Case Information
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[Cite as
State v. Moore
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
STATE OF OHIO, : Case No. 13CA965
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY JOHN D. MOORE, :
Defendant-Appellant. : RELEASED: 6/30/2014 APPEARANCES:
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Ohio Assistant Public Defender, Columbus, Ohio, for appellant.
C. David Kelley, Adams County Prosecuting Attorney, and Mark R. Weaver, Adams County Assistant Prosecuting Attorney, for appellee.
Harsha, J.
John D. Moore pleaded guilty to a charge of murder in exchange for the
state of Ohio dismissing a charge of endangering children. The trial court accepted Moore’s guilty plea, found him guilty of murder, sentenced him to a mandatory prison term of 15 years to life and five years of postrelease control, and fined him $1,500. Moore asserts in his first assignment of error that the trial court erred in accepting his plea. Moore claims that his plea was involuntary because it was based on the material mutual mistake that the state’s dismissal of the endangering children charge would benefit him. Moore argues that because the murder and endangering children charges were allied offenses of similar import subject to merger, he could not have been convicted and sentenced on both. Thus he contends he received no benefit *2 for his part of the bargain, e.g. had he known he couldn't be sentenced on both charges, he would not have pled guilty. Moore’s claim is meritless because he relies on a statement in a
competency evaluation to contend that he understood the purpose of the plea bargain was to obtain a shorter prison sentence. However, that evaluation is not part of the record on appeal. Moreover, a determination of allied offenses of similar import requiring merger is not automatic based on the offenses involved—the defendant has the burden to establish the appropriateness of merger based on the actual conduct involved. Relieving him of that burden constituted consideration for the agreement. Finally, even if Moore's plea did not result in a lesser sentence, he may have obtained other benefits from the plea, i.e. the avoidance of a jury trial and further publicity. Under the totality of the circumstances, the trial court properly determined that his guilty plea was knowingly, intelligently, and voluntarily made. We overrule Moore’s first assignment of error.
{¶4} In his second assignment of error, Moore claims that his trial counsel was ineffective because he failed to explain that his plea offer had no value. For the previously discussed reasons, the record does not establish that his plea of guilty had no value. Because the premise of this assigned error is erroneous, Moore cannot establish either that his trial counsel’s performance was deficient or that any deficient performance prejudiced him. We overrule Moore’s second assignment of error.
{¶5} In his third assignment of error, Moore asserts that the trial court erred by imposing five years of postrelease control. Because postrelease control does not apply *3 to unclassified felonies like murder, the state candidly concedes that the trial court erred, and we agree. Moore’s third assignment of error has merit. Therefore, we affirm the judgment of conviction and sentence in part,
reverse that portion of the sentence imposing postrelease control, and remand the cause to the trial court to correct that portion of the sentence.
I. FACTS
{¶7} According to Moore he was watching his five-month-old son, Carson, at his apartment because his girlfriend was gone. When Carson would not stop crying, Moore became angry and frustrated. Moore shook Carson hard to stop him from crying. By shaking his son, Moore caused Carson to suffer serious injuries that resulted in the baby's death. An Adams County grand jury returned an indictment charging Moore with
one count of endangering children in violation of R.C. 2919.22(B)(1), a felony of the second degree and one count of murder in violation of R.C. 2919.22(B)(1), a special felony. Moore entered a plea of not guilty to the charges, and the trial court appointed attorney C. Nicholas Ring to represent him. Moore subsequently entered a plea of not guilty by reason of insanity, and the trial court ordered that Moore be evaluated for his competence to stand trial, his mental condition at the time of the commission of the offense, and his competence to understand and waive his Miranda rights. Following the submission of a written report from clinical psychologist Kristen Haskins, the trial court determined that Moore was competent to stand trial. The court also concluded Moore did not have a severe mental disease or defect that prevented him from knowing the *4 wrongfulness of his conduct when he committed it and that he understood his Miranda rights.
{¶9} Moore then changed his plea to guilty to the charge of murder in exchange for the state’s dismissal of the endangering children charge. Before accepting his plea the trial court engaged in a detailed colloquy with Moore in accordance with Crim.R. 11(C)(2) to determine whether he was entering his guilty plea knowingly, intelligently, and voluntarily. During this exchange Moore specifically informed the trial court that he understood he was going to plead guilty to the murder charge, that the state would dismiss the endangering children charge, that his mandatory sentence on the murder charge would be 15 years to life, and that he was waiving his constitutional rights to a jury trial, to confront his accusers, to compulsory process, to require the state to prove guilt beyond a reasonable doubt, and the privilege against compulsory self- incrimination. Moore also stated that he was satisfied with his trial counsel’s legal representation and with the result of the plea agreement. He further specified that he had not been threatened in any way to cause his plea to be involuntary. The trial court also advised Moore that he would be subject to a mandatory five-year term of postrelease control after being released from prison for his murder conviction. The trial court accepted Moore’s guilty plea, and after Moore testified about the circumstances of his crime, the trial court found him guilty of murder. The trial court sentenced Moore to a mandatory term of incarceration of 15 years to life, imposed a five-year term of postrelease control, and fined him $1,500. This appeal ensued.
