Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony Thomas Miranda, Assistant Prosecuting
Attorney, for appellee.
Michael L. Shine, pro se.
JOURNAL ENTRY AND OPINION
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,
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.
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 ...