STATE OF OHIO v. GORDON W. SAGE
C.A. CASE NO. 25453
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
July 12, 2013
2013-Ohio-3048
T.C. NO. 04CR1574
(Criminal appeal from Common Pleas Court)
Rendered on the 12th day of July, 2013.
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
GORDON W. SAGE, #A458-271, London Correctional Institute, P. O. Box 69, London, Ohio 44130
Defendant-Appellant
FROELICH, J.
{¶ 1} Gordon W. Sage appeals from a judgment of the Montgomery County
I.
{¶ 2} In September 2004, Sage was indicted on two counts of aggravated murder and one count each of aggravated burglary, aggravated robbery, and having weapons while under disability. The aggravated murder, aggravated robbery, and aggravated burglary charges each had an accompanying firearm specification.
{¶ 3} On April 11, 2005, Sage pled guilty to all of the charges; the firearm specifications were dismissed as part of the plea agreement. Each of the plea forms indicated that Sage was subject to a particular prison term, to post-release control, and to particular penalties if he violated post-release control. The form for the having weapons while under disability charge indicated that Sage faced “up to” three years of post-release control after his release from prison. The other four forms stated that Sage faced “up to” five years of post-release control.
{¶ 4} Sage was sentenced on April 28, 2005. The court imposed a life sentence for each aggravated murder count, and merged the two sentences. The court sentenced Sage to five years in prison for aggravated robbery and aggravated burglary, to be served concurrently with each other but consecutively to the life sentence for the aggravated murder. The court sentenced Sage to one year in prison for having weapons while under disability, to be served concurrently with the other counts. All sentences were to be served
{¶ 5} The trial court‘s sentencing entry reflects that Sage was informed that, following his release from prison, he would serve five years of post-release control for the aggravated burglary and aggravated robbery. The entry further states that, with respect to the aggravated murder, however, Sage was told that, if he were ever released, his sentence included parole supervision by the Adult Parole Authority.
{¶ 6} Sage appealed from his conviction. He claimed that the court should have granted him a continuance to obtain new counsel and that his sentence was unlawful under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. We concluded that Sage‘s guilty plea waived his right to appeal the denial of a continuance, because he had been represented by counsel and his plea appeared to have been knowing, intelligent, and voluntary. However, we vacated his sentence under Foster and remanded for resentencing. State v. Sage, 2d Dist. Montgomery No. 21097, 2007-Ohio-442.
{¶ 7} Prior to resentencing upon remand, Sage orally moved to withdraw his guilty plea, asserting that (1) he believed a jury would reach a verdict of not guilty, and (2) he was coerced to enter his plea. The trial court considered Sage‘s motion as a post-sentence motion to withdraw his plea and found no manifest injustice. The court then reimposed its previous sentence. Sage appealed, arguing that the trial court erred in denying his motion to withdraw his plea. We affirmed the trial court‘s ruling. State v. Sage, 2d Dist. Montgomery No. 22078, 2007-Ohio-6353.
{¶ 9} In June 2012, Sage filed the instant “motion for rescission of contractual agreement.” He argued that his plea agreements were invalid, because they all included post-release control, even though parole, not post-release control, applied to the aggravated murder charges. Sage further emphasized that the plea agreements stated that he was subject to “up to” five years of post-release control for the aggravated robbery and aggravated burglary charges and “up to” three years of post-release control for having weapons while under disability. Sage claimed that these errors rendered the plea agreements void, and he asked to be brought to trial within 90 days.
{¶ 10} The trial court denied the motion. It concluded that Sage‘s motion was “the functional equivalent of a petition for post-conviction relief” and found that the motion was untimely. The court further stated that Sage‘s motion “relates to the language on his plea agreement. The Defendant could have raised this argument on direct appeal and res judicata precludes him from doing so now.”
{¶ 11} Sage appeals from the trial court‘s denial of his motion for rescission of contractual agreement, raising two assignments of error. We will address them together.
II.
{¶ 12} Sage‘s assignments of error state:
THE TRIAL COURT ERRED IN CONVERTING APPELLANT‘S DIRECT ATTACK INTO A COLLATERAL ATTACK AND THEN DEEMING IT UNTIMELY AND RES JUDICATA.
THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT GRANTING RELIEF FROM A VOID JUDGMENT.
{¶ 13} In his assignments of error, Sage contends that the trial court erred in converting his motion for rescission to a petition for post-conviction relief. He states that his motion “was tantamount to a withdrawal of guilty plea request.” Sage further argues that the trial court erred in denying his motion.
