[Cite as State v. Francis,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 10CA2 : v. : : DECISION AND MICHAEL FRANCIS, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 9-01-11

APPEARANCES:

Timothy Young, Ohio Public Defender, Columbus, Ohio, and Peter Galyardt, Ohio Assistant Public Defender, Columbus, Ohio, for Appellant.

Colleen S. Williams, Meigs County Prosecutor, and Matthew J. Donahue, Meigs County Assistant Prosecutor, Pomeroy, Ohio, for Appellee.

Kline, J.:

{¶1} Michael Francis (hereinafter “Francis”) appeals the judgment of the Meigs

County Court of Common Pleas, which denied Francis’s motion to withdraw his guilty

plea. On appeal, Francis initially contends that the trial court should have granted his

motion for judicial release. Essentially, Francis argues (1) that the trial court did not

keep its promise to let him out of prison after one year and (2) that the state failed to

honor its plea agreement. Francis did not, however, appeal from the denial of his

motion for judicial release. As a result, we find that this portion of Francis’s appeal is

untimely, and we dismiss this portion of his appeal for lack of jurisdiction. Next, Francis

contends that the trial court should have granted his motion to withdraw his guilty plea. Meigs App. No. 10CA2 2

Here, because Francis’s underlying sentence is void, we remand this matter for the trial

court to consider Francis’s motion to withdraw his guilty plea under the presentence,

freely-and-liberally standard. Accordingly, as it relates to Francis’s motion to withdraw

his guilty plea, we reverse the judgment of the trial court.

I.

{¶2} A Meigs County Grand Jury indicted Francis for escape. Eventually, Francis

entered into a plea agreement with the state. Under the plea agreement, Francis would

plead guilty, and the state would recommend a two-year prison sentence. The state

also agreed to join Francis in a motion for judicial release after he had served one year

in prison.

{¶3} On September 17, 2008, Francis pled guilty to one count of escape, a

second-degree felony, in violation of R.C. 2921.34(A)(1) & (C)(2)(a). During the change

of plea hearing, the trial court judge said that he “told [Francis’s attorney] in chambers

that [the court] was going to let [Francis] out after one year.” September 17, 2008

Transcript at 3. But the trial court also said that “the Court doesn’t guarantee any

sentence[.]” Id. at 4.

{¶4} The trial court did not follow the recommendation of the plea agreement.

Instead, the trial court imposed the following sentence: that Francis “be imprisoned and

confined at the appropriate state penal institution, for a determinate sentence of eight

(8) years, which sentence is not mandatory.

{¶5} “It is further ORDERED that four years of said sentence is suspended and

the Defendant placed on community control, intensive supervision, for a period of Meigs App. No. 10CA2 3

five years, upon the Standard Terms, as previously journalized and the following

Special Conditions * * *.” September 22, 2008 Sentencing Entry (emphasis sic).

{¶6} On September 4, 2009, Francis filed his motion for judicial release. Despite

the plea agreement, the state did not join Francis’s motion. Instead, the state

responded that it would “not object” to judicial release for Francis. Eventually, in an

October 7, 2009 entry, the trial court denied Francis’s motion for judicial release.

Francis, however, did not appeal from that order.

{¶7} On December 30, 2009, Francis filed a motion to withdraw his guilty plea.

Francis based his motion on (1) the state not abiding by the plea agreement and (2) the

trial court not granting his motion for judicial release. The state opposed Francis’s

motion to withdraw his guilty plea by arguing that Francis had failed to assert a manifest

injustice.

{¶8} On January 27, 2010, the trial court denied Francis’s motion to withdraw his

guilty plea without opinion. Francis filed his notice of appeal on February 19, 2010.

{¶9} On appeal, Francis asserts the following two assignments of error: I. “Mr.

Francis was deprived of his right to due process under the Fifth and Fourteenth

Amendments to the United States Constitution and Sections 10 and 16, Article I of the

Ohio Constitution when the trial court denied his September 4, 2009 motion for judicial

release.” And, II. “The trial court abused its discretion when it denied Mr. Francis’s

December 30, 2009 motion to withdraw his guilty plea.”

II.

{¶10} In his first assignment of error, Francis contends that the trial court erred

when it denied his motion for judicial release. However, before we may consider the Meigs App. No. 10CA2 4

merits of Francis’s first assignment of error, we must address whether this portion of his

appeal is timely.

{¶11} Francis failed to appeal from the denial of his motion for judicial release.

Because of this, the state argues that the judicial-release portion of Francis’s appeal –

i.e., the first assignment of error – is untimely. Francis responds that the denial of a

motion for judicial release is not a final appealable order. And for that reason, Francis

argues that this portion of his appeal is timely. Here, we agree with the state.

