Case Information
*1
[Cite as
State v. Lane
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO, CASE NO. 1-10-10 PLAINTIFF-APPELLEE,
v.
EARNEST LANE, O P I N I O N DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR00 04 0159 Judgment Affirmed
Date of Decision: October 4, 2010 APPEARANCES:
Kenneth J. Rexford, for Appellant
Jana E. Emerick, for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Earnest Lane (hereinafter “Lane”), appeals the Allen County Court of Common Pleas’ December 28, 2010 judgment entry of re- sentencing. For the reasons that follow, we affirm.
{¶2} This appeal stems from the events that took place on March 29, 2000, when allegedly Lane and nine other individuals planned an armed robbery and firebombing of a house on Leland Avenue in Lima, Ohio, for the purpose of stealing a large amount of cocaine. As a result of the firebombing, five persons living in the Leland Avenue residence died, including four children. Lane, and the nine other co-defendants, were indicted on April 19,
2000. Lane was indicted as follows: one count of complicity to aggravated arson in violation of R.C. 2909.02(A)(1), a felony of the first degree; one count of complicity to aggravated robbery in violation of R.C. 2911.01(A)(1), with a firearm specification pursuant to R.C. 2941.141(A), a felony of the first degree; and five counts of complicity to aggravated murder in violation of R.C. 2903.01(B). On May 2, 2000, Lane was arraigned and entered pleas of not guilty on all counts in the indictment, and attorney Jerome Doute was appointed to represent him. On August 4, 2000, Lane entered a negotiated plea of guilty to the
charges of complicity to aggravated arson and complicity to aggravated robbery, without the firearm specification, and also entered guilty pleas to five counts of complicity to involuntary manslaughter (having been reduced from the original charges of complicity to aggravated murder). Pursuant to the negotiated plea, the State dismissed an unrelated felony drug case that had been pending against Lane. On November 16, 2000, Lane filed a motion to withdraw his guilty plea on the basis that his attorney had misinformed him as to how many years in prison Lane would have to serve. On December 29, 2000, Lane’s attorney, Doute, filed a motion to withdraw as Lane’s counsel, and a hearing on that matter was held on January 11, 2001. Subsequently, the trial court granted Doute’s motion to withdraw, and appointed Lane another attorney, Gregory Donohue. On February 22, 2001, a hearing was held on Lane’s motion to
withdraw his guilty plea, and, following the presentation of evidence, the trial court overruled the motion. Subsequently, on March 27, 2001, a sentencing hearing was held in the case. Lane was sentenced to nine (9) years imprisonment on the aggravated arson conviction, ten (10) years imprisonment on the aggravated robbery conviction, and nine (9) years imprisonment on each of the involuntary manslaughter convictions. The first nine (9) year term was ordered to be served concurrently with the other five nine (9) year terms, but consecutive to the ten (10) year term, for a total of nineteen (19) years imprisonment.
{¶7}
Thereafter, Lane filed a direct appeal challenging the trial court’s
denial of his motion to withdraw his guilty plea and argued that he had been
denied effective assistance of counsel. This Court overruled Lane’s assignments
of error and affirmed the judgment of conviction and sentence.
State v. Lane
, 3d
Dist. No. 1-01-69,
seeking a new sentencing hearing on the basis that the trial court had failed to properly advise him of post-release control at the original sentencing. On December 23, 2009, a second sentencing hearing was held, after which time the trial court ordered Lane to serve the same sentence to which Lane had originally been sentenced, and the trial court provided to Lane the correct information pertaining to post-release control. Lane now appeals and raises seven assignments of error for our
review. For ease of our discussion, we elect to address Lane’s first and second assignments of error together.
ASSIGNMENT OF ERROR NO. I THE TRIAL COURT VIOLATED CRIMINAL RULE 11 IN ACCEPTING THIS PLEA.
