. No. 4-07-02, 2007-Ohio-5624, ¶ 16, citing State v. Campbell, 10th Dist. No. 03-AP-147, 2003-Ohio-6305; State v. Calhoun, 86 Ohio St.3d 279, 284, 1999-Ohio-102. An abuse of discretion connotes more than an error of law or judgment and implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Nagle, 11th Dist. No. 99-L-089, 2000 WL 777835, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying an abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. Id.
{¶ 23}
{¶ 24}
Where the trial court fails to do both, it fails to comply with
{¶ 25} Several years after deciding Jordan, the Supreme Court of Ohio clarified its decision in Bezak, holding that:
[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. The offender is entitled to a new sentencing hearing for that particular offense.
2007-Ohio-3250, at syllabus. Similarly, in Simpkins, the Supreme Court held that:
[i]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence.
2008-Ohio-1197, at ¶ 6.
{¶ 26} In Bezak, the defendant was convicted of offenses requiring postrelease control, which was properly included in the judgment entry of sentence; however, the defendant was not orally advised of such at the sentencing hearing. Similarly, in Simpkins and Boswell, supra, the defendants were convicted of offenses requiring mandatory postrelease control; however, the journal entries of sentencing did not indicate that the defendants were subject to postrelease control. In Whatley, the defendant was convicted of offenses requiring mandatory
These scenarios differ from Driskill‘s situation, where, although Driskill was not orally notified at his plea hearing that he would be subject to postrelease control, he was orally notified of such at the pronouncement of sentence, and postrelease control was properly included in the judgment entry of sentence. Therefore, unlike Bezak, Simpkins, Boswell, and Whatley, Driskill‘s sentence was not void. Additionally, as this error was apparent on the face of the record, Driskill could have raised these issues on direct appeal or in a timely petition for postconviction relief. See Szefcyk, supra, Deal, supra. Accordingly, the trial court did not abuse its discretion in finding that Driskill‘s argument in regard to his sentence was barred by res judicata.
Motion to Withdraw Guilty Plea
{¶ 27} Driskill next argues that the trial court should not have construed his
{¶ 28} Appellate review of the trial court‘s denial of a motion to withdraw a guilty plea is limited to whether the trial court abused its discretion. State v. Nathan (1995), 99 Ohio App.3d 722, 725, citing State v. Smith (1977), 49 Ohio St.2d 261. An abuse of discretion connotes more than an error of law or judgment
{¶ 29}
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.
{¶ 30} Initially, we note that, as discussed above, Driskill‘s sentence was not void because postrelease control was properly included in his sentence. Thus, the holding of Boswell that a motion to withdraw a guilty plea be considered as a presentence motion where the defendant‘s sentence is void does not apply here. Accordingly, we consider Driskill‘s motion as a post-sentence motion.
{¶ 31} The party moving to withdraw his plea of guilty post-sentence bears the burden of establishing a manifest injustice. Smith, 49 Ohio St.2d 261, at paragraph one of the syllabus. A manifest injustice is an exceptional defect in the plea proceedings, State v. Vogelsong, 3d Dist. No. 5-06-60, 2007-Ohio-4935, ¶ 12, or a “`clear or openly unjust act.‘” State v. Walling, 3d Dist. No. 17-04-12, 2005-Ohio-428, ¶ 6, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271. Accordingly, a post-sentence motion to withdraw a guilty plea is only granted in “extraordinary cases.” Smith, 49 Ohio St.2d at 264.
{¶ 32} The Supreme Court of Ohio has held that a trial court may not categorize or construe a
{¶ 33} Here, under Bush, the trial court erred when it categorized Driskill‘s motion to withdraw his plea as a petition for postconviction relief. As his motion was specifically filed pursuant to
{¶ 34} The trial court also denied Driskill‘s motion on the basis that his argument was barred by res judicata because he failed to object to the issue at sentencing. As discussed above, res judicata operates to prohibit a defendant from raising issues in another proceeding when those issues were raised or could have been raised on direct appeal of the trial court‘s judgment. Deal, 2008-Ohio-5408, at ¶ 8, citing Perry, 10 Ohio St.2d 175, at paragraph nine of the syllabus. Additionally, “[r]es judicata bars claims raised in a
{¶ 35} Here, the trial court‘s error in failing to orally notify Driskill of postrelease control at his plea hearing was apparent on the face of the record as the trial court notified Driskill of postrelease control at the pronouncement of sentence and in the judgment entry of sentencing. Thus, Driskill could have raised on appeal the trial court‘s failure to orally notify him of postrelease control at his plea hearing. Further, Driskill could have raised this issue in his 2006 petitions for postconviction relief, in which he sought withdrawal of his plea due to ineffective
{¶ 36} Finally, we note that, even if Driskill‘s argument was not barred by res judicata, we would distinguish this case from the facts presented in Sarkozy. First, in Sarkozy, the defendant sought to withdraw his plea in a pro se oral motion prior to sentencing and in his direct appeal. Here, Driskill did not seek to withdraw his plea prior to sentencing or in his direct appeal. Additionally, in Sarkozy, there was no evidence that the defendant was advised of postrelease control via a signed, written plea agreement and a signed, written waiver of constitutional rights prior to entering his plea. Here, as Driskill signed both a written plea agreement and waiver of constitutional rights that notified him he would be subject to postrelease control, he had actual notice of such. Cf. State v. Abuhashish, 6th Dist. No. WD-07-048, 2008-Ohio-3849, ¶¶ 35-36 (finding that trial court substantially complied with
{¶ 37} Accordingly, we overrule Driskill‘s assignment of error.
{¶ 38} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.