Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeal from the Trumbull County Court of Common
Pleas. Case No. 2014 CR 00395.
Watkins, Trumbull County Prosecutor, and Gabriel Wildman,
Assistant Prosecutor, (For Plaintiff-Appellee).
E. Carnes, pro se, (Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, Mark E. Carnes, appeals from the August 7, 2017
judgment of the Trumbull County Court of Common Pleas,
denying his motion to withdraw his guilty plea. The trial
court's judgment is affirmed.
On May 16, 2014, appellant was indicted by appellee, the
state of Ohio, on five counts of rape, felonies of the first
degree, in violation of R.C. 2907.02(A)(2) and (B); five
counts of unlawful sexual conduct with a minor, felonies of
the third degree, in violation of R.C. 2907.04(A) and (B)(3);
five counts of compelling prostitution, felonies of the third
degree, in violation of R.C. 2907.21(A)(2)(a) and (C); and
eleven counts of illegal use of a minor in nudity-oriented
material or performance, felonies of the second degree, in
violation of R.C. 2907.323(A)(1) and (B). Specifically, the
indictments alleged that appellant had engaged in this
conduct with two female minors from 2009 through 2014. In
2009, the victims were approximately 11 and 13 years old.
Appellant signed a written plea of guilty and pled guilty in
open court to five counts of unlawful sexual conduct with a
minor, five counts of compelling prostitution, and eleven
counts of illegal use of a minor in nudity-oriented material
or performance. The trial court accepted the plea, and a
nolle prosequi was entered on the remaining five counts of
rape. The trial court deferred sentencing and ordered a
presentence investigation report.
On November 13, 2014, the trial court held a sentencing
hearing. Pursuant to the November 20, 2014 sentencing entry,
the trial court found the five counts of unlawful sexual
conduct with a minor merged with the five counts of
compelling prostitution, respectively, as they were allied
offenses of similar import. Appellee elected to sentence on
the five counts of unlawful sexual conduct with a minor.
Appellant was sentenced to 60 months imprisonment for each
count of unlawful sexual conduct with a minor, to be served
consecutively to each other. Appellant was also sentenced to
eight years imprisonment for each of the eleven counts of
illegal use of a minor in nudity-oriented material or
performance, to be served concurrently with each other but
consecutively to the sentences for unlawful sexual conduct
with a minor. This resulted in an aggregate prison term of 33
years. Appellant was also fined $10, 000.00 and classified as
a Tier II Sex Offender.
Appellant filed a direct appeal from this sentencing entry,
arguing the trial court's imposition of consecutive
sentences was both contrary to law and not supported by the
record. The judgment was affirmed in State v.
Carnes, 11th Dist. Trumbull No. 2014-T-0120,
On May 25, 2017, appellant filed a motion to withdraw his
guilty plea, in which he argued the indictment in this case
violated his constitutional right to due process and
unconstitutionally denied him protection against double
jeopardy. The trial court denied this motion without a
hearing on May 31, 2017. No appeal was taken from this order.
On July 31, 2017, appellant filed a second motion to withdraw
his guilty plea, in which he raised the same arguments. The
trial court again denied the motion without a hearing on
August 7, 2017.
Appellant noticed an appeal from this entry and asserts one
assignment of error for our review:
Mr. Carnes' conviction must be reversed because the
guilty plea entered was manifest injustice where the
intelligence aspect were [sic] based on an invalid indictment
due to its duplicitous and multiple nature denying Mr. Carnes
of his constitutional right against double jeopardy.
Although appellant's brief on appeal is largely
undecipherable, it appears his essential argument is that his
pleas were not entered intelligently because of alleged
defects in his indictment. Specifically, he "contest[s]
the duplicitous nature of his Indictment that contained
multiple counts of the same offense and where the dates of
birth made the latter counts incorrect and fictitious."
Appellee responds that ...