ASSIGNMENT OF ERROR NO. II THE PLEA BY MR. LANE WAS NOT KNOWING, VOLUNTARY, AND INTELLIGENT BECAUSE THE TRIAL COURT DECLINED TO ADVISE MR. LANE THAT THE SENTENCE WOULD INCLUDE MANDATORY POST- RELEASE CONTROL AND OTHERWISE ERRED IN THE ADVICE. In his first assignment of error, Lane argues that his guilty plea was
invalid and that it should be set aside. Specifically, Lane argues that his plea was not knowing, voluntary, and intelligent because the trial court failed to inform him that his post-release control was mandatory and that he would be subject to additional sanctions for felony violations while on post-release control. With respect to his second assignment of error, Lane alleges the same particular error but claims that it raises an issue of constitutional law. First, Lane argues that the trial court should not have accepted his
plea because he did not actually enter the guilty plea himself; rather, his defense
counsel tendered the plea on his behalf. However, despite Lane’s assertions, this
Court has stated that “Crim.R. 11 does not require that the defendant himself must
orally give his plea to the trial court, thereby not prohibiting the defendant’s
counsel from orally entering the plea, as long as the remainder of Crim.R. 11 is
complied with.”
State v. Nathan
(1995),
hearing that his sentence would include a mandatory period of post-release
control, and by failing to inform him that if he committed a felony while on post-
release control he could be sent back to prison, the trial court failed to inform him
of the potential penalties involved. In support of his argument that his plea was
not knowing, voluntary, and intelligent because the trial court failed to clearly
state that his post-release control was mandatory Lane points to the Ohio Supreme
Court’s decision in
State v. Sarkozy
, 117 Ohio St.3d 86,
the trial court personally address a defendant to determine if the plea is voluntary,
and that the defendant understands both the plea itself as well as the rights waived
by pleading guilty. Crim.R. 11(C)(2). Specifically, Crim.R. 11(C) states that a
trial court cannot accept a guilty plea without first advising the defendant of the
consequences of the plea, including the maximum penalty for the offense or
offenses at issue. Post-release control is considered part of an offender’s sentence,
and because Lane intended to plead guilty to a number of first-degree felonies, the
trial court was statutorily required to inform him that he would be subject to a
mandatory period of five years post-release control if he were ever released from
prison. See R.C. 2967.28(B)(1);
Sarkozy
,
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.”
was required to inform him at the change of plea hearing of the possibility that it
could impose a prison term for committing a new felony while on mandatory post-
release control. Because this is a matter within the trial court’s discretion there is
only the potential for the imposition of that penalty. As such, a trial court is not
required to inform a defendant of this possibility at the time of a guilty plea in
order to substantially comply with Crim.R. 11(C)(2)(a).
State v. Lamb
, 156 Ohio
App.3d 128,
post-release control once he was released from any prison term that it might
impose; moreover, the trial court explained that Lane could go back to prison for
up to one-half of his sentence if he violated post-release control. (State’s Ex. AA,
Aug. 4, 2000 Tr. at 7). While the trial court incorrectly informed Lane that he
would be subject to post-release control for a period of “up to five (5) years,”
instead of the statutorily mandated five-year term of post-release control, the
written plea agreement accurately stated that Lane would serve a five-year term of
post-release control. Moreover, at the change of plea hearing, Lane stated that he
understood the terms of the negotiated plea agreement, and that he had no
questions of his attorney, and that he did not need the trial court to explain to him
anything regarding the plea agreement. Thus, Lane had notice that he would
receive a term of five years of post-release control, and that if he violated the
terms of his post-release control, he could serve up to one-half of his original
prison sentence. Under these circumstances, we hold that the trial court
substantially complied with Crim.R. 11(C)(2)(a).
State v. Alfarano
, 1st Dist. No.
C-061030,
in
Sarkozy
, we find
Sarkozy
distinguishable from the facts of this case. In
Sarkozy
, the Ohio Supreme Court disagreed with the court of appeals’ finding that
there had been substantial compliance because essentially there had been
no
compliance with Crim.R. 11. “The trial court did not merely misinform Sarkozy
about the length of his term of postrelease control. Nor did the court merely
misinform him as to whether postrelease control was mandatory or discretionary.
