State v. KramerState v. Kramer
Rendered on the 15th day of July, 2011.
GIL WEITHMAN, Atty. Reg. #0018377, 205 South Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
NATALIE J. BAHAN, Atty. Reg. #0079304, 118 E. Court Avenue, Bellefontaine, Ohio 43311 Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Helena Kramer appeals from a judgment overruling her motions to withdraw a guilty plea to a fourth-degree misdemeanor conviction for Domestic Violence, and for post-conviction relief.
{¶ 2} Kramer contends that the trial court erred in applying a manifest injustice standard to the motions, because the judgment entry of conviction failed to contain a finding of guilt and was void or voidable. Kramer therefore contends that she should have been able to freely withdraw the guilty plea. Kramer also challenges the judgment entry of conviction on various other grounds, alleging that the judgment was not entered on the clerk‘s journal and was not effective; that the judgment adjudicated her for a crime for which she did not knowingly, intelligently, and voluntarily enter a guilty plea; and that the trial court violated
{¶ 3} We conclude that the original judgment of conviction complied with
{¶ 4} We further conclude that the trial court did not err in rejecting Kramer‘s untimely motion for post-conviction relief. Even if Kramer‘s explanation for the untimely filing is accepted, Kramer‘s constitutional rights were not violated. The trial court did attempt to amend the entry to reflect the proper crime of conviction by filing a nunc pro tunc
{¶ 5} We also conclude that the trial court‘s alleged error in issuing a nunc pro tunc order is not properly before us. The order does not comply with requirements for a judgment under
I
{¶ 6} In February 2009, a complaint was filed in the Champaign County Municipal Court, alleging that Helena Kramer had violated
{¶ 7} On the same day, a written waiver of rights and entry of plea was filed. In the form, Kramer pled guilty to the charge of “M4 Domestic Violence.” The form indicates that
{¶ 8} The bottom of the form contains a notation labeled “Entry,” which states that Kramer appeared in open court on February 12, 2009, and signed the waiver after being advised orally by the court of the content of the waiver of rights. Furthermore, the form states that the court found that Kramer understood the effect of her plea and that the plea was made knowingly, voluntarily, and intelligently. Finally, the form indicated that the court accepted the plea and ordered it to be filed.
{¶ 9} A judgment entry was filed on February 12, 2009. The caption of the judgment contains various information about the case, including the charge, which is listed as “ORC/Code No. 2919.25(A) M 1 Domestic Violence.” The entry lists various categories, including “Arraignment, Counsel, Bond, Continuance Date, Pretrial/Prelim Date, Trial Date, Jury Trial Date, Plea, and Decision.” Under the “Plea” section, “Guilty” is checked, with a date of February 12, 2009. The “Decision” Section reads as follows:
“The provisions of ORC sections 2937.02 to 2937.07 were complied with by the Court. Upon hearing the facts of the case, the Court enters its verdict of:
“____ Guilty ____ Not Guilty _____ Bound Over to Grand Jury ____Bond Forfeited
“____ Dismissed: with or without CC
“____ Dismissed: with or without prejudice.”
“2/12/09 - $50 F & CC
“30 & Susp 30
“PNC 3 yrs
“6 months Rage Counseling
“Stay in Treatment with current doctor.
“[Illegible]no contact with Kato Loudermilk.”
{¶ 10} On December 23, 2009, a nunc pro tunc notation was made on the February 12, 2009 entry. The notation is unsigned, bears no separate file-stamp, and states as follows:
{¶ 11} “Nunc Pro Tunc – Should have been amended to M-4 – amend to M 4 DV.”
In January 2010, Kramer filed a motion to withdraw her guilty plea. In the motion, Kramer pointed out errors in the judgment entry, and contended that she had not pled guilty to a first-degree misdemeanor, had not appeared in open court, and had not been personally addressed by the court. Kramer claimed that, as a result of these defects, the judgment was void. Kramer also pointed out other errors, including: (1) the court‘s failure to retain recordings of plea hearings in violation of S. Ct. Sup. R. 26(B)(2) and 26.05(G)(3); (2) the court‘s failure to have a “journal” as required by S. Ct. Sup. R. 26; and (3) the court‘s combination of the docket and journal in an electronic system that does not comply with S. Ct. Sup. R. 27. Kramer also filed a petition for post-conviction relief, alleging the same grounds for relief as in the motion to withdraw her guilty plea.
