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Term v. Marquis

United States District Court, N.D. Ohio, Eastern Division

May 31, 2017

JOSEPH TREM, Petitioner,
v.
WARDEN DAVE MARQUIS, Respondent.

          MEMORANDUM OF OPINION AND ORDER

          BENITA Y. PEARSON UNITED STATES DISTRICT JUDGE.

         Petitioner Joseph Trem, an Ohio prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1), challenging the constitutional sufficiency of his sentence pursuant to a guilty plea and his later classification as a sexual offender in Cuyahoga County, Ohio Court of Common Pleas Case No. CR-94-312378-A. Petitioner is currently incarcerated in the Richland Correctional Institution. In 1995, he pled guilty to five counts of rape and three counts of gross sexual imposition. Petitioner was sentenced to twenty-to-fifty years in prison. In 2014, he was also classified as a sexually oriented offender under the former Megan's Law. In his Petition (ECF No. 1), Petitioner asserts two grounds for relief: (1) he was denied due process and equal protection under the Sixth and Fourteenth Amendments when he was informed that, by entering a guilty plea, the maximum amount of time he could serve was fifteen years; and (2) he was denied the effective assistance of appellate counsel when his attorney failed to raise a separation of powers argument on the state's appeal of his Megan's Law sexual offender classification. For the reasons set forth below, the Petition is denied and this action is dismissed.

         I. Background

         On appeal, Ohio's Eighth District Court of Appeals established the factual background of Petitioner's trial and convictions as follows:

{¶ 2} In July 1994, [Petitioner] was charged under a 39-count indictment with multiple counts of rape, gross sexual imposition, and endangering children. A majority of the counts related to sexual conduct against his own daughter from the time she was nine years old through her mid teens. Two of the gross sexual imposition charges related to [Petitioner] having his daughter engage in sexual activity with other individuals, who were her friends. Several counts also involved [Petitioner]'s sexual conduct against one of those friends. [Petitioner] initially entered a plea of not guilty to the indictment.
{¶ 3} In March 1995, [Petitioner] retracted his former plea of not guilty and entered a plea of guilty to rape of his daughter when under the age of 13, as amended under Counts 1 and 6 to delete the use of force; rape of his daughter as charged in Counts 11, 13, and 14; and gross sexual imposition as charged in Counts 30, 31, and 32. The remaining counts were nolled.
{¶ 4} The trial court sentenced [Petitioner] to a prison term of 10 to 25 years on Counts 1 and 6, to run consecutively to each other and concurrent to the remaining counts for which the court imposed a term of 10 to 25 years on Counts 11, 13, and 14, and two years each on Counts 30, 31, and 32, all running concurrently to each other. The aggregate prison term imposed was 20 to 50 years. [Petitioner] did not file a direct appeal.
{¶ 5} In February 2014, nearly 19 years later, [Petitioner] filed a motion to withdraw guilty plea pursuant to Crim. R. 32.1. [Petitioner] argued his primary reason for agreeing to enter a plea of guilty was his understanding that he would serve no more than 15 years of incarceration. [Petitioner] attached a copy of the sentencing transcript to his motion. The trial court denied the motion without a hearing.

State v. Trem, No. 101265, 2014 WL 5762924, at *1 (Ohio Ct. App. 8 Dist. Nov. 6, 2014). In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by the state courts are presumed correct. 28 U.S.C. § 2254(e)(1).

         Petitioner filed an appeal of the trial court's decision to the Ohio Eighth District Court of Appeals. His sole assignment of error was that the trial court erred by failing to address the issues raised by his Motion and by failing to hold a hearing. State v. Trem, No. 101265, 2014 WL 5762924, at *1, ¶ 6 (Ohio Ct. App. 8 Dist. Nov. 6, 2014). The state appellate court considered the claim on its merits and determined that there was nothing in the transcript of his plea hearing that would reflect that a fifteen year maximum sentence was a condition of the plea bargain. Id. at ¶¶ 7-11. In addition, the court recognized that Petitioner filed his Motion approximately four years after the expiration of fifteen years. Id. at ¶ 12. Moreover, the Court found that “[w]hile Ohio Crim. R. 32.1 does not prescribe a time limitation for filing a postsentence motion to withdraw a plea, an undue delay in filing the [M]otion adversely affect[ed Petitioner's] credibility” in pursuing the claim. Id.Based on these considerations, the state appellate court determined that the trial court was not required to hold a hearing on Petitioner's Motion to Withdraw his Guilty Plea, and affirmed the judgment of the trial court on November 6, 2014. Id. at ¶ 13. Petitioner appealed that decision to the Supreme Court of Ohio. The Supreme Court declined to accept jurisdiction. See State v. Trem, 29 N.E.3d 1005 (Table) (Apr. 29, 2015).

         After the state appellate court upheld the trial court's refusal to grant Petitioner's Motion to Withdraw his Guilty Plea, the trial court classified Petitioner as a sexually oriented offender under the former Megan's Law. State v. Trem, 58 N.E.3d 555, 557 at ¶1 (Ohio Ct. App. 8 Dist. 2016). The State appealed that determination, asserting as its sole assignment of error that the trial court abused its discretion by refusing to classify Petitioner as a sexual predator. Id.There is no indication Petitioner filed a cross appeal. The state appellate court upheld the trial court judgment. Id. at ¶ 19.

         Petitioner, however, filed an Ohio App. R. 26(B) Application to Reopen the Appeal (the “Application”) in which the state appellate court affirmed the trial court's classification of Petitioner as a sexually oriented offender under the former Megan's Law. State v. Trem, No. 102894, 2016 WL 3763057, at *1, ¶ 1 (Ohio Ct. App. 8 Dist. July 13, 2016). The state appellate court denied the Application stating it was untimely filed. Id. at ¶¶ 3-5, 8. The court further held that Ohio App. R. 26(B) applied only to the direct appeal of a criminal conviction and sentence, and could not be utilized to reopen an appeal that dealt with classification as a sexually oriented offender under the former Megan's Law. Id. at ¶¶ 6-7. Petitioner appealed that decision to the Supreme Court of Ohio. The Court declined to accept jurisdiction. State v. Trem, 60 N.E.3d 7 (Table) (Oct. 5, 2016).

         Petitioner then filed this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

         ECF No. 1. He asserts two ...


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