Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 1998-CR-1345/2 Criminal Appeal from Common
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for
STEPHAN J. HOWARD, Defendant-Appellant, Pro Se
1} Stephan J. Howard appeals from the trial
court's denial of his post-sentence motion to withdraw
his guilty pleas. For the following reasons, the trial
court's judgment will be affirmed.
Factual and Procedural History
2} According to the prosecutor's statements at
the plea hearing, on April 15, 1998, Howard and two other
individuals went to an apartment on Vernon Drive to commit a
robbery. One accomplice, known as Tater, knocked on the
apartment door and engaged an occupant in conversation to
scope out the apartment. After Tater left, Howard and his
co-defendant, Dorian Dorsey, both armed with firearms and
with their faces mostly concealed, kicked open the door and
entered the apartment. Howard announced to the five occupants
in the apartment that it was a robbery. Howard opened fire in
the apartment, striking and killing Walker Lee Smith (an
occupant) and wounding his co-defendant, Dorsey. (The police
later determined that Smith and Dorsey had been shot with the
same 9mm weapon.) Some individuals in the apartment returned
fire, striking Howard.
3} Tater drove Howard and Dorsey to the hospital.
Howard gave the police conflicting statements at the
hospital, and ultimately admitted that he had gone to the
apartment to commit a robbery. Howard and Dorsey each named
the other as the shooter. However, occupants of the apartment
identified Howard's clothing and, based on the height
difference between the individuals involved, placed the 9mm
weapon in Howard's hands. One of the apartment's
occupants subsequently identified Howard from a photospread.
4} Soon thereafter, Howard was indicted on 13
charges: aggravated murder, aggravated burglary, six counts
of aggravated robbery, and five counts of felonious assault
(deadly weapon); each charge included a firearm
specification. In May 1998, the parties filed a joint request
for discovery and acknowledgment of the receipt of the
prosecution's provision of discovery to Howard's
5} Howard subsequently moved to suppress the
witness's photo identification of him and, in a separate
motion, any statements that he (Howard) made to the police.
The trial court held hearings on June 18 (statements) and
September 4, 1998 (eyewitness identification). It
subsequently overruled the motion related to the statements
on September 10, 1998 and the motion related to the
identification on December 3, 1998.
6} In November 1998, Howard retained counsel, who
was substituted for Howard's appointed counsel. In April
1999, Howard twice sought additional discovery from the
State. His first motion requested 13 enumerated items, many
of which related to items discoverable under Crim.R. 16(B).
His second motion requested "the personnel and internal
affairs records of all the police officers and/or
sheriff's detectives and/or DEA, ATF, and/or FBI agents
and any and all law enforcement officers listed in the
discovery furnished to the Defendant to date." Howard
also moved for a continuance of the trial date. On April 23,
1999, the court continued the trial date to June 7, 1999.
7} On June 4, 1999, the trial court granted the
first motion for discovery, to the extent that the items were
discoverable under the Criminal Rules, and it overruled the
second motion, stating that "[s]uch records are not part
of the materials discoverable under Criminal Rule 16."
The court noted that Howard "may be able to obtain some
records under the Ohio Public Records Act."
8} On the morning of June 7, 1999, Howard filed a
motion "to continue trial date; motion to require State
to deliver Brady and Rules 12 and 16 material
forthwith." However, that same day, Howard withdrew the
motion and pled guilty to aggravated murder with a firearm
specification (Count 1), four counts of aggravated robbery
(Counts 3-6), and three counts of felonious assault (Counts
9, 11, 12). As part of the plea agreement, Count 2
(aggravated burglary), Counts 7 and 8 (aggravated robbery),
and Counts 10 and 13 (felonious assault), as well as all
firearm specifications except for Count 1, were dismissed.
The State indicated at the plea hearing that Howard would
agree to provide information regarding the circumstances
surrounding Smith's death, including providing testimony
if called to do so by the State. The prosecutor further
indicated that the State would recommend a three-year
sentence for the felonious assault and aggravated robbery
charges, to run concurrently with each other, but
consecutively to the life sentence for aggravated murder and
the firearm specification. The court clarified that, under
the parties' proposed sentence, Howard would be required
to serve 26 years before he would be eligible for parole.
9} After the prosecutor provided a brief statement
of the facts underlying the charges (summarized above),
defense counsel indicated that the plea agreement was the
result of "strenuous plea bargaining," that
Howard's version of events was not entirely consistent
with the facts as provided by the prosecutor, and that
"[t]here were some things upon which reasonable minds
will differ." Nevertheless, defense counsel noted that
Howard had already entered his guilty pleas and "[w]e
stand on our plea."
10} Following the Crim.R. 11 colloquy and consistent
with the parties' agreement, the trial court immediately
sentenced Howard to life in prison (with eligibility for
parole after 20 years) for the aggravated murder and three
years for each of the remaining counts, to be served
concurrently with each other, but consecutively to the
aggravated murder sentence. The court also imposed an
additional three years for the firearm specification, to be
served consecutively to and prior to the other sentences.
Howard's aggregate sentence was 26 years to life in
prison. The trial court advised Howard that he would be
subject to post-release control for each of the offenses.
Howard did not object to the sentence.
11} The court filed its judgment entry on June 11,
1999. The prison sentence was consistent with the court's
oral pronouncement. With respect to post-release control, the
judgment stated, "Following the defendant's release
from prison, the defendant will/may serve a period of
post-release control under the supervision of the parole
12} Howard did not appeal his convictions.
13} In February 2004, Howard filed a petition for
post-conviction relief The trial court granted summary judgment
for the State on the ground that the petition was untimely
and the untimeliness was not excused. We affirmed the trial
court's judgment. State v. Howard, 2d Dist.
