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State v. Morse

Court of Appeals of Ohio, Ninth District, Summit

December 29, 2017

STATE OF OHIO Appellee
v.
STEPHEN H. MORSE Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2013 08 2363

          APPEARANCES: STEPHEN H. MORSE, pro se, Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENS AL FOR THE COURT

         {¶1} Defendant-Appellant, Stephen H. Morse, appeals his convictions and sentence from the Summit County Court of Common Pleas. For the reasons set forth below, we affirm in part and dismiss in part.

         I.

         {¶2} The Summit County Grand Jury indicted Morse on two counts of operating a vehicle under the influence of alcohol or drugs ("OVI") in violation of Revised Code Section 4511.19(A), [1] both fourth-degree felonies, with prior-conviction specifications in violation of Section 2941.1413, and one count of driving under suspension in violation of Section 4510.11, a first-degree misdemeanor. Morse initially pleaded not guilty to the charges and the matter proceeded through the pretrial process.

          {¶3} Morse subsequently entered into a plea agreement with the State and pleaded guilty to one count of driving under suspension and one count of OVI in violation of Section 4511.19(A)(1)(a) along with the attendant prior-conviction specification. In return, the State dismissed the second OVI count and its accompanying prior-conviction specification. The trial court accepted Morse's guilty pleas.

         {¶4} At the sentencing hearing, the trial court sentenced Morse to one year in prison on the OVI count, with 120 days of that sentence being mandatory time, and one year in prison on the prior-conviction specification. The trial court ordered those sentences to run consecutively for a total of two years in prison, with 120 days being mandatory. The trial court also sentenced Morse to 180 days in the Summit County Jail on the driving-under-suspension count. The trial court informed Morse that it would consider him for judicial release after he served six months of his two-year sentence. The trial court also suspended Morse's driver's license and ordered him to pay costs and fines.

         {¶5} The trial court journalized its sentence on May 27, 2014. Contrary to the sentence imposed at the sentencing hearing, the sentencing entry ordered Morse to serve one year in prison, "120 days of which is not a mandatory term" for the OVI count. (Emphasis added.) Despite this inconsistency, Morse did not pursue a direct appeal of the trial court's judgment.

         {¶6} Morse began serving his prison sentence on July 11, 2014. Months later, he filed a pro se motion for judicial release. Thereafter, Morse's attorney filed a supplemental motion for judicial release. The trial court ultimately denied Morse's motion for judicial release, noting that Morse "is serving a mandatory term until June 21, 2015." Morse then filed a pro se "motion to withdraw guilty plea pursuant to Crim.R. 32.1 or in the alternative motion for judicial release pursuant to R.C. 2929.20." Morse's attorney then filed a second motion for judicial release, which the trial court granted on September 1, 2015, following a hearing on the matter. On November 16, 2015, the trial court issued a nunc pro tunc entry correcting the May 27, 2014, sentencing entry to reflect that 120 days of the one-year prison sentence on the OVI count was indeed mandatory.

         {¶7} Morse filed this timely appeal from the trial court's nunc pro tunc entry and raises seven assignments of error for our review. To facilitate our analysis, we elect to address some of Morse's assignments of error out of order, and together.

         II.

         Assignment of Error I

         The trial court committed prejudicial error and denied Morse due process of law by accepting his guilty plea in [case number] CR 2013-08-2363 where the record does not demonstrate that ...


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