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State v. Neguse

Court of Appeals of Ohio, Tenth District

March 29, 2018

State of Ohio, Plaintiff-Appellee,
v.
Mekria Neguse, Defendant-Appellant.

          APPEALS from the Franklin County Court of Common Pleas C.P.C. No. 89CR-4079), (C.P.C. No. 89CR-2888)

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

          Mekria Neguse, pro se.

          DECISION

          SADLER, J.

         {¶ 1} Defendant-appellant, Mekria[1] Neguse, appeals from the judgment entry of the Franklin County Court of Common Pleas denying appellant's motion to withdraw his guilty plea and motion for appointment of counsel. For the following reasons, we affirm the decision of the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On June 26, 1989, appellant was indicted on a single count of felonious assault, pursuant to R.C. 2903.11, with a gun specification arising from an alleged incident on or about May 29, 1989. On July 1, 1989, appellant was indicted on a single count of drug abuse, pursuant to R.C. 2925.11, arising from his alleged possession or use of a controlled substance on or about May 13, 1989. Both indictments list January 1, 1970 as appellant's date of birth. (June 26, 1989 Indictment at 3; Sept. 1, 1989 Indictment at 2.)

         {¶ 3} Appellant, who was appointed counsel, initially entered pleas of not guilty, and the cases were set for trial. A subpoena filed September 22, 1989 in the assault case commanded Rosemary Miller of Catholic Social Services to appear before the court to testify and bring information "relevant to determination of the age of [appellant], including of the age of this [appellant], including but not limited to documentation of a bone test conducted on [appellant] and submitted by your agency to the immigration and naturalization service." (Sept. 22, 1989 Subpoena at 1.) Another subpoena filed in the assault case on September 25, 1989 commanded the record keeper of Children's Hospital radiology department to appear before the court to testify and bring appellant's records including a test conducted on October 1, 1985 signed by Dr. Martha Miller.

         {¶ 4} On November 8, 1989, the state filed a memorandum contra appellant's motion to dismiss the indictments discussing cases that held a child who intentionally misrepresents his age waives his right to be processed as a child in juvenile court, and arguing appellant previously "either intentionally misrepresented himself or did not object to the assumption of jurisdiction" by the municipal court in pleading guilty to several prior charges. (Nov. 8, 1989 Memo. Contra at 1.) The motion to dismiss predicating this memorandum contra is not in the record on appeal.

         {¶ 5} On November 13, 1989, the prosecuting attorney, appellant, and appellant's counsel appeared in court. A transcript of this proceeding is not provided in the record on appeal. The following day, November 14, 1989, the trial court filed judgment entries in both cases indicating that appellant entered a plea of guilty to the drug abuse count as charged and to the stipulated lesser-included offense of assault, and the judge found appellant guilty of those charges. The judgment entries state that the trial court afforded counsel the opportunity to speak on behalf of appellant, addressed appellant personally, and afforded appellant an opportunity to make a statement on his own behalf and present information in mitigation of punishment. The trial court sentenced appellant to serve six months on the assault conviction, and one and one-half years on the drug abuse case. The trial court suspended incarceration in the drug abuse case and placed appellant on probation for a period of three years, allowing for revocation of probation if appellant violated its terms.

         {¶ 6} Written entries of appellant's guilty pleas are in the record accompanied by addendums entitled "notice regarding citizenship status, " a form which provides an advisement of consequences of pleading guilty to noncitizens and a place for defendants to select whether or not they are citizens of the United States. (Nov. 14, 1989 Addendum at 1.) On these notices, appellant indicated that "I, [appellant's name printed by hand], Defendant in the above-styled case, being represented by counsel, hereby state that: * * * I am a citizen of the United States of America"; appellant signed the forms and a handwritten note on the forms indicate that "Defendant states he is citizen[.] Court inquired and informed of rights." (Nov. 14, 1989 Addendum at 1.) Appellant did not appeal his assault or drug abuse convictions.

         {¶ 7} While on probation, on January 15, 1990, appellant shot a man, killing him. Appellant was convicted on charges of murder with a gun specification and having a weapon while under disability ("WUD"), and the trial court imposed a sentence of 15 years to life, plus an additional 3 years for the gun specification.

         {¶ 8} On July 6, 1990, counsel for appellant filed a motion to dismiss under the drug abuse case number asserting the trial court lacked jurisdiction due to appellant being a juvenile on the date the offense was committed. On September 30, 1990, after a hearing, the trial court revoked appellant's probation in the drug abuse case due to his murder and WUD conviction, thereby re-imposing the one and one-half year sentence on that conviction to be served consecutive to the sentence on the murder conviction.

