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State v. Greenleaf

June 23, 2010

STATE OF OHIO APPELLEE
v.
KENNETH O. GREENLEAF APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 01 10 2563.

The opinion of the court was delivered by: Dickinson, Presiding Judge.

DECISION AND JOURNAL ENTRY

INTRODUCTION

{¶1} Kenneth Greenleaf pleaded guilty to unlawful sexual conduct with a minor and rape. The trial court sentenced him to nine years in prison. On appeal, this Court vacated his sentence. After the trial court resentenced Mr. Greenleaf, this Court remanded his case again so that the trial court could advise him of the possible penalties for violating post-release control. In July 2009, Mr. Greenleaf moved to withdraw his guilty plea and vacate his void sentence. The trial court granted his motion to vacate because it had not properly imposed post-release control. Following a hearing, the court denied his motion to withdraw his guilty plea. Mr. Greenleaf has appealed, arguing that the court incorrectly denied his motion to withdraw his guilty plea. This Court reverses because the trial court should have permitted Mr. Greenleaf to withdraw his plea as a matter of law.

MOTION TO WITHDRAW PLEA

{¶2} Mr. Greenleaf's assignment of error is that the trial court incorrectly denied his motion to withdraw his guilty plea. "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. In State v. Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577, the Ohio Supreme Court held that "[a] motion to withdraw a plea of guilty . . . made by a defendant who has been given a void sentence must be considered as a presentence motion under Crim.R. 32.1." Id. at syllabus. "[A] presentence motion to withdraw a guilty plea should be freely and liberally granted." Id. at ¶1 (quoting State v. Xie, 62 Ohio St. 3d 521, 527 (1992)). The defendant, however, has the burden of demonstrating a reasonable and legitimate basis for withdrawing his plea. State v. Razo, 9th Dist. 08CA009509, 2009-Ohio-3405, at ¶12.

{¶3} In July 2009, Mr. Greenleaf moved to vacate his sentence, arguing that the trial court did not properly impose post-release control. He also moved to withdraw his guilty plea. The trial court granted his motion to vacate. Regarding his motion to withdraw, the court wrote that it would treat the motion as a presentence motion and scheduled an evidentiary hearing on the motion.

{¶4} Before the hearing, Mr. Greenleaf filed a memorandum, arguing that the court should grant his motion to withdraw his plea under State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, because the trial court did not advise him, before accepting his plea, that he had the right to a jury trial. At the hearing, Mr. Greenleaf's lawyer told the court that he did not "believe that we need to put any evidence on since in my hearing memorandum I specified the grounds . . . ." The court asked the lawyer whether he wanted "to repeat any of those for the record." The lawyer answered that, "at the plea hearing this Court failed to inform Mr. Greenleaf of his constitutional right to a jury trial." He argued that, in Veney, the Ohio Supreme Court "made it very clear that all of those constitutional rights must be clearly spelled out in order to establish a knowing, voluntary, and intelligent plea . . . ." The lawyer said that he did not think it was necessary for him to call Mr. Greenleaf as a witness because "the transcripts have to show clearly that the Court engaged in the required dialogue." The trial court denied Mr. Greenleaf's motion, however, "[b]ased on the fact that [he] [did] not wish to put on any evidence as it relates to the hearing . . . ."

{¶5} The State has argued that this Court should not reach the merits of Mr. Greenleaf's appeal because he could have challenged the constitutionality of his plea in his first appeal to this Court. "Under the doctrine of res judicata, a final judgment of conviction bars a . . . 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 was raised or could have been raised . . . on an appeal from that judgment." State v. Perry, 10 Ohio St. 2d 175, paragraph nine of the syllabus (1967).

{¶6} The State has cited State ex rel. Special Prosecutors v. Judges of Belmont County Court of Common Pleas, 55 Ohio St. 2d 94 (1978), in support of its argument. In Special Prosecutors, the defendant pleaded guilty to murder. After the court of appeals affirmed his conviction, the defendant moved to withdraw his plea, which the trial court granted. The State did not appeal, but, before the defendant's case could proceed to trial, it filed a complaint for a writ of prohibition, seeking to prevent the trial from taking place. The State argued that the trial court had not had jurisdiction to let the defendant withdraw his plea. The Supreme Court granted the writ because it concluded that a trial court does not have jurisdiction to consider a motion to withdraw a plea after an appellate court has affirmed the defendant's conviction. Id. at 98. The Supreme Court noted that "the trial court lost its jurisdiction when the appeal was taken, and, absent a remand, it did not regain jurisdiction subsequent to the Court of Appeals' decision." Id. at 97.

{¶7} The State has also cited State v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374, in support of its argument. In McGee, the defendant pleaded guilty to rape and gross sexual imposition and the Eighth District affirmed his convictions. Several years later, Mr. McGee moved to vacate his plea, arguing that he had not been told that he would be subject to a mandatory term of post-release control at the time he entered his plea. The Eighth District concluded that his argument was barred by the doctrine of res judicata because he could have raised it on direct appeal. Id. at ¶12. It noted that, in State v. Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577, at ¶11, the Ohio Supreme Court did not consider whether the doctrine of res judicata applied because the State had not properly raised that issue. McGee, 2009-Ohio-3374, at ¶16.

{¶8} Before the doctrine of res judicata can apply, there must be "a final judgment of conviction." State v. Perry, 10 Ohio St. 2d 175, paragraph nine of the syllabus (1967). In State v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374, the Eighth District recognized that the trial court's original judgment was a nullity because it did not mention post-release control. Id. at ¶8 (citing State v. McGee, 8th Dist. No. 89133, 2007-Ohio-6655, at ¶16). It also recognized that "principles of res judicata do not apply to void sentences because, by definition, a void sentence means that no final judgment of conviction has been announced." Id. It applied the doctrine of res judicata anyway because that is what had been done in other cases in which a defendant had attempted to withdraw his plea after a direct appeal. Id. at ¶9 (citing State v. Robinson, 8th Dist. No. 85266, 2005-Ohio-4154, at ¶11; State v. Totten, 10th Dist. Nos. 05AP-278, 05AP-508, 2005-Ohio-6210, at ¶9). It ignored the fact that there was a final judgment of conviction in those other cases and in Special Prosecutors.

{¶9} The Eighth District also cited its decision in State v. Craddock, 8th Dist. No. 87582, 2006-Ohio-5915, in support of its decision. State v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374, at ¶11. According to Craddock, Special Prosecutors "specifically held that a trial court does not have jurisdiction, upon remand, to entertain a Crim.R. 32.1 motion to withdraw a plea after a judgment of conviction has been affirmed by the appellate court." Craddock, 2006-Ohio-5915, at ¶8. In Special Prosecutors, however, the Ohio Supreme Court actually concluded "that the trial court lost its jurisdiction when the appeal was taken, and, absent a remand, it did not regain jurisdiction subsequent to the Court of Appeals' decision." State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St. 2d 94, 97 (1978). In Special Prosecutors, the Supreme Court did not consider whether a ...


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