State v. Franklin , 2011 Ohio 4953 ( 2011 )

[Cite as State v. Franklin, 2011-Ohio-4953.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95991
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VINCENT FRANKLIN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-396833
BEFORE: Keough, J., Kilbane, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: September 29, 2011
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Katherine Mullin
Ronni Ducoff
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} In this appeal from a resentencing to impose postrelease control,
defendant-appellant, Vincent Franklin, challenges his guilty plea. For the reasons that
follow, we affirm.
I
{¶ 2} In 2001, Franklin pled guilty to two amended counts of rape in Case No.
CR-396833 and one count of felonious assault in Case No. CR-400681. Before
accepting his plea, the trial court determined that Franklin was making the plea
voluntarily and informed him of his constitutional rights under Crim.R. 11(C), which
Franklin indicated he understood. The trial court told Franklin that he would be subject
to postrelease control upon release from prison, but did not tell him the length of the
postrelease control term. Franklin did not appeal his conviction or sentence.
{¶ 3} More than nine years later, in October 2010, the trial court resentenced
Franklin in Case No. CR-396833 to properly impose five years of mandatory postrelease
control. Franklin now appeals from that resentencing.
II
{¶ 4} Under Crim.R. 11(C), a court shall not accept a guilty plea in a felony case
without first addressing the defendant personally and doing all of the following:
{¶ 5} “(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty involved * * *.
{¶ 6} “(b) Informing the defendant of and determining that the defendant
understands the effect of the plea * * *, and that the court, upon acceptance of the plea,
may proceed with judgment and sentence.
{¶ 7} “(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining witnesses in the
defendant’s favor, and to require the state to prove the defendant’s guilt beyond a
reasonable doubt at a trial at which the defendant cannot be compelled to testify against
himself or herself.”
{¶ 8} Franklin, through counsel, raises two assignments of error, both regarding
his guilty plea. In his first assignment of error, Franklin argues that his guilty plea
should be vacated because prior to accepting his plea, the trial court did not tell him that it
could proceed immediately to judgment and sentence. In his second assignment of error,
Franklin contends that his plea should be vacated because prior to accepting his plea, the
trial court did not advise him of the maximum penalty involved; i.e., that he would be
subject to a mandatory term of five years postrelease control. Franklin argues that the
trial court’s failure to properly advise him rendered his plea involuntary under Crim.R. 11
and, therefore, his plea should be vacated. Principles of res judicata, however, bar
Franklin from challenging the validity of his plea.
{¶ 9} Res judicata bars the further litigation in a criminal case of issues that were
or could have been raised previously in a direct appeal. State v. Leek (June 21, 2000),
Cuyahoga App. No. 74338, citing State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d
104, paragraph nine of the syllabus. Franklin could have raised the voluntariness of his
plea on direct appeal, but did not do so.
{¶ 10} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
the Ohio Supreme Court clarified that, “when a judge fails to impose statutorily mandated
postrelease control as part of a defendant’s sentence, that part of the sentence is void and
must be set aside.” Id. at ¶26. However, “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 ¶40. Hence, “[t]he scope of an appeal from a
resentencing hearing in which a mandatory term of postrelease control is imposed is
limited to issues arising at the resentencing hearing.” (Emphasis added.) Id.
{¶ 11} Thus, in State v. Padgett, Cuyahoga App. No. 95065, 2011-Ohio-1927, this
court held that in light of Fischer, the issue of merger of allied offenses was barred by res
judicata on the defendant’s appeal from resentencing to impose postrelease control
because the issue did not arise from the resentencing hearing. See, also, State v. Hunter,
Cuyahoga App. Nos. 95111, 95112, and 95113, 2011-Ohio-1682 (the only issues a
defendant can raise on appeal after the resentencing hearing to correctly impose
postrelease control are issues arising at the resentencing hearing).
{¶ 12} We reach the same result here. Franklin did not bring a direct appeal from
his original sentencing in 2001, nor did he seek a delayed appeal challenging his guilty
plea, but now seeks to vacate his plea, more than nine years later. As Fischer makes
clear, because the validity of Franklin’s plea is not an issue arising from the resentencing
hearing, any attempt by Franklin to now challenge his plea is barred by the doctrine of res
judicata.
{¶ 13} Appellant’s first and second assignments of error are overruled.
III
{¶ 14} After Franklin’s counsel filed a brief on appeal, Franklin, pro se, filed a
supplemental assignment of error with accompanying brief. Before filing his
supplemental brief, Franklin neither sought nor obtained leave from this court as required.
See Loc.R. 16 of the Eighth Appellate District. Furthermore, Franklin is represented by
counsel and this court cannot consider assignments of error raised by him pro se. As the
Ohio Supreme Court explained in State v. Keenan (1998), 81 Ohio St.3d 133, 138, 689
N.E.2d 929:
{¶ 15} “A defendant has no right to a ‘hybrid’ form of representation wherein he is
represented by counsel, but also acts simultaneously as his own counsel. McKaskle [v.
Wiggins (1984)], 465 U.S. [168,] 183, 104 S.Ct. [944,] 953, 79 L.Ed.2d [122,] 136; State
v. Thompson (1987), 33 Ohio St.3d 1, 6, 514 N.E.2d 407, 414.”
{¶ 16} Accordingly, Franklin’s supplemental brief is ordered stricken from the
record and his supplemental assignment of error is overruled. See, e.g., State v. Ridley,
Lucas App. No. L-10-1314, 2011-Ohio-3496 (appellant’s pro se motion to strike
telephone recordings from record on appeal ordered stricken from record where appellant
was represented by counsel).
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR