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State of Ohio v. Miller L. Scott

October 28, 2011

STATE OF OHIO APPELLEE
v.
MILLER L. SCOTT APPELLANT



Trial Court No. 06 CR 469

The opinion of the court was delivered by: Osowik, P.J.

Cite as State v. Scott,

DECISION AND JUDGMENT

{¶1} On May 31, 2006, the Sandusky County Grand Jury indicted appellant, Miller L. Scott, on six counts of trafficking in crack cocaine, in violation of R.C. 2925.03(A)(1) and (C)(4)(a), all fifth degree felonies, and one count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(c), a third degree felony. Appellant entered a not guilty plea at his arraignment on June 9, 2006. On August 24, 2006, appellant filed a motion to suppress evidence obtained through a search of his home, which the trial court denied on December 29, 2006.

{¶2} On June 28, 2007, pursuant to a plea agreement, appellant pled guilty to four counts of trafficking in cocaine, and one count of possession of cocaine. That same day, a plea hearing was held at which the trial court advised appellant as to the nature and extent of his plea, and inquired as to whether appellant was under the influence of drugs or alcohol at the time of the hearing. The trial court also informed appellant that he could be sentenced to serve one year in prison for each count of trafficking in cocaine, and that he would be required to serve a mandatory one-year prison sentence for the one count of possession of cocaine. At each step of the proceedings, appellant indicated that he understood, that he was entering into the plea agreement voluntarily and knowingly, and that he was not offered anything other than the stated terms in exchange for his plea.

{¶3} After discussing the nature of the plea the trial court told appellant that, after serving his prison term, he could be required by the parole board to serve a period of postrelease control of up to three years. In addition appellant was told that, if he violated the terms of his postrelease control, he could be sentenced to serve up to one-half of his original prison sentence, up to two and one-half years. The trial court also told appellant that, if a violation of his postrelease control amounted to a new felony, he could receive an additional sentence. After explaining the terms of postrelease control, the trial court also informed appellant of his limited right to appeal. The trial court then accepted appellant's guilty plea and found him guilty of four counts of trafficking in cocaine and one count of possession of cocaine. The remaining counts of the indictment were dismissed.

{¶4} That same day, the trial court issued a judgment entry in which it found appellant guilty and, in accordance with the plea agreement, sentenced appellant to serve a one year prison term for each of the four counts of trafficking in cocaine, and one mandatory one-year prison term for possession of cocaine. Each one-year term was made consecutive to the others, for a total of five years in prison. In addition, appellant's driver's license was suspended for five years.

{¶5} On July 30, 2008, through his court-appointed attorney, appellant applied for early judicial release after completing his one-year mandatory prison term. On August 1, 2008, the matter was referred to the adult probation department for a recommendation; however, on September 15, 2008, the trial court denied appellant's request without holding a hearing. On December 19, 2008, appellant, acting pro se, filed a second motion in which he asked for judicial release. The trial court denied appellant's second motion on January 15, 2009, after stating that, pursuant to the version of R.C. 2929.20 that was in effect at that time, appellant would not be eligible for judicial release until May 25, 2011.

{¶6} On January 26, 2009, appellant's former appointed counsel, Andrew Mayle, wrote a letter to the trial court, in which counsel challenged the trial court's conclusion that former R.C. 2929.20(B)(1)(b)*fn1 prohibits appellant from applying for judicial release before serving at least four years of his five-year sentence. In support, counsel stated that, pursuant to former R.C. 2929.20(B)(1)(a), an offender who receives less than a five- year prison term is eligible to apply for judicial release "not earlier than thirty days or later than ninety days after the offender is delivered to a state correctional institution" Counsel further stated that appellant was eligible to apply for early judicial release from his remaining four-year prison term pursuant to former R.C. 2929.20(B)(5), which provided that:

{¶7} "If the offender's stated prison term includes a mandatory prison term, the offender shall file the motion within the time authorized under division (B)(1),(2),(3), or (4) of this section for the non-mandatory portion of the prison term, but the time for filing the motion does not begin to run until after the expiration of the mandatory portion of the prison term."

{¶8} Counsel argued that, because the trial court concluded that appellant is not eligible for early release until May 25, 2011, he will have essentially served his entire sentence before becoming eligible to apply for judicial release. Counsel further argued that none of the original parties to the plea agreement envisioned such an outcome, as demonstrated by a hand-written provision in the agreement itself, which states that

"[Appellant] is eligible for judicial release per R.C. 2929.20." In conclusion, counsel stated that, if the trial court's interpretation of R.C. 2929.20(B) is correct, then appellant fundamentally misunderstood the nature and extent of his guilty plea, and the trial court's refusal to grant appellant's motion to withdraw the plea amounts to an abuse of discretion. On February 3, 2009, the prosecution filed a memorandum in opposition, in which it stated that, pursuant to R.C. 2929.20(B)(1)(b) and (B)(3), appellant is not eligible to apply for judicial release until after he has served four years of his five-year sentence.

{¶9} On February 13, 2009, appellant, acting pro se, filed a "Motion for Judicial Release and Oral Hearing Request, Revisited" in which he asked the trial court to reconsider its January 15, 2009 decision to deny his application for judicial release. In a memorandum in support, appellant stated that, if not for his attorney's representation that appellant would be eligible to apply for judicial release after serving 13 months of his prison sentence, he would not have entered a guilty plea. Appellant also recounted his efforts to attend counseling and a drug rehabilitation program while in prison. On February 18, 2009, appellant, again acting pro se, filed a motion to withdraw his guilty plea. In support of his motion, appellant stated that he was misinformed as to his eligibility for judicial release at the time of the plea. On February 19, 2009, the trial court filed a judgment entry in which it denied appellant's motion for judicial release without holding a hearing.

