[Cite as State v. Shine,
2019-Ohio-2916.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107685
v. :
MICHAEL L. SHINE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 18, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-99-371342-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony Thomas Miranda, Assistant
Prosecuting Attorney, for appellee.
Michael L. Shine, pro se.
LARRY A. JONES, SR., J.:
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.
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 $40,000 fine.
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.”)
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.
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).
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 permit the
defendant to withdraw his or her plea.
Crim.R. 32.1.
Thus, a presentence motion to withdraw a plea should be “freely and
liberally granted.” State v. Ketterer, 126 Ohio St.3d 448,
2010-Ohio-3831,
935
N.E.2d 9, ¶ 57. On the other hand, a postsentence motion to withdraw a plea should
be granted only to correct a manifest injustice. State v. Smith,
49 Ohio St.2d 261,
361 N.E.2d 1324 (1977), paragraph one of the syllabus.
Manifest injustice is an extremely high standard which permits the
court to allow plea withdrawal only in extraordinary cases. A manifest
injustice is defined as a clear or openly unjust act. Other courts have
referred to it as an extraordinary and fundamental flaw in the plea
proceeding.
State v. Hamilton, 8th Dist. Cuyahoga No. 90141, 2008-Ohio-455, ¶ 8 (internal
citations omitted). Regardless of whether a motion to withdraw a plea was made
presentence or postsentence, it is left to the sound discretion of the trial court and
our review of the trial court’s decision is for abuse of discretion. See id. at ¶ 9; State
v. Brown, 4th Dist. Ross No. 16CA3544,
2017-Ohio-2647, ¶ 11.
Shine contends that because the trial court failed to impose
postrelease control on Count 4, attempted murder, his sentence is void and
therefore his motion to withdraw his plea was made presentence; he cites State v.
Boswell, 122 Ohio St.3d 575,
2009-Ohio-1577,
906 N.E.2d 422, in support of his
contention.
It is true that in Boswell, the Ohio Supreme Court held that “a
defendant’s motion to withdraw a guilty plea following the imposition of a void
sentence must be considered as a presentence motion and be freely and liberally
granted.” Id. at ¶ 13. However, the court modified its decision in State v. Fischer,
128 Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332. In Fischer, the court clarified
that if a judge “fails to impose statutorily mandated postrelease control as part of a
defendant’s sentence [only] that part of the sentence is void.” Id. at ¶ 26. This court
has recognized that Fischer calls into question the holding in Boswell. See State v.
Alford, 8th Dist. Cuyahoga No. 95946,
2011-Ohio-4811, ¶ 11.
Thus, the failure to advise on postrelease control renders only that
portion of the sentence void. Shine’s motion to withdraw his plea was therefore a
postsentence motion, and he needed to demonstrate a manifest injustice.
The record demonstrates that the claims Shine raised in his motion
to withdraw his plea could have been raised in 1999. “An undue delay between the
occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a
motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the
movant and militating against the granting of the motion.” Smith, 49 Ohio St.2d
261,
361 N.E.2d 1324, paragraph three of the syllabus. This court has previously
rejected a five-year delay. See State v. Ladson, 8th Dist. Cuyahoga No. 102914,
2015-Ohio-5266. Shine’s 17-year delay here undermines a claim of manifest
injustice.
Further, Shine’s claims are barred under the doctrine of res judicata.
This court has consistently recognized that the doctrine of res judicata bars all claims
raised in a Crim.R. 32.1 motion that were raised or could have been raised in a prior
proceeding, including a direct appeal. State v. Fountain, 8th Dist. Cuyahoga Nos.
92772 and 92874, 2010-Ohio-1202; State v. McGee, 8th Dist. Cuyahoga No. 91638,
2009-Ohio-3374; State v. Pickens, 8th Dist. Cuyahoga No. 91924,
2009-Ohio-1791;
State v. Gaston, 8th Dist. Cuyahoga No. 82628, 2003- Ohio-5825. Shine could have
raised his claims on direct appeal, but failed to do so; they are now barred under res
judicata.
Notwithstanding that Shine’s claims are barred by res judicata, they
are without merit. Because of the lack of transcript, we must presume the regularity
of the proceeding. Thus, we presume that the plea colloquy complied with Crim.R.
11, that he was advised that postrelease control was mandatory and there would be
consequences for violating it, and that he was advised of his appellate rights.
Moreover, in regard to Shine’s contention that the trial court failed to
advise him about postrelease control on the attempted murder count, he has failed
to demonstrate that it affected his decision to enter a plea. We note that Shine also
pleaded guilty to murder, which carries lifetime parole. Thus, any imposition of
postrelease control on the attempted murder would have merged with postrelease
control for the murder count. See R.C. 2967.28(F)(4).
Shine further contends that the trial court failed to make factual
findings under R.C. 2929.11 and 2929.12. Those statutes are not fact-finding
statutes, however. See State v. Johnson, 8th Dist. Cuyahoga No. 100719, 2014-Ohio-
3722, ¶ 12. In regard to Shine’s contention that there was a “patent absence of a
‘mens rea component’” in association with the attempted murder count, we note that
under Crim.R. 11, a plea of guilty is a complete admission of guilt.
Finally, Shine contends that the trial court impermissibly imposed a
$40,000 fine on him. We initially note that this was not raised in his motion in the
trial court; it is well established that issues not raised in the trial court will not be
considered for the first time on appeal. See State v. Anderson, 151 Ohio St.3d 212,
2017-Ohio-5656,
87 N.E.3d 1202, ¶ 14. Regardless of Shine’s failure to raise this
issue below, we further note that his plea was to two first-degree felonies, and that
at the time of his plea, R.C. 2929.18(A)(3)(a) governed and provided that a first-
degree felony could be punished by a fine of up to $20,000.
In light of the above, Shine’s assignment of error is without merit.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY EILEEN KILBANE, A.J., and
ANITA LASTER MAYS, J., CONCUR
