[Cite as State v. Freeman, 2016-Ohio-8143.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103660
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DAMIEN FREEMAN DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-01-413757-ZA
BEFORE: Laster Mays, J., Keough, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: December 15, 2016 -i-
ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
By: Jeffrey Gamso Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
John P. Parker 988 East 185th Street Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Brett Hammond Assistant County Prosecutor Justice Center, 9th floor 1200 Ontario Street Cleveland, Ohio 44113 ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant, Damien Freeman (“Freeman”), proceeding pro se,
appeals from the trial court’s denial of his motion to vacate a noncognizable offense and
motion for sentencing. We affirm the trial court’s decision, but remand for the limited
purpose of vacating the imposition of postrelease control.
I. FACTS AND BACKGROUND
{¶2} In September 2001, at the age of 24, appellant was indicted by the
Cuyahoga County Grand Jury for allegations surrounding the August 23, 2001 death of
Ciera Freeman, 11 months of age. Appellant was charged with murder (R.C.
2903.02(B)), felonious assault (R.C. 2903.11), and endangering children (R.C. 2919.22).
{¶3} Counsel was appointed and, after several pretrials, and discovery, the trial
court determined that appellant was competent to stand trial. On December 11, 2001,
appellant retracted his not guilty plea. Appellant pled guilty to the murder charge (R.C.
2903.02(B)), and the trial court nolled the remaining charges.
{¶4} On December 11, 2001, appellant was sentenced to a 15 years-to-life prison
term at the Lorain Correctional Institution with 103 days of jail-time credit. The entry
also provided that “postrelease control is part of this prison sentence for the maximum
period allowed for the above felony(s) under R.C. 2967.28.”
{¶5} On September 3, 2002, this court dismissed appellant’s pro se motion for
delayed appeal and appointment of counsel pursuant to App.R. 5(A). On April 5, 2004, and August 4, 2004, appellant’s motions to withdraw his plea pursuant to Crim.R. 32.1
were denied.
{¶6} Appellant’s motion for the court reporter’s transcript was denied on January
25, 2005, and his pro se appeal filed February 15, 2005, was sua sponte dismissed by this
court on April 15, 2005, for failure to file a praecipe pursuant to Loc.App.R. 9(B).
{¶7} On September 15, 2015, appellant filed a pro se “motion for vacation of
noncognizable offense and motion for sentencing (for vacation of unauthorized
imposition of postrelease control).” The motion, partly based on State v. Nolan, 141
Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, 1 was denied on October 2, 2015.
Appellant filed the instant appeal on October 23, 2015, the oral argument for which was
continued to allow appointment of counsel.
II. ASSIGNMENTS OF ERROR
{¶8} Appellant appeals, proffering the following assignments of error:
I. The trial court committed error when it informed Mr. Freeman that it would impose and then did impose, as part of his sentence for murder, a period of postrelease control.
II. The trial court erred in finding appellant guilty of felony murder under R.C. 2903.02(B) where appellant was not, and could not have been, found guilty of an underlying felony.
III. LAW AND ANALYSIS
1 It appears in appellant’s most recent brief that the Nolan argument has been abandoned because Nolan held that attempted felony murder is not a cognizable crime in Ohio (R.C. 2903.02(B)), which does not apply to this case. A. Assignment of Error No. I
{¶9} Appellant first argues that his conviction should be vacated and a new
trial awarded due to the trial court’s failure to properly advise him of postrelease control;
therefore, his plea was not knowingly, intelligently and voluntarily made. We
acknowledge the state’s position that this argument may be barred by res judicata,
because the issue could have been raised on direct appeal. State v. Ketterer, 126 Ohio
St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59 (res judicata bars the assertion of claims
in a motion to withdraw a guilty plea that was, or could have been, raised in a prior
proceeding.) However, in light of the specific facts of this case, we will address the
argument. We find that the argument lacks merit.
{¶10} Appellant relies on State v. Rembert, 8th Dist. Cuyahoga No. 99707,
2014-Ohio-300, ¶ 24, where Rembert challenged the validity of his plea due to the trial
court’s failure to provide proper instruction regarding postrelease control and parole. We
determined that Rembert’s plea was knowingly, intelligently, and voluntarily made. Our
analysis in Rembert applies here, but not to appellant’s benefit, because our decision does
not entitle appellant to a new trial.
{¶11} Appellant was sentenced to 15 years to life, and advised that “postrelease
control is part of this prison sentence for the maximum period allowed for the above
felony(s) under R.C. 2967.28.” As we acknowledged in Rembert, who was sentenced to
life imprisonment with parole eligibility after 25 years, “because parole is not certain to
occur, the trial court would not be required to explain it in the plea colloquy.” Id. at ¶ 27. {¶12} R.C. 2967.28 does not provide for postrelease control for felony murder;
therefore, it was error to impose postrelease control in this case. State v. Davis, 8th Dist.
