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State v. Shine

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 18, 2019

STATE OF OHIO, Plaintiff-Appellee,
MICHAEL L. SHINE, Defendant-Appellant.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-99-371342-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony Thomas Miranda, Assistant Prosecuting Attorney, for appellee.

          Michael L. Shine, pro se.


          LARRY A JONES, SR., J.

         {¶ 1} This is a murder case in which defendant-appellant Michael Shine ("Shine") pleaded guilty in 1999 to amended charges of the indictment, those being, Count 2, murder, and Count 4, attempted murder, both felonies of the first degree. The trial court sentenced Shine to concurrent sentences of 15 years to life on the murder and ten years on the attempted murder. The trial court also imposed a $40, 000 fine, which consisted of $20, 000 on each count. The sentencing entry did not mention postrelease control. Shine did not file a direct appeal.

         {¶ 2} There was no substantive activity on the case until July 2018, when Shine, pro se, filed the following motions: (1) "for sentencing (to correct a fundamental miscarriage of justice)"; (2) "for preparation of complete transcript of proceedings at state expense"; and (3) "to withdraw guilty plea." In August 2018, the trial court denied Shine's motion to withdraw his plea; it did not rule on the other motions. Shine has appealed the judgment denying his motion to withdraw his plea, challenging the following: (1) the lack of notification regarding postrelease control and the consequences for violating same; (2) the lack of a "mens rea component" for the attempted murder conviction; (3) the voluntariness of his plea; and (4) the imposition of the $40, 000 fine.

         {¶ 3} Generally, in a criminal case, the state must provide a defendant who is indigent a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. State v. Arrington, 42 Ohio St.2d 114, 326 N.E.2d 667 (1975), paragraph one of the syllabus. The defendant receives the benefit of a presumption of entitlement to the transcript without demonstrating need. Id. at paragraph four of the syllabus; see also State v. Bayles, 8th Dist. Cuyahoga No. 88094, 2007-Ohio-1008, ¶ 9 ("An indigent defendant is entitled to relevant portions of a transcript at public expense if he [or she] is entitled to a direct appeal of his [or her] conviction or he [or she] has presently pending an appeal or some other comparable postconviction action.")

         {¶ 4} The burden rests upon the state to demonstrate that the defendant does not need the transcript. Arrington at paragraph two of the syllabus. The state may meet its burden by showing that the transcript is not valuable to the defendant or that the defendant possesses alternate devices that would fulfill the same function as the transcript. Id. at paragraph three of the syllabus.

         {¶5} The state filed a response to Shine's request for the transcript, acknowledging that Shine is generally entitled to it and stating that it did not oppose his request. The state noted, however, that given the age of the case, it may be that preparation of a transcript is not possible. Because the trial court never ruled on Shine's motion for the transcript, we remanded the case in May 2019 so that a determination could be made as to whether the transcript of proceedings was available; if so, we stated that Shine was entitled to it.

         {¶ 6} In a judgment dated May 21, 2019, the trial court denied Shine's motion for the transcript, stating that it had contacted the court reporter's office and been advised that the transcript was unavailable. We now therefore proceed to consider the merits of his appeal. He raises the following assignment of error for our review:

Where, as here, the trial court's journal entry is patently devoid of any: (1) notification that a mandatory (5) five-year period of postrelease control was required to be imposed, O.R.C. Section 2967.28; (2) any of the consequences associated with a violation of a postrelease control sanction, O.R.C. Section 2943.032(E); and, Woods v. Telb (2000), 89 Ohio St.3d 504, 511; and, O.R.C. Section 2929.141(A); and, (3) a patent absence of a "mens rea component" in association with an underlying offense alleging "attempted murder," O.R.C. Section 2903.02(B); and, (4) any notification of the existence of any "appellate rights," defendant's guilty plea may not be reasonably deemed as intelligently, voluntarily, and knowingly made and a resultant motion to withdraw such plea must be deemed a "presentence" motion to withdraw guilty plea as defined in: State v. Boswell, 121 Ohio St.3d 575. See also: Crim.R. 11(C)(2)(a).

         {¶ 7} The standard for reviewing a motion to withdraw a plea depends on whether the motion was made before sentencing or after sentencing.

A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and ...

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