STATE OF OHIO v. JAMARR STONE
Appellate Case No. 2021-CA-45
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
April 1, 2022
[Cite as State v. Stone, 2022-Ohio-1117.]
Trial Court Case No. 2004-CR-185 (Criminal Appeal from Common Pleas Court)
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JAMARR STONE, #A475-726, P.O. Box 69, London, Ohio 43140
Defendant-Appellant, Pro Se
OPINION
LEWIS, J.
I. Facts and Procedural History
{¶ 2} Stone was indicted on March 15, 2004, on one count of murder, with a firearm specification, and one count of tampering with evidence for shooting and killing William Evans in Springfield, Ohio. Pursuant to a plea agreement, Stone pleaded guilty to murder in violation of
{¶ 3} Since then, Stone has filed numerous post-conviction motions. In November 2004, Stone filed a motion to withdraw his guilty plea or, alternatively, a petition for post-conviction relief. In 2005, Stone filed a second motion to withdraw his guilty plea, along with several other motions and supplements to his motions. In March 2006, the trial court overruled Stone‘s plea-withdrawal motion and denied his petition for post-conviction relief. We affirmed the trial court‘s judgment in State v. Stone, 2d Dist. Clark No. 2006-CA-26, 2007-Ohio-801 (Stone I).
{¶ 4} On May 3, 2011, Stone filed a second petition for post-conviction relief. The trial court denied the petition, and we affirmed the denial in State v. Stone, 2d Dist. Clark No. 2011-CA-96, 2012-Ohio-4755 (Stone II).
{¶ 5} In 2016, Stone filed a motion for resentencing based on a void judgment as
{¶ 6} At the end of 2018, Stone again filed a motion to withdraw his guilty plea as well as a motion to correct a void judgment of conviction. He filed several other motions the following year. On June 18, 2019, the trial court denied all of Stone‘s pending motions. Stone appealed. State v. Stone, 2d Dist. Clark No. 2019-CA-54, 2020-Ohio-1407 (Stone III).
{¶ 7} One of Stone‘s arguments in Stone III was that the trial court erred in not permitting him to withdraw his guilty plea because he was incorrectly informed that he would be subject to post-release control when, in fact, he was not subject to post-release control. In affirming the trial court‘s denial of his motion to withdraw his guilty plea, we explained that the trial court did not abuse its discretion in concluding that res judicata barred Stone‘s motion. His motion was not only successive, but he could have challenged his guilty plea on direct appeal or in a previous plea-withdrawal motion. Id. at ¶¶ 16-17. However, we did vacate the portion of the judgment entry of conviction that erroneously imposed a term of post-release control. Id. at ¶ 19. In reviewing the plea and sentencing hearings, we found that the trial court never notified Stone about post-release control and that it had not been required to do so, considering that Stone was convicted of murder, an unclassified felony.
{¶ 8} On April 29, 2021, Stone filed another motion to withdraw his guilty plea. Stone contended that because this Court removed the term of post-release control from the termination entry in Stone III, which he had bargained for as part of his plea, then the
{¶ 9} On June 17, 2021, the State filed a response in opposition to Stone‘s motions stating that post-release control was never a part of the plea agreement and that Stone‘s arguments were precluded by res judicata. On June 25, 2021, the trial court overruled Stone‘s motion finding that it presented no new grounds that could be considered for withdrawal of his guilty plea and was again barred by res judicata.
{¶ 10} On July 19, 2021, Stone filed a notice of appeal from the trial court‘s decision overruling his motion to withdraw his guilty plea.
II. Preservation of the docket
{¶ 11} The first assignment of error alleges:
THE TRIAL COURT[‘]S FAILURE TO PRESERVE THE RECORD DEPRIVED APPELLANT [OF] HIS CONSTITUTIONAL RIGHT TO EFFECTIVELY CHALLENGE HIS CONVICTION AND CREATED A MANIFEST INJUSTICE IN THE CASE.
{¶ 12} Stone‘s first assignment of error alleges that a fraud has been committed upon the court as evidenced by the deletion of several docket entries from the electronic appearance docket sheet. He then concludes, “the only fair resolve [sic] would be to permit him to withdraw his plea of guilt [sic] and begin a new record in the case[.]” Stone‘s arguments concerning the alleged missing records were not before the trial court when it denied Stone‘s motion to withdraw his guilty plea. Neither were the majority of the documents Stone attached to his appellate brief. We note that Stone‘s brief included an exhibit titled “DEFENDANT‘S JUNE 7, 2021, MOTION TO SUPPLEMENT HIS 32.1 MOTION TO WITHDRAW GUILTY PLEA,” which appears to argue this issue now raised on appeal. However, it was not filed at the time the trial court considered Stone‘s motion. Therefore, it will not be considered by this Court.
{¶ 13} “A first principle of appellate jurisdiction is that a party ordinarily may not present an argument on appeal that it failed to raise below.” State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 10, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). Likewise, “[a] reviewing court cannot add matter to the record before it, which was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. ” ‘An exhibit merely appended
{¶ 14} Stone did not raise this issue in the trial court below, and we cannot consider new exhibits attached to Stone‘s appellate brief. Accordingly, Stone‘s first assignment of error is overruled.
III. Motion to withdraw guilty plea
{¶ 15} Stone‘s second assignment of error states:
THE TRIAL COURT ERRED WHEN IT FAILED TO RESCIND THE UNFULFILLABLE CONTRACT (PLEA AGREEMENT) AFTER APPELLANT DEMONSTRATED THAT THE TRIAL COURT FAILED TO PRESERVE THE RECORD AND THAT THE RECORD WAS TAINTED WITH THE FRUIT OF FRAUD.
{¶ 16} In his second assignment of error, Stone contends that the trial court erred in overruling his motion to withdraw his guilty plea, because there was a breached plea agreement which demonstrated a manifest injustice. Stone argues that he and the prosecution had jointly agreed to impose post-release control as part of his sentence for murder. He explains that both his written plea agreement and the termination entry indicated that he would be subject to a term of five years post-release control, not parole, which is required for a murder conviction. Stone claims that because he bargained for post-release control as part of his sentence, had he known that he would not be given
{¶ 17} “An appellate court reviews a trial court‘s decision on a motion to withdraw a plea under an abuse-of-discretion standard.” State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 15, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. A court abuses its discretion when it “exercise[s] its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority.” Johnson v. Abdullah, Ohio Slip Opinion No. 2021-Ohio-3304, ___ N.E.3d ___, ¶ 35.
{¶ 18} “The doctrine of res judicata bars a criminal defendant from raising and litigating in any proceedings any defense or claimed lack of due process that was raised or could have been raised on direct appeal from the conviction.” (Citations omitted.) State v. Young, 2d Dist. Montgomery No. 20813, 2005-Ohio-5584, ¶ 8. “Res judicata generally bars a defendant from raising claims in a
{¶ 19} As we noted in his last appeal, “Stone did not directly appeal his conviction, and in none of his previous plea withdrawal motions did he argue that incorrect
{¶ 20} In addition, this is not Stone‘s first post-sentence motion to withdraw his guilty plea. He has filed several prior post-conviction motions attempting to withdraw his plea, all of which have been denied. ” ‘The doctrine of res judicata applies to the second and all successive post[-]sentence motions to withdraw a plea under
{¶ 21} Stone‘s second assignment of error is overruled.
IV. Evidentiary hearing and premature judgment
{¶ 22} Stone‘s third assignment of error is as follows:
THE TRIAL COURT DENIED APPELLANT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE HEARD WHEN IT RENDERED A PREMATURE JUDGMENT IN THE CASE AND FAILED TO HOLD AN EVIDENTIARY HEARING.
{¶ 24} “The trial court is not required to hold an evidentiary hearing on every post-sentence motion to withdraw a plea.” State v. Hall, 2d Dist. Greene No. 2011-CA-32, 2012-Ohio-2539, ¶ 12. “A hearing is required only if the facts alleged by the defendant, if accepted as true, would require the plea be withdrawn.” State v. McComb, 2d Dist. Montgomery Nos. 22570, 22571, 2009-Ohio-295, ¶ 19. “A trial court‘s decision not to hold an evidentiary hearing will not be reversed absent an abuse of discretion.” State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 6.
{¶ 25} Based on Stone‘s argument, the trial court could have determined, without a hearing, whether the record necessitated the withdrawal of Stone‘s pleas. Here, the transcript of the plea hearing is at odds with Stone‘s belated assertion that the parties bargained for him to receive post-release control rather than parole. When discussing the terms of the plea agreement, neither the State nor the defense stated that they bargained for Stone to be placed on post-release control rather than parole. The trial court never informed Stone that he would be subject to post-release control either during the plea colloquy or during sentencing. Nor did the trial court inform Stone of the consequence of violating post-release control. Nothing Stone submitted in either his motion or the supplement to his motion, besides his self-serving allegations, supported his contention that his plea agreement had included a promise that he would receive post-release control
{¶ 26} Further, having found that Stone‘s successive post-conviction motion to withdraw a guilty plea was precluded by res judicata, we find no abuse of discretion in the trial court‘s denial of Stone‘s motion without a hearing. We also note that Stone did not request a hearing in either his initial motion to withdraw his guilty plea or his supplemental motion.
{¶ 27} Stone also contends that the trial court erred by prematurely denying his motion to withdraw his guilty plea. Loc.R. 2.05(II)(B)(2) of the Clark County Court of Common Pleas, General Division, provides that where a party files a motion, all parties opposing said motion shall file and serve a memorandum in opposition to the motion “within fourteen (14) days from the time notice of the motion was served, pursuant to
{¶ 28} An appellate court may disregard an error that occurred in criminal proceedings if the State demonstrates that the error was harmless.
{¶ 29} Because Stone‘s motion was barred by res judicata, we find that the outcome of the motion would not have changed even if the trial court had waited the correct amount of time before denying Stone‘s motion. In accordance with the Clark County local rules, a “reply memorandum shall be restricted to matters in rebuttal of the memorandum in opposition.” Loc.R. 2.05(II)(C). Since Stone was restricted to addressing only those matters addressed in the State‘s response, and Stone‘s arguments were precluded by res judicata, nothing he could have added in a reply would have affected the trial court‘s decision to overrule his motion without a hearing. Therefore, the trial court‘s procedural error was harmless.
{¶ 30} Stone‘s third assignment of error is overruled.
V. Conclusion
{¶ 31} All of Stone‘s assignments of error having been overruled, the trial court‘s judgment is affirmed.
Copies sent to:
Ian A. Richardson
Jamarr Stone
Hon. Richard J. O‘Neill