[Cite as State v. Chandler,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2010-CA-00295 WILLIAM B. CHANDLER : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2007- CR-0915

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 29, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO E. KELLY MIHOCIK Prosecuting Attorney Office of Ohio Public Defender By: RENEE M. WATSON 250 Broad St., Ste. 1400 Assistant Prosecuting Attorney Columbus, OH 43215 110 Central Plaza South, Ste. 510 Canton, OH 44702-1413 [Cite as State v. Chandler,

.]

Gwin, P.J.

{¶1} Appellant, William B. Chandler, appeals a judgment of the Stark County

Common Pleas Court overruling his motion to withdraw his guilty plea to one count of

escape (R.C. 2921.34(A)(1)(C)(2)(B)). Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} In 2005, appellant entered a guilty plea to one count of domestic violence,

a felony of the third degree. His plea form advised him that he would be subject to a

mandatory period of post-release control for a maximum of three years. Similarly, his

sentencing entry stated that “post-release control is mandatory in this case up to a

maximum of three (3) years.” Appellant did not appeal.

{¶3} Following his release from prison, appellant began serving his period of

post-release control. In March, 2007, he was charged with escape for failing to return to

intermittent confinement. In June, 2007, he entered a plea of guilty and was sentenced

to four years community control in August, 2007. Again he did not appeal the judgment.

{¶4} Appellant violated the terms of his community control in October 2009,

when he was arrested for operating a vehicle under the influence, possession of drug

paraphernalia and violating his curfew. In November of 2009, the trial court revoked

appellant’s community control and sentenced him to five years’ incarceration. Appellant

did not challenge this judgment.

{¶5} On March 24, 2010, appellant filed a motion to withdraw his 2007 guilty

plea to one count of escape. He argued that because post-release control was not

properly imposed in 2005, that portion of the judgment imposing post release control

was void. Because post release control was not properly imposed, he could not be Stark County, Case No. 2010-CA-00295 3

convicted of escape for violating the terms of a void judgment. The court overruled the

motion, finding his challenge barred by res judicata. Appellant assigns a single error on

appeal:

{¶6} “RES JUDICATA DOES NOT APPLY WHEN CHALLENGES ARE MADE

TO VOID SANCTIONS. IT WAS LEGALLY IMPOSSIBLE FOR MR. CHANDLER TO

ESCAPE FROM POST RELEASE CONTROL BECAUSE THAT SANCTION WAS

VOID. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RELIED ON

PRINCIPLES OF RES JUDICATA WHEN IT DENIED MR. CHANDLER’S MOTION TO

WITHDRAW HIS GUILTY PLEA.”

I.

{¶7} In June 2007 appellant was placed on community control when he pled

guilty to Escape. At that time the trial court reserved a five year prison term. R.C.

2929.15(B) applies to offenders who were initially sentenced to community control

sanctions and permits a trial court to newly impose a prison term upon an offender who

later violates the community control sanctions. In 2009 appellant was sentenced to

prison for a violation of the community control sanctions that were imposed in 2007.

Appellant in this appeal seeks to avoid the five year prison sentence imposed for

violating the community control sanctions by withdrawing the plea he entered in 2007

because the trial court imperfectly explained the three year period of post-release

control for appellant’s conviction for domestic violence in 2005.

{¶8} The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise

difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v. Stark County, Case No. 2010-CA-00295 4

United States (1962),

,

,

. A plea of guilty

constitutes a complete admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of

guilty, the accused is not simply stating that he did the discreet acts described in the

indictment; he is admitting guilt of a substantive crime.” United v. Broce (1989),

,

.

{¶9} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d at 475, 20 O.O.3d at 398,

423 N.E.2d at 117, citing State v. Stewart (1977),

,

,

. In State v. Griggs,

,

,

, ¶

12, the Ohio Supreme Court noted the following test for determining substantial

compliance with Crim.R. 11:

{¶10} “Though failure to adequately inform a defendant of his constitutional

rights would invalidate a guilty plea under a presumption that it was entered involuntarily

and unknowingly, failure to comply with non constitutional rights will not invalidate a plea

unless the defendant thereby suffered prejudice.[State v. Nero (1990),

,] 108,

. The test for prejudice is ‘whether the plea would have

otherwise been made.’

Under the substantial-compliance standard, we review the

totality of circumstances surrounding [the defendant’s] plea and determine whether he

subjectively understood [the effect of his plea].” See, State v. Sarkozy,

,

at ¶ 19-20. Stark County, Case No. 2010-CA-00295 5

{¶11} Crim. R. 32.1 governs the withdrawal of a guilty or no contest plea and

states: "[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."

In the case at bar, because appellant's request was made post-sentence, the standard

by which the motion was to be considered was "to correct manifest injustice."

