[Cite as State v. Chandler, 2011-Ohio-4387.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2010-CA-00295 WILLIAM B. CHANDLER : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2007- CR-0915
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 29, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO E. KELLY MIHOCIK Prosecuting Attorney Office of Ohio Public Defender By: RENEE M. WATSON 250 Broad St., Ste. 1400 Assistant Prosecuting Attorney Columbus, OH 43215 110 Central Plaza South, Ste. 510 Canton, OH 44702-1413 [Cite as State v. Chandler, 2011-Ohio-4387.]
Gwin, P.J.
{¶1} Appellant, William B. Chandler, appeals a judgment of the Stark County
Common Pleas Court overruling his motion to withdraw his guilty plea to one count of
escape (R.C. 2921.34(A)(1)(C)(2)(B)). Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In 2005, appellant entered a guilty plea to one count of domestic violence,
a felony of the third degree. His plea form advised him that he would be subject to a
mandatory period of post-release control for a maximum of three years. Similarly, his
sentencing entry stated that “post-release control is mandatory in this case up to a
maximum of three (3) years.” Appellant did not appeal.
{¶3} Following his release from prison, appellant began serving his period of
post-release control. In March, 2007, he was charged with escape for failing to return to
intermittent confinement. In June, 2007, he entered a plea of guilty and was sentenced
to four years community control in August, 2007. Again he did not appeal the judgment.
{¶4} Appellant violated the terms of his community control in October 2009,
when he was arrested for operating a vehicle under the influence, possession of drug
paraphernalia and violating his curfew. In November of 2009, the trial court revoked
appellant’s community control and sentenced him to five years’ incarceration. Appellant
did not challenge this judgment.
{¶5} On March 24, 2010, appellant filed a motion to withdraw his 2007 guilty
plea to one count of escape. He argued that because post-release control was not
properly imposed in 2005, that portion of the judgment imposing post release control
was void. Because post release control was not properly imposed, he could not be Stark County, Case No. 2010-CA-00295 3
convicted of escape for violating the terms of a void judgment. The court overruled the
motion, finding his challenge barred by res judicata. Appellant assigns a single error on
appeal:
{¶6} “RES JUDICATA DOES NOT APPLY WHEN CHALLENGES ARE MADE
TO VOID SANCTIONS. IT WAS LEGALLY IMPOSSIBLE FOR MR. CHANDLER TO
ESCAPE FROM POST RELEASE CONTROL BECAUSE THAT SANCTION WAS
VOID. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RELIED ON
PRINCIPLES OF RES JUDICATA WHEN IT DENIED MR. CHANDLER’S MOTION TO
WITHDRAW HIS GUILTY PLEA.”
I.
{¶7} In June 2007 appellant was placed on community control when he pled
guilty to Escape. At that time the trial court reserved a five year prison term. R.C.
2929.15(B) applies to offenders who were initially sentenced to community control
sanctions and permits a trial court to newly impose a prison term upon an offender who
later violates the community control sanctions. In 2009 appellant was sentenced to
prison for a violation of the community control sanctions that were imposed in 2007.
Appellant in this appeal seeks to avoid the five year prison sentence imposed for
violating the community control sanctions by withdrawing the plea he entered in 2007
because the trial court imperfectly explained the three year period of post-release
control for appellant’s conviction for domestic violence in 2005.
{¶8} The entry of a plea of guilty is a grave decision by an accused to dispense
with a trial and allow the state to obtain a conviction without following the otherwise
difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v. Stark County, Case No. 2010-CA-00295 4
United States (1962), 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473. A plea of guilty
constitutes a complete admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of
guilty, the accused is not simply stating that he did the discreet acts described in the
indictment; he is admitting guilt of a substantive crime.” United v. Broce (1989), 488
U.S. 563, 570, 109 S.Ct. 757, 762.
{¶9} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only "substantially comply" with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d at 475, 20 O.O.3d at 398,
423 N.E.2d at 117, citing State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364
N.E.2d 1163. In State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶
12, the Ohio Supreme Court noted the following test for determining substantial
compliance with Crim.R. 11:
{¶10} “Though failure to adequately inform a defendant of his constitutional
rights would invalidate a guilty plea under a presumption that it was entered involuntarily
and unknowingly, failure to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice.[State v. Nero (1990), 56 Ohio St.3d
106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have
otherwise been made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant’s] plea and determine whether he
subjectively understood [the effect of his plea].” See, State v. Sarkozy, 117 Ohio St.3d
86, 2008-Ohio-509 at ¶ 19-20. Stark County, Case No. 2010-CA-00295 5
{¶11} Crim. R. 32.1 governs the withdrawal of a guilty or no contest plea and
states: "[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."
In the case at bar, because appellant's request was made post-sentence, the standard
by which the motion was to be considered was "to correct manifest injustice."
{¶12} The accused has the burden of showing a manifest injustice warranting
the withdrawal of a guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d
1324, paragraph one of the syllabus. A manifest injustice has been defined as a "clear
or openly unjust act." State ex rel. Schneider v. Kreiner (1998), 83 Ohio St.3d 203, 208.
“‘Manifest injustice relates to some fundamental flaw in the proceedings which result[s]
in a miscarriage of justice or is inconsistent with the demands of due process.'” Ruby at
¶ 11, quoting State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, at ¶ 5.
Accordingly, under the manifest injustice standard, a post-sentence withdrawal motion
is allowable only in extraordinary cases. Smith, 49 Ohio St.2d at 264.
{¶13} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d
958, the Supreme Court of Ohio held “the de novo sentencing procedure detailed in the
decisions of the Ohio Supreme Court is the appropriate method to correct a criminal
sentence imposed prior to July 11, 2006, that lacks proper notification and imposition of
post-release control.” Id. at ¶ 35. In the case at bar, appellant was originally sentenced
May 19, 2005. At the outset, we note that appellant never challenged the imposition of
post-release control in the case which imposed it, i.e. Stark County Court of Common Stark County, Case No. 2010-CA-00295 6
Pleas, Case No. 2005CR0526, by filing a motion to correct the sentence, or a direct
appeal.
{¶14} As noted by the Ohio Supreme Court, a court imposing mandatory post-
release control is required “to include in the sentencing entry a statement that [the]
offender convicted of a first or second-degree felony offense will be subject to post-
release control after leaving prison.” State v. Bloomer, 122 Ohio St. 3d 200, 909 N.E.
2d 1254, 2009-Ohio-2462, ¶ 68. (Emphasis in original). In Bloomer, the court
specifically noted that, “the trial court failed to state the length of the post-release control
term.” Id. at ¶69.
{¶15} As a result, because the trial court's sentencing entry does not include a
statement indicating appellant was subject to a mandatory three-year term of post-
release control upon his release, it does not conform to statutory mandates, and
therefore, is void. See Id.; see, also, State v. Jordan, 104 Ohio St.3d 21, 817 N.E.2d
864, 2004-Ohio-6085; State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d 961, 2007-Ohio-
3250; State v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, 2008-Ohio-1197; State v.
Boswell, 121 Ohio St.3d 575, 906 N.E.2d 422, 2009-Ohio-1577; State v. Green, Stark
App. No. 2010CA00198, 2011-Ohio-1636 at ¶16. However, this does not end our
inquiry because appellant is appealing not from the imposition of post-release controls
in the 2005 case; rather he is appealing from the trial court’s denial of his motion to
withdraw his plea to Escape which he entered June 25, 2007.
{¶16} In determining whether the trial court has satisfied its duties under Crim.R.
11 in taking a plea, reviewing courts have distinguished between constitutional and non-
constitutional rights. State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio- Stark County, Case No. 2010-CA-00295 7
3748 at ¶ 32; State v. Aleshire, Licking App. No. 2007-CA-1, 2008-Ohio-5688 at ¶ 10.
The trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to
the waiver of constitutional rights. State v. Clark, 119 Ohio St.3d at 244, 893 N.E.2d at
499, 2008-Ohio-3748 at ¶ 31.
