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State v. Howard

Court of Appeals of Ohio, Second District, Montgomery

December 27, 2019

STATE OF OHIO Plaintiff-Appellee
STEPHAN J. HOWARD Defendant-Appellant

          Trial Court Case No. 1998-CR-1345/2 Criminal Appeal from Common Pleas Court

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Plaintiff-Appellee

          STEPHAN J. HOWARD, Defendant-Appellant, Pro Se


          FROELICH, J.

         {¶ 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.

         I. 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 counsel.

         {¶ 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 board[.]"

         {¶ 12} Howard did not appeal his convictions.

         {¶ 13} In February 2004, Howard filed a petition for post-conviction relief[1] 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 voluntarily.

         {¶ 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.[2] 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.

         II. Standard of Review for Post-Sentence Motion to Withdraw Plea

         {¶ 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, 1999).

         {¶ 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.

         III. 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 ...

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