Court of Appeals of Ohio, Second District, Montgomery
Appeal from the Court of Common Pleas, Case No. 2004 CR 1865
Plaintiff-Appellee MATHIAS H. HECK, JR. PROSECUTING ATTORNEY
ANDREW T. FRENCH ASSISTANT PROSECUTOR
Defendant-Appellant MICHAEL MCCAIN PRO SE Mansfield Corr.
Patricia A. Delaney, P. J. Hon. John W. Wise, J. Hon. Craig
R. Baldwin, J. (Visiting Judges Sitting by Supreme Court
JOHN, V. J.
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.
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.
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.
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.
Appellant did not file a direct appeal from his conviction
2013 Post-Conviction Motions
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.
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.
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").
2013 and 2014 Motions to Withdraw Guilty Plea
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.
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 ...