{¶12} The accused has the burden of showing a manifest injustice warranting

the withdrawal of a guilty plea. State v. Smith (1977),

,

, paragraph one of the syllabus. A manifest injustice has been defined as a "clear

or openly unjust act." State ex rel. Schneider v. Kreiner (1998),

.

“‘Manifest injustice relates to some fundamental flaw in the proceedings which result[s]

in a miscarriage of justice or is inconsistent with the demands of due process.'” Ruby at

¶ 11, quoting State v. Williams, 10th Dist. No. 03AP-1214,

.

Accordingly, under the manifest injustice standard, a post-sentence withdrawal motion

is allowable only in extraordinary cases. Smith,

.

{¶13} In State v. Singleton,

,

,

, the Supreme Court of Ohio held “the de novo sentencing procedure detailed in the

decisions of the Ohio Supreme Court is the appropriate method to correct a criminal

sentence imposed prior to July 11, 2006, that lacks proper notification and imposition of

post-release control.” Id. at ¶ 35. In the case at bar, appellant was originally sentenced

May 19, 2005. At the outset, we note that appellant never challenged the imposition of

post-release control in the case which imposed it, i.e. Stark County Court of Common Stark County, Case No. 2010-CA-00295 6

Pleas, Case No. 2005CR0526, by filing a motion to correct the sentence, or a direct

appeal.

{¶14} As noted by the Ohio Supreme Court, a court imposing mandatory post-

release control is required “to include in the sentencing entry a statement that [the]

offender convicted of a first or second-degree felony offense will be subject to post-

release control after leaving prison.” State v. Bloomer,

,

,

. (Emphasis in original). In Bloomer, the court

specifically noted that, “the trial court failed to state the length of the post-release control

term.” Id. at ¶69.

{¶15} As a result, because the trial court's sentencing entry does not include a

statement indicating appellant was subject to a mandatory three-year term of post-

release control upon his release, it does not conform to statutory mandates, and

therefore, is void. See Id.; see, also, State v. Jordan,

,

,

; State v. Bezak,

,

, 2007-Ohio-

3250; State v. Simpkins,

,

,

; State v.

Boswell,

,

,

; State v. Green, Stark

App. No. 2010CA00198,

. However, this does not end our

inquiry because appellant is appealing not from the imposition of post-release controls

in the 2005 case; rather he is appealing from the trial court’s denial of his motion to

withdraw his plea to Escape which he entered June 25, 2007.

{¶16} In determining whether the trial court has satisfied its duties under Crim.R.

11 in taking a plea, reviewing courts have distinguished between constitutional and non-

constitutional rights. State v. Clark,

,

, 2008-Ohio- Stark County, Case No. 2010-CA-00295 7

3748 at ¶ 32; State v. Aleshire, Licking App. No. 2007-CA-1,

.

The trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to

the waiver of constitutional rights. State v. Clark,

,

,

at ¶ 31.

{¶17} In State v.

the Ohio Supreme Court set forth the following

procedure for a reviewing court, “When the trial judge does not substantially comply with

Crim.R. 11 in regard to a non-constitutional right, reviewing courts must determine

whether the trial court partially complied or failed to comply with the rule. If the trial

judge partially complied, e.g., by mentioning mandatory post-release control without

explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial

effect. See Nero,

,

, citing State v. Stewart (1977),

,

,

, and Crim.R. 52(A); see also

Sarkozy,

,

,

. The test for

prejudice is ‘whether the plea would have otherwise been made.’

, citing Stewart,

If the trial judge completely failed to comply with the rule,

e.g., by not informing the defendant of a mandatory period of post-release control, the

plea must be vacated. See Sarkozy,

,

,

, paragraph two of the syllabus. “A complete failure to comply with the rule does

not implicate an analysis of prejudice.” Id. at ¶ 22,

.

{¶18} In Clark, the Ohio Supreme Court concluded that the right to be informed

of the maximum possible penalty and the effect of the plea are subject to the substantial

compliance test.

,

,

at ¶ 31.

(Citations omitted). Stark County, Case No. 2010-CA-00295 8

{¶19} The Ohio Supreme Court stated in State v.

that the total

failure of the trial court to mention that the defendant was subject to mandatory post-

release control (which is part of the maximum penalty) was a complete failure to comply

with Crim.R. 11 and required that the plea be vacated without consideration of the issue

of prejudice. See, also State v. Clark,

,

, 2008-Ohio-

3748 at ¶ 32.

involved the trial court's denial of the defendant's pre-

sentence motion to withdraw his guilty plea. Id. at ¶ 5,

. The trial court

denied the motion and proceeded with sentencing the appellant.

The appellant then

filed a direct appeal of the trial court's denial of his motion.

