State v. Hodges

Full title: STATE OF OHIO, Plaintiff-Appellee, v. JAVONTE L. HODGES…

Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

Date published: Apr 2, 2020

2020 Ohio 1288 (Ohio Ct. App. 2020)

Opinion

No. 108734

04-02-2020

STATE OF OHIO, Plaintiff-Appellee, v. JAVONTE L. HODGES, Defendant-Appellant.

Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleknikar, Assistant Prosecuting Attorney, for appellee. Javonte L. Hodges, pro se.

ANITA LASTER MAYS, P.J.

JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-12-562692-C

Appearances:

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleknikar, Assistant Prosecuting Attorney, for appellee. Javonte L. Hodges, pro se. ANITA LASTER MAYS, P.J.:

{¶ 1} Defendant-appellant Javonte L. Hodges ("Hodges") appeals his guilty plea, and asks this court to reverse the trial court's decision that denied his Crim.R. 32.1 motion to withdraw his guilty plea. We affirm the trial court's decision.

I. Facts and Procedural Posture

{¶ 2} On May 18, 2012, Hodges was charged in a nine-count indictment, and pleaded not guilty at arraignment. When the matter proceeded to a plea hearing, Hodges pleaded guilty to an amended indictment with four counts. Hodges pleaded guilty to murder with a three-year firearm specification, a first-degree felony, in violation of R.C. 2903.02(A); aggravated robbery with a three-year firearm specification, a first-degree felony, in violation of R.C. 2911.01; improperly handling firearms in a motor vehicle, a fourth-degree felony, in violation of R.C. 2923.16; and having weapons while under disability, a third-degree felony, in violation of R.C. 2923.13.

{¶ 3} Hodges was sentenced to 15 years to life for murder plus three years for the firearm specification to be served prior to and consecutive to the murder charge. The robbery and improperly handling the firearms in a motor vehicle counts were determined to be allied offenses to Count 1 murder. The trial court also sentenced Hodges to a 24-month consecutive sentence to Count 1 for having a weapon while under disability. Hodges was sentenced to an aggregate prison term of 20 years to life.

{¶ 4} Hodges filed an appeal in State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025 ("Hodges I") challenging

his consecutive sentence, contending that the trial court failed to (1) sufficiently inquire into and apply the factors under R.C. 2929.12 and, therefore, did not comply with the purposes of felony sentencing set forth under R.C. 2929.11, (2) merge the murder and having weapons

while under disability convictions, and (3) make the required findings for the imposition of consecutive sentences.

Id. at ¶ 6.

{¶ 5} This court stated, "[W]e find on this record that the trial court did not comply with the requirements for the imposition of consecutive sentences." Id. at ¶ 26. Hodges's case was remanded to the trial court for resentencing. After resentencing, Hodges filed another appeal arguing that the trial court erred by sentencing him to serve a consecutive sentence. State v. Hodges, 8th Dist. Cuyahoga No. 101145, 2014-Ohio-4690, ¶ 4 ("Hodges II").In Hodges II, this court determined that the trial court made the necessary consecutive-sentencing findings but failed to incorporate those findings into its journal entry. Additionally, this court found that omitting the consecutive-sentencing findings in the trial court's journal entry does not render the sentence contrary to law. This court remanded the matter to the trial court to correct the clerical error through a nunc pro tunc entry. Id. at ¶ 14-16.

{¶ 6} On March 9, 2016, Hodges filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1. Hodges alleged that at the time of sentencing, he was heavily under the influence of mind-altering drugs, that his attorney promised him a plea to involuntary manslaughter, just as his codefendant received, and that his counsel did not adequately investigate his case. Soon thereafter, Hodges filed a supplemental motion to withdraw his guilty plea. The trial court denied both motions, and Hodges appealed in State v. Hodges, 2017-Ohio-9025, 101 N.E.3d 1045 (8th Dist.) ("Hodges III"). After a review of the record in Hodges III, this court stated, "[B]ased on the record before us, we cannot say that the trial court abused its discretion in denying Hodges's motion to withdraw his guilty pleas." Id. at ¶ 22. The trial court's denial of Hodges's motion to withdraw his guilty plea was affirmed.