{¶17} In State v. Clark, supra, the Ohio Supreme Court set forth the following
procedure for a reviewing court, “When the trial judge does not substantially comply with
Crim.R. 11 in regard to a non-constitutional 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 post-release 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, 564 N.E.2d 474, citing State v. Stewart (1977),
51 Ohio St.2d 86, 93, 5 O.O.3d 52, 364 N.E.2d 1163, and Crim.R. 52(A); see also
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, 564
N.E.2d 474, citing Stewart, Id. If the trial judge completely failed to comply with the rule,
e.g., by not informing the defendant of a mandatory period of post-release 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, 881 N.E.2d 1224.
{¶18} In Clark, the Ohio Supreme Court concluded that the right to be informed
of the maximum possible penalty and the effect of the plea are subject to the substantial
compliance test. 119 Ohio St.3d at 244, 893 N.E.2d at 469, 2008-Ohio-3748 at ¶ 31.
(Citations omitted). Stark County, Case No. 2010-CA-00295 8
{¶19} The Ohio Supreme Court stated in State v. Sarkozy, supra, that the total
failure of the trial court to mention that the defendant was subject to mandatory post-
release control (which is part of the maximum penalty) was a complete failure to comply
with Crim.R. 11 and required that the plea be vacated without consideration of the issue
of prejudice. See, also State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio-
3748 at ¶ 32. Sarkozy supra involved the trial court's denial of the defendant's pre-
sentence motion to withdraw his guilty plea. Id. at ¶ 5, 881 N.E.2d 1224. The trial court
denied the motion and proceeded with sentencing the appellant. Id. The appellant then
filed a direct appeal of the trial court's denial of his motion.
{¶20} In State v. Clark, supra, a case decided after Sarkozy, the Ohio Supreme
Court concluded that “[i]f a trial judge, in conducting a plea colloquy, imperfectly
explains non-constitutional rights such as the right to be informed of the maximum
possible penalty and the effect of the plea, a substantial-compliance rule applies on
appellate review; under this standard, a slight deviation from the text of the governing
rule is permissible, and 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 plea may be upheld.” Id. at ¶ 31, 881 N.E.2d 1224.
{¶21} In the case at bar, at the original sentencing hearing held May 19, 2005,
the appellant was advised that he 1). Was subject to mandatory post-release control;
and 2). That the period of post-release control would not exceed three years. Thus, the
case at bar concerns a misstatement not a complete failure to inform appellant that he
is subject to post-release control in 2005. Stark County, Case No. 2010-CA-00295 9
{¶22} Recently, the Ohio Supreme Court in State v. Fischer, 128 Ohio St. 3d 92,
2010– Ohio– 6238 concluded that the defendant is only entitled to a hearing for the
proper imposition of post-release control. Accordingly, appellant may not raise new
issues, or issues he had previously raised on his direct appeal. See also, State v.
Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9, 2010-Ohio-3831. Accordingly, appellant’s
conviction and sentence for domestic violence is unaffected and remains valid.
{¶23} Under the doctrine of res judicata, a final judgment bars a convicted
defendant who was represented by counsel from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or any claimed lack of
due process that the defendant raised or could have raised at trial or on appeal. State
v. Szefcyk (1996), 77 Ohio St.3d 93, 96, 671 N.E.2d 233, reaffirming State v. Perry
(1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the
syllabus. “More specifically, a criminal defendant cannot raise any issue in a post
sentence motion to withdraw a guilty plea that was or could have been raised at trial or
on direct appeal. State v. Reed, Mahoning App. No. 04 MA 236, 2005-Ohio-2925, 2005
WL 1385711; State v. Zinn, Jackson App. No. 04CA1, 2005-Ohio-525, 2005 WL
318690; State v. Robinson, Cuyahoga App. No. 85266, 2005-Ohio-4154, 2005 WL
1926043; State v. Rexroad, Summit App. No. 22214, 2004-Ohio-6271, 2004 WL
2674605; State v. Reynolds, Putnam App. No. 12-01-11, 2002-Ohio-2823, 2002 WL
1299990; State v. Wyrick (Aug. 31, 2001), Fairfield App. No. 01 CA17, 2001 WL
1025811; State v. Jackson (Mar. 31, 2000), Trumbull App. No. 98-T-0182, 2000 WL
522440; State v. Jeffries (July 30, 1999), Wood App. No. L-98-1316, 1999 WL 550251.”
