State v. KnowlesState v. Knowles
Rendered on September 6, 2011
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Lisa Fields Thompson, for appellant.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶1} Defendant-appellant, Alawwal A. Knowles (“appellant“), appeals from a judgment entered by the Franklin County Court of Common Pleas denying his motion to withdraw guilty plea. For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On July 23, 2004, appellant was indicted in a multi-count indictment charging him with 13 counts of attempted murder, 13 counts of felonious assault, two counts of failure to comply with an order or signal of a police officer, and numerous firearm specifications. The charges arose from an altercation involving two of appellant‘s cousins. That altercation eventually resulted in appellant shooting both cousins multiple
{¶3} On July 12, 2005, appellant entered pleas of guilty to three counts of attempted murder, all with three-year firearm specifications, and two counts of felonious assault without the firearm specifications. The parties did not recommend a sentence as part of the plea bargain. The plea form signed by appellant, his counsel, the prosecuting attorney, and the trial judge included a provision which stated appellant would be subject to a mandatory five-year period of post-release control if a prison term was imposed at sentencing. It also set forth the more restrictive sanctions which could be imposed if appellant violated post-release control.
{¶4} On September 14, 2005, a sentencing hearing was held. At the sentencing hearing, appellant signed a “Prison Imposed” notice which notified appellant of a five-year period of post-release control and the possibility of the imposition of more restrictive sanctions in the event that he violated post-release control. The trial court imposed an aggregate sentence of 39 years of incarceration. A judgment entry journalizing this sentence was filed on September 15, 2005.
{¶5} Appellant did not file a timely direct appeal. However, on December 9, 2005, appellant, pro se, filed a motion for leave to appeal from the September 2005 judgment entry, as well as motions for appointment of counsel and for preparation of the transcripts at state expense. In his motion for leave to file a delayed appeal, appellant stated he was unable to file a timely appeal due to a lack of counsel subsequent to the plea and a lack of knowledge that an appeal could be filed from a plea under certain
{¶6} On July 20, 2006, appellant, pro se, filed a second motion for leave to file a delayed appeal, asserting he lacked legal knowledge and experience and had been under psychiatric care and thus was unable to timely file a notice of appeal. On August 29, 2006, we again denied appellant‘s motions for leave to file a delayed appeal, for appointment of counsel, and for preparation of a transcript, concluding his additional reasons for filing a delayed appeal failed to demonstrate a reasonable explanation for his failure to perfect a timely appeal. State v. Knowles (Aug. 29, 2006), 10th Dist. No. 06AP-756 (memorandum decision).
{¶7} On March 7, 2008, appellant filed a
[I.] The trial court erred when it permitted Alawwal A. Knowles to enter a plea to the charges against him when that plea was not given knowingly, intelligently, and voluntarily.
{¶9} Appellant appeals the trial court‘s denial of his motion to withdraw guilty plea. In his sole assignment of error, appellant argues his plea was not knowingly, intelligently, and voluntarily entered because the trial court failed to properly comply with
{¶10} Motions to withdraw guilty pleas are governed by
{¶11} In the instant case, the motion to withdraw guilty plea was filed after sentencing. Thus, the trial court was required to determine whether granting the motion is necessary to correct a manifest injustice. “Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.” State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶5. Manifest injustice ” ‘is an extremely high standard, which permits a defendant to withdraw his guilty plea only in extraordinary cases.’ ” State v. Tabor, 10th Dist. No. 08AP-1066, 2009-Ohio-2657, ¶6, quoting State v. Price, 4th Dist. No. 07CA47, 2008-Ohio-3583, ¶11. A guilty plea that was not made knowingly, intelligently, or voluntarily, creates a manifest injustice and would entitle a defendant to withdraw the plea. Williams at ¶5.
{¶12} “A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice.” State v. Smith (1977), 49 Ohio St.2d 261, paragraph one of the syllabus. A motion pursuant to
{¶14} Regardless of whether the principles of res judicata apply, we find appellant‘s appeal improperly raises new issues for the first time which were not previously raised for consideration by the trial court.
{¶15} On appeal, appellant does not challenge the trial court‘s determinations that: appellant‘s claim of actual innocence was not supported by the record; there was no evidence that appellant‘s plea was coerced; and appellant failed to provide a reasonable explanation for how his purported periods of mental health problems prevented him from filing the instant motion for four years. Instead, appellant raises new arguments which were not previously raised in the trial court. In his appellate brief, appellant argues, for the first time, that his pleas were not intelligently, knowingly, and voluntarily made because the trial court failed to properly comply with
{¶16} Because appellant did not raise these issues in the trial court, these arguments have been waived. See State v. Gripper, 10th Dist. No. 10AP-1186, 2011-Ohio-3656, ¶11, citing State v. Burge (1993), 88 Ohio App.3d 91, 93; State v. Comen
{¶17} Nevertheless, we find it necessary to briefly address the merits of the issue of notification of post-release control, given that the Supreme Court of Ohio recently determined that principles of res judicata, including the law of the case doctrine, do not preclude appellate review where the trial court fails to impose post-release control in accordance with the statutorily mandated terms, and therefore, the issue may be reviewed at any time.1 State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶30.
{¶18} In reviewing the transcripts of the plea proceedings and sentencing hearing, as well as the plea form, the sentencing entry and the post-release control notice, it is evident that the notice provided was sufficient and the trial court properly imposed post-release control. Appellant signed a plea form which stated he would be subject to five years of mandatory post-release control and also advised that a violation of post-release control could result in more restrictive sanctions, including a longer period of supervision and/or reimprisonment, as well as additional prison time for the commission of a new felony while on post-release control. (Entry of Guilty Plea; R. 92.) During the plea
{¶19} We have previously found similar notifications to be sufficient and to constitute the proper imposition of post-release control. See State v. Chandler, 10th Dist. No. 10AP-369, 2010-Ohio-6534; State v. Mays, 10th Dist. No. 10AP-113, 2010-Ohio-4609; State v. Cunningham, 10th Dist. No. 10AP-452, 2011-Ohio-2045; State v. Easley, 10th Dist. No. 10AP-505, 2011-Ohio-2412; and State v. Amburgy, 10th Dist. No. 04AP-1332, 2006-Ohio-135. Furthermore, we believe that appellant received proper notification of post-release control at the plea hearing, based upon the notification set forth in the plea form and the trial court‘s inquiry into appellant‘s understanding of the form. This makes the instant case distinguishable from the facts in Sarkozy. In that case, there was absolutely no mention of post-release control at the plea hearing. “Rather, the court failed to mention postrelease control at all during the plea colloquy. Because the trial court
{¶20} Based upon the foregoing analysis, we overrule appellant‘s single assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRYANT, P.J., and FRENCH, J., concur.
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