[Cite as State v. Smith,
2012-Ohio-4240.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs- Case Nos. 11 CA 119, 11 CA 120 and
11 CA 121
MONTE SMITH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case Nos. 07 CR 221 and
07 CR 370
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 17, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT ELIZABETH N. GABA
PROSECUTING ATTORNEY 1231 East Broad Street
CHRISTOPHER A. REAMER Columbus, Ohio 43205
ASSISTANT PROSECUTOR
20 South Second Street
Newark, Ohio 43055
Licking County, Case No. 11 CA 119, 11 CA 120 and 11 CA 121 2
Wise, J.
{¶1} Defendant-Appellant Monte E. Smith appeals the November 2011 nunc
pro tunc sentencing entries concerning his 2008 convictions, rendered subsequent to
pleas of guilty and no contest, on various counts of cocaine trafficking and cocaine
possession, in the Court of Common Pleas, Licking County. Appellee is the State of
Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On March 9, 2007, appellant was indicted by the Licking County Grand
Jury on charges of possession of cocaine, trafficking in cocaine, and attempted illegal
manufacture of drugs, with forfeiture specifications, under case number 07 CR 117.
{¶3} However, on May 3, 2007, appellant was re-indicted under case number
07 CR 221 and charged with two counts of trafficking in crack cocaine, one count of
illegal manufacture of drugs, three counts of possession of cocaine, with forfeiture
specifications, and one count of possession of drug paraphernalia. Case number 07 CR
117 was ultimately dismissed by the State.
{¶4} On July 9, 2007, appellant was also indicted under case number 07 CR
370 on one count of trafficking in cocaine, R.C. 2925.03(A)(1)(C)(4)(d), a second-
degree felony. On September 17, 2007, the second count in case number 07 CR 221
(trafficking in crack cocaine, R.C. 2925.03(A)(1)(C)(4)(f), a first-degree felony) was
correspondingly dismissed at the State’s request. Case number 07 CR 221 and case
number 07 CR 370 were thereupon consolidated for further proceedings at the trial
court level.
{¶5} On January 24, 2008, the scheduled trial date, the parties indicated that a
plea agreement had been reached, and a plea hearing was thereupon conducted. At
Licking County, Case Nos. 11 CA 119, 11 CA 120 and 11 CA 121 3
said plea hearing, certain negotiations took place, which were accepted by the trial
court.
{¶6} Appellant thereupon entered pleas of guilty to the first and fourth count of
the indictment in case number 07 CR 221, i.e., trafficking in crack cocaine (a felony of
the first degree) and possession of cocaine (a felony of the third degree), respectively.
Appellant also entered a no contest/Alford plea as to the sixth count of the indictment in
said case, possession of cocaine (also a felony of the third degree). Finally, appellant
entered a guilty plea to the count of trafficking in cocaine in Case No. 07 CR 370, with
said count later being amended from a felony of the second degree to a felony of the
third degree.
{¶7} The judgment entry on the pleas in each case was filed on January 25,
2008, and attached to the judgment entry in each case was a completed plea form. The
trial court ordered a pre-sentence investigation and report at that time.
{¶8} On March 19, 2008, a sentencing hearing was conducted. At that time the
trial court sentenced appellant in case number 07 CR 221 to three years on the
aforesaid first count, two years on the fourth count, and two years on the sixth count, to
run consecutively with each other and consecutive with a sentence of two years on the
single count in case number 07 CR 370, for a total of nine years. On March 20, 2008, a
written judgment entry in each case was filed.
{¶9} Appellant thereupon appealed to this Court, challenging the trial court’s
denial of his motion to dismiss the indictment (based on speedy trial grounds) and the
trial court’s imposition of consecutive sentences. On April 8, 2009, we overruled
Licking County, Case Nos. 11 CA 119, 11 CA 120 and 11 CA 121 4
appellant’s assigned errors and affirmed his convictions and sentence. See State v.
Smith, Licking App.Nos. 08 CA 42, 08 CA 43, 2009-Ohio-1684.
