STATE OF OHIO v. JOSEPH TREM
No. 101265
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASED AND JOURNALIZED: November 6, 2014
2014-Ohio-4934
BEFORE: S. Gallagher, P.J., Rocco, J., and Kilbane, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-94-312378-A
Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, OH 44113
Also listed:
Joseph Trem, pro se
#303-512
P.O. Box 8107
Richland Correctional Institution
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Appellant Joseph Trem appeals the decision of the Cuyahoga County Court of Common Pleas that denied his motion to withdraw guilty plea. For the reasons stated herein, we affirm the decision of the trial court.
{¶2} In July 1994, appellant was charged under a 39-count indictment with multiple counts of rape, gross sexual imposition, and endangering children. A majority of the counts related to sexual conduct against his own daughter from the time she was nine years old through her mid teens. Two of the gross sexual imposition charges related to appellant having his daughter engage in sexual activity with other individuals, who were her friends. Several counts also involved appellant‘s sexual conduct against one of those friends. Appellant initially entered a plea of not guilty to the indictment.
{¶3} In March 1995, appellant retracted his former plea of not guilty and entered a plea of guilty to rape of his daughter when under the age of 13, as amended under Counts 1 and 6 to delete the use of force; rape of his daughter as charged in Counts 11, 13, and 14; and gross sexual imposition as charged in Counts 30, 31, and 32. The remaining counts were nolled.
{¶4} The trial court sentenced appellant to a prison term of 10 to 25 years on Counts 1 and 6, to run consecutively to each other and concurrent to the remaining counts for which the court imposed a term of 10 to 25 years on Counts 11, 13, and 14, and two years each on Counts 30, 31, and 32, all running concurrently to each other. The aggregate prison term imposed was 20 to 50 years. Appellant did not file a direct appeal.
{¶5} In February 2014, nearly 19 years later, appellant filed a motion to withdraw guilty plea pursuant to
{¶6} Appellant‘s sole assignment of error claims the trial court erred by failing to address the issues raised by his motion and by failing to hold a hearing.
{¶7}
{¶8} The record in this case reflects that appellant was sentenced to a total indefinite prison term of 20 to 50 years. Appellant claims he entered his plea with an understanding that the most time he would actually serve would be 15 years regardless of the actual sentence imposed. However, there is nothing to show that appellant did not know the actual sentencing possibilities at the time he entered his plea. Because appellant did not file a transcript of the plea hearing, we must presume regularity and the validity of the trial court‘s acceptance of his plea. See State v. Soverns, 8th Dist. Cuyahoga No. 101185, 2014-Ohio-4094, ¶ 6-7; State v. Woody, 8th Dist. Cuyahoga No. 92929, 2010-Ohio-72, ¶ 10.1 See State v. Mack, 11th Dist. Portage No. 2005-P-0033, 2006-Ohio-1694, ¶ 17-19. Thus, we are unable to conclude that
{¶9} Nonetheless, to support his claimed error, appellant relies upon the sentencing transcript. Appellant claims that it was his understanding that despite the imposition of an indefinite sentence, the most time he would actually serve was 15 years. However, there is nothing that would reflect this was a condition of the plea bargain. The record reflects that as indicted, appellant was facing numerous life terms for the rape of his daughter with force when she was under the age of 13. As the prosecutor represented, at that time, even if all counts had been run consecutive, appellant would have been “eligible” for parole by statute in 15 years. Therefore, the prosecutor requested that the court run at least two of the rape counts, which required an indefinite term of 10 to 25 years each, consecutive to ensure that “he will be in prison for 15 years before he is eligible for parole.”
{¶10} Consistent with the prosecutor‘s request, the court proceeded to impose a minimum sentence of 10 years and a maximum of 25 years on Counts 1 and 6, to be run consecutively. As the court indicated, that resulted in a “20 year [minimum] sentence, which is in excess of the 15.” Although the court did make misstatements resulting from an apparent misunderstanding of parole eligibility, by repeatedly indicating the most time appellant could serve was 15 years, this did not alter the indefinite prison term that was imposed or the validity of the plea that had already been entered.
{¶11} In Hart v. Marion Corr. Inst., 927 F.2d 256 (6th Cir.1991), relied upon by appellant, the record included the plea transcript that showed appellant had been incorrectly informed that the maximum period of incarceration would only be 15 years before his plea was entered, and the defendant did not learn that the actual maximum period was 75 years until after he entered his plea. Unlike Hart, in this case, there is no indication that appellant did not have knowledge of the consequences of his plea, including the maximum sentence he could actually serve, at the time his plea was entered, and appellant has not shown a “manifest injustice” occurred. See Soverns, 8th Dist. Cuyahoga No. 101185, 2014-Ohio-4094, at ¶ 7.
{¶12} Further, we are cognizant that appellant filed his motion approximately 4 years after the expiration of 15 years. While
{¶13} Finally, because the record and the evidentiary materials submitted by appellant failed to demonstrate a manifest injustice, the trial court was not required to hold a hearing on his motion to withdraw guilty plea. See State v. Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, ¶ 29. Accordingly, we do not find that the trial court abused its discretion in ruling on appellant‘s motion without conducting a hearing.
{¶14} Appellant‘s sole assignment of error is overruled.
{¶15} 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. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
MARY EILEEN KILBANE, J., CONCUR