{¶20} In State v.

a case decided after Sarkozy, the Ohio Supreme

Court concluded that “[i]f a trial judge, in conducting a plea colloquy, imperfectly

explains non-constitutional rights such as the right to be informed of the maximum

possible penalty and the effect of the plea, a substantial-compliance rule applies on

appellate review; under this standard, a slight deviation from the text of the governing

rule is permissible, and so long as the totality of the circumstances indicates that the

defendant subjectively understands the implications of his plea and the rights he is

waiving, the plea may be upheld.” Id. at ¶ 31,

.

{¶21} In the case at bar, at the original sentencing hearing held May 19, 2005,

the appellant was advised that he 1). Was subject to mandatory post-release control;

and 2). That the period of post-release control would not exceed three years. Thus, the

case at bar concerns a misstatement not a complete failure to inform appellant that he

is subject to post-release control in 2005. Stark County, Case No. 2010-CA-00295 9

{¶22} Recently, the Ohio Supreme Court in State v. Fischer,

,

2010– Ohio– 6238 concluded that the defendant is only entitled to a hearing for the

proper imposition of post-release control. Accordingly, appellant may not raise new

issues, or issues he had previously raised on his direct appeal. See also, State v.

Ketterer,

,

,

. Accordingly, appellant’s

conviction and sentence for domestic violence is unaffected and remains valid.

{¶23} Under the doctrine of res judicata, a final judgment bars a convicted

defendant who was represented by counsel from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of

due process that the defendant raised or could have raised at trial or on appeal. State

v. Szefcyk (1996),

,

, reaffirming State v. Perry

(1967),

,

,

, paragraph nine of the

syllabus. “More specifically, a criminal defendant cannot raise any issue in a post

sentence motion to withdraw a guilty plea that was or could have been raised at trial or

on direct appeal. State v. Reed, Mahoning App. No. 04 MA 236,

,

; State v. Zinn, Jackson App. No. 04CA1,

,

; State v. Robinson, Cuyahoga App. No. 85266,

,

; State v. Rexroad, Summit App. No. 22214,

,

; State v. Reynolds, Putnam App. No. 12-01-11,

,

; State v. Wyrick (Aug. 31, 2001), Fairfield App. No. 01 CA17,

; State v. Jackson (Mar. 31, 2000), Trumbull App. No. 98-T-0182,

; State v. Jeffries (July 30, 1999), Wood App. No. L-98-1316,

.”

State v.

,

. Importantly, “an Stark County, Case No. 2010-CA-00295 10

undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea

and the filing of a motion under Crim. R. 32.1 is a factor adversely affecting the

credibility of the movant and militating against the granting of the motion.” State v. Bush,

,

. See also State v. Copeland-Jackson, Ashland

App. No.

,

( [t]he length of passage of time between the

entry of a plea and a defendant's filing of a Crim.R. 32.1 motion is a valid factor in

determining whether a “manifest injustice” has occurred.

{¶24} In the case at bar, appellant has not explained the nearly three-year delay

in filing his motion to withdraw the negotiated guilty plea to the Escape charged which

he entered in 2007 and the over five-year delay in contesting the imposition of post-

release control in his original sentence entered in 2005. Nor has he provided any

explanation for not filing a direct appeal in either case.

{¶25} In Fischer, the Supreme Court made clear that “[a]lthough the doctrine of

res judicata does not preclude review of a void sentence, 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.”

at paragraph three of the syllabus. The

application of res judicata to a motion to withdraw is not impacted by a void sentence.

{¶26} In State v. Fountain, 8th Dist. Nos. 92772 and 92874, 2010–Ohio–1202

the appellant raised the issue that Chandler is raising here. Fountain argued “that his

plea was not voluntary because the trial court misinformed him at his plea hearing that

he may receive, rather than that he would receive, post-release control.” (Emphasis

added.) Id. at ¶ 11. The court rejected that argument, however, because “Fountain

could have raised that issue on direct appeal.” Id. Therefore, the Court in Fountain Stark County, Case No. 2010-CA-00295 11

concluded that Fountain's motion was barred by res judicata, and overruled his

assigned errors pertaining to his motion to withdraw. See also, State v. Bell, 8th Dist. No.

95719,

.

{¶27} In the case at bar, appellant attempts to leap-frog his 2007 plea by

invalidating the post-release control portion of his 2005 sentence. In this case appellant

could have raised the imprecise nature of the trial court’s post-release control language

in a direct appeal from his 2005 sentence for domestic violence or in a petition for post-

conviction relief while he was imprisoned. He did not. Had appellant raised the issue at

that time then the proper procedure would have been to simply hold a new sentencing

hearing limited to proper imposition of post release control. State v. Fischer,

,

, 2010–Ohio–6238, paragraph two of the syllabus.

{¶28} After he was released from prison and the Adult Parole Authority imposed

post-release control, appellant could have sought relief from the imposition of post

release control. Again he did not.

