State v. MorrisState v. Morris
Criminal Appeal from the Court of Common Pleas, Case No. 2008 CR 0174.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Michael T. Callahan, Callahan, Greven, Riley & Sinn, L.L.C., 137 South Main Street, #300, Akron, OH 44308 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Thomas Morris, appeals from the judgment of the Portage County Court of Common Pleas overruling his motion to withdraw his guilty plea. For the reasons that follow, we affirm.
{¶2} On March 13, 2008, the Portage County Grand Jury indicted appellant on five counts: rape in violation of
{¶3} Appellant entered a guilty plea to count one only. The remaining counts of the indictment were dismissed.
{¶4} Paragraph two of the written plea reads as follows:
{¶5} “I have been informed that if I am imprisoned that after my release from prison I [May ___ or Will _ √_] be supervised under post-release control
{¶6} As evidenced above, the written plea does not state the duration of post-release control.
{¶7} The written plea of guilty was signed by appellant. It was referenced during his oral plea before the court. During the oral plea, the court informed appellant regarding post-release control as follows:
{¶8} “THE COURT: Do you understand that if you are released from prison, you will be placed on post-release control for a period of five years, and if you violate the terms of that post-release control, your sentence could be increased by one half?
{¶9} “MR. MORRIS: I do.”
{¶10} After so informing appellant, and after additional colloquy, the court accepted appellant‘s guilty plea and dismissed the remaining counts of the indictment.
{¶11} The court proceeded to sentencing. The court orally entered sentence as follows: “[t]he court, upon construing the Ohio sentencing statute, the sentence is mandatory. It will be the sentence of this Court that you be confined by the Ohio Department of Corrections for the rest of your life; that you not be eligible with parole eligibility until after the first 15 years.” The court then gave appellant credit for time served but did not make any mention of the post-release control requirements at the sentencing.
{¶12} Consistent therewith, the sentencing entry sentences appellant to life in prison, with parole eligibility after 15 years. Regarding post-release control, the judgment entry states as follows:
{¶13} “The Court thereupon notified [appellant] after release from prison [appellant] will be supervised under post-release control
{¶14} Twenty-two months later, appellant filed a motion to withdraw plea. In his memorandum in support, appellant argued that he is entitled to withdraw his plea because, prior to entering his plea, he was not informed that he was subject to five years mandatory post-release control. Appellant also argued that his sentence is void because although the sentencing entry sentences him to post-release control, it does not state the duration of post-release control.
{¶15} At the hearing on his motion, appellant‘s counsel reiterated the arguments he made in his brief and supplemented his written pleading as follows:
{¶16} “Additionally, I would ask the court to allow me to supplement things that I have not placed on the record. I know the prosecutor is not aware of it but I will tell the court that I was made aware at some point in time that Mr. Morris has a lengthy mental health, psychological history that was not brought forth at all, no suggestion of it whatsoever was brought forth by trial counsel, there was no mention of it in the record, no mention of any request or even any consideration of competency and/or sanity for the time of the offense. I think, Judge, that there is, there is no way possible without at least exploring that, based upon his lengthy mental health history which included times of hospitalization, that he could have made a knowing and intelligent plea. For those reasons I would ask the Court to consider allowing Mr. Morris to withdraw his plea, to set a bond and to place this on the trial -- on the Court‘s trial docket.”
{¶17} After supplementing his argument at the hearing, the trial court asked appellant‘s counsel whether he wanted to offer any evidence at all or just argument. Counsel responded, “Just argument, Judge.”1
{¶18} In its response to appellant‘s motion to withdraw guilty plea, appellee argued that because appellant was sentenced to life imprisonment with parole eligibility after 15 years, appellant was not subject to post-release control and, therefore, the court was not required to inform appellant of post-release control prior to accepting his plea; and resultantly, failure to include the duration of post-release control in the sentencing entry did not render the sentence void. Appellee also argued that appellant
{¶19} The trial court, apparently persuaded by appellee‘s argument that appellant was not subject to post-release control because he is subject to parole, entered a nunc pro tunc judgment entry eliminating appellant‘s sentence regarding post-release control. Ultimately, the trial court overruled appellant‘s motion to vacate his plea:
{¶20} “This matter came on for hearing on [appellant‘s] motion to vacate his previous plea. The court upon considering the motion, the briefs and arguments of counsel, and the transcript of proceedings finds that rape is an unclassified felony that carries a sentence of life imprisonment with parole eligibility after 15 years. The court would find that post-release control and advising of post-release control is not necessary because this matter is controlled by the parole board.
{¶21} “The court further finds no showing of a manifest injustice.”
{¶22} Appellant appeals assigning the following as error:
{¶23} “The trial court erred as a matter of law in denying appellant‘s motion to vacate his guilty plea.”
{¶24} In his brief, appellant argues that even though he received a life sentence, post-release control is mandatory pursuant to law; because the trial court failed to include the duration of post-release control in his sentencing entry, his sentence is void; resultantly, his motion to withdraw plea should have been considered under the presentence standard rather than the post-sentence standard; and, last, it was error not to grant his motion to vacate.
{¶25} Post-Release Control
{¶26}
{¶27} “(B) Each sentence to a prison term for felony of the first degree, *** [or] for a felony sex offense *** shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender‘s release from imprisonment. *** Unless reduced by the parole board pursuant to division (D) of this section when authorized under that division, a period of post-release control required by this division for an offender shall be of one of the following periods:
{¶28} “(1) For a felony of the first degree or for a felony sex offense, five years[.]”
{¶29} In State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, the court concluded that post-release control is required to be imposed upon a defendant who receives an indefinite sentence of life in prison with parole eligibility for a conviction of rape in violation of
{¶30} Because, in our case, appellant was sentenced on both a first-degree felony and a sex offense, five years post-release control is mandatory. McCormick at ¶14.
{¶31} Sentence is not Void
{¶32} Despite the fact that the trial court informed appellant that he would be subject to mandatory post-release control for a period of five years prior to accepting his
{¶33}
{¶34} “(3) *** [I]f the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
{¶35} “***
{¶36} “(c) Notify the offender that the offender will be supervised under section 2967.28 of the Revised Code [regarding post-release control] after the offender leaves prison if the offender is being sentenced for a felony of the first degree or *** for a felony sex offense ***.”
{¶37} However, the court‘s failure to notify the offender of mandatory post-release control or state the duration of post-release control in the sentencing entry does not render appellant‘s judgment void. State v. McKinney, 11th Dist. No. 2010-T-0011, 2010-Ohio-6445;
{¶38} Appellant was sentenced on April 17, 2008, well after the July 11, 2006 effective date of
{¶39} ”
{¶40} “For such offenders,
{¶41} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme Court of Ohio considered the effect of
{¶42} Accordingly, appellant‘s sentence is not void. It is subject to correction pursuant to
{¶43} Withdrawal of Guilty Plea
{¶44} Crim.R. 32.1 Withdrawal of Guilty Plea states: “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.”
{¶45} Because appellant‘s sentence is not void, his motion to withdraw plea is a post-sentencing motion. Thus, the manifest injustice standard is the appropriate standard to apply. Crim.R. 32.1; State v. Walker, 11th Dist. No. 2009-L-170, 2011-Ohio-401. The phrase manifest injustice has been variously defined; however, it is clear that under such standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. State v. Clark, 11th Dist. No. 2009-A-0038, 2010-Ohio-1491, at
{¶46} Based on the foregoing, appellant‘s assignment of error is without merit. The judgment of the Portage County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.