STATE OF OHIO, PLAINTIFF-APPELLEE, v. THOMAS OWENS, DEFENDANT-APPELLANT.
CASE NO. 3-19-16; CASE NO. 3-19-17
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
December 7, 2020
2020-Ohio-5573
Appeals from Crawford County Common Pleas Court Trial Court Nos. 17-CR-0077 and 17-CR-0108 Judgments Affirmed
Howard A. Elliott for Appellant
Ryan M. Hoovler for Appellee
{¶1} Defendant-appellant, Thomas Owens (“Owens“), appeals the October 29, 2019 judgments of sentence of the Crawford County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} On April 4, 2017, the Crawford County Grand Jury indicted Owens on four counts in case number 17-CR-0077: Count One of having weapons under disability in violation of
{¶3} On May 2, 2017, the Crawford County Grand Jury indicted Owens on two counts in case number 17-CR-0108: Count One of possession of drugs in violation of
{¶4} On June 1, 2017, Owens appeared for a change of plea hearing in case numbers 17-CR-0077 and 17-CR-0108. (Case No. 17-CR-0077, Doc. No. 11); (Case No. 17-CR-0108, Doc. No. 9). Under a negotiated plea agreement, Owens withdrew his pleas of not guilty and entered guilty pleas to Counts One and Two of the indictment in case number 17-CR-0077 and to Count One of the indictment in case number 17-CR-0108. (Case No. 17-CR-0077, Doc. No. 11); (Case No. 17-CR-0108, Doc. No. 9). In exchange, the State agreed to recommend dismissal of Counts Three and Four of the indictment in case number 17-CR-0077 and of Count Two of the indictment in case number 17-CR-0108. (Id.); (Id.). The trial court accepted Owens‘s guilty pleas and found him guilty. (Id.); (Id.). In addition, the trial court dismissed Counts Three and Four in case number 17-CR-0077 and Count Two in case number 17-CR-0108. (Id.); (Id.). That same day, the trial court filed its judgment entries of conviction. (Id.); (Id.).
{¶5} On June 20, 2017, the trial court held a sentencing hearing in case numbers 17-CR-0077 and 17-CR-0108. With respect to case number 17-CR-0077, the trial court sentenced Owens to 12 months in prison on Count One and 11 months in prison on Count Two. (Case No. 17-CR-0077, Doc. No. 13). With respect to case number 17-CR-0108, the trial court sentenced Owens to 36 months in prison.
{¶6} On January 14, 2019, Owens filed a motion for judicial release in case numbers 17-CR-0077 and 17-CR-0108.1 (Case No. 17-CR-0077, Doc. No. 23); (Case No. 17-CR-0108, Doc. No. 21). On January 29, 2019, the State filed its objection to Owens‘s motion for judicial release. (Case No. 17-CR-0077, Doc. No. 24); (Case No. 17-CR-0108, Doc. No. 22). On May 9, 2019, the trial court held a hearing on Owens‘s motion for judicial release. (Case No. 17-CR-0077, Doc. No. 27); (Case No. 17-CR-0108, Doc. No. 25). At the conclusion of the hearing, the trial court granted Owens‘s motion for judicial release. (Case No. 17-CR-0077, Doc. No. 27); (Case No. 17-CR-0108, Doc. No. 25). However, during the hearing, the trial court cautioned Owens that if he violated the terms of his release, he could
{¶7} On October 2, 2019, a motion was filed alleging that Owens had violated the terms of his judicial release by failing a drug test and associating with individuals involved in illegal drug activity. (Case No. 17-CR-0077, Doc. No. 30); (Case No. 17-CR-0108, Doc. No. 28). The motion requested that Owens show cause as to why his judicial release should not be revoked. (Case No. 17-CR-0077, Doc. No. 30); (Case No. 17-CR-0108, Doc. No. 28). At a hearing on October 28, 2019, Owens admitted to violating the conditions imposed upon him. (Case No. 17-CR-0077, Doc. No. 30); (Case No. 17-CR-0108, Doc. No. 28). Thereafter, the trial court revoked Owens‘s judicial release and reimposed the remaining balance of his 59-month prison term. (Case No. 17-CR-0077, Doc. No. 34); (Case No. 17-CR-0108, Doc. No. 31). The following day, the trial court filed its judgment entries of sentence reflecting the sentence pronounced at the hearing. (Case No. 17-CR-0077, Doc. No. 34); (Case No. 17-CR-0108, Doc. No. 31).
{¶8} Owens filed his notices of appeal on November 15, 2019. (Case No. 17-CR-0077, Doc. No. 40); (Case No. 17-CR-0108, Doc. No. 37). He raises two assignments of error for our review.
