State v. Poole

2012 Ohio 2622

Opinion

[Cite as State v. Poole, 2012-Ohio-2622.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96921

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

LARRY POOLE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-418372

BEFORE: Jones, P.J., Cooney, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: June 14, 2012 FOR APPELLANT

Larry Poole, pro se Inmate #432-273 Lake Erie Correctional Institution 501 Thompson Road Conneaut, Ohio 44030

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: James M. Price Matthew E. Meyer Assistant County Prosecutors The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:

{¶1} Defendant-appellant, Larry Poole, pro se, appeals the denial of his motion to

withdraw his plea and reduce his sentence. We affirm in part and remand.

I. Procedural History and Facts

{¶2} In January 2002, Poole was charged with three counts of aggravated robbery,

three counts of felonious assault, one count of attempted murder, and two counts of ethnic

intimidation. In May 2002, Poole pleaded guilty to three counts of aggravated robbery

in exchange for the remaining counts of the indictment being dismissed. As part of the

plea agreement, Poole and the state agreed to a seven-year sentence.

{¶3} The state wished to immediately proceed to sentencing after Poole’s plea, but

at Poole’s request, the trial court set sentencing for June 3, 2002, to allow Poole a “period

of time to get [his] affairs in order.” The court admonished Poole that if he failed to

appear for sentencing it would “disregard the seven-year sentence and * * * impose

whatever sentence [it felt was] appropriate * * *.” Poole failed to appear for the June 3

sentencing hearing. Sentencing was reset for July 1, 2002.

{¶4} Although Poole was represented by counsel throughout the trial court

proceedings, on June 19, 2002, he filed a pro se motion to withdraw his plea. At the

July 1 sentencing hearing, Poole’s counsel withdrew the motion. The trial court

sentenced Poole to five years on each of the three first degree felony counts, to run

consecutively, for a 15-year sentence. Poole filed no direct appeal. His delayed appeal

was dismissed in 2004. State v. Poole, 8th Dist. No. 85277. The Ohio Supreme Court also denied Poole a delayed appeal in 2006.

{¶5} Poole filed several motions seeking to withdraw his plea or seeking a

reduction in the sentence; all the motions were denied. Poole appeals from the latest

denial of his motion to withdraw his plea and raises the following two assignments of

error for our review:

[I.] Mr. Poole is entitled to a de novo plea hearing pursuant to the mandatory requirement of Crim.R. 11(C). (Emphasis sic.)

[II.] Mr. Poole is entitled to a new sentencing hearing pursuant to R.C. 2941.25, R.C. 2929.11-14.

II. Law and Analysis

A. The Plea

{¶6} Poole challenges his plea on several grounds. First, he contends that

“[w]ithout proper hearing on the [June 19, 2002] motion to withdraw his plea, [the] trial

court proceeded to sentencing.” Poole also contends that, prior to sentencing, the trial

court should have inquired of him as to whether he wished to proceed with the plea

agreement in light of the court’s intention to no longer adopt the parties’ agreed

sentencing recommendation.

{¶7} Poole’s contentions are barred by the doctrine of res judicata. Under the

doctrine, claims that were raised or could have been raised on direct appeal are barred in

subsequent proceedings. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894

N.E.2d 1221, ¶ 6. This court has recognized that the doctrine of res judicata bars all

claims raised in a Crim.R. 32.1 motion that were raised or could have been raised in a prior proceeding, including a direct appeal. State v. McGee, 8th Dist. No. 91638,

2009-Ohio-3374, ¶ 9; State v. Pickens, 8th Dist. No. 91924, 2009-Ohio-1791, ¶ 5; State v.

Gaston, 8th Dist. No. 82628, 2003-Ohio-5825, ¶8.

{¶8} Poole did not file a direct appeal after his plea and sentencing. His delayed

appeal was dismissed in 2004, and the Ohio Supreme Court denied him a delayed appeal

in 2006. The above-mentioned arguments are, therefore, barred under res judicata.

{¶9} Poole also contends that the trial court failed to inform him of the maximum

penalty he could receive. Specifically, Poole contends that the trial court did not

adequately inform him about postrelease control because the journal entry stated an

unspecified period.

{¶10} Crim.R. 11(C)(2)(a) requires a trial court at the time of a defendant’s plea to

advise the defendant of any mandatory postrelease control period. State v. Perry, 8th

Dist. No. 82085, 2003-Ohio-6344, ¶ 11. Specifically, Crim.R. 11(C)(2)(a) requires the

trial court to determine that the defendant understands “the maximum penalty involved.”

This court has previously explained: “‘[P]ost-release control constitutes a portion of the

maximum penalty involved in an offense for which a prison term will be imposed.

Without an adequate explanation of post-release control from the trial court, appellant

could not fully understand the consequences of his plea as required by Crim.R. 11(C).’”

State v. Griffin, 8th Dist. No. 83724, 2004-Ohio-4344, ¶ 13, quoting State v. Jones, 8th

Dist. No. 77657, 2001 WL 605406 (May 24, 2001).

{¶11} At the plea hearing, the trial court informed Poole that, “[u]pon release from prison you will be subject to up to five years of post release control by the adult Parole

Board. Any misbehavior while under this supervision could lead to further

incarceration[.]” At sentencing, the trial court informed Poole that postrelease control

was “required in this case for up to five years * * *.” The sentencing entry provided that

postrelease control is a part of the prison sentence for the “maximum period allowed for

the [felonies] under R.C. 2967.28.” Under R.C. 2967.28, Poole’s plea to felonies of the

first degree subjected him to a mandatory five years of postrelease control.

{¶12} In State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224,

the Ohio Supreme Court addressed the effect of a trial court’s errors in informing a

defendant about postrelease control prior to accepting his plea. The court made a

distinction between a complete omission, as opposed to misinforming a defendant about

the length of postrelease control or whether it was discretionary or mandatory. Id. at ¶

22. If the trial court completely failed to advise the defendant at his plea that postrelease

control would be part of his sentence, then the court failed to comply with Crim.R. 11 and

the plea must be vacated. Id. at ¶ 22, 25.

{¶13} On the other hand, if the trial court misinformed the defendant about the

nature of postrelease control, the defendant “may dispute the knowing, intelligent, and

voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct

appeal.” Id. at ¶ 25. In such an instance, the reviewing court will determine whether

the trial court substantially complied with the postrelease control advisement. Id. at ¶

22. {¶14} The Sarkozy court explained substantial compliance as follows:

[F]ailure to comply with nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice. The test for prejudice is “whether the plea would have otherwise been made.” 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].

Id. at ¶ 20.

{¶15} Upon review, we find that the trial court substantially complied with the

requirement that Poole be advised of postrelease control sanctions. Specifically, we find

that, under the totality of the circumstances, Poole subjectively understood the effect of

his plea. Moreover, Poole has failed to demonstrate prejudice, i.e., that had he been

properly advised about postrelease control at his plea hearing, he would not have entered

the plea.

{¶16} Poole filed three pro se motions to withdraw his plea at the trial court level.

The first one, which was withdrawn by counsel, was a pre-printed form and stated that

Poole wished to withdraw his plea because it was “entered without advice of counsel and

without understanding the nature of the charge, effect of the plea, or his rights in the

proceedings * * *.”

{¶17} The second motion sought withdrawal based on Poole’s contention that the

trial court erred in his sentence. And the third motion addressed the trial court’s

postrelease control notification at the plea, but did not contain any allegation that Poole

would not have entered his plea had he been properly advised about postrelease control.

Moreover, even now on appeal, Poole has not alleged that he would not have entered the plea had he been properly advised about postrelease control.

{¶18} On this record, Poole has failed to demonstrate that he was prejudiced by the

trial court’s advisement at his plea about postrelease control. As such, his first

assignment of error is overruled.

B. The Sentence

{¶19} For his second assigned error, Poole contends that he is entitled to a new

sentencing hearing because (1) the three aggravated robbery convictions should have

merged; (2) the record was “woefully inadequate to support the 15-years consecutive term

of incarceration”; (3) a presentence report needed to be completed to place him under

postrelease control and to impose consecutive sentences; (4) the trial court “failed to

follow the overriding purposes of sentencing found in R.C. 2929.11 and 2929.12”; and

(5) the trial court “failed to articulate how the aggregate sentence * * * was consistent

with sentences imposed on Poole’s co-defendant and other similar crimes [committed] by

similar offenders pursuant to R.C. 2929.11(B).”

{¶20} All of these arguments could have been raised on direct appeal; therefore,

they are barred under the doctrine of res judicata.

{¶21} Finally, we address the issue of the court’s notification to Poole in its

journal entry about postrelease control. The journal entry referenced an unspecified

period of postrelease control, stating that postrelease control was a part of the prison

sentence for the “maximum period allowed * * *.” The Ohio Supreme Court has

recently held that “[w]hen a defendant is notified about postrelease control at the sentencing hearing, but notification is inadvertently omitted from the sentencing entry, the

omission can be corrected with a nunc pro tunc entry and the defendant is not entitled to a

new sentencing hearing.” State v. Qualls, Ohio St.3d , 2012-Ohio-1111,

___ N.E. 2d , syllabus. In accordance with Qualls, we remand only for the trial

court to correct its journal entry regarding postrelease control with a nunc pro tunc entry

so that the court’s entry speaks the truth. See State v. Davis, 8th Dist. No. 95440,

2011-Ohio-2526, citing State v. Spears, 8th Dist. No. 94089, 2010-Ohio-2229.

It is ordered that appellant and appellee split 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.

LARRY A. JONES, SR., PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and SEAN C. GALLAGHER, J., CONCUR