Cuyahoga No. 95440, 2011-Ohio-2526, ¶ 13. However, appellant has not been
prejudiced thereby. State v. Stokes, 8th Dist. Cuyahoga No. 93154, 2010-Ohio-3181, ¶ 9.
In addition:
[A] sentencing entry that incorrectly imposes postrelease control does not render the entire sentence void. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. Only that portion of the judgment that improperly imposes postrelease control is void. Id.; [State] v. Evans, 8th Dist. Cuyahoga No. 95692, 2011-Ohio-2153, ¶ 8-9.
State v. Opalach, 8th Dist. Cuyahoga No. 100938, 2014-Ohio-5037, ¶ 8.
{¶13} The state has conceded this portion of the error. We thus direct that a
nunc pro tunc entry be entered to delete the imposition of postrelease control. “A trial
court may use a nunc pro tunc entry to correct mistakes in judgments, orders, and other
parts of the record so the record speaks the truth. State v. Spears, 8th Dist. Cuyahoga
No. 94089, 2010-Ohio-2229, ¶ 1.” State v. Davis, 8th Dist. Cuyahoga No. 95440,
2011-Ohio-2526, ¶ 15.
B. Assignment of Error No. II
{¶14} Appellant’s second assigned error challenges the felony murder conviction.
We find that this error lacks merit.
{¶15} Appellant was convicted under R.C. 2903.02(B):
(B) No person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code. {¶16} As the state aptly observes, appellant’s guilty plea is a complete
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[Cite as State v. Freeman, 2016-Ohio-8143.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103660
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DAMIEN FREEMAN DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-01-413757-ZA
BEFORE: Laster Mays, J., Keough, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: December 15, 2016 -i-
ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
By: Jeffrey Gamso Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
John P. Parker 988 East 185th Street Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Brett Hammond Assistant County Prosecutor Justice Center, 9th floor 1200 Ontario Street Cleveland, Ohio 44113 ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant, Damien Freeman (“Freeman”), proceeding pro se,
appeals from the trial court’s denial of his motion to vacate a noncognizable offense and
motion for sentencing. We affirm the trial court’s decision, but remand for the limited
purpose of vacating the imposition of postrelease control.
I. FACTS AND BACKGROUND
{¶2} In September 2001, at the age of 24, appellant was indicted by the
Cuyahoga County Grand Jury for allegations surrounding the August 23, 2001 death of
Ciera Freeman, 11 months of age. Appellant was charged with murder (R.C.
2903.02(B)), felonious assault (R.C. 2903.11), and endangering children (R.C. 2919.22).
{¶3} Counsel was appointed and, after several pretrials, and discovery, the trial
court determined that appellant was competent to stand trial. On December 11, 2001,
appellant retracted his not guilty plea. Appellant pled guilty to the murder charge (R.C.
2903.02(B)), and the trial court nolled the remaining charges.
{¶4} On December 11, 2001, appellant was sentenced to a 15 years-to-life prison
term at the Lorain Correctional Institution with 103 days of jail-time credit. The entry
also provided that “postrelease control is part of this prison sentence for the maximum
period allowed for the above felony(s) under R.C. 2967.28.”
{¶5} On September 3, 2002, this court dismissed appellant’s pro se motion for
delayed appeal and appointment of counsel pursuant to App.R. 5(A). On April 5, 2004, and August 4, 2004, appellant’s motions to withdraw his plea pursuant to Crim.R. 32.1
were denied.
{¶6} Appellant’s motion for the court reporter’s transcript was denied on January
25, 2005, and his pro se appeal filed February 15, 2005, was sua sponte dismissed by this
court on April 15, 2005, for failure to file a praecipe pursuant to Loc.App.R. 9(B).
{¶7} On September 15, 2015, appellant filed a pro se “motion for vacation of
noncognizable offense and motion for sentencing (for vacation of unauthorized
imposition of postrelease control).” The motion, partly based on State v. Nolan, 141
Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, 1 was denied on October 2, 2015.
Appellant filed the instant appeal on October 23, 2015, the oral argument for which was
continued to allow appointment of counsel.
II. ASSIGNMENTS OF ERROR
{¶8} Appellant appeals, proffering the following assignments of error:
I. The trial court committed error when it informed Mr. Freeman that it would impose and then did impose, as part of his sentence for murder, a period of postrelease control.
II. The trial court erred in finding appellant guilty of felony murder under R.C. 2903.02(B) where appellant was not, and could not have been, found guilty of an underlying felony.