{¶ 12} In February 2010, the trial court held a hearing on the motions, and received
{¶ 13} Kramer testified that she did not enter the courtroom, and was not personally addressed by the court with regard to her charge. Instead, her attorney came out to the hallway and told her the sentence. Kramer said her attorney did not explain to her that if the charge happened again, it would be a felony. She stated that if she had known that, it would have made a difference. She could not say that she would have liked to have a jury trial, but she would have liked to have had time to talk to an attorney, to intelligently and knowingly make the decision. She stated that she had pled guilty to a fourth-degree misdemeanor, and was not aware, until her current attorney, Natalie Bahan, told her, that the judgment entry reflected that she had been convicted of a first-degree misdemeanor. Bahan had been appointed as counsel for Kramer on a subsequent domestic violence case that was filed in municipal court and bound over to the grand jury.
{¶ 14} Kramer also testified that she had a domestic violence charge prior to the
{¶ 15} At the conclusion of the testimony, Kramer‘s attorney raised the issue of electronic records, and stated that the Supreme Court of Ohio had not been able to provide her with a copy of the approval of the Champaign County Municipal Court‘s use of that technology for the recording of journal entries. The trial court responded by stating that the Supreme Court of Ohio had recommended the company that had installed the software system for the court.
{¶ 16} At the conclusion of the hearing, the trial court orally overruled the motion to withdraw. The court then filed a written entry, concluding that a plea in open court for the charge was not required by the Rules of Criminal Procedure. The court also concluded that no manifest injustice occurred, because even without approval of the court‘s software program, the court could not understand how manifest injustice or bias would be created for Kramer. The court observed that Kramer‘s case file was, in fact, retained, and that the court had a verbatim record of its orders and judgments.
{¶ 17} Kramer appeals from the order of the trial court denying her post-judgment motions.
II
{¶ 18} Kramer‘s First Assignment of Error is as follows:
{¶ 19} “THE JUDGMENT ENTRY FILED FEBRUARY 12, 2009, WAS VOID OR
{¶ 20} Under this assignment of error, Kramer contends that the judgment entry was void or voidable because the trial court did not enter a finding of guilt or innocence as to the statutory violation. Kramer contends that the trial court therefore should have considered her motion to withdraw her guilty plea as a pre-sentence motion under
{¶ 21} As an initial matter, we note that the State did not file a brief, and did not respond to our show cause order, which was issued in January 2011. Under
{¶ 22} Regarding motions to withdraw,
{¶ 23} “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.”
{¶ 24} Kramer contends that the original judgment was not properly entered, because it did not contain a finding of guilt or innocence.
{¶ 25} “A judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence. Multiple judgments of conviction may be
{¶ 26} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, the Supreme Court of Ohio considered
{¶ 27} “A judgment of conviction is a final appealable order under
{¶ 28} In explaining its holding, the Supreme Court of Ohio rejected the view of the Ninth District Court of Appeals, which had held that a judgment of conviction must include five elements, including the verdict or findings. Id. at ¶13, citing State v. Miller, 9th Dist. No. 06CA0046-M, 2007-Ohio-1353, ¶5. The Supreme Court of Ohio stressed that:
{¶ 29} “A more logical interpretation of
{¶ 30} “The Ninth District has failed to recognize that not all four methods of conviction have all five elements. Unlike a plea of no contest, which requires a trial court to make a finding of guilt, State v. Bird (1998), 81 Ohio St.3d 582, 584, 692 N.E.2d 1013, a plea
{¶ 31} In the case before us, the trial court was not required to check the box reflecting that upon hearing the facts (which it was not required to do), it had found Kramer “Guilty,” because the judgment entry indicates that Kramer had pled guilty. See, also, State ex rel. Rose v. McGinty, 128 Ohio St.3d 371, 372, 2011-Ohio-761, ¶2 (the court holds that the sentencing entry complied with
Accordingly, the February 12, 2009 judgment of conviction complied with
{¶ 32} Kramer‘s First Assignment of Error is overruled.
