State v. Brown , 2014 Ohio 5795 ( 2014 )

[Cite as State v. Brown, 2014-Ohio-5795.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101427
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JEFFREY BROWN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART
AND REMANDED IN PART
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-13-580090-A and CR-13-580403-A
BEFORE: Jones, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: December 31, 2014
ii
ATTORNEY FOR APPELLANT
Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Fallon Radigan
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant Jeffrey Brown appeals from the trial court’s April 28, 2014
sentencing judgment entry. We affirm the conviction, but remand for the limited purpose of
advising Brown in open court of costs.
I. Procedural History
{¶2} In December 2013, Brown was indicted in two separate cases. Cuyahoga C.P.
Case No. CR-13-580090-A was a seven-count indictment, charging him with four counts of drug
trafficking, and one count each of drug possession, possessing criminal tools, and having
weapons while under disability. One of the trafficking counts (Count 4) contained one-year
firearm, juvenile, and schoolyard specifications, as well as four forfeiture specifications (two
gun, one money, and one safe). The drug possession count (Count 5) also contained a one-year
firearm specification, as well as four forfeiture specifications (two gun, one money, and one
safe). The possessing criminal tools count contained four forfeiture specifications (two gun,
one money, and one safe).
{¶3} Case No. CR-13-580403-A was a three-count indictment, charging Brown with two
counts of drug trafficking and one count of drug possession.
{¶4} After numerous pretrials and negotiations on both cases, Brown and the state
reached a plea agreement. The agreement was that under Case No. CR-580090, Brown would
plead to an amended Count 4, a third-degree felony, with the amendment being the deletion of
the firearm, juvenile, and schoolyard specifications. Under Case No. CR-580403, Brown would
plead to Count 2, a felony of the second degree.
{¶5} On April 28, 2014, immediately prior to the plea hearing, defense counsel requested
a two-week continuance, stating that Brown needed more time “because of the circumstances.”
The trial court denied the request. The state indicated that it was seeking concurrent time on the
cases, and the trial court stated that it was considering “between four and five years collective on
the cases.”
{¶6} The trial court advised Brown of the rights a plea would waive, as well as the
possible sentence and period of postrelease control; it did not advise him that Count 2 under Case
No. CR-580403 carried a mandatory $7,500 fine. After being satisfied that Brown was
knowingly, intelligently, and voluntarily waiving his rights, the court entered the plea and the
remaining counts of the indictments were dismissed.
{¶7} The trial court indicated that it would immediately proceed to sentencing. Defense
counsel again requested a continuance so that Brown “could get his affairs in order.” The trial
court denied the request, stating that Brown had had plenty of time to do so.
{¶8} The assistant prosecuting attorney asked the court if it had reminded Brown of his
driver’s license suspension. The court previously had not and then informed Brown that his
license would be suspended for six months. The court sentenced Brown to five years on the
second-degree felony and six months on the third-degree felony, to be served concurrently.
{¶9} The following day, April 29, 2014, another hearing was held because it was brought
to the trial court’s attention that it had failed to impose the mandatory $7,500 fine. Defense
counsel stated that in “view of that deficiency, [Brown] should be allowed to withdraw his plea
and continue this for a little bit * * *.” The trial court stated that it was not going to continue
the case because “[t]here’s nothing he didn’t understand,” but defense counsel insisted “[w]ell,
that’s part of the sentence that was not explained.”
{¶10} The court then asked whether Brown wanted to withdraw his plea; defense counsel
responded, “[y]eah, I think he should.” The court stated that if Brown withdrew his plea, it
would not entertain another plea. Defense counsel was confused as to why not. The trial court
again stated that it was its belief that Brown “understood the implication” of the plea, but
nonetheless told counsel to file a motion if he desired and the court would have a full hearing on
it.
{¶11} The next day, April 30, 2014, the court reconvened on the matter, at which time the
state informed the court that it would be “waiving the fine * * * so we don’t have an issue.”
The court responded, “[v]ery good. Original sentence will be imposed.” Defense counsel
objected, however, stating that he believed he was being “victimized in this courtroom by the
prosecutor and the Court.” The court then agreed to have a hearing on Brown’s request to
withdraw his plea. But defense counsel stated that he was not ready and, instead, asked the
court to recuse itself.