Assignment of Error No. I
When a trial court takes a guilty plea to offenses by the Defendant-Appellant, and fails to advise the Defendant-Appellant
{¶9} In his first assignment of error, Owens argues that his original convictions are void because the trial court failed to comply with Crim.R. 11. Specifically, Owens argues that the trial court failed to advise him in its plea colloquy that his guilt must be proven beyond a reasonable doubt. Accordingly, Owens contends that his pleas were not made knowingly, intelligently, and voluntarily.
{¶10} First, we note that Owens did not seek to withdraw his pleas in the trial court and failed to file a direct appeal alleging a defect with his original convictions and sentences. Rather, Owens‘s present appeal is based on the judgments revoking his judicial release and reimposing the remainder of his original sentences. Generally, the failure to raise a defect in a guilty plea is barred by res judicata if it was or could have been raised on direct appeal. State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, ¶ 15. Nevertheless, Owens contends that his argument is not barred by res judicata because his original sentences are void.
{¶11} “All guilty pleas must be made knowingly, voluntarily, and intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “‘Failure to
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶12} The advisements under
{¶13} The record reveals that Owens‘s written guilty plea petitions, which were signed by Owens and his trial counsel at the June 1, 2017 change of plea hearing, contain the statement, “I understand I waive my right to have the prosecutor prove my guilt beyond a reasonable doubt on every element of each charge.” (Case No. 17-CR-0077, Doc. No. 11); (Case No. 17-CR-0108, Doc. No. 9). However, a review of the
{¶14} The Supreme Court of Ohio has held that “the right to have the state prove guilt beyond a reasonable doubt is a constitutionally protected right of an
{¶15} Indeed, “[c]ourts have held in the past that the failure of a trial court to strictly comply with
{¶16} In Harper, the Supreme Court of Ohio stated that “when a specific action is within a court‘s subject-matter jurisdiction, any error in the exercise of that jurisdiction renders the court‘s judgment voidable, not void.” Harper at ¶ 26. Furthermore, “[g]enerally, a voidable judgment may only be set aside if successfully
{¶17} Here, Owens was properly indicted for crimes committed in Crawford County. Accordingly, the trial court had jurisdiction to accept his pleas and enter a sentence. Because the Crawford County Court of Common Pleas had personal and subject-matter jurisdiction over Owens‘s original change of plea and sentencing proceedings, the Supreme Court of Ohio‘s holding in Harper dictates that Owens‘s convictions were voidable, not void, which would subject his claim to res judicata. Greene at ¶ 11.
{¶18} “‘“‘Under the doctrine of res judicata, a final 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 * * * on an appeal from that judgment.“‘“’ State v. Schwieterman, 3d Dist. Mercer No. 10-09-12, 2010-Ohio-102, ¶ 23, quoting State v. Troglin, 3d Dist. Union No. 14-09-04, 2009-Ohio-5276, ¶ 13, quoting State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. “‘[R]es judicata promotes the principles of finality and judicial economy by preventing endless relitigation of an issue on which a defendant has already received a full and fair opportunity to be heard.‘” Id.,
{¶19} “Further, ‘[r]es judicata bars the relitigation of constitutional issues, * * * including claims that the accused‘s guilty pleas were not knowingly, intelligently, and voluntarily made[.]‘” (Internal citation omitted.) Greene, 2020-Ohio-5133, at ¶ 13, quoting Straley, 159 Ohio St.3d 82, at ¶ 36 (Kennedy, J., concurring separately), citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59-60. Here, Owens could have challenged any defect in the plea colloquy on direct appeal, but he failed to do so. Thus, Owens‘s present challenge of his original plea colloquy is barred by res judicata. Id. at ¶ 13.
{¶20} Accordingly, Owens‘s first assignment of error is overruled.
Assignment of Error No. II
The trial court abused its discretion in that after having placed the Defendant-Appellant on community control sentence essentially for drug offenses, where during community control, the Defendant-Appellant had additional violations in the nature of drug offenses, by not re-imposing a community control sanction of drug treatment instead of a term of imprisonment.
{¶21} In his second assignment of error, Owens argues that the trial court abused its discretion by reimposing the remainder of his 59-month prison sentence upon his violation of the terms of his judicial release. Owens contends that, due to his history of substance abuse, the trial court should have sentenced him to
{¶22} First, we note that throughout his brief, Owens conflates the distinct concepts of community control under
{¶23} “Under
{¶24} To the extent that Owens argues that the trial court abused its discretion by electing to reimpose the remainder of his previously imposed sentence rather than allow him to remain on judicial release pending further violation, we are unpersuaded. Owens contends that, due to his history of substance abuse, the trial
{¶25} Accordingly, Owens‘s second assignment of error is overruled.
{¶26} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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