{¶10} On May 21, 2009, appellant filed a motion to establish a hearing date on the motion to withdraw his guilty plea. On September 21, 2009, appellant filed a motion for "sentencing" which the trial court treated as a motion for re-sentencing. In support of his motion, appellant argued that the trial court improperly imposed a "blanket" sentence for his five convictions, and that the postrelease control notification he received at the time of sentencing was defective. Specifically, appellant stated that the trial court misstated the sanction that could be imposed if he violated the terms of his postrelease control. In addition, appellant asserted that the trial court mistakenly imposed only one term of postrelease control to cover all five of the offenses for which he was convicted, instead of separately stating the term for each separate offense. Appellant concluded that these errors render his sentence "void" and that he is entitled to a new sentencing hearing. On November 5, 2009, appellant filed a "request for judicial notice" of a "directive and mandate," dated October 23, 2009, which was issued by the Ohio Department of

Rehabilitation and Corrections regarding postrelease control.

{¶11} On November 9, 2009, Brock A. Kimmet, Court Administrator for the Sandusky County Court of Common Pleas, sent appellant copies of his change of plea and the trial court's sentencing judgment entry, both of which were journalized on June 28, 2007. In an attached letter, Kimmet stated: "Please note that both of these documents contain the language as required pertaining to postrelease control." At the bottom of the letter was a hand-written comment by Sandusky County Common Pleas Judge John Dewey, which stated: "Motion for re-sentencing denied. See attached."

{¶12} On December 1, 2009, appellant filed a notice of appeal in this court from the denial of his motion for re-sentencing. (Appellate case No. S-09-038.) At the same time, he filed a request for appointment of counsel in the trial court. On December 15, 2009, we sua sponte dismissed case No. S-09-038, after finding that the court administrator's letter and trial court's comments, taken together, did not constitute a final, appealable order. State v. Scott (Dec. 15, 2009), 6th Dist. No. S-09-038.

{¶13} On January 4, 2010, appellant, pro se, filed a "Motion for Issuance of Final, Appealable Order" in the trial court. On January 27, 2010, appellant filed a motion in which he requested a new sentencing hearing.

{¶14} On February 26, 2010, appellant filed a complaint in mandamus in this court, in which he asked us to order the trial court to issue a final, appealable order. On March 23, 2010, we issued a peremptory writ of mandamus ordering the trial court to "prepare and issue a judgment entry in compliance with Civ.R. 58(A) * * *." State ex rel. Scott v. Dewey, 6th Dist. No. S-10-014, 2010-Ohio-1362.

{¶15} On March 17, 2010, the trial court filed a judgment entry in which it stated that the notification of postrelease control given to appellant at his initial sentencing may have been defective; however, the trial court stated that the remedy for such an error was correction of the sentence pursuant to R.C. 2929.191, and not a voiding of the sentence as sought by appellant. Accordingly, the trial court set a date for an oral hearing and appointed counsel to represent appellant at the hearing. On March 26, 2010, the trial court appointed attorney Jeffrey Kane to represent appellant at the hearing.

{¶16} A resentencing hearing was held on April 14, 2010, at which appellant asserted that his sentence was "void" because he was not properly advised as to postrelease control. Appellant also argued that the trial court could only resentence him for two years, since he had already served the first three years of his five-year sentence. In addition, appellant stated that another hearing should be held on his motion to withdraw his plea. When the trial court attempted to address appellant's court-appointed attorney, appellant interrupted and indicated that he did not wish to be represented by his current appointed counsel. After a short verbal exchange with appellant, the trial court excused defense counsel and the hearing resumed with appellant representing himself.

{¶17} After his appointed counsel was excused, appellant argued that the trial court should not be able to re-advise him as to those portions of his sentence that were already served. The trial court replied: "Well, I'll put it on the record and if you don't like it, you can appeal it." The trial court then advised appellant that, in his case, postrelease control could be imposed for up to three years, and any violation of the terms of postrelease control could result in a new prison term of up to one-half of his original five- year sentence, or two and one-half years. The trial court further advised appellant that, if a violation constitutes a new felony, he could receive a prison sentence for the new felony, plus an additional sentence for the violation of up to twelve months, which would be served consecutively to the sentence for the new felony.

{¶18} After the court re-advised appellant as to postrelease control, the prosecution raised the issue of appellant's motion to withdraw his plea. In opposition to the motion, the prosecutor argued that, although appellant states he was misinformed as to the amount of time he would have to serve before applying for judicial release, the facts to do not rise to the level of manifest injustice. At that point, the trial court explained to appellant that his one-year mandatory sentence for possession of cocaine was served concurrently with the first year of his sentence for trafficking in cocaine, which made appellant eligible to apply for judicial release after he served four years of his five-year stated prison term. Appellant then told the trial court that he would like to subpoena his defense attorney to testify at a hearing as to whether appellant was "lied to" and "tricked" into making his guilty plea.

{ΒΆ19} In response to appellant's request for a hearing, the trial court read from portions of the prosecutor's response to the letter sent by attorney Mayle on January 29, 2009. In his response, the prosecutor argued to the trial court that appellant's stated sentence could not be reduced from five years to four years after the mandatory one-year sentence was served, making appellant eligible for judicial release after 13 months instead of four years. In support, the prosecutor cited R.C. 2929.20(B) and R.C. 2929.01(GG), which, taken together, state that an offender with a stated sentence of five years is not eligible for judicial release until after four years of the sentence have been served. At that point, appellant questioned why the trial court accepted his plea two years earlier, based on the representation that he was eligible for judicial release in 13 months when, in fact, he would not be ...


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