{¶12} The court told the defense that the stated ground made the day before for
withdrawal of the plea was the failure to inform Brown of the mandatory fine. The court
indicated that “[w]hen the State of Ohio said we will waive that, I assumed that would correct
any defects because you didn’t raise any other basis to withdraw the [plea].” Defense counsel
responded that there were other issues, namely, (1) “we would not get extra time on the case”;
and (2) that Brown “was not allowed to see the video.” The court inquired why Brown had pled
if he had not seen the video, to which defense counsel responded that he “didn’t know why,” and
he had had “bad representation.” The court ordered defense counsel to get the motion to
withdraw the plea, which counsel stated he had prepared, but did not have with him.
{¶13} Another hearing was held later that same day, April 30, 2014. The court asked
defense counsel to present his argument for his motion to withdraw the plea. Counsel stated
that the motion spoke for itself and he did not have anything to add because he “thought this case
was over Monday.” The stated ground in the motion was the failure to explain the mandatory
fine.
{¶14} But defense counsel still insisted that Brown’s plea was invalid because “he wasn’t
informed of the full penalty,” and it did not matter that the state waived the fine because “they
waived it after the fact.” The court denied the motion to withdraw the plea and stated that the
original sentence, without the fine, was in effect.
{¶15} Brown appeals, raising five assignments of error for our review:
I. Defendant was denied due process of law when the court did not inform
defendant of the mandatory penalties in violation of his constitutional rights.
II. Defendant was denied due process of law when the court refused to allow
defendant to withdraw his plea.
III. Defendant was denied due process of law when the court did not fully and
properly advise defendant of post-release control.
IV. Defendant was denied due process of law when the court’s oral
pronouncement of sentence varied significantly from its judgment entry of
sentence.
V. Defendant was denied due process of law when the court added additional
items of forfeiture other than those identified at the time of plea.
II. Law and Analysis
{¶16} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty * * * may be
made only before sentence is imposed; but 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.”
{¶17} Brown’s motion to withdraw his plea was made after he was sentenced. Pursuant
to Crim.R. 32.1, a postsentence motion to withdraw a guilty plea may be granted only to correct a
manifest injustice. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). “A
defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden
of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361
N.E.2d 1324 (1977), paragraph one of the syllabus. A manifest injustice is a fundamental flaw
in the proceedings that results in a miscarriage of justice or is inconsistent with the requirements
of due process. State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, 2010-Ohio-2055, ¶
6.
{¶18} Thus, a postsentence motion to withdraw a guilty plea is allowable only under
extraordinary circumstances and is left up to the discretion of the trial court. Smith at 264.
Accordingly, we review the trial court’s decision on a motion to withdraw a guilty plea for an
abuse of discretion. McMahon at ¶ 9. An abuse of discretion implies that the trial court acted
unreasonably, arbitrarily, or unconscionably. Id. Deference is especially afforded to a case
such as this one, where the same trial judge who took the plea considered the motion to withdraw
it and, thus, was familiar with the facts and in the best position to assess the credibility of
Brown’s assertions. State v. Atkinson, 8th Dist. Cuyahoga No. 85773, 2005-Ohio-5348, ¶
13-14.
{¶19} In his first, second, and third assignments of error, Brown contends that his plea
was not knowingly and voluntarily entered into because the court did not inform him (1) that the
second-degree felony carried a “mandatory five-year sentence”; (2) that his driver’s license
would be suspended; (3) there was a mandatory $7,500 fine; and (4) properly about postrelease
control.
{¶20} The reason Brown initially offered for wanting to withdraw his plea was that he
was not informed about the mandatory $7,500 fine. The state indicated it would waive the fine,
however, and therefore there was no “manifest injustice” that occurred by him not being advised
of it. When Brown later asserted that there were “other reasons” for wanting to withdraw his
plea, he did not raise the “mandatory five-year sentence” and the driver’s license suspension.
These issues are therefore waived for appellate review.
{¶21} Notwithstanding the waiver, Brown’s claims have no merit. In regard to the
“mandatory five-year sentence,” the trial court stated, prior to the plea, that it was considering a
four- or five-year sentence. Brown therefore entered his guilty plea knowing the court’s
inclination on sentencing. In regard to the license suspension, it is true that the trial court
mentioned it after it had accepted Brown’s plea, but Brown has never claimed that he was
unaware of it and would not have pled had he known.
{¶22} We now consider the trial court’s advisement about postrelease control. Under
Crim.R. 11(C)(2)(a), when taking a plea the trial court must endure that the defendant
understands the “maximum penalty involved.” This court has previously explained the
following:
[P]ostrelease 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 postrelease control from the trial court, [a defendant] could not
fully understand the consequences of his plea as requires by Crim.R. 11(C).
State v. Griffin, 8th Dist. Cuyahoga No. 83724, 2004-Ohio-4344, ¶ 13.
