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State v. Straley

Court of Appeals of Ohio, Fourth District, Highland

July 27, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
GREGORY S. STRALEY, Defendant-Appellant.

          Gregory S. Straley, Chillicothe Correctional Institution, Chillicothe, Ohio, pro se appellant.

          Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Marie Hoover, Presiding Judge.

         {¶1} 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.

         I. Facts and Procedural Posture

         {¶2} 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.

         {¶3} 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 months.

         {¶4} At the plea hearing, the trial court in its Crim.R. 11 colloquy emphasized to Straley that none of the sentences were mandatory:

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 this case?
MR. STRALEY: Yes, Your Honor.

         {¶5} 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.

         {¶6} 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 sex-offender classification.

         {¶7} 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.

         {¶8} 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").

         {¶9} 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.

         {¶10} 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.

         II. Assignments of Error

         {¶11} 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 ...

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