Rather, the court failed to mention postrelease control
at all
during the plea
colloquy. Because the trial court failed, before it accepted the guilty plea, to
inform the defendant of the mandatory term of postrelease control, which was part
of the maximum penalty, the court did not meet the requirements of Crim.R.
11(C)(2)(a).”
Sarkozy
,
{¶18} Lane’s first and second assignments of error are, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENSE MOTION TO WITHDRAW HIS PLEA. In his third assignment of error, Lane argues that the trial court erred
in overruling his motion to withdraw his guilty plea. “When a defendant enters a plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily.”
State v. Engle
(1996), 74 Ohio
St.3d 525, 527, 660 N.E.2d 450;
State v. Horch
, 154 Ohio App.3d 537, 2003-
Ohio-5135, 797 N.E.2d 1051, ¶3 (citations omitted);
State v. Bush
, 3d Dist. No.
14-2000-44,
trial court must conduct a hearing to determine whether there is a reasonable and
legitimate basis for allowing the defendant to withdraw his plea. Id. Some of the
factors that are weighed in considering the trial court’s decision on a presentence
motion to withdraw a plea are as follows: (1) whether the state will be prejudiced
by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the
extent of the Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion
to withdraw; (5) whether the trial court gave full and fair consideration to the
motion; (6) whether the timing of the motion was reasonable; (7) the reasons for
the motion; (8) whether the defendant understood the nature of the charges and
potential sentences; and (9) whether the accused was perhaps not guilty or had a
complete defense to the charge.
State v. Griffin
(2001), 141 Ohio App.3d 551,
554,
determine what circumstances justify granting a presentence motion to withdraw a
guilty plea. Id., at paragraph two of the syllabus. As a result, 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),
during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, a defendant has a right to withdraw his guilty plea, and this motion to withdraw a guilty plea must be considered as a presentenced motion under Crim.R. 32.1. However, we note that Lane’s original motion to withdraw his guilty plea was filed and ruled upon prior to his first sentencing hearing, and that Lane never filed another motion to withdraw his guilty plea even after he had filed a motion for re-sentencing in 2009. Lane entered into his plea on August 4, 2000, and on November 16,
2000 Lane filed a motion to withdraw his guilty plea. Although the trial court originally sentenced Lane on March 27, 2001, prior to sentencing, the trial court held a hearing on Lane’s motion to withdraw on February 22, 2001. Subsequently, following the presentation of the evidence, the trial court denied Lane’s motion to withdraw his guilty plea, and as we already stated, contrary to Lane’s assertions, there was never another motion to withdraw his guilty plea filed before or after he was sentenced in 2009. Thus, Lane’s motion to withdraw was treated as a presentence motion, and as such, it was liberally construed. Despite this liberality, the trial court still denied Lane’s motion to withdraw his guilty plea. After the presentation of evidence, reviewing the change of plea hearing of August 4, 2000, and the applicable statutes and law, the trial court methodically went through and considered each of the nine factors. (Feb. 22, 2001 Tr. at 26). Specifically, the trial court stated that with respect to any prejudice to the State, the State had nolled other pending charges as part of the negotiated plea agreement, and Lane had provided a sworn statement to the State indicating his involvement. (Id. at 26-27). Moreover, the trial court reviewed the Crim.R. 11 hearing transcript and found that it had fully advised Lane of his rights, that his counsel had been highly competent, and that Lane had acknowledged at the Crim.R. 11 hearing that he had been satisfied with his counsel. (Id. at 27-28). The trial court noted that Lane had been specifically asked at the change of plea hearing if he had any question or if there was anything he did not understand, and Lane replied “no.” (Id. at 27-28). While the trial court found that Lane had made his motion to withdraw within a reasonable amount of time (approximately three months later), and although Lane claimed that he had been told by his attorney that he would only receive seven years imprisonment, the trial court found that the record demonstrated otherwise. (Id. 29-30). In particular, the trial court highlighted the portion of the change of plea hearing in which it had specifically asked Lane whether he understood that all of the offenses he was pleading to were first degree felonies, that the State was recommending a total of twenty (20) years, and that the trial court was not bound to follow the State’s recommendation. (Id. at 29-30). Furthermore, the trial court found that Lane had made his plea knowingly, voluntarily, and intelligently – that he had understood the conditions and the possible sentences and the discretion the court had in its sentencing. (Id.). Finally, the trial court found that there was nothing in the record that illustrated that Lane was perhaps not guilty or had a defense to the charges, and in fact, Lane had made a statement under oath which clearly indicated his involvement in the criminal activity. (Id. at 30-31). Based upon the record before this Court, we find that the trial court
granted a full hearing and gave a great deal of consideration to Lane’s motion. Given the evidence and the trial court’s extensive analysis, we cannot find that the trial court abused its discretion in denying Lane’s motion to withdraw his guilty plea.
