State v. MuhumedState v. Muhumed
Ron O‘Brien, Prosecuting Attorney, and Susan M. Suriano, for appellee.
Mohamed S. Muhumed, pro se.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Defendant-appellant, Mohamed S. Muhumed (“appellant“), appeals from a judgment entered by the Franklin County Court of Common Pleas denying his motion to withdraw guilty plea and motion to vacate and correct void sentence. Because we find denial of the motion to withdraw guilty plea and motion to vacate and correct void sentence is proper, although for reasons different than those cited by the trial court, we affirm the trial court‘s decision to deny both motions.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 26, 2006, appellant was indicted in a multi-count indictment on charges of aggravated robbery and robbery. Many of those charges also included firearm specifications. The charges arose as a result of a string of armed robberies committed over a period of several weeks on the west side of Columbus at numerous businesses. On
{¶ 3} Appellant did not file a timely appeal. On June 21, 2007, this court denied his May 24, 2007 motion for leave to file a delayed appeal, finding appellant failed to provide a reasonable explanation for his untimeliness. See State v. Muhumed, 10th Dist. No. 07AP-437 (June 21, 2007) (memorandum decision). Appellant‘s discretionary appeal to the Supreme Court of Ohio was not accepted for review. See State v. Muhumed, 115 Ohio St.3d 1475, 2007-Ohio-5735.
{¶ 4} On April 1, 2008, appellant filed a motion for withdrawal of guilty plea pursuant to
{¶ 5} Appellant requested leave to file a delayed appeal from the trial court‘s August 18, 2008 judgment entry. On December 29, 2009, we granted appellant‘s motion for leave to file a delayed appeal. However, we found no abuse of discretion in the trial court‘s denial of appellant‘s motion to withdraw his guilty plea and, consequently, we upheld that denial on appeal. See State v. Muhumed, 10th Dist. No. 09AP-936, 2010-Ohio-3968.
{¶ 6} On August 31, 2011, appellant filed a motion to vacate and correct void sentence, claiming post-release control had not been properly imposed, consecutive sentences had been improperly imposed without the necessary findings, and the trial court failed to inform him of the mandatory nature of his sentences. On that same date, appellant also filed a motion to withdraw guilty plea, pursuant to
II. ASSIGNMENTS OF ERROR
[I.] The trial court committed error that was prejudicial when it denied the appellant‘s motion to withdraw guilty plea, when Ohio Revised Code 2943.031(D) mandates the judgment [sic] of conviction be set aside and Appellant be permitted to withdraw his plea in the absence of the advisement of Ohio Revised Code 2943.031(A).
[II.] The trial court erred when it held that res judicata barred consideration of the trial court‘s failure to give the Ohio Rev. Code 2943.031 warning as a basis for granting [Appellant‘s] motion to withdraw guilty plea.
[III.] The trial court erred and abused it[s] discretion where it failed to hold an evidentiary hearing on Appellant‘s motion to withdraw his guilty plea and vacate his conviction pursuant to Ohio Revised Code 2943.031(A), despite Appellant[‘]s clear and unequivocal request.
[IV.] The trial court erred and abused it[s] discretion where it failed to conduct a substantial compliance analysis in determination of the trial court‘s compliance with R.C. 2943.031.
[V.] The trial court erred in failing to properly impose post[-] release control at the plea and sentencing hearings in violation of R.C. 2943.032, R.C. 2929.19(B)(3)(a), and Crim.R. 11(C)(2)(A).
[VI.] The trial court erred in sentencing Appellant to consecutive terms of incarceration without setting forth the mandatory findings required by R.C. 2929.14(E)(4), in light of House Bill 86 and the repeal of 2929.19(B)(2)(c).
III. DISCUSSION
{¶ 7} Appellant‘s first, second, third, and fourth assignments of error all address the trial court‘s denial of his motion to withdraw guilty plea. Because these assignments of error are intertwined, we shall address them together.
