Opinion
C. A. 2023-CA-6
07-28-2023
STATE OF OHIO Appellee v. DONALD R. PEPPER Appellant
ANTHONY KENDALL, Attorney for Appellee DONALD R. PEPPER, Pro Se Appellant
Criminal Appeal from Common Pleas Court No. 12 CR 154
ANTHONY KENDALL, Attorney for Appellee
DONALD R. PEPPER, Pro Se Appellant
OPINION
HUFFMAN, J.
{¶ 1} Donald R. Pepper appeals, pro se, from the trial court's judgment granting in part and denying in part his pro se motion to correct an "illegal" sentence and vacate his guilty plea to murder. Specifically, the trial court found that, at the time of his plea, the court had erroneously advised Pepper that he was subject to a mandatory period of five years of post-release control; the court filed a nunc pro tunc judgment entry omitting the misstatement regarding post-release control. In all other respects, the trial court denied Pepper's motion, finding that his argument that he would not have entered his guilty plea to murder if he had been properly advised of his ineligibility for post-release control "strain[ed] credulity." For the following reasons, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶ 2} Pepper was convicted of murder on his guilty plea in 2012, and his conviction was affirmed on direct appeal. State v. Pepper, 2d Dist. Miami No. 2013-CA-6, 2014-Ohio-3841. In January 2023, he filed a pro se motion arguing that, because his sentence had improperly included a term of post-release control, the sentence was contrary to law. Pepper further argued that the trial court had not complied with Crim.R. 11(C)(2)(a) in accepting his plea, "thereby requiring the vacation of [his] guilty plea." He asserted that he would not have entered his guilty plea if he had been properly advised regarding postrelease control. The State did not file a response to Pepper's motion.
{¶ 3} On March 14, 2023, the court filed a judgment acknowledging that postrelease control had been improperly imposed when Pepper was sentenced and indicating its intention to file a nunc pro tunc entry correcting that error. In all other respects, the trial court overruled Pepper's motion. The court filed the nunc pro tunc judgment entry the same day.
Arguments and Analysis
{¶ 4} Pepper asserts two assignments of error on appeal. In his first assignment, Pepper claims that, because the trial court advised him that he was subject to a mandatory five-year term of post release control, his sentence was "void." However, the Supreme Court of Ohio has held that any error in failing to properly impose post-release control does not render the judgment of conviction void; rather, the judgment is voidable. State v. Heinzen, 2d Dist. Clark No. 2019-CA-65, 2022-Ohio-1341, ¶ 28, citing State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 5. Any argument that Pepper's judgment was voidable on the basis of improper imposition of post-release control is moot in light of the trial court's March 14, 2023 nunc pro tunc judgment entry omitting the imposition of post-release control. Pursuant to Crim.R. 36, "[clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time." See State v. Richardson, 10th Dist. Franklin No. 18AP-310, 2019-Ohio-3490, ¶ 17, quoting State ex rel. Roberts v. Marsh, 156 Ohio St.3d 440, 2019-Ohio-1569, 128 N.E.3d 322, ¶ 11 ("The Supreme Court found no legal error in the nunc pro tunc entry whereby 'the trial court simply deleted a postrelease-control provision that should not have been included in the initial sentencing entry.' ") Accordingly, Pepper's first assignment of error is overruled.
{¶ 5} In his second assignment of error, Pepper argues that the misinformation about post-release control provided at his plea hearing established the trial court's "complete failure to comply with Crim.R. 11(C)(2)(a)" and prevented him from entering a knowing, intelligent, and voluntary plea. He argues that his plea must be vacated on this basis. We disagree.
{¶ 6} In its decision on Pepper's motion, the trial court concluded that the misstatement regarding post-release control rendered the prior judgment voidable, not void. The court found that Pepper had not been subject to post-release control because murder is an unclassified felony, that the language in the judgment entry regarding postrelease control had had no operative effect, and that, as such, Pepper had not been prejudiced by the inclusion of this language.
{¶ 7} The court rejected Pepper's arguments that the misstatement regarding postrelease control invalidated the court's Crim.R. 11 colloquy and that Pepper would not have entered into a plea agreement that did not include post-release control. The court observed that Pepper had not identified any evidence in the record that demonstrated that the court's statements regarding post-release control had influenced his decision to enter into a negotiated guilty plea. According to the court, Pepper's "argument strains credulity when he posits he would have preferred to go to trial on an aggravated murder charge if he had been advised he was ineligible for post-release control."
{¶ 8} The trial court discussed State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 693 N.E.2d 462, which remanded the matter to determine if the defendant had been prejudiced by the trial court's misinformation regarding the imposition of post-release control for an unclassified felony, and State v. Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, which found that the defendant had failed to establish a manifest injustice required to withdraw his guilty plea where the court had erroneously advised him that he would be subject to post-release control. The court observed that Rogers was "markedly similar to the instant case." The court found that Pepper had similarly failed to establish a manifest injustice requiring the withdraw of his plea, noting that it had advised Pepper that there was a mandatory sentence of 15-years-to-life, and Pepper had indicated his understanding. The court found that the advisement regarding post- release control did not add to Pepper's sentence, and the court had been under no obligation to advise Pepper regarding parole.