III
{¶ 33} Kramer‘s Second Assignment of Error is as follows:
{¶ 34} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT‘S PETITION FOR POST-CONVICTION RELIEF.”
{¶ 35} Under this assignment of error, Kramer contends that the trial court abused its
{¶ 36} Kramer conceded in the trial court that her petition was untimely under
{¶ 37} With regard to the first prong, Kramer argues that she was unaware of the error in the judgment until her attorney discovered it, after the time for filing a petition had elapsed. Kramer also contends that the consequences of the mistaken conviction were serious and placed her in the position of having to defend against a felony indictment for domestic violence in October 2009. As support for this proposition, Kramer has attached Appendix E to her brief. Appendix E purports to be a felony indictment issued against Kramer on one count of Domestic Violence, a felony of the fourth degree, one count of Attempting to Cause Harm to Another, a peace officer in the performance of his official duties, a felony of the fourth degree, and one count of Possession or Use of a Controlled Substance, a minor misdemeanor.1
{¶ 39} At the motion hearing, the parties did discuss changes to the Domestic Violence law that occurred after Kramer‘s plea of guilty to Domestic Violence in February 2009. The prosecutor noted that Kramer wanted to void her plea because she now faced a felony charge based on a prior conviction. The prosecutor argued that a great many people were affected by the change in the law, and that it would be an injustice to let Kramer void her conviction. See February 2, 2010 Transcript, pp. 48-49. Other than these statements, the parties did not discuss how the changes in the law may have specifically impacted Kramer.
{¶ 40} In ruling on the motions, the trial court did not specifically discuss the motion for post-conviction relief. However, the motion was based on the same grounds as the motion to withdraw the guilty plea, which the court did specifically address. We therefore, assume that the court overruled the motion for post-conviction relief as well. Shepard Grain Co. v. Creager, 160 Ohio App.3d 377, 384, 2005-Ohio-1717, ¶ 22 (“When a trial court disposes of a case, motions that have not been ruled upon are presumed to have been denied.“)
{¶ 41} We apply an abuse of discretion standard when we review denial of petitions for post-conviction relief. State v. Barb, Cuyahoga App. No. 94054, 2010-Ohio-5239, ¶20.
{¶ 42} Kramer was originally charged with having violated
{¶ 43} At the time of Kramer‘s original conviction in February 2009,
{¶ 44} Significantly, even if Kramer had been convicted of a violation of
{¶ 45} A few months after Kramer‘s guilty plea was entered, amendments to
{¶ 46} The amendments also added a new subdivision, (D)(6), which sets forth various mandatory prison terms that are to be applied. As an example, where a violation of
{¶ 48} We also note that the Waiver of Rights and Entry of Plea form that Kramer signed specifically states that “I understand that a subsequent offense could be charged as a felony.” Kramer acknowledged at the hearing that either she read the form or her attorney would have read it to her. February 2, 2010 Transcript, p. 38.
{¶ 49} We find no abuse of discretion. Even if we accept the explanation for the untimely filing, Kramer‘s rights were not violated. The trial court attempted to amend the entry to reflect the proper crime of conviction, and under either the amended or original charge, Kramer was subject to a felony enhancement under
{¶ 50} Kramer‘s Second Assignment of Error is overruled.
IV
{¶ 51} Kramer‘s Third Assignment of Error is as follows:
{¶ 52} “THE JUDGMENT ENTRY FILED FEBRUARY 12, 2009 WAS NOT EFFECTIVE BECAUSE IT WAS NOT ENTERED ON THE CLERK‘S JOURNAL AND THE TRIAL COURT ERRED, AS A MATTER OF LAW, WHEN IT APPLIED THE STANDARD OF ‘MANIFEST INJUSTICE’ TO APPELLANT‘S MOTION TO WITHDRAW GUILTY PLEA AND PETITION FOR POST-CONVICTION RELIEF.”