{¶27} Lane’s third assignment of error is, therefore, overruled. ASSIGNMENT OF ERROR NO. IV THE SENTENCE IMPOSED IN THIS CASE WAS IMPOSED BY APPLICATION OF LAW THAT IS AND WAS UNCONSTITUTIONAL, IN VIOLATION OF MANY RIGHTS UNDER THE UNITED STATES CONSTITUTION. In his fourth assignment of error, Lane argues that his sentence was
“imposed by application of law that is and was unconstitutional, in violation of
many rights under the United States Constitution.” In particular, Lane cites to
State v. Foster
,
sentencing as set forth in R.C. 2929.11, as well as the factors relating to the
seriousness of the offense and recidivism of the offender under R.C. 2929.12 when
sentencing an offender.
State v. Smith,
3d Dist. No. 2-06-37,
applicable at his re-sentencing hearing, however, despite Lane’s citation to Foster , Lane does not separately argue the particular claimed error nor does he provide any reasons in support of his contentions. App.R. 16(A)(7). Accordingly, we may disregard this assignment of error pursuant to App.R. 12(A)(2). Nevertheless, despite Lane’s general citation to Foster , we find that the record demonstrates that the trial court did consider Foster ’s ruling at Lane’s re-sentencing hearing in December 2009. At the re-sentencing hearing, the trial court specifically stated that:
[t]he Court finds in this particular instance that in making its sentencing in effect reiterating what it had previously sentenced you to. At least Foster indicates that the same findings can be made advisory and the Court has reviewed those and makes those same findings, advisory, * * * At the time of the original sentencing before Foster there was various findings that had been made and the Court would incorporate those for advisory. But in addition, even if today’s law applies in that regard as well, the consecutive sentences imposed herein are as a result of the Court’s discretion as well, pursuant to State v. Johnson , 116 Ohio State 541 and the finding that – further that the defendant was involved in committing one of the worst form of offenses in which 5 people died.
{¶32} (Dec. 23, 2009 Tr. at 21-23). Thus, given the fact that the trial court did consider and apply Foster to Lane’s re-sentencing, we find Lane’s arguments meritless.
{¶33} Lane’s fourth assignment of error is, therefore, overruled. ASSIGNMENT OF ERROR NO. V THE INDICTMENT AGAINST MR. LANE WAS FATALLY DEFECTIVE, AS A RESULT OF WHICH MR. LANE WAS DENIED DUE PROCESS OF LAW AS A STRUCTURAL ERROR OCCURRED, AS WELL AS PLAIN ERROR, AS TO ALL SEVEN (7) COUNTS IN THE INDICTMENT. In his fifth assignment of error, Lane argues that the indictment
issued on April 19, 2000, was flawed in that it failed to appropriately set forth the
requisite mental culpability in each count contained therein. In support of his
position, Lane relies on the proposition of law stated by the Ohio Supreme Court
in
State v. Colon
, 119 Ohio St.3d 204,
by pleading guilty to the substantive offenses of aggravated robbery, aggravated arson, and involuntary manslaughter. Lane’s fifth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. VI MR. LANE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILURE TO EXAMINE PRIOR COUNSEL AS WITNESSES [SIC] TO THE MOTION TO WITHDRAW PLEA. In his sixth assignment of error, Lane argues that he was denied
effective assistance of counsel from his second attorney, Gregory Donohue, at the February 22, 2001 hearing on his motion to withdraw his guilty plea. Specifically, Lane claims that his second attorney was ineffective because he did not call his prior attorney as a witness at his motion to withdraw hearing. The basis of Lane’s motion to withdraw was that his prior attorney had erroneously told him about the amount of prison time he would get as a result of him entering in a guilty plea. As stated above, Lane was originally represented by attorney Jerome Doute, who had represented Lane up through Lane’s change of plea hearing. Subsequently, on November 16, 2000, Lane filed a motion to withdraw his guilty plea on the basis that his attorney had