State v. Brown, supra 167 Ohio App.3d 242, 2006-Ohio-3266, at ¶ 7. Importantly, “an Stark County, Case No. 2010-CA-00295 10
undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea
and the filing of a motion under Crim. R. 32.1 is a factor adversely affecting the
credibility of the movant and militating against the granting of the motion.” State v. Bush,
96 Ohio St.3d 235, 2002-Ohio-3393. See also State v. Copeland-Jackson, Ashland
App. No. 02COA018, 2003-Ohio-1043 ( [t]he length of passage of time between the
entry of a plea and a defendant's filing of a Crim.R. 32.1 motion is a valid factor in
determining whether a “manifest injustice” has occurred.
{¶24} In the case at bar, appellant has not explained the nearly three-year delay
in filing his motion to withdraw the negotiated guilty plea to the Escape charged which
he entered in 2007 and the over five-year delay in contesting the imposition of post-
release control in his original sentence entered in 2005. Nor has he provided any
explanation for not filing a direct appeal in either case.
{¶25} In Fischer, the Supreme Court made clear that “[a]lthough the doctrine of
res judicata does not preclude review of a void sentence, res judicata still applies to
other aspects of the merits of a conviction, including the determination of guilt and the
lawful elements of the ensuing sentence.” Id. at paragraph three of the syllabus. The
application of res judicata to a motion to withdraw is not impacted by a void sentence.
{¶26} In State v. Fountain, 8th Dist. Nos. 92772 and 92874, 2010–Ohio–1202
the appellant raised the issue that Chandler is raising here. Fountain argued “that his
plea was not voluntary because the trial court misinformed him at his plea hearing that
he may receive, rather than that he would receive, post-release control.” (Emphasis
added.) Id. at ¶ 11. The court rejected that argument, however, because “Fountain
could have raised that issue on direct appeal.” Id. Therefore, the Court in Fountain Stark County, Case No. 2010-CA-00295 11
concluded that Fountain's motion was barred by res judicata, and overruled his
assigned errors pertaining to his motion to withdraw. See also, State v. Bell, 8th Dist. No.
95719, 2011-Ohio-1965 at ¶32-33.
{¶27} In the case at bar, appellant attempts to leap-frog his 2007 plea by
invalidating the post-release control portion of his 2005 sentence. In this case appellant
could have raised the imprecise nature of the trial court’s post-release control language
in a direct appeal from his 2005 sentence for domestic violence or in a petition for post-
conviction relief while he was imprisoned. He did not. Had appellant raised the issue at
that time then the proper procedure would have been to simply hold a new sentencing
hearing limited to proper imposition of post release control. State v. Fischer, 128 Ohio
St.3d 92, 942 N.E.2d 332, 2010–Ohio–6238, paragraph two of the syllabus.
{¶28} After he was released from prison and the Adult Parole Authority imposed
post-release control, appellant could have sought relief from the imposition of post
release control. Again he did not.
{¶29} Appellant could again have raised any problem with the nature of post-
release control in the trial court at the time he was charged with Escape in 2007. Again,
he did not. Nor did he file an appeal from his conviction and sentence in that case.
{¶30} Rather than avail himself of any of these remedies appellant waited until
he completed his sentence for domestic violence, was charged with a new offense, pled
guilty to that offense, was sentenced and completed nearly two years of community
control sanctions on that offense, and was sentenced to prison for violating the
community control sanctions in that case before he made his first attempt to challenge
the imposition of post-release control by the trial court in 2005. Stark County, Case No. 2010-CA-00295 12
{¶31} The unfortunate result of the Supreme Court’s “void sentence” language is
that defendants are encouraged not to challenge technically incorrect post-release
control orders until after they are released or until after they are charged with a violation
or a new crime because the problem cannot then be rectified.
