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State v. McCain

Court of Appeals of Ohio, Second District, Montgomery

September 8, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL MCCAIN Defendant-Appellant

         Criminal Appeal from the Court of Common Pleas, Case No. 2004 CR 1865

          For Plaintiff-Appellee MATHIAS H. HECK, JR. PROSECUTING ATTORNEY ANDREW T. FRENCH ASSISTANT PROSECUTOR

          For Defendant-Appellant MICHAEL MCCAIN PRO SE Mansfield Corr. Institution

          Hon. Patricia A. Delaney, P. J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. (Visiting Judges Sitting by Supreme Court Assignment)

          OPINION

          WISE, JOHN, V. J.

         {¶1} Defendant-Appellant Michael D. McCain, Sr., appeals the decisions of the Court of Common Pleas, Montgomery County, overruling his pro se motion to set aside a 2004 guilty plea and conviction and issuing an amended judgment entry vacating his post-release control regarding an aggravated robbery count from said conviction. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

         Appellant's 2004 Conviction

         {¶2} On May 21, 2004, Appellant McCain was indicted on one count of felony murder with the predicate offense of felonious assault (R.C. 2903.02(B) - an unclassified felony), one count of aggravated robbery (R.C. 2911.01(A)(1) - a felony of the first degree), and one count of falsification (R.C. 2921.13(A)(3) - a misdemeanor of the first degree). Appellant initially pled not guilty to the charges. He thereafter filed a suggestion of incompetency, claiming he was not guilty by reason of insanity. The trial court subsequently ordered appellant to undergo a competency evaluation. Based on the result of said evaluation, the trial court found appellant competent to stand trial.

         {¶3} On September 28, 2004, appellant pled guilty to felony murder and aggravated robbery. Pursuant to a plea agreement, the falsification charge was dismissed and appellant was to be given concurrent sentences for his offenses.

         {¶4} On October 12, 2004, the trial court sentenced appellant to fifteen years to life in prison for felony murder and seven years in prison for aggravated robbery, with the two sentences ordered to run concurrently.

         {¶5} Appellant did not file a direct appeal from his conviction and sentence.

         Appellant's 2013 Post-Conviction Motions

         {¶6} On August 21, 2013, approximately nine years after his conviction, appellant filed two motions asking the trial court to set aside his judgment and for an order staying the execution of his judgment. His motions essentially claimed (1) the trial court's judgment was void for lack of service, notice, and due process; (2) the State had withheld information from him; (3) his trial counsel had misled him; and (4) the trial court lacked jurisdiction. Following these motions, appellant filed numerous accompanying documents and additional motions with the trial court.

         {¶7} On November 13, 2013, the trial court issued a decision interpreting appellant's filings as petitions for post-conviction relief and overruling them as untimely. The trial court also held that the claims advanced by appellant in his petitions were barred by res judicata.

         {¶8} On December 10, 2013, appellant filed an appeal to this Court from the trial court's November 13, 2013 decision denying his petitions for post-conviction relief, raising five assignments of error for review. However, we affirmed the decision of the trial court on June 27, 2014. See State v. McCain, 2nd Dist. Montgomery No. 26020, 2014-Ohio-2819 ("McCain I").

         Appellant's 2013 and 2014 Motions to Withdraw Guilty Plea

         {¶9} On December 10, 2013, appellant filed a motion to withdraw his guilty plea (Crim.R. 32.1) on the grounds that his plea and sentence were void as a result of the trial court improperly imposing post-release control. On July 10, 2014, shortly after the aforesaid appellate decision in "McCain I" was issued, appellant filed a supplemental motion to withdraw his guilty plea and accompanying affidavit in the trial court. Appellant therein argued that his guilty plea had not been knowingly and voluntarily made because the trial court erroneously advised him at the plea hearing that he would be subject to a period of post-release control on his felony murder charge. In addition, appellant claimed the 2004 sentencing entry did not indicate that the period of post-release control for aggravated robbery was mandatory. Appellant also alleged that he had received ineffective assistance of counsel.

         {¶10} Furthermore, on July 17, 2014, the trial court filed an amended sentencing entry that vacated the post-release control order as to the aggravated robbery count. In the amended entry, the trial court explained that it vacated post-release control because the original sentencing entry did not properly specify that the period of post-release control would be mandatory. The ...


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