Court of Appeals of Ohio, Fourth District, Highland
Gregory S. Straley, Chillicothe Correctional Institution,
Chillicothe, Ohio, pro se appellant.
P. Collins, Highland County Prosecuting Attorney, Hillsboro,
Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
Hoover, Presiding Judge.
Defendant-appellant, Gregory S. Straley, appeals from the
judgment of the Highland County Court of Common Pleas denying
his post-sentence motion to withdraw his guilty plea. Because
the trial court abused its discretion by denying the motion
based on res judicata when it imposed a void sentence that
improperly consisted of a non-mandatory prison term, we
reverse the judgment and remand for further proceedings.
Facts and Procedural Posture
In September 2008, the Highland County Grand Jury returned an
indictment charging Straley with 14 counts, including five
counts of sexual battery, four counts of gross sexual
imposition, four counts of rape, and one count of illegal use
of a minor in nudity-oriented material or performance.
Straley initially pleaded not guilty to all of the charges.
In January 2009, Straley, who was represented by counsel,
withdrew his not-guilty plea and in return for the dismissal
of the remaining counts, pleaded guilty to two counts of
gross sexual imposition in violation of R.C. 2907.05(A)(4),
third-degree felonies, three counts of sexual battery in
violation of R.C. 2907.03(A)(5), second-degree felonies, two
counts of gross sexual imposition in violation of R.C.
2907.05(A)(1), fourth-degree felonies, and one count of
sexual battery in violation of R.C. 2907.03(A)(5), a
third-degree felony. The written plea form included a
handwritten "No" in the "Prison Term is
Mandatory/Consecutive" column for each of the offenses,
and an agreed prison sentence of various terms to be run
consecutively for an aggregate term of 35 years and 10
At the plea hearing, the trial court in its Crim.R. 11
colloquy emphasized to Straley that none of the sentences
THE COURT: Okay. Now, under the law none of these sentences
are mandatory, meaning that you have to be sent to prison.
Some cases there are mandatory prison sentences where
community control is not permitted. Community control is
permitted by law in this case. It's not recommended and
it's improbable that even if it were recommended that it
would be granted. * * * So, you understand that that is
legally possible, although it's not going to happen in
MR. STRALEY: Yes, Your Honor.
In one of the gross sexual imposition counts he pleaded
guilty to, Straley was charged with knowingly having sexual
contact with K.S. beginning on or about January 1, 2005 and
continuing through April 30, 2007, on Antioch Road in
Highland County, with K.S. being less than 13 years old
during that period. The three second-degree sexual battery
counts that Straley pleaded guilty to also involved the same
victim during the same period and at the same location, i.e.
they occurred when the victim was less than 13 years old and
included a period on or after August 3, 2006.
The trial court accepted Straley's plea and convicted him
of the offenses. It then proceeded to sentence him to the
agreed aggregate prison term of 35 years and 10 months, which
included consecutive seven-year terms for each of the
second-degree felony sexual battery convictions. The trial
court then issued a judgment entry reflecting the sentence.
In its sentencing entry, the trial court specified that
"a mandatory prison term * * * is not * * * required by
[R.C.] 2929.13(F)." The trial court did not mention any
On appeal, Straley, represented by counsel, raised several
assignments of error, including that "THE TRIAL COURT
ERRED BY IMPOSING A MANDATORY SENTENCE WITHOUT ADVISING THE
APPELLANT THAT THE SENTENCE WAS MANDATORY." We overruled
Straley's assignments of error and affirmed the trial
court's judgment. State v. Straley, 4th Dist.
Highland No. 09CA4, 2009-Ohio-6170 ("Straley
I"). For his assignment of error concerning the
trial court's purported imposition of a mandatory
sentence, we held that because the sentence was agreed to by
the parties, it was not reviewable under R.C. 2953.08(D)(1).
Id. at ¶¶ 23-26.
The trial court later issued a nunc pro tunc sentencing entry
to add his sex-offender classification. In its March 2012
nunc pro tunc entry, the trial court reiterated that "a
mandatory prison term * * * is not * * * required by [R.C.]
2929.13(F)." Subsequent appeals involved the trial
court's sex offender classification of Straley. See
State v. Straley, 4th Dist. Highland No. 12CA3,
2013-Ohio-3334 ("Straley II"); State
v. Straley, 4th Dist. Highland No. 13CA30,
2014-Ohio-5110 ("Straley III").
In April 2017, Straley filed a Crim.R. 32.1 motion to
withdraw his guilty plea. He claimed that res judicata did
not apply to his motion and that his guilty plea was invalid
because the trial court's sentence on his three
second-degree felony sexual battery convictions was void
because it imposed a non-mandatory prison sentence when a
mandatory prison sentence was required. The State filed a
response; and Straley submitted a reply to the response.
The trial court denied the motion, finding that res judicata
barred it. In the alternative, the court found that Straley
had not established a manifest injustice because he did not
allege that at the time of his plea, he was unaware that the
sentences for his second-degree felony sexual battery charges
were mandatory or that he would not have entered a guilty
plea had he known of their mandatory nature; and he waited
eight years to file his motion.
Assignments of Error
Straley assigns the following errors for our review:
I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING
THE MOTION TO WITHDRAW BY APPLYING RES JUDICATA ...