Montgomery No. 20457, 2005-Ohio-54.
14} On December 11, 2018, Howard moved to withdraw
his guilty pleas and to vacate the "void post release
control sentence." With respect to his motion to
withdraw his pleas, Howard argued that there were
insufficient facts to support his convictions, that the
photograph lineup was impermissibly suggestive, that he was
not allowed to plead no contest, that his trial and appellate
counsel rendered ineffective assistance, that the State's
version of events at the plea hearing was materially false,
and that his ability to prepare for trial was hampered by the
State's failure to provide full and fair discovery.
Howard further claimed that the trial court erred in advising
him regarding post-release control as to the aggravated
murder charge. Howard supported his motion with his own
affidavit, a copy of the docket sheet, a transcript of the
plea hearing, and a police report for the incident.
15} The trial court denied the motion to withdraw
the pleas without a hearing. The court characterized
Howard's motion as raising four allegations of manifest
injustice: (1) the evidence did not support his conviction,
(2) the State failed to provide discovery, which led to
ineffective assistance of counsel, (3) his pleas were not
voluntary, because the State would not allow him to plead no
contest, and (4) his pleas generally were not knowing,
intelligent, and voluntary. With regard to the first
allegation, the trial court concluded that it "was not
required to determine whether the evidence supported a
conviction for aggravated murder or a lesser offense pursuant
to Crim.R. 11(C)(3) and Defendant's sufficiency of the
evidence argument was waived by the entry of Defendant's
pleas." The court concluded that Howard's additional
arguments were barred by res judicata. The court further
concluded, alternatively, that Howard's second allegation
was waived by his guilty pleas and there was no evidence that
his counsel's performance was deficient, that
Howard's pleas were not involuntary due to the mere fact
that his decision to enter a guilty plea was a difficult one,
and that the record did not support Howard's claim that
his pleas were not made knowingly, intelligently, and
16} As to the imposition of post-release control,
the trial court agreed that it had erroneously imposed
post-release control for the aggravated murder count, and it
vacated that order.
17} Howard, pro se, appeals from the denial of his
motion to withdraw his pleas, raising six assignments of
error on appeal. His assignments of error claim: (1) the
trial court erred in failing to conduct a hearing on the
motion to withdraw his pleas, (2) insufficient facts existed
to support his convictions, (3) he was denied the effective
assistance of counsel, because "the denial of a full and
fair Brady discovery obstructed his trial
counsel's ability to provide appellant Howard an adequate
defense," (4) the void post-release control advisement
mandates that his pleas be withdrawn, as a matter of law, (5)
he was denied due process by the trial court's use of a
nunc pro tunc entry to deny his motion to withdraw his guilty
pleas and its failure to conduct a hearing, and (6)
Howard's right to be present for a critical stage of the
criminal proceedings was violated when he was absent from the
hearing on the motion to suppress the identification.
18} Howard's arguments in support of his
assignments of error are somewhat unclear and do not
necessarily correspond to the assignment of error raised. For
simplicity, we will focus on the issues raised in
Howard's appellate brief, rather than the specific
language of the assignments of error.
Standard of Review for Post-Sentence Motion to Withdraw
19} Under Crim.R. 32.1, a trial court may permit a
defendant to withdraw a plea after imposition of sentence
only to correct a manifest injustice. Crim.R. 32.1; State
v. Wilson, 2d Dist. Montgomery No. 26354,
2015-Ohio-1584, ¶ 16. "A 'manifest
injustice' comprehends a fundamental flaw in the path of
justice so extraordinary that the defendant could not have
sought redress from the resulting prejudice through another
form of application reasonably available to him or her."
State v. Brooks, 2d Dist. Montgomery No. 23385,
2010-Ohio-1682, ¶ 8, citing State v. Hartzell,
2d Dist. Montgomery No. 17499, 1999 WL 957746 (Aug. 20,
20} Withdrawal of a plea after sentencing is
permitted only in the most extraordinary cases. State v.
Jefferson, 2d Dist. Montgomery No. 26022,
2014-Ohio-2555, ¶ 17, citing State v. Smith, 49
Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). "The
defendant bears the burden of establishing the existence of a
manifest injustice, and whether that burden has been met is
an issue within the sound discretion of the trial
court." Wilson at ¶ 18.
Timeliness of Howard's Motion
21} At the outset, Howard filed his motion to
withdraw his pleas in December 2018, which was 19½
years after he pled guilty. "Crim.R. 32.1 places no
temporal limitation on the ability of courts to 'correct
manifest injustice' by setting aside a conviction after a
sentence and permitting the defendant to withdraw his or her
plea." State v. Ward, 10th Dist. Franklin No.
15AP-794, 2016-Ohio-216, ¶ 7, quoting State v.
Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 14.
However, as we recently stated in State v. Johnston,
2d Dist. Miami No. 2018-CA-26, 2019-Ohio-4296:
"[A]n undue delay between the occurrence of the alleged
cause of a withdrawal of a guilty plea and the filing of a
Crim.R. 32 motion is a factor adversely affecting the
credibility of the movant and militating against the granting
of the motion." State v. Harden, 2d Dist.
Montgomery No. 22839, 2009-Ohio-3431, ¶ 7, citing
Smith,49 Ohio St.2d 261, 361 N.E.2d 1324. "The
more time that passes between the defendant's plea and
the filing of the motion to withdraw it, the more probable it
is that evidence will become stale and that witnesses will be
unavailable." State v. Francis, 104 Ohio St.3d
490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 40. "The
state has an interest in maintaining the finality of a
conviction that has been considered a closed case for a long
period of time." Id. "It is certainly