III. LAW AND ANALYSIS
1 It appears in appellant’s most recent brief that the Nolan argument has been abandoned because Nolan held that attempted felony murder is not a cognizable crime in Ohio (R.C. 2903.02(B)), which does not apply to this case. A. Assignment of Error No. I
{¶9} Appellant first argues that his conviction should be vacated and a new
trial awarded due to the trial court’s failure to properly advise him of postrelease control;
therefore, his plea was not knowingly, intelligently and voluntarily made. We
acknowledge the state’s position that this argument may be barred by res judicata,
because the issue could have been raised on direct appeal. State v. Ketterer, 126 Ohio
St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59 (res judicata bars the assertion of claims
in a motion to withdraw a guilty plea that was, or could have been, raised in a prior
proceeding.) However, in light of the specific facts of this case, we will address the
argument. We find that the argument lacks merit.
{¶10} Appellant relies on State v. Rembert, 8th Dist. Cuyahoga No. 99707,
2014-Ohio-300, ¶ 24, where Rembert challenged the validity of his plea due to the trial
court’s failure to provide proper instruction regarding postrelease control and parole. We
determined that Rembert’s plea was knowingly, intelligently, and voluntarily made. Our
analysis in Rembert applies here, but not to appellant’s benefit, because our decision does
not entitle appellant to a new trial.
{¶11} Appellant was sentenced to 15 years to life, and advised that “postrelease
control is part of this prison sentence for the maximum period allowed for the above
felony(s) under R.C. 2967.28.” As we acknowledged in Rembert, who was sentenced to
life imprisonment with parole eligibility after 25 years, “because parole is not certain to
occur, the trial court would not be required to explain it in the plea colloquy.” Id. at ¶ 27. {¶12} R.C. 2967.28 does not provide for postrelease control for felony murder;
therefore, it was error to impose postrelease control in this case. State v. Davis, 8th Dist.
Cuyahoga No. 95440, 2011-Ohio-2526, ¶ 13. However, appellant has not been
prejudiced thereby. State v. Stokes, 8th Dist. Cuyahoga No. 93154, 2010-Ohio-3181, ¶ 9.
In addition:
[A] sentencing entry that incorrectly imposes postrelease control does not render the entire sentence void. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. Only that portion of the judgment that improperly imposes postrelease control is void. Id.; [State] v. Evans, 8th Dist. Cuyahoga No. 95692, 2011-Ohio-2153, ¶ 8-9.
State v. Opalach, 8th Dist. Cuyahoga No. 100938, 2014-Ohio-5037, ¶ 8.
{¶13} The state has conceded this portion of the error. We thus direct that a
nunc pro tunc entry be entered to delete the imposition of postrelease control. “A trial
court may use a nunc pro tunc entry to correct mistakes in judgments, orders, and other
parts of the record so the record speaks the truth. State v. Spears, 8th Dist. Cuyahoga
No. 94089, 2010-Ohio-2229, ¶ 1.” State v. Davis, 8th Dist. Cuyahoga No. 95440,
2011-Ohio-2526, ¶ 15.
B. Assignment of Error No. II
{¶14} Appellant’s second assigned error challenges the felony murder conviction.
We find that this error lacks merit.
{¶15} Appellant was convicted under R.C. 2903.02(B):
(B) No person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code. {¶16} As the state aptly observes, appellant’s guilty plea is a complete
admission of guilt. In exchange for the guilty plea to felony murder, the remaining
charges were nolled. By law, appellant’s guilty plea constitutes a waiver of the asserted
error here:
[A] defendant waives all appealable errors that may have occurred at trial when he or she enters a guilty plea as part of a plea bargain, unless the purported errors are shown to have precluded the defendant from entering a knowing and voluntary plea. State v. Brusiter, 8th Dist. Cuyahoga No. 98614, 2013-Ohio-1445, ¶ 5; State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5, citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991).
(Emphasis added.) State v. Davis, 8th Dist. Cuyahoga No. 101502, 2015-Ohio-1144, ¶ 13.
{¶17} In addition, a plea bargain is a matter of contract, which is enforceable by its
terms. See State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-1693, ¶16, citing
State v. Carpenter, 68 Ohio St.3d 59, 61, 623 N.E.2d 66 (1993).
{¶18} Based on the foregoing, we find that the appellant’s second assigned error
fails.
IV. CONCLUSION
{¶19} Appellant’s convictions are affirmed; however, we remand the case to the
trial court to issue a nunc pro tunc entry deleting the imposition of postrelease control.
{¶20} Judgment is affirmed in part, vacated in part, and remanded.
It is ordered that appellee and appellant share equally the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_________________________________________ ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, P.J., and EILEEN T. GALLAGHER, J., CONCUR