{¶ 7} On April 9, 2019, Hodges filed another motion to withdraw his guilty plea, alleging that his sentence is void and contrary to law because the trial court omitted statutory language when imposing his sentence. The trial court denied Hodges's motion on May 31, 2019. From the trial court's denial, Hodges filed this appeal assigning one error for our review:

I. The trial court abused its discretion when it denied appellant's Crim.R. 32.1 motion to withdraw guilty plea when the trial court failed to inform the appellant of the maximum penalty involved.

II. Crim.R. 32.1

{¶ 8} Hodges argues that the trial court erred when it denied his Crim.R. 32.1 motion. 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." Crim.R. 32.1. A manifest injustice is an extraordinary flaw and an extremely high standard to overcome. Hodges must base the manifest injustice on specific facts or an affidavit. State v. Godwin, 8th Dist. Cuyahoga No. 103224, 2016-Ohio-117, ¶ 11. Hodges has failed to do so.

III. Crim.R. 11 Compliance

{¶ 9} Hodges argues that his sentence is contrary to law because the trial court did not fully comply with Crim.R. 11(C)(2)(a), which states,

[i]n felony cases the court may refuse to accept a plea of guilty * * *, and shall not accept a plea of guilty * * * without first addressing the defendant personally and * * * determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved * * *.

Hodges contends that the trial court did not advise him correctly about the maximum penalty of his sentence because the trial court did not use the exact language of R.C. 2929.02, which states that a person who is convicted of murder in violation of R.C. 2903.02(A) shall be sentenced to an "indefinite term of 15 years to life." Hodges argues that the trial court, instead, sentenced him to "15 years to life," leaving out the "indefinite term" language required by the statute.

{¶ 10} This court recently addressed this issue and stated,

A prison term of "fifteen years to life" for murder is, by its nature, indefinite because it is a prison range defined by minimum and maximum terms. State v. Smith, 2019-Ohio-155, 131 N.E.3d 321, ¶ 24 (8th Dist.); see Yonkings v. Wilkinson, 86 Ohio St.3d 225, 227, 714 N.E.2d 394 (1999) ("Referring to a minimum or maximum term of imprisonment makes sense only when speaking of an indefinite sentence."). And because "the indefinite nature of the 15-year-to-life prison term is apparent since the term is not a specific number of years," the omission of the term "indefinite" does not alter the sentence. State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, and 26983, 2016-Ohio-4897, ¶ 14. Therefore, because the omission of the term "indefinite" is inconsequential to the nature of the indefinite sentence of "fifteen years to life," [the defendant's] sentence comports with the statutory language set forth in R.C. 2929.02(B) and is authorized by law.

State v. Johnson, 8th Dist. Cuyahoga No. 108419, 2020-Ohio-191, ¶ 18.

{¶ 11} Therefore, we find that Hodges's plea is not invalid because his sentence is not void or contrary to law.

{¶ 12} Upon this determination, Hodges is barred by res judicata from raising this issue.

Res judicata is applicable to all postconviction proceedings. State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996). Under this doctrine, a defendant who was represented by counsel is barred from raising an issue in a petition for postconviction relief if the defendant raised or could have raised the issue at trial or on direct appeal. Id. at syllabus.

State v. Abdul, 8th Dist. Cuyahoga No. 108315, 2019-Ohio-5245, ¶ 14.

{¶ 13} Hodges never argued this issue on direct appeal or on any of his subsequent appeals. In Hodges II, Hodges raised the issue of consecutive sentence. In Hodges III, this court decided that the trial court did not abuse its discretion in denying Hodges's motion to withdraw his guilty pleas on three different issues. Id. at ¶ 22.

Res judicata bars a defendant "who has already had his day in court from seeking a second on that same issue." State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. It "promotes the principles of finality and judicial economy by preventing endless relitigation of an issue on which a defendant has already received a full and fair opportunity to be heard." Id., citing State ex rel. Willys-Overland Co. v. Clark, 112 Ohio St. 263, 268, 147 N.E. 33 (1925).

State v. Rodriguez, 8th Dist. Cuyahoga No. 108048, 2019-Ohio-5117, ¶ 14.

{¶ 14} Therefore, Hodges's sole assignment of error is overruled.

{¶ 15} Judgment is affirmed.

It is ordered that the appellee recover from appellant 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. /s/_________
ANITA LASTER MAYS, PRESIDING JUDGE KATHLEEN ANN KEOUGH, J., and
MICHELLE J. SHEEHAN, J., CONCUR