{¶ 9} We agree with the trial court's analysis. Withdrawal of a plea is governed by Crim.R. 32.1, which 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." "A 'manifest injustice' comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her." State v. Brooks, 2d Dist. Montgomery No. 23385, 2010-Ohio-1682, ¶ 8, citing State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 95776 (Aug. 20, 1999).
{¶ 10} "Motions to withdraw are addressed to the trial court's sound discretion, which also involves issues of 'the good faith, credibility and weight of the movant's assertions in support of the motion.'" State v. Wroten, 2023-Ohio-966, N.E.3d, ¶ 15 (2d Dist.). Our review is accordingly for an abuse of discretion. Id. " 'Abuse of discretion' has been defined as an attitude that is unreasonable, arbitrary or unconscionable." AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 11} We have previously held:
Due process requires that a defendant's guilty plea be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); see also State v. Inskeep, 2d Dist. Champaign No.
2016-CA-2, 2016-Ohio-7098, ¶ 12. A trial court's compliance with Crim.R. 11(C) ensures that a plea comports with due process. State v. McElroy, 2d Dist. Montgomery No. 28974, 2021-Ohio-4026, ¶ 14; State v. Russell, 2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6.
Crim.R. 11(C)(2)(c) requires the trial court to inform the defendant of the constitutional rights he is waiving by entering a plea. These rights are the right to a jury trial, the right to confront witnesses, the right to compulsory process, the right against self-incrimination, and the right to require the State to establish guilt beyond a reasonable doubt. Since constitutional rights are involved, strict compliance with this portion of the rule is required. State v. Jones, 2d Dist. Greene No. 2020-CA-12, 2020-Ohio-4767, ¶ 10, citing State v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5. A failure of strict compliance requires a finding that the plea is not consistent with due process; prejudice, under this circumstance, is presumed, and the plea must be invalidated. Id., citing State v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 16, State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31-32.
Crim.R. 11(C)(2)(a) requires the trial court to determine that the plea is being made voluntarily, that the defendant understands the nature of the charge, the maximum penalty involved, and, if applicable, that the defendant is not eligible to be sentenced to a term of community control sanctions. Crim.R. 11(C)(2)(b) requires the trial court to determine that the
defendant understands the effect of the plea and that the trial court, upon acceptance of the plea, may proceed to sentencing. Since Crim.R. 11 (C)(2)(a) and (b) do not implicate constitutional rights, a trial court's partial compliance with these portions of the rule, as opposed to strict compliance, does not necessarily require that the plea be vacated. Instead, the defendant must establish that the failure of strict compliance has caused prejudice. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 16. In this context, prejudice is measured by whether the defendant would have entered the plea if there had been full compliance with, as applicable, Crim.R. 11(C)(2)(a) or (b). Id. at ¶ 23. But, a trial court's complete failure to comply with either Crim.R. 11(C)(2)(a) or (b) eliminates the defendant's burden to establish prejudice.State v. Ulm, 2022-Ohio-4741, 205 N.E.3d 19, ¶ 9 (2d Dist.), quoting State v. Perdue, 2022-Ohio-722, 185 N.E.3d 683, ¶ 10-12 (2d Dist.).
{¶ 12} In State v. McCain, 2d Dist. Montgomery No. 26356, 2015-Ohio-449, after considering Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 693 N.E.2d 462, we affirmed the decision of the trial court overruling McCain's post-sentence motion to withdraw his guilty plea for felony murder. We concluded that a manifest injustice had not occurred in McCain's case when the trial court erroneously informed him at the plea hearing that he would be subject to a period of post-release control for felony murder. Id. at ¶ 20. "Felony murder is an unclassified felony to which the post-release control statute does not apply." Id. at ¶ 21, citing State v. Eggers, 2d Dist. Clark No. 2022-CA-48, ¶ 25."Rather, an individual sentenced for an unclassified felony is either ineligible for parole or becomes eligible for parole after serving a period in prison." Id., citing Clark at ¶ 36. In "explaining the maximum penalty involved, a trial court is not required to address the issue of parole during the plea colloquy." Id. at ¶ 24.
R.C. 2967.28 governs post-release control.
