Opinion
CT2022-0089
07-17-2023
STATE OF OHIO Plaintiff-Appellee v. JUSTIN A. ALEXANDER Defendant-Appellant
For Plaintiff-Appellee RONALD L. WELCH Prosecuting Attorney JOHN CONNOR DEVER Assistant Prosecuting Attorney For Defendant-Appellant HILLARD M. ABROMS
Appeal from the Muskingum County Court of Common Pleas, Case No. CR2015-0270
For Plaintiff-Appellee RONALD L. WELCH Prosecuting Attorney
JOHN CONNOR DEVER Assistant Prosecuting Attorney
For Defendant-Appellant HILLARD M. ABROMS
JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Andrew J. King, J.
OPINION
HOFFMAN, P.J.
{¶1} Defendant-appellant Justin Alexander appeals the November 17, 2022 Entry entered by the Muskingum County Court of Common Pleas, which denied his motion for final appealable order and motion to withdraw guilty plea. Plaintiff-appellee is the state of Ohio.
A Statement of the Facts underlying Appellant's convictions and sentence is unnecessary to our disposition of this appeal.
{¶2} On September 9, 2015, the Muskingum County Grand Jury indicted Appellant on two counts of aggravated robbery, in violation of R.C. 2911.11 (A)(1), felonies of the first degree (Counts 1 and 8); one count of felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree (Count 2); one count of theft (firearm), in violation of R.C. 29913.02(A)(1), a felony of the third degree (Count 3); one count of theft ($7,500-$150,000), in violation of R.C. 29913.02(A)(1), a felony of the fourth degree (Count 4); one count of possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree (Count 5); two counts of having weapon while under disability, in violation of R.C. 2923.13(A)(3), felonies of the third degree (Counts 6 and 7); and one count of kidnapping, in violation of R.C. 2905.01 (A)(1), a felony of the first degree. Counts 1, 2, 8, and 9 carried attendant firearm and repeat violent offender specifications. Appellant entered a plea of not guilty to the Indictment at his arraignment on September 6, 2015.
{¶3} Appellant appeared before the trial court on April 4, 2016, for a change of plea hearing. After the trial court conducted a Crim. R. 11 colloquy with Appellant, Appellant withdrew his former pleas of not guilty and entered guilty pleas to Counts 3, 4, 5, 6, and 7, as set forth in the Indictment, and Counts 1, 2, 8, and 9, as amended. Pursuant to the plea negotiations, the state agreed to dismiss the firearm specifications attached to Counts 1, 2, 8, and 9. The trial court deferred sentencing pending a pre-sentence investigation.
{¶4} On August 10, 2016, the trial court sentenced Appellant to a mandatory prison term of eleven (11) years on Count 1; a mandatory prison term of six (6) years on the repeat violent offender specification attached to Count 1; a mandatory prison term of eight (8) years on Count 2; stated prison terms of twenty-four (24) months on both Counts 6 and 7; and mandatory prison terms of eleven years (11) on both Counts 8 and 9. The trial court ordered the periods of incarceration imposed for Counts 1, 8, and 9, be served concurrently. The trial court further ordered the sentence for Count 2 be served consecutively; the sentences for Counts 6 and 7 be served concurrently with each other and concurrently with the sentences for all of the other counts; and the repeat violent offender specification be served as mandatorily consecutive. Accordingly, Appellant was ordered to serve an aggregate mandatory prison sentence of twenty-five (25) years. The trial court ordered the sentence be served concurrently with the sentence Appellant was serving in Muskingum County Court of Common Pleas Case No. CR2014-0356.
{¶5} The trial court memorialized Appellant's convictions and sentence via Entry filed August 11, 2016. Therein, the trial court specifically noted: "The Court did not address the Repeat Violent Offender Specifications contained in Counts Two, Eight and Nine." Aug. 11, 2016 Entry at p. 3, unpaginated. Thereafter, Appellant commenced serving his prison sentence.
{¶6} On October 21, 2021, Appellant filed a pro se "Defendant's Motion to Waive Speedy Trial Rights as to Pending Specifications, and for Trial Court to Schedule Trial Date Upon Pending Specification's [sic]." Therein, Appellant argued the August 11, 2016 Entry was not a final appealable order as the trial court failed to "dispose of the hanging repeat violent offender specifications." Oct. 21, 2021 Motion at p. 3. Appellant concluded he was entitled to be brought to trial on the pending specifications. Also, on October 21, 2021, Appellant filed Defendant's Motion for Trial Court to Provide a Final, Appealable Order with De Novo Sentencing Hearing Requested. Upon order of the trail court, the state filed a response to both motions on November 8, 2021. The state agreed Appellant had not been sentenced on the repeat violent offender specifications attached to Counts 2, 8, and 9; therefore, should be brought before the trial court for sentencing thereon. The state asserted Appellant's remaining motions were moot.
