State v. MooreState v. Moore
{¶1} 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.
{¶2} 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
{¶3} 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
{¶6} 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.
{¶8} An Adams County grand jury returned an indictment charging Moore with one count of endangering children in violation of
{¶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
{¶10} 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.
{¶11} This appeal ensued.
II. ASSIGNMENTS OF ERROR
- 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)
- 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)
- 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
{¶13} 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, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). An appellate court determining whether a guilty plea was entered knowingly, intelligently, and voluntarily conducts a de novo review of the record to ensure that the trial court complied with the constitutional and procedural safeguards. State v. Smith, 4th Dist. Washington No. 12CA11, 2013-Ohio-232, ¶ 10.
{¶14} ”
{¶15} ” ‘Principles of contract law are generally applicable to the enforcement and interpretation of plea agreements.’ ” State v. Billingsley, 133 Ohio St.3d 277, 2012-Ohio-4307, 978 N.E.2d 135, ¶ 26, quoting State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 50; State v. Furnier, 4th Dist. Scioto No. 13CA3546, 2013-Ohio-5376, ¶ 9. The essential elements of a contract are an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), manifestation of mutual assent, and legality of the object and consideration. See generally Williams v. Ormsby, 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 14; Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16.
{¶16} In general, “if the parties and the trial court have made a mutual mistake regarding the terms of a plea agreement,” the agreement should be rescinded. State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429, ¶ 14 (4th Dist.). “When a defendant‘s guilty plea is induced by erroneous representations as to the applicable law, including eligibility for judicial release, the plea is not knowingly, intelligently, and voluntarily made.” State v. Bryant, 4th Dist. Meigs No. 11CA19, 2012-Ohio-3189, ¶ 8.
{¶18} 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, 1994 WL 319058 (June 30, 1994), *3 (absent the inclusion of a competency evaluation in the record on appeal, appellate court will presume the validity of the trial court‘s proceedings); State v. Glenn, 4th Dist. Adams Nos. 11CA931 and 11CA932, 2012-Ohio-3190, ¶ 6, fn. 4 (“under
{¶19} Moore claims that because the offenses were allied offenses of similar import, the parties’ agreement to plead guilty to murder in exchange for the state‘s
{¶20} Moore‘s contention lacks merit for several reasons. First, although he 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, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus (“When determining whether two offenses are allied offenses of similar import subject to merger under
{¶21} Moore‘s reliance on Johnson, which held that the offenses of murder and 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
{¶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, 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 17 (“long-established precedent that courts may not inquire into the adequacy of consideration“).
{¶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
{¶24} 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.
{¶25} 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, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 23. The petitioner has the burden of proof because in Ohio, a properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. Failure to satisfy either part of the test is fatal to the claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).
{¶26} For the reasons previously discussed in our disposition of his first 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
{¶27} 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, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 21, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36; State v. Lofton, 4th Dist. Pickaway No. 11CA16, 2012-Ohio-2274, ¶ 8, quoting State v. Silguero, 10th Dist. Franklin No. 11AP-274, 2011-Ohio-6293, ¶ 8 (“[appellant] was convicted of murder, ‘which is an unclassified felony to which the post-release control statute does not apply’ “). Therefore, as the parties both note, we must reverse this portion of Moore‘s sentence and remand the matter to the
IV. CONCLUSION
{¶28} 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.
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
A certified copy of this entry shall constitute the mandate pursuant to
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.