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State v. Stevens

Court of Appeals of Ohio, Ninth District, Summit

July 10, 2019

STATE OF OHIO Appellee
v.
CORY J. STEVENS Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2012-08-2481

          CORY J. STEVENS, Pro se, Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER J.

         {¶1} Defendant-Appellant, Cory J. Stevens appeals, pro se, the judgment of the Summit County Court of Common Pleas denying his motion to withdraw his guilty plea. We affirm.

         I.

         {¶2} This Court previously summarized the factual and procedural history of this case as follows:

On March 25, 2013, Mr. Stevens pleaded guilty to one count of rape in violation of [R.C.] 2907.02(A)(1)(b). The trial court sentenced him to life imprisonment with the possibility of parole after ten years and issued a sentencing entry on April 17, 2013. In the sentencing entry, the trial court wrote that the ten years was "not a mandatory term."

State v. Stevens, 9th Dist. Summit No. 27366, 2015-Ohio-4009, ¶ 2. Mr. Stevens did not file a direct appeal.

Mr. Stevens moved to withdraw his guilty plea on May 21, 2013. While that motion remained pending, the trial court issued a nunc pro tunc on June 4, 2013, which corrected the April 17, 2013 entry to indicate that the ten years prior to parole eligibility was a mandatory term. The trial court denied Mr. Stevens' motion to withdraw his plea on November 13, 2013. Mr. Stevens subsequently moved to vacate a void sentence, arguing that the nunc pro tunc entry improperly resentenced him without his presence in the courtroom. The trial court denied his motion[.]

Id. at ¶ 3. Stevens appealed and raised two assignments of error. Id. In his second assignment of error, Stevens seemed to argue that the nunc pro tunc entry was void because it materially changed his sentence and because he was not resentenced in person. Id. at ¶ 4. This Court noted, however, that the appellate record did not include a transcript of the sentencing hearing and concluded that Mr. Stevens had not demonstrated that the nunc pro tunc entry did anything beyond correcting a clerical error. Id. at ¶ 6. In his first assignment of error, Mr. Stevens argued that the trial court erred when it denied his motion to withdraw his guilty plea. This Court did not reach the merits of Mr. Stevens' first assignment of error, however, because it determined that Mr. Stevens' appeal was both untimely as it related to that order and outside the scope of the appeal since Mr. Stevens had not included the journal entry denying his motion to withdraw in his notice of appeal. Id. at ¶ 8.

         {¶3} On January 14, 2016, Mr. Stevens filed a second motion to withdraw his guilty plea, arguing that the trial court's nunc pro tunc entry was a breach of the plea bargain and that his trial counsel was ineffective. The trial court declined to review Mr. Stevens' motion, determining that it was duplicative and that the court had already ruled on the issues presented.

         {¶4} On January 8, 2018, Mr. Stevens filed a third motion to withdraw his guilty plea arguing that his guilty plea must be vacated to correct a manifest injustice because he "could not have intelligently accepted his plea of guilty if he was not advised by the trial court that his time was a mandatory sentence." Mr. Stevens asserted that a review of the transcript of his sentencing hearing shows that he was never advised that his sentence included mandatory time. The trial court denied Mr. Stevens' motion on three alternative grounds: first, the trial court determined that it did not have jurisdiction to consider the motion because Mr. Stevens' conviction had already been affirmed by this Court; second, the trial court determined that even if it did have jurisdiction, the doctrine of res judicata barred the court from considering his motion; and finally, the trial court determined that even if it were to consider the merits of Mr. Stevens' motion, "the record clearly shows he was provided with the terms of his plea, that he accepted the plea and that the [c]ourt's nunc pro tunc [j]ournal [e]ntry is consistent with the information provided to him prior to his guilty plea."

         {¶5} Mr. Stevens filed this timely appeal, raising five assignments of error for our review. As the assignments of error present the ...


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