{¶12} “The time for filing a notice of appeal is governed by App.R. 4 and, pursuant

to App.R. 14(B), a court may not enlarge the time for filing a notice of appeal.” State v.

Thacker, Lawrence App. No. 02CA35,

, at ¶3, citing Ross v. Harden

(1982),

. “If a party fails to file a notice of appeal within thirty days as

required by App.R. 4(A), we do not have jurisdiction to entertain the appeal. The timely

filing of a notice of appeal under this rule is a jurisdictional prerequisite to our review.”

State v. Kaiser, Lawrence App. No. 10CA1,

(internal quotation

omitted). See, also, State v. Cremeens, Vinton App. No. 06CA646,

; Thacker at ¶2; State v. Sides, Lake App. No. 2008-L-145,

;

State v. Sturkey, Muskingum App. No. CT2006-0087,

.

{¶13} “Ordinarily, the denial of a motion for judicial release is not a final, appealable

order. State v. Woods [(2001)],

[.] The Ohio Supreme Court,

however, has implied that there is an exception if the defendant’s argument is that the

State breached a plea agreement. [See] State ex rel. Rowe v. McCown,

[,]

, at ¶5. In McCown, Mr. Rowe petitioned for a writ of mandamus,

arguing that the State had breached their plea agreement. Id. at ¶1[.] The Supreme Meigs App. No. 10CA2 5

Court affirmed the court of appeals’ dismissal of the petition, in part, because it

concluded that Mr. Rowe had an adequate legal remedy. Id. at ¶5[.] It noted that he

could have moved to withdraw his plea or to enforce the agreement, or could have

appealed the trial court’s denial of his motion for judicial release. Id.” State v. Jimenez,

Summit App. No. 24609,

, at ¶6. But, see, State v. Williams, Franklin

App. No. 07AP-1035,

(concluding “that appellant may not avoid

th[e] jurisdictional barrier by arguing that the trial court ‘broke its agreement’ to grant a

motion for judicial release after three months”).

{¶14} We agree with the Ninth Appellate District’s interpretation of McCown and find

that the denial of Francis’s motion for judicial release was a final appealable order.

Furthermore, not only do we follow the language of McCown, but we also find that the

denial of Francis’s motion for judicial release affected a substantial right. A “substantial

right” is “‘a right that the United States Constitution, the Ohio Constitution, a statute, the

common law, or a rule of procedure entitles a person to enforce or protect.’ A

substantial right is, in effect, a legal right that is enforced and protected by law.” State v.

Coffman,

,

, quoting R.C. 2505.02(A)(1).

Generally, the denial of a motion for judicial release does not affect a substantial right.

See, e.g., State v. Williams, Cuyahoga App. No. 95359,

, at ¶10; State v.

Foti, Geauga App. No. 2010-G-2983,

, at ¶3. But here, Francis argues,

in part, that the state broke a plea agreement by not joining his motion for judicial

release. “[A] plea agreement is a contract and subject to interpretation under contract

law standards.” State v. Pasturzak, Scioto App. No. 08CA3252,

, at

¶12 (citations omitted). Therefore, Francis essentially argues that the state breached a Meigs App. No. 10CA2 6

contract. And clearly, contract rights are protected under the common law. As a result,

we find that the denial of Francis’s motion for judicial release affected a substantial right.

{¶15} For the foregoing reasons, we find that the denial of Francis’s motion for

judicial release was a final appealable order. And because he did not appeal from that

order, the portion of Francis’s appeal that relates to his motion for judicial release is

untimely. Accordingly, we dismiss this portion of the appeal for lack of jurisdiction, and

we decline to address Francis’s first assignment of error.

III.

{¶16} In his second assignment of error, Francis contends that the trial court erred

in denying Francis’s motion to withdraw his guilty plea.

A.

{¶17} Before considering Francis’s second assignment of error, we must examine

the propriety of his sentence. Here, we find that Francis’s underlying sentence is void.

For the single offense of escape, the trial court imposed both an eight-year prison

sentence (with four years suspended) and a five-year period of community control.

“[T]he sentencing statute[, however,] does not allow a trial court to impose both a prison

sentence and community control for the same offense.” State v. Jacobs,

,

, at ¶5 (citations omitted). See, also, State v. Vlad,

,

(“[T]rial courts need to decide which sentence

is most appropriate – prison or community control sanctions – and impose whichever

option is deemed to be necessary.”). The state concedes that Francis’s sentence is

contrary to law. Furthermore, the state argues that Francis’s sentence is void. We

agree. “Any attempt by a court to disregard statutory requirements when imposing a Meigs App. No. 10CA2 7

sentence renders the attempted sentence a nullity or void.” State v. Beasley (1984),

, superseded by statute on other grounds. And because the trial court

disregarded statutory requirements when it sentenced Francis to both a prison term and

community control sanctions, we find that Francis’s sentence is void.