{¶32} In the case at bar, appellant pled guilty to Escape. A plea of guilty
constitutes a complete admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of
guilty, the accused is not simply stating that he did the discreet acts described in the
indictment; he is admitting guilt of a substantive crime.” United v. Broce (1989), 488
U.S. 563, 570, 109 S.Ct. 757, 762. In this matter, appellant contends that his plea in
2007 was not voluntary because the trial court in 2005 misinformed him at his plea
hearing that he may receive, rather than that he would receive, post-release control.
However, appellant could have raised the issue that the trial court imprecisely informed
appellant about the length of post-release control on direct appeal in 2005 or at least on
a direct appeal in 2007. Therefore, his motion to withdraw his guilty plea filed in 2009 is
barred by res judicata.
{¶33} Appellant’s sole Assignment of Error is overruled. Stark County, Case No. 2010-CA-00295 13
{¶34} The judgment of the Stark County Common Pleas Court is affirmed.
By Gwin, P.J., and
Hoffman, J., concur
Edwards, J., dissents
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. JULIE A. EDWARDS WSG:clw 0808 Stark County, Case No. 2010-CA-00295 14
EDWARDS, J., DISSENTING OPINION
{¶35} I dissent from the majority opinion. I agree with the majority that the
postrelease control portion of appellant’s underlying sentence for domestic violence was
void. However, I would find that because that portion of the sentence was void and
because a violation of the void portion of the sentence gave rise to the charge of
escape, appellant was not barred by res judicata from withdrawing his plea to escape.
{¶36} I find the majority’s discussion of Crim. R. 11 and whether the court
substantially complied when informing appellant of postrelease control to be irrelevant in
the instant case. This is not a case where he is seeking to withdraw a plea because he
was not properly advised of postrelease control. Rather, he is seeking to withdraw the
plea because it is impossible for him to commit the crime of escape when the criminal
act is predicated on his violation of a void sentence.
{¶37} A sentence that does not include the statutorily mandated term of
postrelease control is void, is not precluded from appellate review by principles of res
judicata, and may be reviewed at any time, on direct appeal or by collateral attack.
State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332, 2010-Ohio-6238, paragraph one
of the syllabus. I would therefore conclude that appellant was not barred by res
judicata from attacking the validity of the imposition of postrelease control by way of a
motion to vacate his guilty plea in his escape case, which was based on the void portion
of his domestic violence sentence.
{¶38} In State v. Billiter, Stark App. No. 2010CA00292, 2011-Ohio-2230, this
Court found on nearly identical facts to the instant case that res judicata applied based
on the appellant’s failure to directly appeal his escape conviction and this Court’s prior Stark County, Case No. 2010-CA-00295 15
opinion affirming the trial court’s denial of his motion to suspend further execution of
sentence. This Court relied on State v. Huber, 2010-Ohio-5598, in which the Eighth
District Court of Appeals held that a conviction in which postrelease control was
properly imposed could be used as a predicate to a repeat violent offender specification.
However, in Fischer, supra, the Ohio Supreme Court held that although res judicata
does not preclude review of a void sentence, res judicata still applies to other aspects of
the merits of a conviction, including the determination of guilt and the lawful elements of
the ensuing sentence. Fischer, supra, paragraph three of the syllabus. Thus in Huber,
the conviction itself and the lawful portions of the sentence were not void, and thus
could be used as a predicate to a repeat violent offender specification. In Billiter, as in
the instant case, the void portion of the sentence is the very portion which appellant was
accused of violating in his escape conviction. Therefore, I do not agree with the
decision in Billiter. Stark County, Case No. 2010-CA-00295 16
{¶39} I would find that because appellant was not validly advised of postrelease
control, that portion of his domestic violence sentence was void. Because this is the
very portion of his domestic violence sentence which he pleaded guilty to have violated
in his escape conviction and which may be challenged at any time, I would conclude
that the trial court erred in finding his motion to withdraw his plea barred by res judicata.
___________________________________________
Judge Julie A. Edwards [Cite as State v. Chandler, 2011-Ohio-4387.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : WILLIAM B. CHANDLER : : : Defendant-Appellant : CASE NO. 2010-CA-00295
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Common Pleas Court is affirmed. Costs to appellant.
_________________________________ HON. JULIE A. EDWARDS