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State of Ohio v. Marcel D. Mcdaniel

September 30, 2011

STATE OF OHIO APPELLEE
v.
MARCEL D. MCDANIEL APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 02 11 3315 (A)

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

Cite as State v. McDaniel,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant Marcel McDaniel appeals from his resentencing in the Summit County Court of Common Pleas. For the reasons stated below, we affirm in part and reverse in part.

I.

{¶2} In November 2002, Mr. McDaniel and Keith Gilcreast were indicted on several charges related to a shooting at a car wash. A supplemental indictment was filed in 2003. The matter proceeded to trial. With respect to the charges against Mr. McDaniel, the jury was unable to reach a verdict.

{¶3} Prior to a retrial, in May 2003, Mr. McDaniel pleaded guilty to attempted murder with an accompanying firearm specification and felonious assault, as contained in amended count one and count two of the indictment. The remaining charges against Mr. McDaniel were dismissed. The trial court sentenced Mr. McDaniel to a total of nineteen years in prison. Mr. McDaniel did not file a direct appeal.

{¶4} In May 2009, Mr. McDaniel filed a pro se motion to withdraw his guilty plea, asserting that he was incorrectly informed of his post-release control obligations. On June 2, 2009, the trial court denied his motion in part because Mr. McDaniel failed to submit a complete transcript of the plea hearing. Mr. McDaniel filed a motion for leave to file an amended motion to withdraw his guilty plea, along with an amended motion, which included a transcript of the entire plea hearing. The trial court denied the motion as it considered it a motion for reconsideration. Mr. McDaniel then appealed the trial court's June 2, 2009 entry. This Court concluded that the entry was interlocutory and was not a final, appealable order as the 2003 sentencing entry contained erroneous post-release control notification, which we concluded rendered the 2003 entry void. This Court, therefore, dismissed the appeal, vacated the 2003 sentencing entry, and remanded for a new sentencing hearing.

{¶5} Prior to resentencing, Mr. McDaniel filed a "[r]enewed" motion to withdraw his guilty plea. A resentencing hearing was held June 4, 2010, during which Mr. McDaniel withdrew his motion to withdraw his guilty plea. Midway through the hearing, Mr. McDaniel sought to "push forward" with his motion to withdraw, but the trial court instead proceeded to sentencing. Mr. McDaniel was resentenced to nineteen years in prison. Mr. McDaniel subsequently filed a motion to withdraw his plea. Thereafter, Mr. McDaniel appealed his resentencing entry, raising three assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

"THE TRIAL COURT ERRED IN FAILING TO CONDUCT A DE NOVO SENTENCING HEARING AS PREVIOUSLY REQUIRED BY THIS COURT."

{ΒΆ6} Mr. McDaniel asserts in his first assignment of error that the trial court erred as it failed to conduct a de novo ...


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