[Cite as State v. Jackson,
2012-Ohio-5885.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98157
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
THEODORE JACKSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-527856
BEFORE: Boyle, P.J., Jones, J., and Keough, J.
RELEASED AND JOURNALIZED: December 13, 2012
FOR APPELLANT
Theodore Jackson, pro se
Inmate No. 590-406
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Theodore Jackson, appeals the trial court’s judgment
denying his motion to withdraw his guilty plea. In his sole assignment of error, he
claims that the trial court erred when it denied his motion to withdraw his guilty plea
without an evidentiary hearing. Finding no merit to his appeal, we affirm.
Procedural History and Factual Background
{¶2} In June 2009, Jackson was indicted on one count of escape, in violation of
R.C. 2921.34(A)(1). The indictment alleged that on or about June 16, 2009, Jackson,
knowing he was under detention, purposely broke or attempted to break the detention, or
purposely failed to return to detention, and the offense for which he was under detention
was “aggravated murder, murder, or a felony of the first or second degree.”
{¶3} In March 2010, Jackson pleaded guilty to an amended count of attempted
escape, a third degree felony, in violation of R.C. 2923.01 and 2921.34. The trial court
sentenced him to 16 months of community control sanctions.
{¶4} Four months later, in July 2010, the trial court found that Jackson violated
the terms of his community control sanctions. The trial court revoked Jackson’s
community control and imposed a sentence of one year in prison. The trial court further
advised Jackson that he would be subject to three years of discretionary postrelease
control upon his release from prison.
{¶5} In February 2012, Jackson moved to withdraw his guilty plea, which the
trial court denied without a hearing. It is from this judgment that Jackson appeals.
Motion to Withdraw a Post-Sentence Guilty Plea
{¶6} Jackson contends that the trial court erred when it denied his motion to
withdraw his guilty plea to attempted escape. He contends that when he was sentenced
in 2001 to four years in prison, he was not properly notified of postrelease control, and
thus, his 2001 sentence was void. He asserts that when he was released from prison in
2005 and placed on five years of postrelease control, it was based on that 2001 purported
void sentence. He, therefore, claims that when he failed to report to the parole board in
June 2009, he could not have been convicted of escape because he was not validly on
postrelease control.
{¶7} Jackson did not appeal his 2010 attempted escape conviction. In State v.
Fischer, 128 Ohio St.3d 92,
2010-Ohio-6328,
942 N.E.2d 332, paragraph one of the
syllabus, the Ohio Supreme Court held that “[a] sentence that does not include the
statutorily mandated term of postrelease control is void, is not precluded from appellate
review by principles of res judicata, and may be reviewed at any time, on direct appeal or
by collateral attack.” Jackson, however, is not challenging his 2001 sentence that
purportedly has the invalid postrelease control. Rather, he is challenging his 2010 guilty
plea to attempted escape that arose from that purported 2001 erroneous
postrelease-control sentence. The Ohio Supreme Court recently addressed this exact
issue and held that “if a trial court sentences a defendant to an improper term of
postrelease control and the defendant subsequently pleads guilty to violating postrelease
control, the defendant is not barred by the principles of res judicata from challenging his
conviction.” State v. Billiter, Slip Opinion No.
2012-Ohio-5144, ¶ 11.
{¶8} A motion to withdraw a guilty plea is governed by the standards set forth in
Crim.R. 32.1, which states: “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.”
{¶9} “A motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court, and the good faith, credibility and weight of the movant’s
assertions in support of the motion are matters to be resolved by that court.” State v.
Smith, 49 Ohio St.2d 261,
361 N.E.2d 1324 (1977), paragraph two of the syllabus.
Thus, our review is limited such that we cannot reverse the trial court’s denial of the
motion unless we find that the ruling was an abuse of discretion.
Id.
{¶10} A defendant who attempts to withdraw a guilty plea after sentence has been
imposed bears the burden of demonstrating a manifest injustice. Smith at paragraph one
of the syllabus. This court has explained:
[a] manifest injustice is defined as a “clear or openly unjust act, … an
extraordinary and fundamental flaw in the plea proceeding.” Again,
“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.
(Citations omitted.) State v. Sneed, 8th Dist. No. 80902, 2002-Ohio-6502, ¶ 13.
{¶11} Further, “[a] trial court is not required to hold an evidentiary hearing on a
post-sentence motion to withdraw a guilty plea, except when the facts, as alleged by the
defendant, indicate a manifest injustice would occur if the plea was allowed to stand.”
State v. Britford, 10th Dist. No. 11AP-646, 2012-Ohio-1966, ¶ 12.
{¶12} There is no transcript before us. Jackson did attach several exhibits to his
motion to withdraw his plea, as well as his appellate brief. Some of the exhibits are not
readable and he does not explain the relevance of all of them. The most significant
exhibit that Jackson attached is a case information form (“CIF”) regarding his June 2009
indictment charging escape. The CIF was prepared by Anessa Slater from the Cleveland
APA. Slater explains:
Details of Offense[:] On 9/1/05, the subject was released from prison after
serving a 4.0 + 13.0 - 60.0 year prison term for escape (F2), kidnapping
(F1), aggravated robbery (F1), felonious assault (F2), RSP (F3) x2,
aggravated robbery (F1) x2, RSP (F4)[.] Upon release, he was given five
(5) years of parole supervision. On 6/3/09, the subject failed to report
for an out of custody parole violation hearing as instructed. On 6/10/09,
his whereabouts were listed as unknown after attempts to [unreadable].
As of this writing, the subject has not contacted the APA in any manner and
a [unreadable] warrant for his arrest is active.
(Emphasis added.)
{¶13} It is clear from reviewing the documents attached to Jackson’s motion to
withdraw his plea, as well as his appellate brief, that the trial court did not properly advise
Jackson in 2001 of the correct term of postrelease control. But it is also clear, according
to the CIF, that when Jackson was released from prison in 2005, he was not placed on
postrelease control pursuant to his 2001 sentence. Jackson was placed on parole
supervision due to his release from an indefinite prison sentence.
{¶14} Thus, based on the record before us, we find that Jackson did not meet his
burden of establishing that a manifest injustice would occur if his guilty plea was allowed
to stand. Accordingly, the trial court did not abuse its discretion when it denied
Jackson’s motion without an evidentiary hearing because the facts, as alleged by Jackson,
do not “indicate a manifest injustice would occur if the plea was allowed to stand.”
Britford, 10th Dist. No. 11AP-646, 2012-Ohio-1966, ¶ 12.
{¶15} Jackson’s sole assignment of error is overruled.
{¶16} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