         {¶ 9} In March 1991, this court affirmed appellant's murder and WUD conviction in State v. Neguse, 71 Ohio App.3d 596 (10th Dist.1991) ("Neguse I"). In Neguse I, appellant challenged the trial court's denial of his pretrial motion to dismiss the murder and WUD indictment for lack of jurisdiction based on his alleged status as a minor at the time of the murder. In addressing the issue of whether the trial court's denial of appellant's motion to dismiss in the murder case was supported by the evidence, we considered that both parties agreed appellant had stipulated to being 18 years old or more in 1989 for purposes of pleas in the drug abuse and assault cases, a copy of appellant's immigration card stating December 9, 1973 as his date of birth, records of the Franklin County Children's Services ("FCCS") and subsequent confusion over appellant's age, a bone marrow test that "evidently concluded that appellant's birth year was 1970, " certified copies of appellant's prior arrest records and convictions in five or six adult criminal cases in which appellant's birth date was listed as January 1, 1970, and appellant's testimony at the evidentiary hearing in the murder case in which he alleged the birth year assigned by FCCS to be incorrect but, nonetheless, "never objected to it because it allowed him to be released from [FCCS'] custody much sooner" and was unsure about his true birth date. Id. at 604. In determining the trial court's finding on jurisdiction to be supported by sufficient evidence, we discussed appellant apparently did inform his defense counsel in his 1989 cases that he was a minor and defense counsel nevertheless advised him to plead guilty but noted "a strong indication that his mother had arbitrarily assigned him the December 9, 1973 [birth]date" on entering the county, that appellant "juggled dates to suit his own purposes, " and that "the best evidence was the date ascertained by the medical examination, which was arbitrary for month and day, but was sufficient to establish that appellant was over eighteen years of age on January 15, 1990, " the date the murder occurred. Id. at 604-05.

         {¶ 10} Over the following 26 years, appellant filed and was denied several postconviction motions pertaining to his drug abuse and assault convictions. Pertinent to this appeal, in 1993, appellant filed a motion to vacate or set aside judgment asserting his conviction and sentences are void because he was a juvenile (16 years old) at the time of the offenses depriving the common pleas court of jurisdiction, no jurisdictional hearing was conducted, reliance on the bone test was erroneous as he was never examined or a patient of Children's Hospital, and his counsel provided ineffective assistance. Appellee filed a memorandum contra asserting appellant failed to appeal, and the issues raised by appellant were barred under the doctrine of res judicata. A hearing on the postconviction motion was held June 29, 1994, and the trial court overruled appellant's motion. Appellant appealed the denial of his postconviction motion, and on April 12, 1995, this court sua sponte dismissed the appeal due to the lack of a timely notice of appeal.

         {¶ 11} Later in 1995, appellant averred to being "a citizen of the United States" in an affidavit of indigency supporting a motion for production of court documents. (Sept. 29, 1995 Aff. at 1.)

         {¶ 12} On September 7, 1999, appellant filed a motion for delayed appeal regarding the trial court's denial of his 1993 postconviction motion. This court denied the motion in December 1999. On January 5, 2000, appellant again filed a notice of appeal of the trial court's denial of postconviction relief. This court sua sponte dismissed the appeal for lack of a timely filed notice of appeal.

         {¶ 13} On August 10, 2000, appellant filed a motion to withdraw his guilty pleas in the drug abuse and assault cases, alleging the trial court failed to advise him of the consequences of R.C. 2943.031, and he pled guilty under duress and without fully understanding the immigration consequence under R.C. 2943.031. The trial court overruled appellant's motion on October 11, 2000. Appellant filed a timely appeal of that decision and asserted three assignments of error related to R.C. 2943.031 for this court to review. In State v. Neguse, 10th Dist. No. 00AP-1207 (Mar. 20, 2001) (memorandum decision) ("Neguse II "), we affirmed the decision of the trial court. In doing so, we noted appellant signed a written guilty plea form and an addendum regarding citizenship status and provided no evidence of alleged citizenship in Ethiopia and found, based on the record, the trial court properly inquired as to appellant's citizenship status and determined appellant was a U.S. citizen.

         {¶ 14} On April 5, 2004, appellant filed a motion for relief from judgment, pursuant to Civ.R. 60(B) and Crim.R. 57, contending, among other arguments, he was a minor at the time of both offenses, the trial court erred in failing to determine appellant's age for purposes of determining jurisdiction, and the trial court erred in failing to hold appellant's ...


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