A. Standard of Review
{¶ 8}
{¶ 9} “However, the manifest injustice standard does not apply to plea withdrawal motions filed pursuant to
{¶ 10} The same abuse of discretion standard of review applies to the trial court‘s decision on a motion filed pursuant to
{¶ 11} The applicability of res judicata is a question of law, which an appellate court reviews de novo. EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240, 249, 2005-Ohio-5799, ¶ 15 (10th Dist.), citing Prairie Twp. Bd. of Trs. v. Ross, 10th Dist. No. 03AP-509, 2004-Ohio-838, ¶ 12.
B. Crim.R. 32.1 Motion to Withdraw
{¶ 12} Although appellant‘s current motion, filed August 31, 2011, is titled “Motion To Withdraw Guilty Plea(s) Pursuant To Ohio‘s O.R.C. 2943.031(D); {Failure Of Trial Court To Comply With O.R.C. 2923.031(A) Statutory Requirements For A Non-Citizen Defendant},” within the body of the motion, appellant also refers to his request as a “Motion to withdraw guilty plea(s) under
{¶ 13} “Res judicata prevents repeated attacks on a final judgment and applies to issues that were or might have been previously litigated. State v. Sappington, 10th Dist. No. 09AP-988, 2010-Ohio-1783, ¶ 10, citing State v. Brown, 8th Dist. No. 84322, 2004-Ohio-6421. “The doctrine of res judicata is applicable to successive motions to withdraw a guilty plea under
{¶ 14} In April 2008, appellant filed his first motion to withdraw guilty plea, titled “motion for withdrawal of guilty plea pursuant to
{¶ 15} Therefore, because res judicata applies to successive motions to withdraw a guilty plea under
C. Motion to Withdraw Under R.C. 2943.031
{¶ 16} Next, we address appellant‘s motion to withdraw guilty plea in the context of
{¶ 17}
If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty * * * may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
{¶ 18}
{¶ 19}
Upon motion of the defendant, the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty * * * if * * * the court fails to provide the defendant the advisement described in division (A) of this section, the advisement is required by that division, and the defendant shows that he is not a citizen of the United States and that the conviction of the offense to which he pleaded guilty or no contest may result in his being subject to deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
{¶ 20} In the context of a claim asserting a violation of
{¶ 21} Furthermore, in Weber, this court found that the General Assembly‘s inclusion of specific language in
R.C. 2943.031(D) provides a method for withdrawing a guilty plea outside of that provided inCrim.R. 32.1 ; a defendant who satisfies the four elements stated in that division need not show the “manifest injustice” normally required to justify post-sentence withdrawal of a guilty plea pursuant toCrim.R. 32.1 . Moreover, even though there is some question concerning the applicability of res judicata toCrim.R. 32.1 motions, a motion for relief underR.C. 2943.031(D) cannot be raised until the element of prejudice is present. Because of this element, res judicata does not apply to motions underR.C. 2943.031 unless all the elements of the claim, including prejudice, could have been raised in an earlier proceeding.
{¶ 22} The question then arises as to whether appellant‘s filing of a motion to withdraw guilty plea pursuant to
{¶ 23} Res judicata bars repeated attempts to raise
{¶ 24} In the instant case, however, appellant has not repeatedly attempted to raise claims under
{¶ 25} As previously stated above,
{¶ 26} The next question that arises is whether appellant could have moved to withdraw the guilty plea based upon the
{¶ 27} We disagree with the State‘s contention because we find the record does not support the assertion that appellant had all of the knowledge and information that would give rise to filing a motion to withdraw pursuant to
{¶ 28} In this case, appellant did not support his motion to withdraw with documentation affirmatively demonstrating that the conviction resulting from his guilty plea has caused prejudice. In other words, appellant has not produced documentation demonstrating the issuance of a notice of deportation proceedings or that a deportation order was issued against him. Nor has appellant attached an affidavit averring that he will be deported, excluded, or denied citizenship, or that he has received notice that deportation proceedings are pending, or that his convictions at issue are the proximate cause of the purported deportation proceedings. Instead, appellant has simply made unsupported assertions in his motion to withdraw and in his appellate brief claiming he faces the possibility of deportation because he has received notification of a pending deportation proceeding.