{¶10} While the aforesaid appeal was pending, on October 1, 2008, the trial
court issued a judgment entry in case number 07 CR 221, at the State’s behest,
clarifying that counts three, five, and seven of the indictment in that case were
dismissed. Similarly, on September 30, 2008, the trial court issued a judgment entry in
case number 07 CR 370, again at the State’s behest, clarifying that the cocaine
trafficking count in that case was amended to a third-degree felony.
{¶11} On January 19, 2010, appellant filed in the trial court a motion to vacate
(using both case numbers 07 CR 221 and 07 CR 370) regarding his sentencing entries
and amended judgment entries of March 20, 2008, October 1, 2008, and September 30,
2008, as well as a motion for resentencing, and a motion for immediate release from
incarceration.
{¶12} On April 12, 2010, appellant additionally filed a motion to withdraw his
pleas entered in 2008.
{¶13} On August 16, 2010, the State filed memoranda in response to the
aforesaid motions.
{¶14} On September 27, 2010, via judgment entry, the trial court denied the
motion to withdraw pleas in each case number. However, the court further ordered
appellant’s motion to vacate in 07 CR 370 to be set for a resentencing hearing.
{¶15} Appellant thereupon appealed to this Court the September 27, 2010
decision denying the requested withdrawal of pleas. Said appeal was assigned
Licking County, Case Nos. 11 CA 119, 11 CA 120 and 11 CA 121 5
appellate case numbers 10 CA 113 and 10 CA 114. However, on February 3, 2011, we
dismissed same for want of prosecution and the lack of a brief by appellant.
{¶16} On November 3, 2011 and November 7, 2011, the trial court issued nunc
pro tunc judgment entries correcting appellant’s post-release control notification.
Specifically, two nunc pro tunc entries were filed in 07 CR 221, while one nunc pro tunc
entry was filed in 07 CR 370.
{¶17} On December 2, 2011, appellant filed three notices of appeal as to the
judgment entries of November 3, 2011 and November 7, 2011. He herein raises the
following seven Assignments of Error:
{¶18} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION BY NOT CONSIDERING HIS MOTION TO
WITHDRAW PLEAS UNDER A PRE-SENTENCE STANDARD.
{¶19} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION BY NOT FINDING THAT THE STATE PURPOSELY
AND ILLEGALLY PLACED IN THE COURT FILE INFORMATION THAT WAS GIVEN
UNDER THE GUISE OF IMMUNITY, WITHOUT MIRANDA WARNINGS AND AS A
RESULT USED BY THE COURT AT SENTENCING TO SET FORTH CONSECUTIVE
SENTENCES AND A NINE-YEAR SENTENCE ON A FIRST-TIME OFFENDER.
{¶20} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION BY NOT FINDING THAT THE STATE FILED ALL ITS
DISCOVERY IN THESE CASES, IN ORDER TO MAKE THEM JUDICIAL RECORDS
OPEN TO THE PUBLIC, IN CONTRAVENTION OF DEFENDANT'S 5TH, 6TH, AND 14TH
AMENDMENT RIGHTS. THE TRIAL COURT FURTHER ERRED BY NOT FINDING
Licking County, Case Nos. 11 CA 119, 11 CA 120 and 11 CA 121 6
THAT THE STATE FILED ALL ITS DISCOVERY IN THE COURT FILE, TO PROVIDE
MATERIALS TO THE COURT FOR THE COURT TO RELY ON IN DETERMINING
THE STATE'S AND DEFENDANT'S SUBSTANTIVE RIGHTS. THE TRIAL COURT
ERRED BY NOT FINDING THAT THE STATE THEREFORE HAD MATERIALLY
PREJUDICED ANY AND ALL ADJUDICATIVE PROCEEDINGS IN THE CASE FROM
THE MOMENT IT PUBLICALLY FILED DISCOVERY.
{¶21} “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION BY NOT FINDING THAT APPELLANT THEREFORE,
HAS A COMPLETE DUE PROCESS/OUTRAGEOUS CONDUCT DEFENSE TO ALL
CHARGES ON CONTRACT LAW AND FUNDAMENTAL FAIRNESS PRINCIPLES.
