State v. Trem , 2014 Ohio 4934 ( 2014 )

[Cite as State v. Trem, 2014-Ohio-4934.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101265
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSEPH TREM
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-94-312378-A
BEFORE: S. Gallagher, P.J., Rocco, J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 6, 2014
ATTORNEY FOR APPELLANT
Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, OH 44113
Also listed:
Joseph Trem, pro se
#303-512
P.O. Box 8107
Richland Correctional Institution
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Appellant Joseph Trem appeals the decision of the Cuyahoga County Court of
Common Pleas that denied his motion to withdraw guilty plea. For the reasons stated herein, we
affirm the decision of the trial court.
{¶2} In July 1994, appellant was charged under a 39-count indictment with multiple
counts of rape, gross sexual imposition, and endangering children. A majority of the counts
related to sexual conduct against his own daughter from the time she was nine years old through
her mid teens. Two of the gross sexual imposition charges related to appellant having his
daughter engage in sexual activity with other individuals, who were her friends. Several counts
also involved appellant’s sexual conduct against one of those friends. Appellant initially entered
a plea of not guilty to the indictment.
{¶3} In March 1995, appellant retracted his former plea of not guilty and entered a plea of
guilty to rape of his daughter when under the age of 13, as amended under Counts 1 and 6 to
delete the use of force; rape of his daughter as charged in Counts 11, 13, and 14; and gross sexual
imposition as charged in Counts 30, 31, and 32. The remaining counts were nolled.
{¶4} The trial court sentenced appellant to a prison term of 10 to 25 years on Counts 1
and 6, to run consecutively to each other and concurrent to the remaining counts for which the
court imposed a term of 10 to 25 years on Counts 11, 13, and 14, and two years each on Counts
30, 31, and 32, all running concurrently to each other. The aggregate prison term imposed was
20 to 50 years. Appellant did not file a direct appeal.
{¶5} In February 2014, nearly 19 years later, appellant filed a motion to withdraw guilty
plea pursuant to Crim.R. 32.1. Appellant argued his primary reason for agreeing to enter a plea
of guilty was his understanding that he would serve no more than 15 years of incarceration.
Appellant attached a copy of the sentencing transcript to his motion. The trial court denied the
motion without a hearing. This appeal followed.
{¶6} Appellant’s sole assignment of error claims the trial court erred by failing to address
the issues raised by his motion and by failing to hold a hearing.
{¶7} Crim.R. 32.1 provides that “to correct manifest injustice[,] the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
The defendant has the burden of proof, and postsentence withdrawal of a guilty plea is only
available in extraordinary cases to correct a manifest injustice. State v. Smith, 49 Ohio St.2d
261, 264, 361 N.E.2d 1324 (1977); State v. Sneed, 8th Dist. Cuyahoga No. 80902,
2002-Ohio-6502. We review the trial court’s decision under an abuse of discretion standard.
Smith at 264.
{¶8} The record in this case reflects that appellant was sentenced to a total indefinite
prison term of 20 to 50 years. Appellant claims he entered his plea with an understanding that
the most time he would actually serve would be 15 years regardless of the actual sentence
imposed. However, there is nothing to show that appellant did not know the actual sentencing
possibilities at the time he entered his plea. Because appellant did not file a transcript of the
plea hearing, we must presume regularity and the validity of the trial court’s acceptance of his
plea. See State v. Soverns, 8th Dist. Cuyahoga No. 101185, 2014-Ohio-4094, ¶ 6-7; State v.
Woody, 8th Dist. Cuyahoga No. 92929, 2010-Ohio-72, ¶ 10.1 See State v. Mack, 11th Dist.
Portage No. 2005-P-0033, 2006-Ohio-1694, ¶ 17-19. Thus, we are unable to conclude that
1
We note that this court issued an order granting appellant leave to
supplement the record with the transcript of the plea hearing. In response,
appellant filed a notice of unavailability of plea transcript, indicating that the
transcript of the plea hearing no longer exists.
appellant did not fully understand the sentencing consequences of his guilty plea. We are also
cognizant that in 1997, appellant filed a motion to correct sentencing journal entry, which sought
to correct the judgment entry to accurately reflect the sentence imposed in open court, and no
mention was made as to appellant only serving a 15-year prison term. Rather, it is apparent that
appellant understood the actual sentence imposed was a total indefinite prison term of 20 to 50
years.
{¶9} Nonetheless, to support his claimed error, appellant relies upon the sentencing
transcript. Appellant claims that it was his understanding that despite the imposition of an
indefinite sentence, the most time he would actually serve was 15 years. However, there is
nothing that would reflect this was a condition of the plea bargain. The record reflects that as
indicted, appellant was facing numerous life terms for the rape of his daughter with force when
she was under the age of 13. As the prosecutor represented, at that time, even if all counts had
been run consecutive, appellant would have been “eligible” for parole by statute in 15 years.
Therefore, the prosecutor requested that the court run at least two of the rape counts, which
required an indefinite term of 10 to 25 years each, consecutive to ensure that “he will be in prison
for 15 years before he is eligible for parole.”
{¶10} Consistent with the prosecutor’s request, the court proceeded to impose a minimum
sentence of 10 years and a maximum of 25 years on Counts 1 and 6, to be run consecutively. As
the court indicated, that resulted in a “20 year [minimum] sentence, which is in excess of the 15.”
Although the court did make misstatements resulting from an apparent misunderstanding of
parole eligibility, by repeatedly indicating the most time appellant could serve was 15 years, this
did not alter the indefinite prison term that was imposed or the validity of the plea that had
already been entered.
{¶11} In Hart v. Marion Corr. Inst., 927 F.2d 256 (6th Cir.1991), relied upon by
appellant, the record included the plea transcript that showed appellant had been incorrectly
informed that the maximum period of incarceration would only be 15 years before his plea was
entered, and the defendant did not learn that the actual maximum period was 75 years until after
he entered his plea. Unlike Hart, in this case, there is no indication that appellant did not have
knowledge of the consequences of his plea, including the maximum sentence he could actually
serve, at the time his plea was entered, and appellant has not shown a “manifest injustice”
occurred. See Soverns, 8th Dist. Cuyahoga No. 101185, 2014-Ohio-4094, at ¶ 7.
{¶12} Further, we are cognizant that appellant filed his motion approximately 4 years
after the expiration of 15 years. While Crim.R. 32.1 does not prescribe a time limitation for
filing a postsentence motion to withdraw a plea, an undue delay in filing the motion adversely
affects the credibility of the movant. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324; see also
State v. Simmons, 8th Dist. Cuyahoga No. 91062, 2009-Ohio-2028, ¶ 29. The fact that appellant
waited an additional four years from when he asserts he believed he would be paroled before
seeking relief from the claimed error undermines his credibility in pursuing his claim. We find
no abuse of discretion by the trial court in denying appellant’s motion to withdraw his guilty plea.
{¶13} Finally, because the record and the evidentiary materials submitted by appellant
failed to demonstrate a manifest injustice, the trial court was not required to hold a hearing on his
motion to withdraw guilty plea. See State v. Rogers, 8th Dist. Cuyahoga No. 99246,
2013-Ohio-3246, ¶ 29. Accordingly, we do not find that the trial court abused its discretion in
ruling on appellant’s motion without conducting a hearing.
{¶14} Appellant’s sole assignment of error is overruled.
{¶15} 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, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
MARY EILEEN KILBANE, J., CONCUR
.