{¶ 54} As a preliminary matter, we note that trial counsel‘s conversation with an unknown person or persons from the clerk‘s office is not part of the record. If Kramer‘s counsel wished to make a record on this point, she should have presented witnesses at the hearing.
{¶ 55} We see no evidence of irregularity in the record regarding the original judgment of conviction, other than the fact that the charge listed in the caption,
{¶ 56} In State ex rel. White v. Junkin, 80 Ohio St.3d 335, 1997-Ohio-340, the Supreme Court of Ohio noted that placing information on a court‘s computerized docket is not tantamount to journalization of the court‘s decision. The Supreme Court noted that:
{¶ 57} “Dockets and journals are distinct records kept by clerks. See
{¶ 58} “A court speaks through its journals and an entry is effective only when it has been journalized.
{¶ 59} The court‘s February 12, 2009 entry complies with these requirements, as it is reduced to writing, is signed by a judge, and bears a file-stamp. Kramer, therefore, has failed to demonstrate that the February 12, 2009 judgment of conviction was not effective. Because the judgment was effective, the trial court did not err in applying the post-sentencing “manifest injustice” standard to the motion to withdraw the guilty plea pursuant to
{¶ 60} We also find no evidence in the record that the clerk failed to comply with its duties under
{¶ 61} “The clerk shall prepare and maintain a general index, a docket, and other records that the court, by rule, requires, all of which shall be the public records of the court. In the docket, the clerk shall enter, at the time of the commencement of an action, the names of the parties in full, the names of the counsel, and the nature of the proceedings. Under proper dates, the clerk shall note the filing of the complaint, issuing of summons or other process, returns, and any subsequent pleadings. The clerk also shall enter all reports, verdicts,
{¶ 62} S. Ct. Sup. R. 26.05 also contains certain requirements for municipal court dockets and record retention. S. Ct. Sup. R. 26.05(B)(1) requires municipal courts to “maintain an index, docket, journal and case files in accordance with Sup. R. 26(B) and divisions (A) and (C) of Sup. R. 26.05.” S. Ct. Sup. R. 26(B)(4) also states that a journal “means a verbatim record of every order or judgment of a court.”
{¶ 63} There is no evidence of record to indicate that the municipal court failed to comply with these requirements. Again, Kramer failed to present evidence regarding this matter. If Kramer wished to rely on irregularities in the court‘s journal, Kramer should have subpoenaed witnesses and records to prove her claims.
{¶ 64} Finally, Kramer contends that the clerk‘s electronic database, which is accessed at the municipal court website, does not comply with S. Ct. Sup. R. 27, which requires courts to submit copies of proposed local rules to the Supreme Court Commission on Technology. Again, Kramer failed to present evidence regarding this point, other than counsel‘s statement that she was unable to obtain a submission from the committee. Factual assertions of counsel in briefs or in the trial court are not evidence, however, and cannot be considered. Citibank (South Dakota), N.A. v. Kessler, Franklin App. No. 03AP-580, 2004-Ohio-1899, ¶13. Accord Bank of Am., N.A. v. Miller, Greene App. No. 2010-CA-60, 2011-Ohio-1403, ¶32.
V
{¶ 66} Kramer‘s Fourth Assignment of Error is as follows:
{¶ 67} “THE JUDGMENT ENTRY FILED FEBRUARY 12, 2009, AS REPRESENTED ON THE CLERK‘S JOURNAL (ASSUMING IT WAS), FOUND THE APPELLANT GUILTY FOR A CRIME FOR WHICH SHE DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTER A PLEA OF GUILTY AND THE TRIAL COURT ERRED, AS A MATTER OF LAW, WHEN IT APPLIED THE STANDARD OF MANIFEST INJUSTICE TO APPELLANT‘S MOTION TO WITHDRAW GUILTY PLEA AND PETITION FOR POST-CONVICTION RELIEF.”
{¶ 68} Under this assignment of error, Kramer contends that the judgment entry of February 12, 2009, did not properly reflect the plea that was entered, and was not properly entered on the court‘s journal. Alternatively, Kramer argues that even if the judgment was properly entered, she did not knowingly, intelligently, and voluntarily enter a plea of guilty to the crime for which she was convicted and sentenced. Kramer also contends that she was not personally addressed by the court in accordance with
{¶ 69} We have already concluded that the judgment entry was properly journalized. Kramer did not file an appeal from that judgment entry, and did not file a motion for leave to file a delayed appeal under
{¶ 70} With regard to whether Kramer knowingly, intelligently, and voluntarily
{¶ 71} Assuming that the trial court erred by not addressing Kramer personally when it accepted her guilty plea, the only matter being appealed at this point is whether Kramer should be allowed to withdraw her plea to the charge. Manifest injustice “has been variously defined, but it is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary cases.” State v. Smith (1977), 49 Ohio St.2d 261, 264.
{¶ 72} Kramer argues that the manifest injustice here is that she was convicted of a first-degree misdemeanor despite the fact that she pled guilty to a fourth-degree misdemeanor. But this injustice is in the process of being cured by the nunc pro tunc correction of her conviction to reflect that it is for a fourth-degree misdemeanor, consistent with her plea. Furthermore, the potential enhancement for a Domestic Violence conviction was the same, regardless of the degree of the violation. The waiver of rights and plea form also specifically informed Kramer that she could be subject to a felony charge in the event of a subsequent offense.
{¶ 73} Kramer‘s Fourth Assignment of Error is overruled.
VI
{¶ 75} “NUNC PRO TUNC ENTRIES ARE LIMITED TO CORRECTING THE RECORD FOR ACTIONS THE COURT ACTUALLY TOOK AND NOT FOR WHAT IT SHOULD HAVE TAKEN, AND THE TRIAL COURT ERRED, AS A MATTER OF LAW, WHEN IT ENTERED A NUNC PRO TUNC ORDER MODIFYING ITS ORIGINAL JUDGMENT.”
{¶ 76} Under this assignment of error, Kramer contends that the trial court erred when it entered a nunc pro tunc entry modifying the judgment of February 12, 2009, because the entry was not made to correct an action actually taken by the court. Kramer also reiterates the arguments previously made regarding the invalidity of the original judgment of conviction.
{¶ 77}
{¶ 78} In the case before us, the state filed a written offer reducing the charge to a fourth-degree misdemeanor. A written waiver of rights and entry of plea was also filed, indicating that Kramer had pled guilty to a fourth-degree misdemeanor Domestic Violence charge. The terms of the potential sentence were included in the waiver and plea form. The
{¶ 79} Subsequently, on December 23, 2009, the trial court filed a nunc pro tunc entry indicating that it should have amended the Domestic Violence charge to a fourth-degree misdemeanor. The court then amended the charge. The trial court‘s action appears to have been taken to correct a clerical mistake and to let the record correctly reflect what the court actually decided.
{¶ 80} We conclude, however, that the December 23, 2009 entry is not a final judgment, because it has not been entered on the trial court‘s journal. The nunc pro tunc language is added at the bottom of the February 12, 2009 judgment entry, and is not file-stamped.
{¶ 81} “A judgment of conviction is a single document that must include: ‘(1) the guilty plea, jury verdict, or finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court.’ State v. Baker, 119 Ohio St.3d 197, 2008–Ohio–3330, syllabus, ¶17. A nunc pro tunc judgment entry is issued as a correction and replacement for the entire original judgment entry.” State ex rel. Elkins v. Sandusky Cty. Court of Common Pleas, Sandusky App. No. S–11–008, 2011-Ohio-1904, ¶5 (italics in original).
