State v. James

2016 Ohio 7889

Opinion

[Cite as State v. James, 2016-Ohio-7889.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 104006 and 104169

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MICKEY JAMES DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-592669-I

BEFORE: S. Gallagher, J., Jones, A.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: November 23, 2016 ATTORNEY FOR APPELLANT

Paul A. Mancino, Jr. Mancino, Mancino & Mancino 75 Public Square Building Suite 1016 Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Carl Mazzone Gregory J. Ochocki Assistant Prosecuting Attorneys Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

Also listed:

Mickey James Inmate No. 673-998 Trumbull Correctional Institution P.O. Box 901 Cleveland, Ohio 44430 SEAN C. GALLAGHER, J.:

{¶1} In this consolidated appeal, appellant Mickey James appeals from his

conviction and the decision of the trial court to deny his pro se motions to withdraw his

guilty plea. Upon review, we affirm the conviction and the decision of the trial court to

deny his motions.

{¶2} On January 20, 2015, appellant was indicted, along with 12 codefendants,

with numerous offenses related to the activities of a criminal gang. Appellant eventually

entered a plea of guilty to the following charges as amended: Count 1, participating in a

criminal gang, a felony of the second degree in violation of R.C. 2923.42(A), with

forfeiture specifications; Count 16, felonious assault, a felony of the second degree in

violation of R.C. 2903.11(A)2), with a three-year firearm specification; and Count 43,

having weapons while under disability, a felony of the third degree in violation of R.C.

2923.13(A). The remaining counts against appellant were nolled. Appellant agreed to

forfeit certain items and to a sentencing range of five to 20 years. He was referred for a

presentence investigation report.

{¶3} A sentencing hearing was held on October 14, 2015. The trial court initially

imposed a total sentence of 11 years, but mistakenly included the criminal gang activity

specification as part of the sentence on the felonious assault charge. That count had been

amended, and the one- and five-year firearm specifications and the criminal gang activity specification were nolled. A sentencing entry reflecting the 11-year sentence was never

journalized.

{¶4} Because the sentence imposed on the criminal gang activity specification was

invalid, the trial court called the case for resentencing on October 15, 2015. The trial

court recognized that a clerical error on the journal entry for the plea was responsible for

the mistake.1 The trial court imposed the same sentence on each charge, less the three

years on the criminal gang activity specification on Count 16. Appellant was sentenced

to a prison term of five years for participating in a criminal gang; five years for felonious

assault, to be served prior to and consecutive with three years on the firearm

specification; and three years for having weapons while under disability. The trial court

ran the sentences for each offense concurrent, except for the three-year sentence on the

firearm specification, which was run consecutive to the underlying charge. Appellant’s

total sentence was eight years.

{¶5} The trial court also terminated community control sanctions in two other

cases. The trial court imposed postrelease control. Appellant received jail-time credit

for 260 days. A final judgment entry was entered on October 16, 2015, which correctly

reflected appellant’s plea and the eight-year sentence imposed by the trial court.

{¶6} Two months later, on December 17, 2015, appellant filed a pro se motion to

withdraw his guilty plea because of manifest injustice. On December 22, 2015, the trial

court denied the motion without a hearing, finding that “the defendant has failed to

1 The trial court issued a nunc pro tunc entry to correct the plea entry. establish that the record reflects that his plea was not knowingly, voluntarily and

intelligently made.” Appellant filed a second pro se motion to withdraw his guilty plea

on January 11, 2016. On February 1, 2016, the trial court denied the motion without a

hearing, indicating that it had previously denied the same motion.

{¶7} On January 11, 2016, appellant, pro se, filed a motion for leave to file a

delayed appeal that was granted. Another notice of appeal was filed from the entry of

February 1, 2016, that denied his second motion to withdraw his guilty plea. The appeals

have been consolidated for review.

{¶8} Appellant raises four assignments of error for our review. Under his first

assignment of error, appellant claims he was “denied due process of law when he was

induced to enter a plea of guilty to various counts which were misrepresented at

sentencing.”

{¶9} As an initial matter, we recognize that because the sentence imposed was

within a jointly recommended sentencing range, which was the product of a negotiated

plea deal, and was authorized by law, appellate review of the sentence is precluded under

R.C. 2953.08(D). See State v. Akins-Daniels, 8th Dist. Cuyahoga No. 103817,

2016-Ohio-7048, ¶ 14. Appellant’s challenge is focused upon his plea.

{¶10} Appellant argues that he entered a plea of guilty upon the representation that

he faced a sentencing range of five to 20 years, which at sentencing the trial court

indicated was not possible, under the mistaken impression that the minimum was six

years. This statement was made when the trial court mistakenly considered and imposed a sentence on the criminal gang activity specification that had been nolled. The matter

was called for resentencing, and the prosecutor indicated that a mistake in the journal

entry for the plea was the cause of the error. The trial court proceeded to resentence

appellant on the proper charges, without the criminal gang activity specification. Thus,

any error in this regard was corrected by the trial court.

{¶11} We recognize that the resentencing that was conducted in this case was

conducted to correct the imposition of the three-year sentence on the criminal gang

activity specification that had been nolled. The resentencing occurred before the initial

sentence was ever journalized. The court imposed the same sentence, less the three

years. Under these circumstances, the trial court had jurisdiction to correct the

sentencing error.

{¶12} We shall proceed to address appellant’s challenge to his plea. “When a

defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently,

and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d

450. The standard of review for determining whether a plea was knowing, intelligent,

and voluntary within the meaning of Crim.R. 11 is substantial compliance for

nonconstitutional issues and strict compliance for constitutional issues. State v. Nero, 56

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86,

92-93, 364 N.E.2d 1163 (1977). Furthermore, a defendant must show a prejudicial

effect. Stewart at 93. {¶13} At the plea hearing, the prosecutor placed the plea agreement on the record.

As part of the plea agreement, the agreed sentencing range was between five and 20

years. It was agreed that appellant would be pleading guilty to three counts, including an

amended Count 16 for felonious assault, a felony of the second degree, with a three-year

firearm specification. The state moved to nolle the criminal gang activity specification

on that count and the one- and five-year firearm specifications.

{¶14} The trial court acknowledged the agreed sentencing range and specifically

advised appellant of the potential prison sentence for each of the offenses to which he

would be pleading guilty. On Count 16, the amended felonious assault charge, the trial

court properly informed appellant that the potential prison terms on the felonious assault

was “2, 3, 4, 5, 6, 7, or 8 years, and/or up to a $15,000 fine” and that the three-year

firearm specification carried “a mandatory term of 3 years, served prior to and

consecutive to the underlying charge[.]” The court stated, “in other words, it’s 3 years

for the gun, plus that 2 to 8 years, whatever that sentence is.” Appellant indicated that he

understood. No reference was made to the criminal gang activity specification.

Appellant entered a plea of guilty to Count 16, as amended.

{¶15} The record reflects that the trial court informed appellant of all aspects of

the sentence, including the maximum sentence that could be imposed for each offense.2

2 We note that nothing in Crim.R. 11 requires the trial court to advise the defendant of the minimum sentence. State v. Mackey, 8th Dist. Cuyahoga No. 99390, 2013-Ohio-4698, ¶ 8. Rather, Crim.R. 11(C)(2)(a) only requires the trial court to inform a defendant of “the maximum penalty involved.” Appellant has not shown any prejudice because the trial court imposed a total sentence of

eight years, which was within the agreed sentencing range. Further, the record reflects

that the trial court complied with Crim.R. 11 and there is no evidence that appellant’s plea

was not entered knowingly, intelligently, and voluntarily. Appellant’s first assignment of

error is overruled.

{¶16} Under his second assignment of error, appellant claims he was “denied due

process of law when the court overruled [his] motion to withdraw his plea[.]” Res

judicata has been applied to bar the assertion of claims in a motion to withdraw a guilty

plea that were or could have been raised at trial or on appeal. State v. Ketterer, 126 Ohio

St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59. Notwithstanding the application of res

judicata, we find no abuse of discretion by the trial court in denying the motions because

appellant failed to demonstrate a manifest injustice.

{¶17} Appellant’s first pro se motion to withdraw his plea was filed two months

after his conviction. In that motion, he argued that prior to accepting his plea, the trial

court failed to advise him his sentence would include a mandatory term of postrelease

control, failed to explain he would be subject to postrelease control sanctions, and failed

to inform him that he would be required to serve a mandatory three years for the firearm

specification and that this would be consecutive to any other prison term. Appellant’s

second pro se motion to withdraw his plea was filed after he was granted leave to appeal

by this court. In that motion, he argued that prior to accepting his plea, the trial court

failed to properly advise him concerning postrelease control and failed to inform him of the maximum penalty he faced. Both motions were denied by the trial court, and the

record does not support the arguments raised.

{¶18} On appeal, appellant claims a manifest injustice occurred because the

potential sentence in this case was misrepresented, again referring to the sentencing

range. As a result, he claims that his plea was not entered knowingly and voluntarily,

that this plea was not an informed plea, and that he received ineffective assistance of

counsel. We note that these arguments were not raised in the motions and we have

already rejected appellant’s argument that his plea was not entered knowingly,

intelligently, and voluntarily because it is unsupported by the record. Appellant’s second

assignment of error is overruled.

{¶19} Under his third assignment of error, appellant claims he was “denied due

process of law when the court sentenced [him] on a count to which he did not enter any

plea.” Appellant argues that he never entered a plea to Count 1, participating in a

criminal gang.

{¶20} At the plea hearing, the state outlined the entire plea agreement. The state

specifically stated that appellant would enter a plea of guilty to Count 1, “participating in

a criminal gang, a felony of the second degree in violation of Revised Code

2923.42(A)[.]” The court also outlined the offenses to which appellant “will be pleading

guilty,” including “[C]ount 1, participating in a criminal gang, * * * a felony of the

second degree.” After further discussion, the court proceeded with a clear recitation of

Count 1 for the appellant to enter a plea. Before appellant actually entered an oral plea of guilty, the state interrupted and requested to speak to defense counsel. When the court

resumed taking the plea, it proceeded with the other two counts. The trial court found

appellant guilty of each charge in the plea agreement, including Count 1, and sentenced

appellant on each charge. Because no objection was raised, plain error must be

demonstrated by the record.

{¶21} Our review reflects appellant understood he was entering a plea of guilty to

each of the charges in accordance with the terms of a plea agreement, which were placed

on the record. The trial court performed a proper Crim.R. 11(C) colloquy and explained

the nature of the charges and the sentences that could be imposed. The record indicates

that appellant understood the consequences of his plea and the rights that he was waiving.

The trial court properly found him guilty on each count. Finding no plain error, the

third assignment of error is overruled.

{¶22} Under his fourth assignment of error, appellant claims he was “denied due

process of law when the trial court failed to inform [him] of the effect of a guilty plea.”

Appellant claims his plea should be vacated because the trial court did not inform him

that a plea of guilty is a complete admission of a defendant’s guilt and did not determine

that the defendant understands the effect of the plea of guilty.

{¶23} Whenever accepting a plea of guilty or no contest in a felony case, a trial

court is required to inform the defendant of and determine that the defendant understands

the effect of the plea. Crim.R. 11(C)(2). The right to be informed that a guilty plea is a

complete admission of guilt is nonconstitutional and reviewed under a standard of substantial compliance. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814

N.E.2d 51, ¶ 12. Under the substantial-compliance standard, the totality of

circumstances surrounding the plea is reviewed to determine whether the defendant

subjectively understood that a guilty plea is a complete admission of guilt. Id.

{¶24} In this case, appellant entered a plea of guilty pursuant to a plea agreement.

The trial court conducted a thorough colloquy with appellant to ensure that he understood

the constitutional rights he would be waiving by entering a plea of guilty. At no point

did appellant assert actual innocence. “[A] defendant who has entered a guilty plea

without asserting actual innocence is presumed to understand that he has completely

admitted his guilt.” Id. at ¶ 19. “In such circumstances, a court’s failure to inform the

defendant of the effect of his guilty plea as required by Crim.R. 11 is presumed not to be

prejudicial.” Id.

{¶25} Further, defense counsel expressed on the record that he had spoken with

the defendant and that the defendant “fully understands what’s going on[.]” Both

defense counsel and the prosecution expressed that they were satisfied that Crim.R. 11

had been complied with by the trial court. The record also reflects that appellant had a

criminal history, was familiar with the justice system, and apologized for his “bad

decisions” at sentencing. The totality of circumstances reflects that appellant understood

that a plea of guilty is a complete admission of guilt and the effects of the plea. Under

these circumstances, appellant entered a valid guilty plea. The fourth assignment of error

is overruled. {¶26} 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 Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., A.J., and EILEEN T. GALLAGHER, J., CONCUR