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State v. Sage

Court of Appeals of Ohio, Second District

July 12, 2013

STATE OF OHIO, Plaintiff-Appellee
v.
GORDON W. SAGE, Defendant-Appellant

(Criminal appeal from Common Pleas Court) T.C. No. 04CR1574.

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.

GORDON W. SAGE, #A458-271, London Correctional Institute, Defendant-Appellant.

OPINION

FROELICH, J.

{¶ 1} Gordon W. Sage appeals from a judgment of the Montgomery County Court of Common Pleas, which denied his "motion for rescission of contractual agreement, " which the trial court construed as a petition for post-conviction relief The trial court found that Sage's motion was untimely and was barred by res judicata. For the following reasons, the trial court's judgment will be affirmed.

I.

{¶ 2} In September 2004, Sage was indicted on two counts of aggravated murder and one count each of aggravated burglary, aggravated robbery, and having weapons while under disability. The aggravated murder, aggravated robbery, and aggravated burglary charges each had an accompanying firearm specification.

{¶ 3} On April 11, 2005, Sage pled guilty to all of the charges; the firearm specifications were dismissed as part of the plea agreement. Each of the plea forms indicated that Sage was subject to a particular prison term, to post-release control, and to particular penalties if he violated post-release control. The form for the having weapons while under disability charge indicated that Sage faced "up to" three years of post-release control after his release from prison. The other four forms stated that Sage faced "up to" five years of post-release control.

{¶ 4} Sage was sentenced on April 28, 2005. The court imposed a life sentence for each aggravated murder count, and merged the two sentences. The court sentenced Sage to five years in prison for aggravated robbery and aggravated burglary, to be served concurrently with each other but consecutively to the life sentence for the aggravated murder. The court sentenced Sage to one year in prison for having weapons while under disability, to be served concurrently with the other counts. All sentences were to be served concurrently with a sentence previously imposed on Sage in another case (Montgomery C.P. No. 2003 CR 3406). Sage's aggregate sentence was life plus five years, for which Sage would be eligible for parole after 25 years.

{¶ 5} The trial court's sentencing entry reflects that Sage was informed that, following his release from prison, he would serve five years of post-release control for the aggravated burglary and aggravated robbery. The entry further states that, with respect to the aggravated murder, however, Sage was told that, if he were ever released, his sentence included parole supervision by the Adult Parole Authority.

{¶ 6} Sage appealed from his conviction. He claimed that the court should have granted him a continuance to obtain new counsel and that his sentence was unlawful under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. We concluded that Sage's guilty plea waived his right to appeal the denial of a continuance, because he had been represented by counsel and his plea appeared to have been knowing, intelligent, and voluntary. However, we vacated his sentence under Foster and remanded for resentencing. State v. Sage, 2d Dist. Montgomery No. 21097, 2007-Ohio-442.

{¶ 7} Prior to resentencing upon remand, Sage orally moved to withdraw his guilty plea, asserting that (1) he believed a jury would reach a verdict of not guilty, and (2) he was coerced to enter his plea. The trial court considered Sage's motion as a post-sentence motion to withdraw his plea and found no manifest injustice. The court then reimposed its previous sentence. Sage appealed, arguing that the trial court erred in denying his motion to withdraw his plea. We affirmed the trial court's ruling. State v. Sage, 2d Dist. Montgomery No. 22078, 2007-Ohio-6353.

{¶ 8} In March 2009, Sage filed a motion to vacate or set aside his sentence, asserting under State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, that his indictment for aggravated robbery failed to include the mens rea. The trial court held that Sage's motion was more properly a petition for post-conviction relief, that the motion was untimely, that Sage waived any challenge to the indictment by pleading guilty, and that Colon did not apply. Sage did not appeal the trial court's ruling.

{¶ 9} In June 2012, Sage filed the instant "motion for rescission of contractual agreement." He argued that his plea agreements were invalid, because they all included post-release control, even though parole, not post-release control, applied to the aggravated murder charges. Sage further emphasized that the plea agreements stated that he was subject to "up to" five years of post-release control for the aggravated robbery and aggravated burglary charges and "up to" three years of post-release control for having weapons while under ...


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