{¶ 82} In Elkins, the court of appeals issued a writ of mandamus to compel the trial court to issue a proper nunc pro tunc judgment entry in compliance with Baker and
{¶ 83} Accordingly, Kramer‘s Fifth Assignment of Error is overruled.
VII
{¶ 84} Kramer‘s Sixth Assignment of Error is as follows:
{¶ 85} “R.C. 2919.25(D)(2) ASSESSES THE DEGREE OF A VIOLATION OF DIVISION (A) OF 2919.25 AS AN M-1. THE TRIAL COURT‘S NUNC PRO TUNC JUDGMENT ENTRY FILED DECEMBER 23, 2009 (IF IT EXISTS) IS CONTRARY TO LAW BECAUSE IT CORRECTS ITS PREVIOUS FINDING OF GUILT OF A VIOLATION OF 2919.25(A) FROM AN M-1 TO AN M-4.”
{¶ 86} Under this assignment of error, Kramer contends that the nunc pro tunc entry is invalid because it corrects the trial court‘s prior finding of guilt of a violation of
{¶ 87} We also note that Kramer supports her arguments with various documents that have been taken from the court‘s computerized public access system. We stressed previously
{¶ 88} For the reasons previously stated in connection with the Fifth Assignment of Error, the Sixth Assignment of Error is without merit and is overruled.
VIII
{¶ 89} Kramer‘s Seventh Assignment of Error is as follows:
{¶ 90} “THE TRIAL COURT DID NOT COMPLY WITH CRIMINAL RULE 11(D) WHEN IT CONVICTED THE APPELLANT OF AN M-1. ACCORDINGLY, APPELLANT WAS DENIED HER RIGHTS UNDER THE OHIO CONSTITUTION AND THE CONSTITUTION OF THE UNITED STATES AND DENIAL OF APPELLANT‘S MOTION TO WITHDRAW HER PLEA AND PETITION FOR POST-CONVICTION RELIEF WAS AN ABUSE OF DISCRETION.”
{¶ 91} Under this assignment of error, Kramer argues that the trial court convicted her of a first-degree misdemeanor under
{¶ 92} Kramer did not appeal this judgment, nor has she filed a motion for delayed appeal under
{¶ 93} Based on our previous discussions of the assignments of error, Kramer‘s
IX
{¶ 94} Kramer‘s Eighth Assignment of Error is as follows:
{¶ 95} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO ANSWER QUESTIONS, SUPPLY INFORMATION AND CONFIRM THAT ITS USE OF AN ELECTRONIC DOCKETING AND JOURNAL SYSTEM COMPLIED WITH SUP. R. 26 AND 27.”
{¶ 96} Under this assignment of error, Kramer contends that the trial court abused its discretion by refusing to answer questions and to supply information about the court‘s electronic docketing system. An abuse of discretion ” ‘implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.’ ” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 97} The record indicates that Kramer‘s counsel attempted to question the court at the motions hearing about the electronic docketing system and about whether the court had complied with S. Ct. Sup. R. 27, which requires that local rules of practice that relate to information technology be submitted to the Supreme Court Commission on Technology and the Courts for review. The trial court indicated that it did not see the relevance of this matter to the issue of whether Kramer had been the subject of manifest injustice for purposes of withdrawing her guilty plea. The court did indicate that the Supreme Court of Ohio had recommended the company that installed the court‘s software. When Kramer‘s counsel continued to question the court, the court indicated that it was not Kramer‘s witness.
{¶ 99} Kramer‘s Eighth Assignment of Error is overruled.
X
{¶ 100} As a final matter, we stress that although we are affirming the trial court‘s decision on the post-conviction motions, the trial court is not precluded from correcting its mistake in the original judgment entry. The nunc pro tunc procedure is the proper method of correcting the entry, but the trial court needs to properly enter the nunc pro tunc judgment.
XI
{¶ 101} All of Kramer‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
GRADY, P.J., and FROELICH, J., concur.
Copies mailed to:
Gil S. Weithman
Natalie J. Bahan
Hon. Susan J. Fornof-Lippencott