STATE OF OHIO v. DEMALE ROGERS
No. 99246
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 25, 2013
[Cite as State v. Rogers, 2013-Ohio-3246.]
BEFORE: Rocco, P.J., Blackmon, J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-438533
Demale Rogers, Pro Se
Inmate #462-269
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Adam Chaloupka
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Demale Rogers appeals the trial court‘s denial of his motion to vacate his guilty plea after he pled guilty to murder in violation of
{¶2} Rogers presents two assignments of error. In his first assignment of error, Rogers contends that the trial court erred in denying his motion to withdraw his guilty plea where the trial court had erroneously indicated, during the plea colloquy, that Rogers would be subject to a period of postrelease control if he was released from prison. In his second assignment of error, Rogers claims that the trial court‘s failure to “render a verdict or finding of guilt” “in open court” with respect to his guilty plea violated
{¶3} Having reviewed the record, this court finds no merit to Rogers‘s arguments. Consequently, his assignments of error are overruled, and the trial court‘s judgment is affirmed.
Factual and Procedural Background
{¶4} In June 2003, Rogers was charged with one count of aggravated murder in violation of
{¶5} Before accepting Rogers‘s plea, the trial court conducted the plea colloquy required under
THE COURT: Do you understand as well the penalty for this crime is a term in prison anywhere from 15 years to life?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that you will serve the full term of that sentence? You don‘t get time off for good behavior, and I believe post release control will apply to this, am I correct, counsel?
MR. STANTON: That‘s correct, your Honor.
THE COURT: Even when you get out of prison, you will be ordered to report to the Parole Board for a period of time. And if you don‘t meet their conditions, they can ship you back to prison for up to half your original sentence. Do you understand that?
THE DEFENDANT: Yes, sir.
{¶6} At the end of the plea colloquy, the trial court accepted Rogers‘s guilty plea to the murder charge and sentenced Rogers to a prison term of 15 years to life along with a period of postrelease control for the maximum period allowed under
{¶7} The trial court‘s February 23, 2004 journal entry setting forth Rogers‘s plea and sentence included the following:
DEFENDANT WAS ADVISED OF ALL CONSTITUTIONAL RIGHTS AND PENALTIES.
ON RECOMMENDATION OF THE PROSECUTOR COUNT 1 IS AMENDED TO READ MURDER RC 2903.02(B) FELONY.
DEFENDANT RETRACTS FORMER PLEA OF NOT GUILTY AND ENTERS A PLEA OF GUILTY TO MURDER RC 2903.02(B) FELONY SB2 AS AMENDED IN COUNT 1.
COURT FINDS DEFENDANT GUILTY. COUNT 2 IS NOLLED. * * *
THE COURT IMPOSES A PRISON TERM AT LORAIN CORRECTIONAL INSTITUTION OF 15 YEARS TO LIFE. * * *
POST RELEASE CONTROL IS PART OF THIS PRISON SENTENCE FOR THE MAXIMUM PERIOD ALLOWED FOR THE ABOVE FELONY(S) UNDER R.C. 2967.28.
{¶8} Rogers filed a notice of appeal on March 26, 2004; however, his appeal was later dismissed for failure to file the record.
{¶9} Nearly eight years later, in February 2012, Rogers filed a motion for an amended journal entry and a motion for sentencing with the trial court. Rogers argued that his conviction and sentence were void because the indictment and subsequent journal entry setting forth his conviction and sentence were not properly filed with the clerk of courts and because the journal entry imposed “an unauthorized and unspecified term of post-release control.” The trial court denied the motion, and Rogers once again appealed to this court. On appeal, this court affirmed the trial court‘s ruling, concluding that there were no jurisdictional defects with the indictment and that the trial court‘s February 26, 2004 judgment entry was properly journalized, met all of the substantive requirements of a
{¶10} In November 2012, Rogers filed a motion for leave to withdraw his guilty plea with the trial court, arguing that his guilty plea should be vacated because (1) no verdict or finding of his guilt was ever made “in open court” and (2) the trial court erroneously advised him, during the plea colloquy, that he would be subject to a period of postrelease control following the conclusion of his sentence.
{¶11} On November 9, 2012, the trial court denied Rogers‘s motion without a hearing, concluding that the February 26, 2004 journal entry “confirms that the court * * * found the defendant guilty” based on his guilty plea and that because postrelease control did not apply to murder, the trial court‘s “inaccurate advisement” regarding postrelease control was “meaningless and irrelevant.”
{¶12} Rogers appeals from the trial court‘s order denying his motion to withdraw his guilty plea, raising the following two assignments of error.
ASSIGNMENT OF ERROR NO. I:
Whether the trial court abused its discretion thereby violating due process when it denied “without hearing” defendant‘s properly pled and substantively supported motion for leave to withdraw guilty plea.
ASSIGNMENT OF ERROR NO. II:
Whether the trial court‘s failure to “render a verdict or finding of guilt” with respect to the underlying plea “on the record” implicates due process and results in a lack of a final appealable order.