misinformed him as to how many years in prison he would have to serve. Soon after, on December 29, 2000, attorney Jerome Doute filed a motion to withdraw as counsel, on the basis that privileged conversations with Lane had resulted in Lane placing counsel in a position that further action would result in a violation of the disciplinary rules. On January 11, 2001, following a hearing on the matter, the trial court granted Doute’s motion, and then appointed attorney Gregory Donohue to represent Lane. On February 22, 2001, a hearing was held on Lane’s motion to withdraw, and after the presentation of evidence, the trial court overruled Lane’s motion. Lane now argues that his second attorney, Donohue, was ineffective
because he did not call Doute as a witness in order to question him as to what
advice he had given Lane with respect to the consequences of his guilty plea.
A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole
(2001),
attorney as a witness, it would have supported his claim that his first attorney had given him bad advice. As a result, Lane now claims that he was prejudiced because he would not have pled if he would have known that he could get more than seven years in prison. However, “[t]he decision [of] whether to call a witness is a trial tactic that generally will not sustain a claim of ineffective assistance.” State v. Payton (1997), 124 Ohio App.3d 552, 559, 706 N.E.2d 842. Despite Lane’s speculations that his first attorney believed that he would only get seven years in prison, Lane has failed to point to any evidence to support his claim. Even if it were true, though, any alleged errors concerning the possible sentence made by his first attorney would not have been prejudicial to Lane as he was given the correct information, both verbally and in writing, before he signed the plea agreement and changed his plea. Furthermore, we note that his second attorney presented evidence at the hearing and argued in favor of Lane’s position. Thus, the failure to call his first attorney as a witness may have been trial strategy which we will not find to be ineffective.
{¶43} Lane’s sixth assignment of error is, therefore, overruled. ASSIGNMENT OF ERROR NO. VII THE CONVICTIONS FOR COUNT 1 AND/OR COUNT 11 SHOULD HAVE MERGED WITH THE CONVICTION(S) FOR COUNT(S) III THROUGH VII. In his last assignment of error, Lane argues that the aggravated arson
conviction or the aggravated robbery conviction should have been merged into the involuntary manslaughter convictions, on the basis that the crimes are allied offenses of similar import. First of all, Lane once again summarily argues that one of the
convictions should have merged with the involuntary manslaughter conviction
because they were allied offenses, and does not separately argue the particular
claimed error nor does he provide any reasons in support his contentions. App.R.
16(A)(7). Accordingly, we may disregard this assignment of error pursuant to
App.R. 12(A)(2). Nevertheless, despite Lane’s general argument, we find that the
record demonstrates that his involuntary manslaughter convictions were merged
with his aggravated arson conviction on the basis that they were allied offenses of
similar import. While we note that at the re-sentencing hearing the trial court
sentenced Lane on each conviction prior to merging the involuntary manslaughter
convictions and the arson conviction, the trial court later explicitly stated that
those “offenses merge with the same and similar animus.” (Dec. 23, 2009 Tr. at
22). And since the trial court also ran the involuntary manslaughter and arson
convictions concurrently, we find that no harm resulted from its failure to merge
prior to sentencing.
State v. Tuggle
, 6th Dist. No. L-07-1284,
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed WILLAMOWSKI, P.J. concurs.
ROGERS, J., concurs, concurs in Judgment Only on Assignment No. 7. /jnc
Notes
[1] While this Court still maintains its position in this assignment of error, we note that the Ohio Supreme
Court recently released
State v. Horner
, Slip Opinion No.