{¶22} “V. THE TRIAL COURT, IN THE ALTERNATIVE, ERRED TO THE
PREJUDICE OF APPELLANT AND ABUSED ITS DISCRETION BY NOT FINDING
THAT THE INFORMATION GIVEN TO POLICE BY THIS CRIMINAL DEFENDANT
WAS USED AGAINST OTHER PERSONS, RESULTING IN ARRESTS, WHERE THAT
INFORMATION SHOULD BE CREDITED TO THIS DEFENDANT FOR SENTENCING
PURPOSES.
{¶23} “VI. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION BY NOT FINDING THAT THE DEFENDANT'S
PLEAS ARE MISCONSTRUED BY THE STATE AND THEN THE COURT, AND ARE
FURTHER NOT KNOWING, INTELLIGENT OR VOLUNTARY; THEY ARE VOID.
{¶24} “VII. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION BY NOT FINDING THAT EVEN UNDER A
Licking County, Case Nos. 11 CA 119, 11 CA 120 and 11 CA 121 7
‘MANIFEST INJUSTICE’ STANDARD, DEFENDANT IS ENTITLED TO WITHDRAW
HIS PLEAS.”
I.
{¶25} In his First Assignment of Error, appellant contends the trial court erred in
failing to address his Crim.R. 32.1 motion to withdraw pleas utilizing a “pre-sentence”
standard. We disagree.
{¶26} Crim.R. 32.1 reads as follows: “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 permit the
defendant to withdraw his or her plea.”
{¶27} Thus, the standard upon which the trial court is to review a request for a
change of plea after sentence is whether there is a need to correct a “manifest
injustice.” State v. Marafa, Stark App.Nos. 2002CA00099, 2002CA00259, 2003-Ohio-
257, ¶ 8. Under the manifest injustice standard, a post-sentence withdrawal motion is
allowable only in extraordinary cases. State v. Aleshire, Licking App.No. 09–CA–132,
2010–Ohio–2566, ¶ 60, citing State v. Smith (1977), 49 Ohio St.2d 261, 264,
361
N.E.2d 1324. In contrast, unlike the “manifest injustice” standard governing a post-
sentence motion, Crim.R. 32.1 has no specific guidelines for granting a presentence
motion to withdraw a guilty plea. State v. Calloway, Hamilton App.No. C–040066, 2004–
Ohio–5613, ¶ 11, citing State v. Xie (1992),
62 Ohio St.3d 521, 526,
584 N.E.2d 715. A
presentence motion to withdraw a plea should be freely and liberally granted; however,
the decision is left to the trial court's sound discretion.
Id., citing
Xie at 526.
Licking County, Case Nos. 11 CA 119, 11 CA 120 and 11 CA 121 8
{¶28} In the case sub judice, the trial court denied appellant’s Crim.R. 32.1
motion via a judgment entry filed September 27, 2010. Appellant maintains that the trial
court should have applied the more liberal “pre-sentence” standard to said motion on
the theory that his original convictions and sentence were not final appealable orders
pursuant to State v. Baker (2008), 119 Ohio St.3d 197, 201,
893 N.E.2d 163, 2008-
Ohio-3330, which requires that the plea (if applicable), means of conviction, and
sentence all be set forth in one judgment entry. Specifically, appellant maintains that his
original sentencing entries failed to indicate that the State had dismissed counts three,
five, and seven in case 07 CR 221, that count two in case 07 CR 221 had been
previously dismissed, and that count one in case 07 CR 370 had been amended from a
second-degree to a third-degree felony. See Appellant’s Brief at 16.
{¶29} In Baker, the Ohio Supreme Court outlined the necessary requirements for
an order to be a final, appealable order in a criminal case: “We now hold that a
judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth
(1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction
is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by
the clerk of court. Simply stated, a defendant is entitled to appeal an order that sets
forth the manner of conviction and the sentence.” Id. at 201. Baker was subsequently
modified and clarified in State v. Lester,
130 Ohio St.3d 303,
958 N.E.2d 142, 2011-
Ohio-5204, wherein the Ohio Supreme Court held, at paragraph one of the syllabus: “A
judgment of conviction is a final order subject to appeal under R.C. 2505.02 when it sets
forth (1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) the
time stamp indicating the entry upon the journal by the clerk.” Nonetheless, Baker “ ‘ …
Licking County, Case Nos. 11 CA 119, 11 CA 120 and 11 CA 121 9
does not require a reiteration of those counts and specifications for which there were no
convictions, but were resolved in other ways, such as dismissals, nolled counts, or not
guilty findings.’ ” State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas,
127
Ohio St.3d 29, 30,
936 N.E.2d 41,
2010-Ohio-4728, ¶ 2, quoting State ex rel. Davis v.