{¶ 13}McCain noted that Clark had remanded the matter for" 'a full determination of prejudice.'" Id. at ¶ 27, quoting Clark at ¶ 40. McCain further noted that, on remand, "the Eleventh District Court of Appeals found that the defendant in Clark 'point[ed] to no evidence in the record suggesting that his plea would have been otherwise had he known the conditions of parole." Id. at ¶ 28, quoting State v. Clark, 11th Dist. Ashtabula No. 2006-A-0004, 2008-Ohio-6768, ¶ 16. "Given that there was no evidence indicating that the defendant's guilty plea was motivated by the expectation of being subject to postrelease control upon release, the Eleventh District found no prejudice and affirmed the plea." Id., citing Clark, 2008-Ohio-6768, at ¶ 22.
{¶ 14} Like the trial court in Pepper's case, McCain further considered Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, which applied the analysis in Clark to an appeal from the denial of a post-sentence motion to withdraw a guilty plea. Rogers noted:
In this case, the trial court did not "completely fail" to comply with Crim.R. 11(C)(2)(a). During the plea colloquy, the trial court advised Rogers that his guilty plea to murder carried a mandatory sentence of 15
years to life, the only sentence available to the trial court. Rogers stated that he understood this. The court's further erroneous statement that Rogers would be subject to a period of post-release control if he was ever released from prison did not add to the penalty Rogers faced, did not suggest that Rogers could be released early, and did not misstate the maximum penalty for the offense to which Rogers was pleading guilty, i.e., imprisonment for life. Thus, the trial court "partially complied" with Crim.R. 11(C)(2)(a), notwithstanding the misinformation it provided to Rogers regarding post-release control. See, e.g. State v. Stokes, 8th Dist. [Cuyahoga] No. 93154, 2010-Ohio-3181, ¶ 9 (where trial court erroneously stated, during plea colloquy, that post-release control would be a part of defendant's sentence when it was not applicable, trial court partially complied with Crim.R. 11(C)(2)(a)).
Whether Rogers' plea should have been vacated, therefore, turns on whether he was prejudiced by the trial court's misstatement.McCain at ¶ 29, quoting Rogers at ¶ 33-34.
{¶ 15}McCain noted that the Eighth District "found 'no indication in the record * * * that Rogers would not have pled guilty but for the trial court's reference to post-release control during the plea colloquy.'" McCain at ¶ 30, quoting Rogers at ¶ 36. "Accordingly, the court held that the trial court's misstatement regarding post-release control was not prejudicial and that Rogers, therefore, failed to establish manifest injustice required to withdraw his guilty plea under Crim. R. 32.1." Id., citing Rogers at ¶ 36-37.
{¶ 16} As in Rogers, Pepper waited several years to move to vacate his plea. An "undue delay between the occurrence of the cause for withdrawal of a guilty plea and the filing of the motion to withdraw 'is a factor adversely affecting the credibility of the movant and militating against granting the motion.'" (Citations omitted.) Rogers at ¶ 38; see also McCain at ¶ 19. The Eighth District found that "Rogers's challenge to his plea 'can only be reasonably explained as a change of heart, which is simply not a valid basis to vacate a plea.'" Rogers at ¶ 38, quoting Stokes, 8th Dist. Cuyahoga No. 93154, 2010-Ohio-3181, ¶ 10.
{¶ 17} Finally, an additional basis for the denial of Pepper's motion was that "claims raised in support of a motion to withdraw a guilty plea that could have been raised, but were not raised, in a prior proceeding or direct appeal are barred by res judicata." Rogers at ¶ 39. See also State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59 ("Ohio courts of appeals have applied res judicata to bar the assertion of claims in a motion to withdraw a guilty plea that were or could have been raised at trial or on appeal.") There is nothing in the record to suggest that Pepper's claims regarding the validity of his plea could not have been raised in his direct appeal.
{¶ 18} Based upon the foregoing, we conclude that the trial court did not abuse its discretion and that Pepper's motion was properly denied for multiple reasons. The dilatory nature of the motion adversely affected Pepper's credibility. We also cannot agree with Pepper that the trial court completely failed to comply with Crim.R. 11 (C)(2)(a); the court partially complied with the statute, notwithstanding that it provided misinformation regarding post-release control. The trial court did not abuse its discretion in concluding that Pepper's assertion that he would have proceeded to trial had he been advised that he was ineligible for post-release control defied credulity. Because Pepper failed to point to any evidence in the record indicating that he would not have pled guilty but for the trial court's misstatement regarding post-release control, he was not prejudiced as a result of the misstatement. Moreover, Pepper does not argue in his brief that he was, in fact, prejudiced. The trial court ascertained Pepper's understanding of his sentence of 15 years to life, and the erroneous advisement regarding post-release control, which had no operative effect, did not add to the penalty or misstate the maximum penalty. As in Rogers, Pepper failed to establish the manifest injustice required to vacate his plea. The trial court also was not required to advise Pepper regarding parole. Finally, although not addressed by the trial court, Pepper's motion was barred by the doctrine of res judicata. Pepper's second assignment of error is overruled.
{¶ 19} The judgment of the trial court is affirmed.
TUCKER, J. and LEWIS, J., concur.