[Cite as State v. Johnson,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 12 CAA 08-0050 EIN JOHNSON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County Common Pleas Court, Case No. CR-I 08- 0431

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 10, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PETER B. RUFFING BRIAN G. JONES Assistant Prosecuting Attorney 211 U.S. Highway 23 North 140 N. Sandusky St., 3rd Floor Delaware, OH 43015 Delaware, OH 43015

EIN JOHNSON Pro Se MCI Box 57 Marion, OH 43302 [Cite as State v. Johnson,

.]

Gwin, P.J.

{¶1} Appellant, Ein Johnson, appeals his conviction and sentence from the

Delaware County Court of Common Pleas. On April 29, 2011, Appellant was convicted

of one count of trafficking in cocaine, a felony of the second degree, in violation of R.C.

2925.03(A)(2). Appellant was sentenced to a term of six years in prison.1 At the time of

his sentencing in 2011, the trial court orally imposed a mandatory term of three years of

post release control, however, the sentencing entry did not state the term of post

release control was mandatory.

{¶2} Appellant filed a motion for resentencing as well as a motion to withdraw

his guilty plea. The trial court denied the motion to withdraw the guilty plea on June 7,

2012. Appellant failed to appeal the entry denying the motion to withdraw the guilty

plea.

{¶3} On July 3, 2012, the trial court conducted a “de novo” sentencing hearing

to correct the terms of the post release control. In its entry of July 13, 2012, the trial

court corrected the term of post release control and restated the original sentence

imposed in 2011. Appellant filed a notice of appeal from the trial court’s entry of July

13, 2012. Shortly after this appeal was initiated, this Court remanded the case to the

trial court for the purpose of having the trial court enter an order which complied with

State v. Baker. Because the order being appealed in this case was an order merely

correcting post release control, we should not have remanded the cause to the trial

1 While not entirely relevant to this appeal, we note Appellant initially plead guilty in 2009 and subsequently failed to appear for sentencing. Once apprehended, Appellant moved to withdraw his guilty plea prior to sentencing which was granted by the trial court. Appellant then entered a guilty plea a second time. The events related to this appeal follow the second guilty plea. Delaware County, Case No. 12 CAA 08-0050 3

court to comply with Baker. The requirements of Baker and Crim.R. 32 are limited to

the original entry of conviction and sentencing. The Supreme Court has stated that a

subsequent hearing to correct a sentence is “restricted to the void portion of the

sentence.” State v. Fischer

,

, 342 (Ohio,2010).

It necessarily follows that an entry detailing that hearing is not required to contain

anything other than the portion of the sentence which was corrected.

{¶4} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.

{¶5} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967),

, rehearing den. (1967),

,

indicating that the within appeal was wholly frivolous and setting forth two proposed

assignments of error. Appellant has filed a pro se brief raising an additional assignment

of error. The assignments of error are as follows: Delaware County, Case No. 12 CAA 08-0050 4

I.

{¶6} “[T]HE TRIAL COURT ERRED BY TREATING MR. JOHNSON’S MOTION TO WITHDRAW PLEA AS A POST-SENTENCE MOTION TO WITHDRAW PLEA.

II.

{¶7} “[T]HE TRIAL COURT ERRED BY FAILING TO COMPLY WITH CRIM.R. 11 IN ACCEPTING MR. JOHNSON’S PLEA.

III.

{¶8} “TRIAL COURT ABUSED ITS DISCRETION AND DUE PROCESS BY DENYING DEFENDANT PORAL (SIC) MOTION TO WITHDRAWAL GUILTY PLEAS AND SENTENCE DEFENDANT WITHOUT THE BENEFIT OF EFFECTIVE ASSISTANCE OF COUNSEL.”

{¶9} Because they are related, we will address the first and third assignments

of error together. In his first potential assignment of error, Appellant argues the trial

court erred in treating Appellant’s motion to withdraw his guilty plea as a post-sentence

motion. Despite the reference to ineffective assistance of counsel in his third

assignment of error, Appellant, filing pro se, solely argues he should have been

permitted to withdraw his guilty plea because his sentence was void due to an incorrect

term of post release control having been imposed.

{¶10} There are three arguments raised within these two assignments of error:

(1) Should the motion be treated as a pre or post sentence motion to withdraw guilty

plea, (2) Should the motion have been granted, and (3) Does an error in post release

control automatically entitle a defendant to withdraw his guilty plea?

{¶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 Delaware County, Case No. 12 CAA 08-0050 5

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.”

{¶12} As to the first element of this assignment of error, we find the motion to

withdraw Appellant’s guilty plea should have been treated as a post-sentence motion. A

motion to withdraw a plea made prior to resentencing to correct the postrelease control

portion of the sentence is properly addressed as a post-sentence motion. Accordingly,

the court in the instant case did not err in addressing appellant's motion based on the

“manifest injustice” standard applicable to a post-sentence motion to withdraw a plea.

See Ohio v. Montgomery

, 2 (Ohio App. 5 Dist.).

{¶13} 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). In

the Ohio Supreme Court,

addressed the concept of “manifest injustice,” stating that “[t]his term [manifest injustice]

has been variously defined, but it is clear that under such standard, a post-sentence

withdrawal motion is allowable only in extraordinary cases.”

.

{¶14} A trial court's decision to deny a post-sentence motion to withdraw a plea

of guilty and the decision whether to hold a hearing on the motion are subject to review

for abuse of discretion.

“The term ‘abuse of discretion’ connotes more

than an error of law or judgment; it implies that the court's attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore,

(1983).

{¶15} It appears the sole basis for Appellant’s moving to withdraw his guilty plea

was based upon the improper imposition of post release control. The transcript reveals

the Appellant was orally advised he would receive three years of post release control. Delaware County, Case No. 12 CAA 08-0050 6

The first judgment entry indicated the post release control would be up to three years.

Because we find Appellant was orally advised of the correct term of post release control

at the time of his initial plea and sentence, we find this is not one of those extraordinary

cases which would amount to a manifest injustice if Appellant is not permitted to

withdraw his guilty plea. Hence, the trial court did not abuse its discretion in denying

Appellant’s motion to withdraw his guilty plea.

{¶16} Finally, as to the notion that a partially void sentence creates an automatic

right to withdraw a guilty plea, neither caselaw nor Crim.R. 32 create such a right. As

we have just held, Appellant was not entitled to have his motion to withdraw his guilty

plea granted.

{¶17} For these reasons, the first and third assignments of error are overruled.

III.

{¶18} In his second assignment of error, Appellant challenges the trial court’s

acceptance of Appellant’s plea. We find this argument is barred by the doctrine of res

judicata. The Supreme Court has explained that following a correction of post release

control, an appellant cannot raise any issue other than the issue which was corrected,

“We further hold that although 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.

The scope of an appeal from a resentencing hearing in which a mandatory term of post

release control is imposed is limited to issues arising at the resentencing hearing.”

State v. Fischer

,

, 343 (Ohio,2010).

{¶19} For this reason, we overrule the second assignment of error. Delaware County, Case No. 12 CAA 08-0050 7

{¶20} After independently reviewing the record, we agree with counsel's

conclusion that no arguably meritorious claims exist upon which to base an appeal.

Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request

to withdraw, and affirm the judgment of the Delaware County Court of Common Pleas.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. CRAIG R. BALDWIN

WSG:clw 0521 [Cite as State v. Johnson,

.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : EIN JOHNSON : : : Defendant-Appellant : CASE NO. 12 CAA 08-0050

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

the Delaware County Court of Common Pleas is affirmed. Costs to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. CRAIG R. BALDWIN