STATE OF OHIO, PLAINTIFF-APPELLEE, - VS - DANIEL STAFFREY, SR., DEFENDANT-APPELLANT.
CASE NOS. 10 MA 130, 10 MA 131
STATE OF OHIO, MAHONING COUNTY, IN THE COURT OF APPEALS, SEVENTH DISTRICT
Dated: November 3, 2011
[Cite as State v. Staffrey, 2011-Ohio-5760.]
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 95CR819. JUDGMENT: Case No. 10MA130 is Affirmed; Case No. 10MA131 is Dismissed.
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney, Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Attorney John Falgiani, Jr., 8256 East Market Street, P.O. Box 8533, Warren, Ohio 44484
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
{1} In these consolidated appeals, defendant-appellant Daniel Staffrey, Sr. appeals from two separate judgment entries issued by the Mahoning County Common Pleas Court in case number 95CR819. In that case number he pled guilty to rape, attempted aggravated murder, kidnapping and aggravated burglary. In case number 10MA131, Staffrey appeals from the trial court‘s July 2010 nunc pro tunc entry which corrected the previous December 1996 judgment of conviction and sentence in that case. The nunc pro tunc entry was issued because the 1996 judgment entry failed to include the means of conviction. Although he has previously appealed his 1996 sentence and conviction, Staffrey now asserts that he is entitled to a new appeal because the 1996 judgment was not a final appealable order when it did not contain the manner of conviction. In case number 10MA130, he is appealing the trial court‘s July 2010 denial of his motion to withdraw his guilty plea.
{2} Based upon the Ohio Supreme Court‘s recent pronouncement in State v. Lester, ___ Ohio St.3d ___, 2011-Ohio-5204, we find that the July 2010 nunc pro tunc order is not a new final order from which a new appeal may be taken. The nunc pro tunc order was merely used to correct a clerical omission. Consequently, for those reasons, the appeal in case number 10MA131 is dismissed. As to case number 10MA130, the trial court‘s decision denying the motion to withdraw the guilty plea is affirmed.
STATEMENT OF THE CASE
{3} On November 22, 1995, Staffrey was indicted by the Mahoning County Grand Jury for: rape in violation of
{4} On June 27, 1996, Staffrey entered into a plea agreement whereby he pled guilty to the four counts in the indictment and the state recommended that the
{5} Staffrey appealed from his conviction and sentence. We affirmed the trial court‘s decision. State v. Staffrey (June 25, 1999), 7th Dist. No. 96CA246. The arguments asserted in that appeal concerned sentencing.
{6} In June 2009, Staffrey filed a Motion to Withdraw Guilty Plea (
{7} Since the trial court did not immediately rule on the motion, Staffrey filed a petition for a writ of mandamus and procedendo against the trial judge. State ex rel. Staffrey v. D‘Apolito, 188 Ohio App.3d 56, 2010-Ohio-2529. We granted the writ in part. Id. at ¶27. We held that the trial court‘s judgment of conviction was not a final appealable order because it did not state the means of conviction and thus, it did not comply with
{8} On July 9, 2010, the trial court reissued the December 11, 1996 sentencing order and included the means of conviction. Thus, the new order complies with the mandates of
10MA131
FIRST, SECOND, THIRD AND FOURTH ASSIGNMENTS OF ERROR
{10} “APPELLANT‘S CONVICTION SHOULD BE REVERSED FOR THE REASON THAT HE HAD INEFFECTIVE ASSISTANCE OF COUNSEL.”
{11} “DEFENDANT‘S CONVICTION SHOULD BE REVERSED AND IS UNCONSTITUTIONAL FOR THE REASON THAT THE OHIO ADULT PAROLE AUTHORITY‘S USE OF GUIDELINES THAT DID NOT EXIST AT THE TIME OF DEFENDANT‘S PLEA THEREFORE DEFENDANT‘S PLEA WAS NOT ENTERED KNOWINGLY AND VOLUNTARILY.”