{¶ 14} It is well-established that a post-sentence motion to withdraw a plea is a separate remedy from petitions for post-conviction relief. State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 11. A post-conviction petition is a collateral civil attack on the judgment, whereas a motion to withdraw a plea is part of the underlying criminal case. Bush at ¶ 13, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). A petition for post-conviction relief must meet the timeliness requirements of
{¶ 15} Sage has not argued that his motion met the timeliness requirements of a petition for post-conviction relief. Based on the record, Sage‘s motion, if construed as a petition for post-conviction relief, was untimely. However, we need not decide whether the trial court erred in treating Sage‘s motion as a petition for post-conviction relief because, even if the motion had been treated as a motion to withdraw his plea under Crim.R. 32.1 (as
{¶ 16} Withdrawal of a guilty plea after sentencing is permitted only in the most extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). A defendant who files a post-sentence motion to withdraw his guilty plea bears the burden of establishing manifest injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No. 19013, 2002-Ohio-2278, ¶ 7, citing Smith at paragraph one of the syllabus. “A manifest injustice has been defined by the Ohio Supreme Court as a ‘clear or openly unjust act.‘” State v. Moore, 2d Dist. Montgomery No. 24387, 2011-Ohio-4546, ¶ 9, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). Consideration of a Crim.R. 32.1 motion is addressed to the sound discretion of the trial court, which assesses the good faith, credibility and weight of the movant‘s assertion in support of the motion. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992); Smith at paragraph two of the syllabus. Thus, an appellate court reviews the trial court‘s decision under an abuse of discretion standard. State v. Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (1991). An abuse of discretion means “that the court‘s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 17} Sage‘s original sentencing entry states that, if Sage were released from prison with respect to the aggravated murder charges, he would be subject to parole under the authority of the Adult Parole Authority. Sage did not claim on direct appeal that his plea was not knowing, intelligent and voluntary due to the plea agreement‘s inclusion of post-release control, rather than parole, for the aggravated murder charges. And, upon
{¶ 18} When Sage was resentenced in March 2007 (upon remand from his direct appeal based on Foster), he was informed that the aggravated murder charges had parole supervision whereas his other charges included post-release control. The sentencing entry stated that “if the defendant is ever to be released by the Adult Parole Authority, the sentence includes parole supervision as determined by the Adult Parole Authority.” Thus, although Sage was again notified that he would be subject to parole supervision, rather than post-release control, for the aggravated murder, he did not raise this discrepancy between the plea agreements and his sentence in his subsequent appeal.
{¶ 19} “Res judicata bars the assertion of claims against a valid, final judgment of conviction that have been raised or could have been raised on appeal. State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus. 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. * * *” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59.
{¶ 20} Sage could have raised the inclusion of post-release control in his plea agreements for aggravated murder and the improper notification of post-release control in the plea agreements for his other offenses either on direct appeal from his convictions or in his oral motion to withdraw his plea. Sage failed to raise these issues at either time. Accordingly, the trial court did not err in concluding that Sage‘s argument was barred by res
{¶ 21} On appeal, Sage further argues that the trial court erred in failing to grant relief from a “void judgment.”
{¶ 22} Plea agreements are contractual in nature and are subject to contract law principles. Smith v. Ohio Adult Parole Authority, 2d Dist. Champaign No. 2009 CA 22, 2010-Ohio-1131, ¶ 36; State v. Dillon, 2d Dist. Darke No. 05 CA 1674, 2006-Ohio-4931, ¶ 21. If one party breaches the plea agreement, the remedies for the breach include the traditional contractual remedies of rescission and specific performance. State v. Johnson, 2d Dist. Greene No. 06 CA 43, 2007-Ohio-1743, ¶ 20, citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
{¶ 23} Plea agreements are generally made between the State and a defendant. Unless the court involves itself in the plea negotiations or agrees to the terms of the agreement, the trial court is not bound by the plea agreement, and the court may determine the appropriate sentence for the charges to which the defendant has pled guilty or no contest. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28.
{¶ 24} In his motion, Sage did not claim that the State breached the plea agreements. And based on the record, we find no indication that the trial court was involved in the plea negotiations between Sage and the State. Rather, as stated above, Sage asserted that his plea agreements were void due to defects regarding post-release control in the written plea forms. On appeal, Sage contends that the trial court‘s judgment is void and unenforceable because the plea agreements were void.
{¶ 26} The assignments of error are overruled.
III.
{¶ 27} The trial court‘s judgment will be affirmed.
FAIN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Carley J. Ingram
Gordon W. Sage
Hon. Dennis J. Adkins