STATE OF OHIO, PLAINTIFF-APPELLEE vs. JOHN A. MCGRAW, DEFENDANT-APPELLANT
No. 102807
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 21, 2016
[Cite as State v. McGraw, 2016-Ohio-205.]
BEFORE: Celebrezze, P.J., Kilbane, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-10-534815-A; RELEASED AND JOURNALIZED: January 21, 2016
John A. McGraw, pro se
Inmate No. A600-404
Ross Correctional Institution
P.O. Box 7010
Chillicothe, Ohio 45601
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kevin R. Filiatraut
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Appellant, John A. McGraw, brings this appeal challenging the denial of his successive motion to vacate his pleas to aggravated murder, aggravated burglary, and failure to comply with an order or signal of a police officer. He argues that the court violated his due process rights in failing to vacate his pleas where he was not properly informed of the period of postrelease control for two counts. After a thorough review of the facts and applicable law, this court affirms the decision of the trial court.
I. Factual and Procedural History
{¶2} Appellant was arrested after strangling his girlfriend Jessica Andrews to death. He was indicted on numerous charges stemming from the murder. On the fourth day of jury selection in his capital murder trial, he entered into a plea agreement with the state. As a part of the agreement, the state dismissed the capital specifications that accompanied the aggravated murder charges. The state also dismissed several charges including aggravated murder, kidnapping, and failure to comply with an order of a police officer. After a change of plea colloquy, the court accepted appellant‘s guilty pleas to one count of aggravated murder with prior calculation and design, a violation of
{¶4} On February 17, 2015, appellant filed another motion to vacate his pleas claiming that the court failed to properly inform him of the maximum penalties he faced. He argued that the court failed to advise him of the periods of postrelease control for the counts of aggravated burglary and failure to obey the order of a police officer. The court overruled the motion, and appellant filed the instant appeal raising one error for review:
I. The trial court abused its discretion when it denied [appellant‘s] motion, thereby denying him due process of and equal protection under the law in violation of the Fourteenth Amendment to the U.S. Constitution and Article I, Section 10 and 16 of the Ohio Constitution.
II. Law and Analysis
{¶5} Appellant claims, without the benefit of a transcript,1 that he was not properly informed of the applicable periods of postrelease control for two counts prior to entering his guilty pleas. He asserts that this requires the trial court to grant his motion to vacate his pleas.
{¶6} The decision to grant or deny a motion to vacate guilty pleas rests with the sound discretion of the trial court. Motions based on
{¶7} Here, appellant claims he was misled about postrelease control because the trial court used the terms postrelease control and parole interchangeably and failed to inform him of the exact period to which he would be subjected. However, without the submission of a transcript in this case, it is impossible for this court to judge the veracity of those statements. Without a transcript, this court must presume that the trial court properly conducted the plea colloquy in this case. State v. Hill, 8th Dist. Cuyahoga No. 96923, 2012-Ohio-2306, ¶ 7.
{¶8} If we overlook this failure and examine the facts as argued in appellant‘s brief and the portions of the purported transcript attached to appellant‘s various motions, this court still concludes that the trial court did not err in denying appellant‘s motion.
{¶9} Appellant apparently quotes from the transcript of the plea colloquy where the court informed appellant about the penalties for aggravated burglary including that he will be subject to a term of postrelease control for a “number of years” and also later calls the period of control “parole.” The court apparently uses the term only once as a descriptor or colloquially to describe the period of supervision. Appellant did not have any questions about postrelease control and did not indicate he was confused about any portion of the court‘s description. Appellant complains that the court did not inform him of the duration of postrelease control. However, the court corrected itself and properly set forth the duration and mandatory nature of the period of postrelease control just prior to accepting appellant‘s plea to aggravated robbery. Appellant then entered a guilty plea without comment or question.
{¶11} A part of the burden appellant faces is to demonstrate that a manifest injustice occurred. A “manifest injustice” has been defined as a clear or openly unjust act. State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). This standard permits a defendant to withdraw his plea only in extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).
{¶12} Here, appellant cannot meet that burden. He was informed about the existence and duration of the maximum five-year term of postrelease control. Any term imposed for the other offense would merge with this term.
{¶13} Appellant argues for a strict application of the dictates of
{¶14} Further “‘res judicata * * * acts to bar raising issues in a successive
{¶15} In an attempt to circumvent res judicata, appellant argues that it would be fundamentally unfair to apply the doctrine in this case. The complained-of errors do not cast serious doubt on whether appellant‘s pleas would have been made had the trial court engaged in a more thorough discussion of postrelease control. This is a necessary element of the prejudice analysis pursuant to
{¶16} This court has chosen not to apply the doctrine of res judicata in cases where it would be inequitable, such as those where this court may have erroneously dismissed an appeal and the appellant then brought claims in a postconviction petition. See State v. Moore, 8th Dist. Cuyahoga Nos. 100483 and 100484, 2014-Ohio-5682, ¶ 30. There is no such inequity in the present case and the doctrine is clearly applicable to “‘successive motions to withdraw a guilty plea under
{¶17} Appellant argues that the Ohio Supreme Court has addressed these types of issues despite their being raised in successive motions, citing to State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224. Sarkozy does not dictate the outcome in this case because the trial court did mention postrelease control and did, in fact, correctly inform appellant that he would be subject to five years of mandatory postrelease control. Sarkozy involved a complete
{¶18} Appellant also claims res judicata should not apply because he has the choice to raise issues regarding the plea in either a direct appeal or a
{¶19} There is no fundamental unfairness in applying res judicata to the present case. The motion does not cite to grounds that would justify such a finding. The issues raised all revolve around the
{¶20} The trial court did not err in denying appellant‘s successive motion to withdraw his guilty pleas. Appellant failed to file a transcript demonstrating any claimed error. Even if he did, based on the record provided, appellant‘s claims fail where his arguments do not amount to a manifest injustice. The fact that the court failed to inform appellant about a period of postrelease control prior to accepting his plea where the court properly informed him of the maximum five-year mandatory period of postrelease control on a different count demonstrates the futility of his arguments. Further, appellant‘s failure to raise the issue in numerous prior motions to withdraw means the present arguments are barred by res judicata.
{¶21} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
_________________________________________________________
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
SEAN C. GALLAGHER, J., CONCUR