Cuyahoga Cty. Court of Common Pleas, Cuyahoga App. No. 93814,
2010-Ohio-1066,
2010 WL 972808, ¶ 8.
{¶30} Upon review, we hold the claimed omissions in the original sentencing
entries herein asserted by appellant do not establish a failure by the trial court to
adequately set forth the manner or fact of conviction and thus do not implicate the rule
of Baker and/or Lester; therefore, the trial court correctly utilized a “post-sentence”
standard in ruling upon appellant’s motion to withdraw his 2008 pleas. Furthermore, as
further discussed infra, issues pertaining to the requested withdrawal of pleas were thus
ripe for appeal following the trial court’s judgment entry denying appellant’s Crim.R. 32.1
motion on September 27, 2010, and his present claims in this regard are thus untimely.
See App.R. 4(A).
{¶31} Appellant’s First Assignment of Error is overruled.
II., III., IV., V., VI., VII.
{¶32} In his Second, Third, Fourth, Fifth, Sixth, and Seventh Assignments of
Error, appellant contends, on various grounds, that the trial court improperly denied his
motion to withdraw his 2008 pleas, even under a post-sentence “manifest injustice”
burden under Crim.R. 32.1.
{¶33} A Crim.R. 32.1 motion is not a challenge to the validity of a conviction or
sentence, and instead only focuses on the plea. See State v. Bush, 96 Ohio St.3d 235,
Licking County, Case Nos. 11 CA 119, 11 CA 120 and 11 CA 121 10
2002-Ohio-3993,
773 N.E.2d 522, ¶ 13. Our review of the trial court's decision under
Crim.R. 32.1 is limited to a determination of whether the trial court abused its discretion.
See State v. Caraballo (1985),
17 Ohio St.3d 66,
477 N.E.2d 627. However, as a
procedural matter, as we indicated in our earlier recitation of the facts and case,
appellant’s notices of appeal in this matter go to the November 3, 2011 and November
7, 2011 nunc pro tunc resentencing entries issued for the limited purpose of correcting
notification of post-release control, brought about by appellant’s motion to vacate filed
January 19, 2010. Appellant’s subsequent motion to withdraw pleas was separately filed
on April 12, 2010 and denied by the trial court via judgment entries on September 27,
2010, at which time the court also indicated that it would set the motion to vacate in 07
CR 370 for a later hearing pursuant to R.C. 2929.191. Appellant thereupon timely filed
notices of appeal from the September 27, 2010 denial of the motion to withdraw pleas;
however, we dismissed said appeals on February 3, 2011 for want of prosecution by
appellant.
{¶34} This Court has recognized that “[t]he scope of an appeal from a
resentencing hearing in which a mandatory term of postrelease control is imposed is
limited to issues arising at the resentencing hearing.” State v. Cottrill, Licking App.No.
10-CA-28, 2011-Ohio-4599, ¶ 15, quoting State v. Fischer,
128 Ohio St.3d 92, 2010–
Ohio–6238, paragraph four of the syllabus. Accordingly, we reject appellant’s attempts
to revisit issues pertaining to the withdraw of his plea in the within appeal, as these
issues are now res judicata and are outside of any issues arising at the PRC
resentencing hearing.
Licking County, Case Nos. 11 CA 119, 11 CA 120 and 11 CA 121 11
{¶35} Appellant’s Second, Third, Fourth, Fifth, Sixth, and Seventh Assignments
of Error are overruled.
{¶36} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Licking County, Ohio, is hereby affirmed.
By: Wise, J.
Delaney, P. J., and
Gwin, J., concur.
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___________________________________
___________________________________
JUDGES
JWW/d 0827
Licking County, Case No. 11 CA 119, 11 CA 120 and 11 CA 121 12
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MONTE SMITH :
:
Defendant-Appellant : Case Nos. 11 CA 119, 11 CA 120
: and 11 CA 121
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
Costs assessed to appellant.
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___________________________________
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JUDGES