{¶23} Thus, 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. Sarkozy, 117 Ohio
St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22, 25; State v. Perry, 8th Dist. Cuyahoga No.
82085, 2003-Ohio-6344, ¶ 11.
{¶24} Brown contends that the trial court “tersely” and “imprecisely” advised him about
postrelease control at the plea. We disagree. The trial court’s advisement to Brown at the plea
hearing was as follows:
On the felony 2 you’ll have a mandatory period of three years postrelease Control,
on the felony 4 discretionary period of postrelease Control.
Postrelease control could involve restrictions on your activities. If you were to
violate those, you could be returned to prison for up to one-half of the original
sentence.
{¶25} When questioned by the court as to whether he understood, Brown responded that
he did. On this record, the trial court properly advised Brown at the plea hearing about
postrelease control and the record demonstrates that Brown subjectively understood.
{¶26} Moreover, the trial court advised Brown at sentencing of the postrelease control
requirements and incorporated the advisements into its sentencing judgment entry. The
imposition of postrelease control was therefore proper. See State v. Mace, 8th Dist. Cuyahoga
No. 100779, 2014-Ohio-5036.
{¶27} In light of the above, Brown has failed to demonstrate that a manifest injustice
occurred. The first, second, and third assignments of error are therefore overruled.
{¶28} In his fourth and fifth assignments of error, Brown contends that the trial court’s
oral pronouncements were inconsistent with its judgment entry and, thus, denied him of due
process of law. Brown identifies three areas of concern. First, Brown contends that he was
not advised at the plea hearing that he would be sentenced to a mandatory prison term on the
second-degree felony. We disagree.
{¶29} The court advised him that a “felony of the second degree carries anywhere from
two to eight years in prison in yearly increments * * *.” The court asked the assistant
prosecuting attorney whether it was mandatory time, to which the assistant responded that it was.
The court then correctly informed Brown that his sentence would include a “[m]inimum
mandatory [sentence] of two years.”
{¶30} It is true that the sentencing judgment entry incorrectly states that the five years
imposed on that count was a “mandatory five-year sentence.” But Brown is not able to
demonstrate that his plea was not knowingly made. He is also not able to demonstrate
prejudice; that is, that he would not have pled if he had known he was going to be sentenced to
five years. As mentioned, at the very outset of the plea hearing, the trial judge told Brown that
he would sentence him to either four or five years. Therefore, his first contention is overruled.
{¶31} Second, Brown contends that he was not advised in open court that he would be
responsible for court costs. The state concedes this issue, and we agree. Thus, under the
authority of State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the sentence
remains intact, but we remand for the limited purpose of informing Brown of court costs.
{¶32} Third, Brown contends that his plea was not knowingly made because the
sentencing entry forfeits more property than was mentioned at the plea hearing. Specifically, at
the plea hearing the court questioned Brown as to whether he understood that he would have to
forfeit two guns. The court did not mention forfeiture of the money, ammunition, or safe at the
plea hearing, but they were included in the sentencing judgment entry.
{¶33} This court has held that the “right to be informed of a forfeiture of property prior to
entering a plea is a nonconstitutional right.” State v. Eppinger, 8th Dist. Cuyahoga No. 95685,
2011-Ohio-2404, ¶ 21, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d
1224 (holding that the right to be informed of maximum penalty involved is reviewed for
substantial compliance).
{¶34} The indictment in Case No. CR-580090 specifically listed the items for which the
state sought forfeiture. The count to which Brown pleaded guilty, Count 4, also contained a
one-year firearm specification, a juvenile specification, and a schoolyard specification. At the
plea hearing, the parties discussed that the count would be amended to delete the firearm,
juvenile, and schoolyard specifications; no mention was made of deleting the forfeiture
specifications and, as mentioned, the court informed Brown that he would be forfeiting the guns.
{¶35} On this record, we find that Brown had notice of all the items that were forfeited
and that he knowingly agreed to forfeit them. Moreover, Brown has not alleged that he was
prejudiced by their forfeiture; that is, that he would not have pled guilty had he known that they
would be forfeited.
{¶36} In light of the above, Brown’s first, second, third, and fifth assignments of error are
overruled. The fourth assignment of error is sustained as it relates to the imposition of court
costs and the case is remanded for the limited purpose of addressing that issue.
{¶37} Conviction affirmed; case remanded for the limited purpose of advising defendant
in open court of costs.
It is ordered that appellee 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
MARY EILEEN KILBANE, J., CONCURS;
EILEEN A. GALLAGHER, J., CONCURS
IN JUDGMENT ONLY