Judgment of Conviction a Final, Appealable Order
{¶14}
A judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence. Multiple judgments of conviction may be addressed in one judgment entry. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.
{¶15} A court “speaks through its journal.” State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 15 (“‘A court of record speaks only though its journal and not by oral pronouncement or mere written minute or memorandum.‘“), quoting Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d 625 (1953), paragraph one of the syllabus. The trial court‘s February 26, 2004 journal entry clearly states that Rogers “enters a
{¶16} As the Ohio Supreme Court explained in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, where, as here, a defendant‘s conviction arises out of a guilty plea, a verdict or separate finding of guilt is not required in order for a judgment of conviction to comply with
* * * There are four ways that a defendant can be convicted of a criminal offense. A defendant may plead guilty either at the arraignment or after withdrawing an initial plea of not guilty or not guilty by reason of insanity. A defendant may enter a plea of no contest and be convicted upon a finding of guilt by the court. A defendant may be found guilty based upon a jury verdict. A defendant also may be found guilty by the court after a bench trial. Any one of these events leads to a sentence. * * * The phrase within
Crim.R. 32(C) that has caused confusion is that a judgment of conviction must include “the plea, the verdict or findings, and the sentence.” The Ninth District has stated that there are five elements that constitute a judgment of conviction: (1) the plea; (2) the verdict or findings; (3) the sentence; (4) the signature of the judge; and (5) the time stamp of the clerk to indicate journalization. [State v. Miller, 9th Dist. No. 06CA0046-M, 2007-Ohio-1353, ¶ 5.] * * * [However,] not all four methods ofconviction have all five elements. Unlike a plea of no contest, which requires a trial court to make a finding of guilt, State v. Bird, 81 Ohio St.3d 582, 584, 692 N.E.2d 1013 (1998), a plea of guilty requires no finding or verdict. Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) (“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.“). (Emphasis added.) Id. at ¶ 12-15.
{¶17} The Baker court further held that a judgment of conviction is a final appealable order under
(1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court. Simply stated, a defendant is entitled to appeal an order that sets forth the manner of conviction and the sentence.
{¶18} In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, the Ohio Supreme Court clarified its holding in Baker, and held that a judgment of conviction need not state the manner of conviction (e.g., a plea or a verdict) in order to constitute a final, appealable order. Instead, the judgment need only set forth (1) the fact of the conviction, (2) the sentence, (3) the judge‘s signature, and (4) the time stamp indicating the entry upon the journal by the clerk. Id. at ¶ 9-14; see also State v. Harris, 132 Ohio St.3d 318, 323, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 22.
{¶19} Thus, Rogers‘s guilty plea was itself a conviction. By stating in its journal entry that Rogers had “enter[ed] a plea of guilty to murder,” the
{¶20} Rogers also argues that the trial court‘s February 26, 2004 judgment entry setting forth his conviction and sentence was deficient because it did not contain a time stamp and, therefore, was not properly filed or journalized under
{¶21} The trial court‘s February 26, 2004 journal entry complies with the requirements of
Motion to Vacate Guilty Plea
{¶22} In his first assignment of error, Rogers contends that because the trial court, in advising him of the maximum penalty he could expect to receive for his offense during the plea colloquy, erroneously informed Rogers that he would be subject to a period of postrelease control if he was released from prison, his guilty plea was not knowingly, intelligently, and voluntarily entered. As such, Rogers argues, the trial court erred in denying his request to withdraw his guilty plea. The state argues in response that Rogers failed to demonstrate that he was prejudiced by the trial court‘s improper reference to postrelease control during the plea colloquy and that res judicata precludes Rogers from challenging the validity of his guilty plea.
{¶23} The withdrawal of a guilty plea is governed by
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.
{¶25} A motion to withdraw a guilty plea in a case involving a judgment that is subject to attack for failure to comply with statutory requirements related to the imposition of postrelease control is treated as a postsentence motion under
{¶26} This court has described “manifest injustice” as a
“clear or openly unjust act,” * * * “an extraordinary and fundamental flaw in the plea proceeding[,]” * * * a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her.
Nicholson at ¶ 15, quoting State v. Sneed, 8th Dist. No. 80902, 2002-Ohio-6502.
{¶27} Manifest injustice is an “extremely high standard“; a defendant may withdraw a guilty plea only in “extraordinary cases.” Beachum at ¶ 21.
{¶28} We review a trial court‘s decision to deny a defendant‘s post-sentence motion to withdraw a guilty plea under an abuse of discretion standard. State v. Britton, 8th Dist. No. 98158, 2013-Ohio-99, ¶ 17, citing Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph two of the syllabus, and State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980). An “abuse of discretion” requires more than an error of law or of judgment; it “implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Unless it is shown that the trial court acted unreasonably, arbitrarily, or unconscionably in denying Rogers’ request to withdraw his plea, there is no abuse of discretion.
{¶29} As an initial matter, Rogers contends that the trial court erred in denying his motion to withdraw his plea without first conducting a hearing. We disagree. A trial court need not conduct a hearing on a postsentence motion to withdraw a guilty plea “if the ‘record indicates that the movant is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to demonstrate a manifest injustice.‘” Nicholson,
{¶30} Rogers further argues that the trial court abused its discretion in denying his motion to withdraw his plea based on the trial court‘s failure to accurately advise him, during the plea colloquy, regarding the maximum penalty associated with the offense to which he was pleading guilty. Because a criminal defendant gives up certain constitutional rights when pleading guilty to a crime, a guilty plea cannot be accepted “unless the defendant is fully informed of the consequences of his or her plea.” Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. In conducting the plea colloquy, the trial judge “must convey accurate information to the defendant so that the defendant can understand the consequences of his or her decision and enter a valid plea.” Id. A plea is invalid unless it was knowingly, intelligently, and voluntarily made. Id., citing State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶31} Rogers contends that because the trial court erroneously advised him that he would be subject to a period of postrelease control if he was ever released from prison, his plea could not have been knowingly and intelligently made, and that the trial court,
In felony cases the court * * * shall not accept a plea of guilty * * * without first addressing the defendant personally and * * * [d]etermining 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. * * *
{¶32} In determining whether the trial court has satisfied its duties under
When a trial judge fails to explain the constitutional rights set forth in
Crim.R. 11(C)(2)(c) , the guilty or no-contest plea is invalid “under a presumption that it was entered involuntarily and unknowingly.” * * * However, if the trial judge imperfectly explained nonconstitutional rights such as the right to be informed of the maximum possible penalty and the effect of the plea, a substantial-compliance rule applies. * * * Under this standard, a slight deviation from the text of the rule is permissible; so long as the totality of the circumstances indicates that “the defendant subjectively understands the implications of his plea and the rights he is waiving,” the pleamay be upheld. [State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).] When the trial judge does not substantially comply with
Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule. If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect. See Nero, 56 Ohio St.3d at 108, citing State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977), andCrim.R. 52(A) ; see also State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 23. The test for prejudice is “whether the plea would have otherwise been made.” Nero at 108, citing Stewart, [supra]. If the trial judge completely failed to comply with the rule, e.g., by not informing the defendant of a mandatory period of postrelease control, the plea must be vacated. See Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, paragraph two of the syllabus. “A complete failure to comply with the rule does not implicate an analysis of prejudice.” Id. at ¶ 22.
{¶33} In this case, the trial court did not “completely fail” to comply with
{¶34} Whether Rogers‘s plea should have been vacated, therefore, turns on whether he was prejudiced by the trial court‘s misstatement.
{¶35} Rogers argues that this court‘s decision in State v. Wolford, 8th Dist. No. 92607, 2010-Ohio-434, should control the result in this case. In Wolford, the defendant pled no contest to several counts, including aggravated murder, an unclassified offense that was not subject to postrelease control under
{¶36} In contrast to Wolford, there is no indication in the record in this case that Rogers would not have pled guilty but for the trial court‘s reference to postrelease control during the plea colloquy. Rogers has not argued — much less presented any evidence — that he would not have entered his plea if he knew he would not be subject to postrelease control upon release. In cases involving similar facts, this court and others have held that the trial court‘s misstatements regarding the applicability of postrelease control during the plea colloquy were not prejudicial to the defendant. See, e.g., State v. Rolling, 8th Dist. No. 95473, 2011-Ohio-121, ¶ 20; State v. Clark, 11th Dist. No. 2006-A-004, 2008-Ohio-6768, ¶ 12-22; State v. Baker, 1st Dist. No. C-050791, 2006-Ohio-4902, at ¶ 14; State v. Hamilton, 4th Dist. No. 05CA4, 2005-Ohio-5450, ¶ 22.
{¶37} Rogers has not established the manifest injustice required to withdraw his guilty plea under
{¶38} Moreover, Rogers waited, without explanation, for more than eight and one-half years before seeking to withdraw his guilty plea. “‘[A]n undue delay between the occurrence of the cause for withdrawal of a guilty plea and the filing of the motion to withdraw is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.‘” Beachum, 6th Dist. Nos. S-10-041 and S-10-042, 2012-Ohio-285, at ¶ 28, quoting Smith, 49 Ohio St.2d, at 264, 361 N.E.2d 1324. Rogers‘s challenge to his plea “can only be reasonably explained as a change of heart, which is simply not a valid basis to vacate a plea.” Stokes at ¶ 10.
{¶39} Further, claims made in support of a motion to withdraw a guilty plea that could have been raised, but were not raised, in a prior proceeding or direct appeal are barred by res judicata. See, e.g., State v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374, ¶ 9; State v. Robinson, 8th Dist. No. 85266, 2005-Ohio-4154, ¶ 10-11. Accord State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59 (observing that “Ohio courts of appeals have applied res judicata to bar the assertion of claims in a motion to withdraw a guilty plea that were or could have been raised at trial or on appeal“). There is
{¶40} Based on the record before us, we cannot state that the trial court abused its discretion in denying Rogers‘s motion to withdraw his guilty plea. Rogers‘s first assignment of error is overruled.
{¶41} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR