State v. James , 2016 Ohio 7889 ( 2016 )

[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