{¶29} Appellant could again have raised any problem with the nature of post-

release control in the trial court at the time he was charged with Escape in 2007. Again,

he did not. Nor did he file an appeal from his conviction and sentence in that case.

{¶30} Rather than avail himself of any of these remedies appellant waited until

he completed his sentence for domestic violence, was charged with a new offense, pled

guilty to that offense, was sentenced and completed nearly two years of community

control sanctions on that offense, and was sentenced to prison for violating the

community control sanctions in that case before he made his first attempt to challenge

the imposition of post-release control by the trial court in 2005. Stark County, Case No. 2010-CA-00295 12

{¶31} The unfortunate result of the Supreme Court’s “void sentence” language is

that defendants are encouraged not to challenge technically incorrect post-release

control orders until after they are released or until after they are charged with a violation

or a new crime because the problem cannot then be rectified.

{¶32} In the case at bar, appellant pled guilty to Escape. A plea of guilty

constitutes a complete admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of

guilty, the accused is not simply stating that he did the discreet acts described in the

indictment; he is admitting guilt of a substantive crime.” United v. Broce (1989),

,

. In this matter, appellant contends that his plea in

2007 was not voluntary because the trial court in 2005 misinformed him at his plea

hearing that he may receive, rather than that he would receive, post-release control.

However, appellant could have raised the issue that the trial court imprecisely informed

appellant about the length of post-release control on direct appeal in 2005 or at least on

a direct appeal in 2007. Therefore, his motion to withdraw his guilty plea filed in 2009 is

barred by res judicata.

{¶33} Appellant’s sole Assignment of Error is overruled. Stark County, Case No. 2010-CA-00295 13

{¶34} The judgment of the Stark County Common Pleas Court is affirmed.

By Gwin, P.J., and

Hoffman, J., concur

Edwards, J., dissents

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JULIE A. EDWARDS WSG:clw 0808 Stark County, Case No. 2010-CA-00295 14

EDWARDS, J., DISSENTING OPINION

{¶35} I dissent from the majority opinion. I agree with the majority that the

postrelease control portion of appellant’s underlying sentence for domestic violence was

void. However, I would find that because that portion of the sentence was void and

because a violation of the void portion of the sentence gave rise to the charge of

escape, appellant was not barred by res judicata from withdrawing his plea to escape.

{¶36} I find the majority’s discussion of Crim. R. 11 and whether the court

substantially complied when informing appellant of postrelease control to be irrelevant in

the instant case. This is not a case where he is seeking to withdraw a plea because he

was not properly advised of postrelease control. Rather, he is seeking to withdraw the

plea because it is impossible for him to commit the crime of escape when the criminal

act is predicated on his violation of a void sentence.

{¶37} A sentence that does not include the statutorily mandated term of

postrelease control is void, is not precluded from appellate review by principles of res

judicata, and may be reviewed at any time, on direct appeal or by collateral attack.

State v. Fischer,

,

,

, paragraph one

of the syllabus. I would therefore conclude that appellant was not barred by res

judicata from attacking the validity of the imposition of postrelease control by way of a

motion to vacate his guilty plea in his escape case, which was based on the void portion

of his domestic violence sentence.

{¶38} In State v. Billiter, Stark App. No. 2010CA00292,

, this

Court found on nearly identical facts to the instant case that res judicata applied based

on the appellant’s failure to directly appeal his escape conviction and this Court’s prior Stark County, Case No. 2010-CA-00295 15

opinion affirming the trial court’s denial of his motion to suspend further execution of

sentence. This Court relied on State v. Huber,

, in which the Eighth

District Court of Appeals held that a conviction in which postrelease control was

properly imposed could be used as a predicate to a repeat violent offender specification.

However, in

the Ohio Supreme Court held that although res judicata

does not preclude review of a void sentence, 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.

paragraph three of the syllabus. Thus in Huber,

the conviction itself and the lawful portions of the sentence were not void, and thus

could be used as a predicate to a repeat violent offender specification. In Billiter, as in

the instant case, the void portion of the sentence is the very portion which appellant was

accused of violating in his escape conviction. Therefore, I do not agree with the

decision in Billiter. Stark County, Case No. 2010-CA-00295 16

{¶39} I would find that because appellant was not validly advised of postrelease

control, that portion of his domestic violence sentence was void. Because this is the

very portion of his domestic violence sentence which he pleaded guilty to have violated

in his escape conviction and which may be challenged at any time, I would conclude

that the trial court erred in finding his motion to withdraw his plea barred by res judicata.

___________________________________________

Judge Julie A. Edwards [Cite as State v. Chandler,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : WILLIAM B. CHANDLER : : : Defendant-Appellant : CASE NO. 2010-CA-00295

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Common Pleas Court is affirmed. Costs to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JULIE A. EDWARDS