{¶7} Appellant filed a motion for status conference on November 18, 2021. On December 3, 2021, Appellant filed Defendant's Motion to Withdraw Guilty Plea Pursuant to Crim. R. 32.1 with Good and Sufficient Cause Shown. Appellant filed a second Defendant's Motion to Withdraw Guilty Plea Pursuant to Crim. R. 32.1 with Good and Sufficient Cause Shown on December 27, 2021. It appears from the record there were a number of continuances, but the trial court ultimately conducted a hearing on Appellant's motions on November 3, 2022.
{¶8} Via Entry filed November 17, 2022, the trial court denied Appellant's motion for a final appealable order. The trial court also denied Appellant's motion to withdraw his guilty plea as untimely.
{¶9} It is from this judgment entry Appellant appeals, raising as his sole assignment of error:
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR BY NOT PERMITTING APPELLANT TO WITHDRAW HIS GUILTY PLEA AFTER IT WAS FIRMLY ESTABLISHED BY THE STATE THAT APPELLANT SHOULD BE BROUGHT TO COURT TO BE SENTENCED ON REPEAT VIOLENT OFFENDER SPECIFICATIONS AS ATTACHED TO COUNTS 2, 8, AND 9 THAT THE TRIAL COURT DID NOT ADDRESS, IN CONTRAVENTION OF THE STATE V. BAKER, 119 OHIO ST. 3D 197, 2008-OHIO-3330 ONE DOCUMENT RULE, AND FURTHER ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR IN FINDING THAT IT HAD ISSUED A FINAL APPEALABLE ORDER.
I
{¶10} For ease of discussion, we first address the part of Appellant's assignment of error which challenges the trial court's finding it had issued a final appealable order.
{¶11} A final appealable order in a criminal case under Crim.R. 32(C) must contain four elements: (1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) a time stamp from the clerk of courts. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus. As a general matter, "[o]nly one document can constitute a final appealable order," meaning a single entry must satisfy the requirements of Crim.R. 32(C). State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 17.
{¶12} "[T]he failure to address and sentence with regard to any specifications does not render a sentencing entry a non-final, non-appealable order. The failure of a trial court to address a specification constitutes a sentencing error that must be addressed upon appeal. State ex rel. Jones v. Ansted, 131 Ohio St.3d 125, 2012-Ohio-109, 961 N.E.2d 192; State ex rel. Cunningham v. Lindeman, 126 Ohio St.3d 481, 2010-Ohio-4388, 935 N.E.2d 393." State ex rel. Smith v. Krueger, 5th Dist. Delaware No. 17CAD110073, 2018-Ohio-659, ¶ 14 (Citations omitted).
{¶13} Because the trial court's August 11, 2016 Entry included the fact of Appellant's convictions, his sentence, the judge's signature, and a time stamp from the Muskingum County Clerk of Courts, we find the August 11, 2016 Entry was a final appealable order pursuant to Crim. R. 31 (C). We further find the trial court did not err in denying Appellant's motion for a final appealable order.
{¶14} Insofar as Appellant contests the trial court's failure to impose multiple sentences for his repeat violent offender specifications, he had (as did the state) an adequate remedy by way of appeal to raise his claim of sentencing error. See, e.g., State ex rel. Cunningham v. Lindeman, 126 Ohio St.3d 481, 2010-Ohio-4388, 935 N.E.2d 393, ¶ 1.
{¶15} We now turn to Appellant's argument the trial court erred in denying his motion to withdraw his guilty plea. A reviewing court will not disturb a trial court's decision whether to grant a motion to withdraw a plea absent an abuse of discretion. State v. Caraballo, 17 Ohio St.3d 66, 477 N.E.2d 627 (1985).
{¶16} Crim. R. 32.1 governs the withdrawal of guilty pleas and provides:
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. Crim. R. 32.1.
{¶17} Having found, supra, the August 11, 2016 Entry was a final appealable order, Appellant's motion to withdraw his guilty plea was filed after sentence was imposed and is subject to the stricter standard set forth in Crim. R. 32.1.
{¶18} 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 "clear or openly unjust act," State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), "evidenced by an extraordinary and fundamental flaw in a plea proceeding." State v. Tekulve, 1st Dist. Hamilton No. C-090783, 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030, ¶ 7 (Citations omitted). The term "has been variously defined, but it is clear that under such standard, a post-sentence withdrawal motion is allowable only in extraordinary cases." Smith, supra at 264.
{¶19} The lengthy delay in filing his motion to withdraw guilty plea is also problematic. Appellant filed the motion to withdraw his guilty plea more than five years after his sentence was imposed. The 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. State v. Lane, 5th Dist. Richland No. 03-CA-89, 2004-Ohio-2235, ¶19 (Citation omitted).
{¶20} Upon review of the record, we find Appellant has failed to establish the existence of manifest injustice. As such, we find the trial court did not abuse its discretion in denying Appellant's motion to withdraw his guilty plea.
{¶21} Appellant's sole assignment of error is overruled.
{¶22} The judgment of the Muskingum County Court of Common Pleas is affirmed.
Hoffman, P.J. Wise, J. and King, J. concur.