{12} “THE TRIAL COURT ERRED AND ACTED CONTRARY TO LAW IN IMPOSING CONSECUTIVE SENTENCES WHERE THE COURT DID NOT FULLY CONSIDER THE STATUTORY FACTORS UNDER
{13} “THE TRIAL COURT ACTED CONTRARY TO LAW AND ABUSED ITS DISCRETION BY FAILING TO FULLY ADVISE APPELLANT OF THE AVAILABILITY OF PAROLE, PROBATION AND POST-COMMUNITY CONTROL.”
{14} Although Staffrey raises multiple assignments of error in case number 10MA131, we need not address the merits of those arguments because the 2010 nunc pro tunc entry does not provide Staffrey with a second chance to appeal his conviction and sentence. As previously explained, Staffrey was convicted in 1996, appealed that conviction and we affirmed that conviction in 1999. Staffrey, 7th Dist. No. 96CA246. Admittedly, the 1996 judgment entry from the Mahoning County Common Pleas Court did not contain the manner of conviction; it did not state that he pled guilty. In 2008, the Ohio Supreme Court issued a decision that provided that
{15} The Ohio Supreme Court has recently clarified Baker and explained that the failure to state the manner of conviction does not affect the judgment‘s finality.
{16} “We further observe that
{17} “In contrast, when the substantive provisions of
{18} * * *
{19} “Nevertheless, to the extent that Baker implies, or has been interpreted to require, that more than the fact of conviction and the substantive provisions of
{20} The Court went on to explain that while a judgment of conviction that fails to state the manner of conviction is a final order, a defendant is still entitled to an order that conforms to
{21} Thus, the 1996 judgment of conviction which stated the fact of conviction was a final appealable order. However, Staffrey, upon his request, was entitled to a judgment of conviction that stated the manner of conviction. After direction from this court, the trial court issued a corrected judgment of conviction that stated the manner of conviction - that is the July 2010 order.
{22} Despite Staffrey‘s insistence to the contrary, he does not have the right to appeal from the July 2010 order that solely added the manner of conviction. In Lester, the Court explained that when the sole purpose of the nunc pro tunc entry is to add the manner of conviction, the entry was merely correcting a clerical mistake. Id. at 20. “Thus, the trial court‘s addition indicating how appellant‘s conviction was effected affected only the form of the entry and made no substantive changes.” Id. The nunc pro tunc entry is not a new final order from which a new appeal may be taken. Id.
10MA130
ASSIGNMENT OF ERROR
{24} “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED CONTRARY TO LAW IN: 1. DENYING APPELLANT A HEARING ON HIS PRESENCE MOTION TO WITHDRAW GUILTY PLEA WHICH WAS FILED PURSUANT TO CRIMINAL RULE 32.1; AND, (2) FAILING TO APPLY THE APPLICABLE BALANCING TEST TO DETERMINE THE MOTION.”
{25} In arguing their respective positions, both parties contend that the motion to withdraw a guilty plea must be considered a presentence motion. Their contention is based upon the Ohio Supreme Court‘s decision in Boswell. In that case, the Court held that a motion to withdraw a guilty plea made by a defendant whose sentence is void because the sentencing court failed to advise him/her of postrelease control is considered a presentence motion to withdraw a guilty plea. State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, ¶9-10.