{¶ 29} In his August 31, 2011 motion to withdraw guilty plea, appellant states:
[A]s a result of a visit from Immigration and Customs Enforcement {ICE}, around middle of January, 2007 at Corrections Reception Center {CRC}, Ohio; And, a more recent follow up of a “Notice to appear in Immigration Court” by ICE Agents, notifying defendant Muhumed of a pending deportation proceeding(s); Moreover, it is important for this Honorable Court to recognize that, O.R.C. 2943.031, does not provide a time limitation within which to file a motion to withdraw guilty plea(s).
(R. 196 at 2.)
{¶ 30} In his appellate brief, appellant states:
Appellant received a visit from Immigration and Customs Enforcement (ICE), in January 0f 2007, along with a follow up Notice to Appear in Immigration Court with notification of a pending deportation proceedings. (See Exh “F“).3 Thus, Appellant more recently has become aware through the ICE Agents that his felony conviction will not only result in deportation, but would also include the consequences of
(Appellate Brief at 5.)
{¶ 31} As noted above, appellant has not filed a notice of deportation proceedings or an affidavit swearing that he will be deported, excluded, or denied citizenship in support of his claim of prejudice resulting from his plea. Thus, there are no documents or other evidence in the record indicating when appellant was notified as to a pending deportation proceeding. Furthermore, it is unclear, based upon appellant‘s motion to withdraw, exactly when appellant became aware of the fact that he was facing deportation due to a pending proceeding. Appellant‘s unsworn statements regarding the timing of his receipt of any notice of deportation and the information that he received during the January 2007 visit from the Immigration and Customs Enforcement agents are not definitive.
{¶ 32} Thus, without more, and contrary to the State‘s assertions, it cannot be said that appellant had all of the knowledge and information giving rise to the filing of a motion to withdraw pursuant to
{¶ 33} Based upon the evidence in the record, we cannot find that the violation of
D. Substantial Compliance
{¶ 34} Appellant submits the trial court failed to comply with
{¶ 35} A review of the transcript of the plea proceedings reveals that the trial court was aware that appellant was not a citizen of the United States. The trial court addressed the issue and the following exchange occurred:
THE COURT: Quite frankly, Mr. Muhumed, I do not know exactly what position the INS would take with regards to this case. I do not know. I‘m going to have to assume the worst and for purposes of this plea I would like you to do that as well. And so I will ask you, do you understand that there is a possibility that the INS might come and say, look, given the number of crimes, given the nature of the crimes that we feel we have no choice but to deport you. I have to assume that that‘s a possibility. Do you understand that?
[APPELLANT]: Yes, sir.
THE COURT: Do you understand that that could happen to you?
[APPELLANT]: Yes, sir.
THE COURT: All right. Any questions in that regard?
[APPELLANT]: No, sir.
(Tr. 7-8.)
{¶ 36} Based upon the transcript of the plea proceedings, it is apparent that the trial court did not provide verbatim the advisement set forth in {¶ 37} “[I]f some warning of immigration-related consequences was given at the time a noncitizen defendant‘s plea was accepted, but the warning was not a verbatim recital of the language in {¶ 38} “Substantial compliance with {¶ 39} Before we undergo a substantial compliance analysis, however, we note that a defendant is not automatically entitled to relief when a trial court fails to provide the advisement required by {¶ 40} We have previously found that a trial court‘s failure to substantially comply with {¶ 41} In the case before us, appellant‘s motion is lacking in evidence to support his unsworn assertions. Appellant has not filed a notice of deportation proceedings or even an affidavit averring he is facing deportation proceedings as a result of his convictions or, more importantly, that he is facing exclusion from admission to the United States or denial of naturalization as a result of his convictions.4 Nor has appellant submitted an affidavit averring that, had he received the full advisement, such advisement would have impacted his decision to plead guilty (i.e., he would not have entered his guilty plea). In fact, appellant has not filed any type of affidavit or evidence at all in support of his claimed prejudice from his plea. Instead, appellant has simply asserted in his motion and in his brief, without supporting documentation, that he faces deportation, due to a pending proceeding. {¶ 42} Without a notice of deportation or a sworn statement or any other evidence in the record, appellant has not sufficiently established prejudice from his guilty pleas entered in this case. See State v. White, 142 Ohio App.3d 132 (8th Dist.2001) (because no deportation order had been issued, and therefore the defendant only faced the possibility of deportation as a result of his plea, he did not show prejudicial effect); State v. Isleim, 8th Dist. No. 66201 (Aug. 18, 1994) (some showing of prejudicial effect caused by the trial court‘s failure to advise a defendant as to possible deportation is required before a motion to vacate a guilty plea will be granted); and State v. Balderas, 2d Dist. No. 07-CA-25, 2007-Ohio-4887 (because the defendant failed to show the convictions resulting from his guilty pleas in state court in the case at issue—rather than his federal convictions— adversely affected his immigration status, there was no error in the trial court‘s decision to deny his motion to withdraw). {¶ 43} Therefore, even if we conducted a substantial compliance analysis and determined the trial court failed to substantially comply with the advisement set forth in {¶ 44} Finally, we address the issue of the trial court‘s failure to hold a hearing. In Francis, which addressed an appeal from the trial court‘s denial of the defendant‘s motion to withdraw pursuant to [A]s a general rule, in the absence of specific requirements to the contrary, decisions as to whether to hold a hearing and as to whether to explain reasons for a ruling are matters entrusted to the sound discretion of the trial court. Sometimes, a trial court‘s explanation of the reasons underlying the decision to deny the motion will illuminate why a hearing was not necessary. Sometimes, the record will reveal the reasons for denial with sufficient clarity to show that it was not error to fail to hold a hearing or to specify the reasons for denial. We simply find that, in this case, the combination of a failure to hold a hearing and a failure to explain the reasoning are so significant that appellate review is impossible and that further proceedings by the trial court are necessary. {¶ 45} Recently, this court addressed the issue of when a hearing is required. In State v. Yahya, 10th Dist. No. 10AP-1190, 2011-Ohio-6090, we considered the defendant‘s {¶ 46} Although Yahya involved a motion to withdraw based upon ineffective assistance of counsel with respect to counsel‘s advice regarding the defendant‘s immigration status, rather than a motion to withdraw pursuant to {¶ 47} The lack of evidence in the record to support appellant‘s unsworn assertions makes it readily apparent that no hearing is warranted here, as appellant has failed to meet his burden and withdrawal of the plea is not required. Despite the fact that the trial court did not conduct a substantial compliance analysis (due to its belief that res judicata applied to bar appellant‘s motion to withdraw guilty plea), we believe it is not necessary to remand this matter to the trial court to hold a hearing and/or conduct a substantial compliance analysis, based upon the evidence (or lack thereof) provided by appellant. Where the defendant fails to “carry his burden of presenting facts from the record or supplied through affidavit that establish manifest injustice or warrant a hearing,” we are not required to permit withdrawal of the plea or to hold a hearing. State v. Garcia, 10th Dist. No. 08AP-224, 2008-Ohio-6421, ¶ 15. {¶ 48} Our decision in Garcia was premised upon our examination of the defendant‘s motion to withdraw his guilty plea under a manifest injustice standard and a determination that the defendant failed to meet that standard or to demonstrate that a hearing was warranted. Nevertheless, we believe the standards set forth in {¶ 49} Based upon our analysis as set forth above, we overrule appellant‘s first, third, and fourth assignments of error. {¶ 50} Appellant‘s fifth and sixth assignments of error both address the denial of his motion to vacate and correct void sentence. Therefore, we shall address these assignments of error together. {¶ 51} In these two assignments of error, appellant contends the trial court erred by failing to properly notify him of post-release control and by imposing consecutive periods of incarceration without making the necessary statutory findings as required by H.B. No. 86. Because of these errors, appellant argues the trial court erred in failing to grant his motion to vacate and correct void sentence. {¶ 52} Appellant‘s motion to vacate and correct void sentence is a petition for post-conviction relief. See State v. Hollomon, 10th Dist. No. 07AP-875, 2008-Ohio-2650, ¶ 12 (“A motion to correct or vacate a sentence filed subsequent to a direct appeal is properly treated as a petition for post-conviction relief under {¶ 53} The standard of review used by an appellate court in reviewing a trial court‘s decision to dismiss a postconviction petition for relief without an evidentiary hearing involves a mixed question of law and fact. State v. Stewart, 10th Dist. No. 09AP-817, 2009-Ohio-6423, ¶ 4. The trial court‘s decision on factual issues is reviewed under a {¶ 54} The right to seek post-conviction relief is governed by Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief. {¶ 55} Post-conviction petitions must also be timely, pursuant to the time limits set forth in {¶ 56} When a post-conviction petition is untimely, the trial court lacks jurisdiction to consider it, unless the petitioner demonstrates that he can meet one of the exceptions set forth in {¶ 57} Pursuant to {¶ 58} Alternatively, the trial court could also consider an untimely petition if the petitioner presented DNA evidence establishing his actual innocence by clear and convincing evidence. See {¶ 59} Because appellant has failed to demonstrate that he meets one of the exceptions to the timely filing requirement, denial of his request for relief is proper. {¶ 60} Under the first exception, a trial court may consider an untimely petition if the petitioner shows he was unavoidably prevented from discovery of the facts upon which he must rely to present his claim for relief. See {¶ 61} With regard to the second alternative under the first prong of {¶ 63} Therefore, because appellant‘s petition was not timely filed, and because appellant has not met one of the exceptions which could overcome this jurisdictional bar, we find the petition was untimely. {¶ 64} We also find appellant‘s petition is barred by res judicata. {¶ 65} Under the doctrine of res judicata, a ” ‘[f]inal judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.’ ” State v. Jackson, 10th Dist. No. 2002-Ohio-3330, ¶ 42 (emphasis sic), quoting State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996); and State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. “Res judicata is applicable in all postconviction relief proceedings.” Szefcyk at 95. {¶ 66} Here, all of appellant‘s claims for relief were based on evidence in the record and all of the arguments raised could have been raised at sentencing or in a direct appeal without resorting to evidence outside of the record. As a result, res judicata applies to this post-conviction petition to bar him from raising an issue that was or could have been raised at sentencing or in a direct appeal. See State v. Scudder, 131 Ohio App.3d 470, 475 (10th Dist.1998) (“A petition for postconviction relief may be dismissed without a hearing, based upon the doctrine of res judicata, when the trial court finds that the petitioner could have raised the issues in his petition at trial or on direct appeal without resorting to evidence which is beyond the scope of the record.“). See also State v. Mason, 10th Dist. No. 12AP-120, 2012-Ohio-4510, ¶ 10, quoting Scudder at 475 (” ‘It is well settled that constitutional issues may not be considered in a postconviction proceeding where they have already been, or could have been, litigated by the defendant on direct appeal.’ “). {¶ 67} Consequently, we find res judicata bars appellant from raising these arguments now in a post-conviction petition, and therefore, we find the trial court properly denied the motion. {¶ 68} Furthermore, even if the trial court had jurisdiction and if the motion was not barred by res judicata, it is readily apparent that appellant‘s challenges to post-release control and the imposition of consecutive sentences would still fail on the merits. {¶ 69} Regarding the imposition of post-release control, both the sentencing judgment entry and the transcript from the plea and sentencing hearings demonstrate that appellant was properly advised he was subject to a mandatory three-year period of post-release control. (Tr. 6-7, 27-28; R. 86 at 3; R. 77 at 3.) As to appellant‘s challenge to his consecutive sentences, the trial court acted properly in imposing the sentences without making findings pursuant to {¶ 70} For all of the reasons cited above, appellant‘s fifth and sixth assignments of error are overruled. {¶ 71} In conclusion, we overrule appellant‘s first, third, fourth, fifth, and sixth assignments of error. We sustain appellant‘s second assignment of error because we find the trial court did err in determining that res judicata applied to bar appellant‘s motion to withdraw guilty plea pursuant to Judgment affirmed. SADLER and FRENCH, JJ., concur. ______________________E. Failure To Hold A Hearing
F. Denial of Motion to Vacate and Correct Void Sentence
IV. DISPOSITION