II. ASSIGNMENTS OF ERROR
{¶12} Moore assigns the following errors for our review: 1. Did the trial court err by accepting an involuntary plea? Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; T.p. 4- 5 (Apr. 2, 2013); Plea of Guilty (Apr. 3, 2013)
2. The trial court erred by accepting a plea despite ineffective assistance of counsel. Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. T.p. 4-5 (Apr. 2, 2013); Plea of Guilty (Apr. 3, 2013)
3. The trial court erred by imposing postrelease control. T.p. 12-13 (Apr. 17, 2013); Judgment Entry on Sentence (Apr. 17, 2013).
III. LAW AND ANALYSIS
A. Involuntary Plea
In his first assignment of error Moore asserts that the trial court erred in
accepting his guilty plea because it was involuntary. “‘When a defendant enters a plea
in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.
Failure on any of those points renders enforcement of the plea unconstitutional under
both the United States Constitution and the Ohio Constitution.’ ” State v. Veney , 120
Ohio St.3d 176,
and interpretation of plea agreements.’ ” State v. Billingsley ,
{¶17} Moore cites Bryant in support of his argument that his plea was involuntary. But in Bryant the defendant was misinformed that he would be eligible for judicial release. Here, there was no misinformation apparent from our record - in accordance with the terms of the plea agreement, the state dismissed Moore’s child endangering charge in exchange for his guilty plea to the murder charge. Moore relies on a purported statement in the competency report of clinical
psychologist Haskins that Moore “thought a positive of a plea bargain would be less
time.” He points to this "statement" as evidence that the parties had a material
mistaken belief that Moore would receive a lesser prison sentence by pleading guilty to
murder. However, that report is not part of the record certified on appeal. Under these
circumstances, we must presume the validity of the trial court’s determination. See,
e.g., State v. Philon , 6th Dist. Erie No. E-93-15,
import, the parties’ agreement to plead guilty to murder in exchange for the state’s
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dismissal of the child endangering charge lacked consideration as he received no
benefit from it. Normally, the dismissal of another criminal charge constitutes sufficient
consideration for a plea agreement. See State v. Smith , 2d Dist. Greene No. 90CA87,
may have successfully argued that any convictions for murder and endangering children
should be merged as allied offenses of similar import, it would not have been automatic
based simply on the types of offenses charged. Rather, the court would have to
consider Moore’s specific conduct. See State v. Johnson ,
child endangering were allied offenses of similar import based on the circumstances of that case, is misplaced because the pertinent facts in Johnson were elicited in a jury trial. By contrast any discussion of what evidence the state would have relied on to *9 support each conviction at trial requires some speculation because of the plea agreement.
{¶22}
Furthermore, a lesser sentence is not the only benefit to be received by a
defendant deciding to plead guilty to a charged offense. The defendant could also
avoid the additional publicity that a trial might generate. Because some consideration
exists for the plea agreement, we cannot inquire into the adequacy of the consideration.
Williams ,
{¶23} Based on a totality of the circumstances, Moore fails to establish that the plea agreement should be rescinded based on either a material mutual mistake or lack of consideration. The trial court did not err in determining that Moore’s plea of guilty to the murder charge was knowingly, intelligently, and voluntarily made. We overrule Moore’s first assignment of error.
B. Ineffective Assistance of Counsel In his second assignment of error, Moore argues that the trial court erred
in accepting his guilty plea despite ineffective assistance of counsel. Moore claims that his trial counsel was ineffective because he failed to explain to him that the state’s plea offer had no value. To prevail on a claim of ineffective assistance of counsel, a criminal
defendant must establish (1) deficient performance by counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that, but for counsel’s errors, the result of the proceeding would
have been different. State v. Short ,
assignment of error, Moore’s claim is based on the erroneous premise that his plea had no value. Moore has not established that his plea did not benefit him, and he thus has also not established that his trial counsel’s performance was deficient or that any deficient performance prejudiced him. We overrule Moore’s second assignment of error.
C. Postrelease Control In his third assignment of error, Moore contends that the trial court erred in
imposing postrelease control as part of his sentence on his murder conviction.
Postrelease control is not required for persons convicted of special felonies like
aggravated murder or murder. State ex rel. Carnail v. McCormick ,
IV. CONCLUSION Therefore, having overruled Moore’s first and second assignments of
error, we affirm the judgment of the trial court convicting him of murder on his guilty plea and his sentence except for the imposition of postrelease control. Having sustained Moore’s third assignment of error, we reverse that portion of the trial court’s sentence imposing postrelease control and remand the cause to the trial court to correct the sentencing entry by removing it.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART AND CAUSE REMANDED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: ________________________ William H. Harsha, Judge NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.