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State v. Green

Court of Appeals of Ohio, Twelfth District, Butler

May 15, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DANNY M. GREEN, Defendant-Appellant.

         CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-02-0196

          Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

          Danny M. Green, #A687591, Chillicothe Correctional Institution, 15802 State Route 104, Chillicothe, Ohio 45601, defendant-appellant, pro se

          OPINION

          M. POWELL, J.

         {¶ 1} Defendant-appellant, Danny M. Green, appeals a decision of the Butler County Court of Common Pleas denying his motion to withdraw his guilty plea.

         {¶ 2} Appellant was indicted in March 2013 on five counts of rape, one count of gross sexual imposition, and one count of attempted sexual battery. On April 24, 2013, appellant entered a guilty plea to two amended charges of rape. During a Crim.R. 11 colloquy, the trial court misinformed appellant that he was eligible for community control after commencement of his mandatory prison term and for earned credit against his prison term. Following the Crim.R. 11 colloquy, the trial court accepted appellant's guilty plea, and on July 22, 2013, sentenced him to an aggregate nine-year prison term. Appellant did not directly appeal his conviction.

         {¶ 3} Nearly a year after he was sentenced, appellant moved to withdraw his guilty plea pursuant to Crim.R. 32.1. Appellant argued his plea was invalid because (1) the rape offenses he pled guilty to were not the same offenses charged in the indictment, (2) he was never advised of the nature of the amended charges, (3) the indictment did not support the elements of the amended charges to which he pled guilty, and (4) he entered the plea only after receiving ineffective assistance of counsel. The trial court denied appellant's motion and appellant appealed.

         {¶ 4} We affirmed the trial court's decision, stating, "[As] the record demonstrates that he knowingly, voluntarily, and intelligently entered a guilty plea to amended counts one and six of the indictment, we find no error in the trial court's denial of appellant's motion to withdraw his guilty plea." State v. Green, 12th Dist. Butler No. CA2014-12-247, 2015-Ohio-2576, ¶ 27.

         {¶ 5} In 2016, appellant once again moved to withdraw his guilty plea pursuant to Crim.R. 32.1. Appellant argued his plea was void because the trial court failed to comply with Crim.R. 11(C) during the plea hearing when it misinformed appellant regarding his eligibility for community control and earned credit against his prison term. On September 1, 2016, the trial court denied appellant's motion to withdraw his plea on the basis of the law-of-the-case doctrine. Specifically, the trial court found that in light of this court's prior finding that appellant knowingly, voluntarily, and intelligently entered his guilty plea and our upholding of the trial court's denial of appellant's first motion to withdraw his plea, the trial court lacked jurisdiction to address appellant's second motion to withdraw his guilty plea.

         {¶ 6} Appellant now appeals, raising one assignment of error:

         {¶ 7} THE TRIAL COURT ERRED WHEN IT FAILED TO ADDRESS THE VOIDNESS ARGUMENT AND DENIED APPELLANT'S MOTION TO WITHDRAW [HIS] GUILTY PLEA.

         {¶ 8} Appellant argues that his guilty plea, and therefore his conviction and sentence, are void because the trial court failed to comply with Crim.R. 11(C)(2)(a) during its plea colloquy when it misinformed appellant he could be eligible for earned credit and could receive community control, when, in fact, he was subject to a mandatory prison term. Appellant asserts that because his guilty plea is void, the doctrine of res judicata is not applicable. Appellant further asserts that because he did not directly appeal his conviction and his motions to withdraw his plea raised different issues regarding the validity of his guilty plea, the law-of-the-case doctrine is not applicable.

         {¶ 9} Crim.R. 11(C)(2)(a) provides that in felony cases

The trial court shall not accept a plea of guilty * * * without first addressing the defendant personally and * * * [d]etermining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or ...

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