{26} The analysis that the parties use to conclude that the motion is a presentence motion is flawed. The Boswell line of cases indicate that a sentence can be void when there is no advisement of postrelease control or an incorrect sentence is rendered on postrelease control. The crimes committed in this case occurred in September 1995. Postrelease control was enacted as part of Senate Bill 2 and applies to crimes committed after July 1, 1996. State v. Rush (1998), 83 Ohio St.3d 53, 58;
{27} Furthermore, the fact that the 1996 judgment of conviction did not contain the manner of conviction, by itself, also does not provide a basis for finding the sentence void. In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Court
{28} “Nothing in Baker discusses void or voidable sentences. Rather, the syllabus speaks only to the requirement that the judgment of conviction set forth ‘the sentence’ in addition to other necessary aspects of the judgment. The judgment in this case did set forth the sentence. The fact that the sentence was illegal does not deprive the appellate court of jurisdiction to consider and correct the error. In fact,
{29} Likewise, it stated that a void judgment is one that has been imposed by a court that lacks subject matter jurisdiction over the case. Id. at ¶6. There is no basis to find that the sentence rendered in this case was imposed by a court that lacked subject matter jurisdiction. Although the 1996 judgment of conviction may not have contained the manner of conviction, there is no legal support for the argument that such a deficiency results in a void judgment. In fact, the Ohio Supreme Court has stated that the technical failure to comply with
{30} Consequently, as there is no basis to find the 1996 judgment void, the 2009 motion to withdraw the guilty plea must be treated as a post-sentence motion to withdraw a guilty plea. A post-sentence motion to withdraw a guilty plea can only be granted to correct a manifest injustice.
{31} Rather than attacking the motion on the merits, the state asserts that the trial court did not have jurisdiction to rule on the motion to withdraw the guilty plea pursuant to State ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St.2d 94. It is of the opinion that since the conviction was appealed and affirmed on appeal, the trial court is divested of jurisdiction to consider the matter any further.
{32} In Special Prosecutors, the trial court granted a defendant‘s motion to withdraw a guilty plea after a conviction and sentence based on the plea had been affirmed on appeal. The Ohio Supreme Court granted a writ of prohibition holding that:
{33} “[T]he trial court‘s granting of the motion to withdraw the guilty plea and the order to proceed with a new trial were inconsistent with the judgment of the Court of Appeals affirming the trial court‘s conviction premised upon the guilty plea. The judgment of the reviewing court is controlling upon the lower court as to all matter within the compass of the judgment. Accordingly, we find that the trial court lost its jurisdiction when the appeal was taken, and, absent a remand, it did not regain jurisdiction subsequent to the Court of Appeals’ decision.” Id. at 97.
{34} Recently, the Ohio Supreme Court has further explained the holding in Special Prosecutors:
{35} “We did not decide Special Prosecutors based on the law-of-the-case doctrine. However, that doctrine would not prevent the trial court from considering the effect of previous decisions on Davis‘s newly-discovered-evidence claim. We take this opportunity to specify that the holding in Special Prosecutors does not bar the trial court‘s jurisdiction over posttrial motions permitted by the Ohio Rules of Criminal Procedure. These motions provide a safety net for defendants who have reasonable grounds to challenge their convictions and sentences. The trial court acts as the
{36} Therefore, merely because the defendant appealed the conviction and the cause was affirmed on appeal, does not mean that the trial court is necessarily deprived of jurisdiction over the
{37} However, assuming arguendo that the arguments could be raised, the trial court‘s decision must still be affirmed. A review of the motion to withdraw indicates that the arguments made in the appellate brief are not the same as those argued to the trial court. While both contain an ineffective assistance of counsel claim, the arguments supporting that claim are different. The brief asserts that manifest injustice resulted when Staffrey was told in the plea form that the minimum term for attempted aggravated murder was four years and then at the sentencing hearing it was stated that that statement was incorrect and that the minimum term was five years. As a result, appellant maintains he was not advised of his potential sentence. However, in the motion, this argument did not appear. The motion discussed parole guidelines, sex offender classification, and shock parole. Consequently, as the
CONCLUSION
{38} In conclusion, case number 10MA131 is dismissed. The Ohio Supreme Court‘s decision in Lester is controlling; the July 2010 nunc pro tunc entry is not a new final order from which a new appeal may be taken. As to case number 10MA130, the trial court‘s decision denying the motion to withdraw the guilty plea is affirmed.
Waite, P.J., concurs.
DeGenaro, J., concurs.