{¶18} Accordingly, because it is void, we vacate Francis’s sentence. See, e.g.,

State v. Adams, Scioto App. Nos. 04CA2959 & 05CA2986,

, at ¶97

(vacating a void sentence).

B.

{¶19} Next, we will address whether the trial court erred when it denied Francis’s

motion to withdraw his guilty plea.

{¶20} “[T]he decision whether to grant a Crim.R. 32.1 motion to withdraw a plea lies

in a trial court’s sound discretion and should not be reversed absent an abuse of that

discretion.” State v. Nickelson, Lawrence App. No. 10CA21,

,

citing State v. Xie (1992),

, at paragraph two of the syllabus. An

abuse of discretion connotes more than a mere error of judgment; it implies that the

court’s attitude is arbitrary, unreasonable, or unconscionable. State v. Adams (1980),

.

{¶21} Under Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest 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.” Trial courts apply different standards to Crim.R. 32.1 motions

made before and after sentencing. A presentence motion to withdraw a guilty plea

should “‘be freely allowed and treated with liberality[.]’” State v. Peterseim (1980), 68 Meigs App. No. 10CA2

, quoting Barker v. United States (C.A.10, 1978),

. In contrast, “Crim.R. 32.1 requires a defendant making a postsentence motion to

withdraw a plea to demonstrate manifest injustice because it is designed ‘to discourage

a defendant from pleading guilty to test the weight of potential reprisal, and later

withdraw the plea if the sentence was unexpectedly severe.’” Boswell at ¶9, quoting

State v. Caraballo (1985),

.

{¶22} Here, Francis’s void sentence affects our analysis of his second assignment

of error. This is so because “[a] motion to withdraw a plea of guilty or no contest made

by a defendant who has been given a void sentence must be considered as a

presentence motion under Crim.R. 32.1.” State v. Boswell,

, 2009-

Ohio-1577, syllabus, superseded by statute on other grounds.

{¶23} Therefore, because Francis’s sentence is void, we find that the trial court

applied the wrong standard when it decided Francis’s motion to withdraw his guilty plea.

The trial court should have applied the standard for presentence motions instead of the

postsentence standard. We acknowledge that the trial court denied Francis’s motion

without opinion. Nevertheless, both Francis and the state argued that Francis’s motion

should have been treated as a postsentence motion to withdraw. Furthermore, the trial

court did not correct Francis’s void sentence. Therefore, we must presume that the trial

court applied the standard for postsentence motions. And by applying the wrong

standard, the trial court abused its discretion. Accordingly, we remand this case for the

trial court to consider Francis’s motion to withdraw his guilty plea under the appropriate,

presentence standard. Meigs App. No. 10CA2 9

{¶24} Our remand follows the decision in Boswell. After the trial court in Boswell

ruled on a motion to withdraw a guilty plea without opinion, the Supreme Court of Ohio

remanded the case so that the trial court could consider the defendant’s motion “under

the liberal standard of Xie[.]”

. We choose the same result in the present

case. “This does not mean, however, that [Francis] has an absolute right to withdraw

his plea. * * * ‘[T]he trial court must conduct a hearing to determine whether there is a

reasonable and legitimate basis for the withdrawal of the plea.’” Id. at ¶10, quoting Xie

(internal citation omitted).

C.

{¶25} Accordingly, we sustain Francis’s second assignment of error. First, we

vacate Francis’s void sentence. Second, on remand, the trial court must consider

Francis’s motion to withdraw his guilty plea under the presentence, freely-and-liberally

standard. And finally, we order resentencing if Francis’s motion to withdraw his guilty

plea is ultimately denied. See

.

IV.

{¶26} In conclusion, the portion of Francis’s appeal that relates to his motion for

judicial release is untimely. Therefore, we dismiss that portion of Francis’s appeal and

decline to consider his first assignment of error. We also vacate Francis’s sentence,

and we remand this case for the trial court to consider Francis’s motion to withdraw his

guilty plea under the standard for presentence motions. Accordingly, this appeal is

dismissed in part, and we reverse the trial court’s denial of Francis’s motion to withdraw

his guilty plea. Finally, we remand this cause to the trial court for further proceedings

consistent with this opinion. Meigs App. No. 10CA2 10

APPEAL DISMISSED IN PART, JUDGMENT REVERSED IN PART, AND CAUSE REMANDED.

JUDGMENT ENTRY

It is ordered that the APPEAL BE DISMISSED IN PART, the JUDGMENT BE REVERSED IN PART, and this CAUSE BE REMANDED to the trial court for further proceedings consistent with our opinion. Appellant and Appellee shall pay equally 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 Meigs County 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. Exceptions.

Harsha, P.J. and McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.