State v. Jones

[Cite as State v. Jones, 2012-Ohio-4676.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 12 CA 5
CHRISTOPHER MONTEZ JONES

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Richland County Court of Common Pleas,
Case Nos. 04-CR-267 and 05-CR-863

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 5, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. CHRISTOPHER MONTEZ JONES, Pro Se
PROSECUTING ATTORNEY c/o Richland Correctional Institution
JILL M. COCHRAN Inmate No. 554-805
Assistant Prosecutor P.O. Box 8107
38 South Park Street Mansfield, Ohio 44901-8107
Mansfield, Ohio 44902
Richland County, Case No. 12 CA 5 2

Wise, J.

{¶1} Defendant-Appellant Christopher Montez Jones appeals his conviction

and sentence entered by the Richland County Court of Common Pleas in case numbers

2004CR0267D and 2005CR0863D.

{¶2} Plaintiff-Appellee is the State of Ohio.

{¶3} This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

{¶4} “(E) Determination and judgment on appeal. The appeal will be

determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.

12(A) for the statement of the reason for the court’s decision as to each error to be in

brief and conclusionary form. The decision may be by judgment entry in which case it

will not be published in any form.”

{¶5} This appeal shall be considered in accordance with the aforementioned

rule.

STATEMENT OF THE CASE

{¶6} Appellant Christopher Montez Jones was indicted on case number 04-

CR-207 on April 9, 2004, and was arrested on April 14, 2004. He was released on a

recognizance bond. Appellant was indicted in case number 04-CR-267 on May 6, 2004

and was arrested on May 13, 2004. He was released on a recognizance bond and

committed the theft involved in case 04-CR-881 before he was arraigned on case

number 04-CR-207 on June 29, 2004.

{¶7} Case number 04-CR-207 was set for a change of plea hearing on

September 20, 2004. This hearing did not take place because, as the court records
Richland County, Case No. 12 CA 5 3

indicate, Appellant was being held in Lawrence County as a material witness in a

murder prosecution. An order was filed in 04-CR-207 to have Appellant transferred

from Lawrence County to Richland County on September 27, 2004 so that he could

enter a change of plea. However, the hearing was canceled because Appellant indicated

that he no longer wished to change his plea

{¶8} Appellant was indicted on case number 04-CR-881 on November 4, 2004.

He was arraigned on case number 04-CR-267 on December 14, 2004 and on case

number 04-CR-881 on December 28, 2004. Thereafter, the 2004 cases were

consolidated.

{¶9} On March 14, 2005, a final pretrial was held, at which point Appellant

requested that his pending jury trial be changed to a change of plea hearing. Appellant

was set to change his plea on March 28, 2005 but failed to appear in court. Appellant

was not arrested until July 3, 2007. In the interim, Appellant was indicted in case

number 05-CR-863 on November 16, 2005. He was arraigned on this case on July 31,

2007. This case was also consolidated with the 2004 cases, and all of the cases were

set for jury trial.

{¶10} On August 27, 2007, Appellant appeared before Judge DeWeese of the

Richland County Court of Common Pleas, and pled guilty as charged in all four

cases. As a part of the plea agreement, the State agreed to recommend community

control in case number 2005-CR-863 and allow the results of a pre-sentence investigation

to dictate Appellant's sentence in the remaining cases. Appellant's sentencing hearing

was set for October 29, 2007.
Richland County, Case No. 12 CA 5 4

{¶11} On October 29, 2007, an unknown person called in a bomb threat to the

trial court, causing the courthouse to be evacuated. Appellant was under suspicion for

making the call. After the court reopened, Appellant called in a phony medical excuse.

(Sent. T. at 8-9). Ultimately, Appellant failed to appear for sentencing and a bench

warrant was issued for his arrest.

{¶12} Appellant was eventually located and brought back before the court for

sentencing on October 31, 2008. At that time, the trial court sentenced Appellant to

twelve months on the sole count in 04-CR-207, to run consecutive to the sentences in

04-CR-267 and 04-CR-881.

{¶13} In case number 04-CR-267, the court sentenced Appellant to eighteen

months on count one, eighteen months on count two, and five years on count three, to

run consecutive to each other and to the sentences in 04-CR-207 and 04-CR-881.

This sentence included a three-year term of post-release control on the third degree

felony identification theft.

{¶14} In case number 04-CR-881, the court sentenced Appellant to twelve

months on the sole count, to run consecutive to the sentences in 04-CR-207 and 04-

CR-881.

{¶15} In case number 05-CR-863, the court sentenced Appellant to three years of

community control to commence after his release from the aggregate ten-year prison

sentence imposed on the other three cases. Appellant did not pursue a direct appeal

from these sentences.
Richland County, Case No. 12 CA 5 5

{¶16} In March, 2009, Appellant filed a Motion to Withdraw Guilty Plea and a

Petition to Vacate or Set Aside Judgment of Conviction or Sentence in case numbers

04-CR-207, 04-CR-267 and 04-CR-881.

{¶17} On June 17, 2009, the trial court overruled those motions. Appellant did

not appeal the trial court's denial of his motion to withdraw his guilty plea; however, he

did file a motion for a delayed appeal in this Court on August 17, 2009. This motion

was denied on September 24, 2009.

{¶18} On May 21, 2010, Appellant filed a Motion to Revise/Correct Sentencing

Entries to Comply with Crim.R. 32(C) for failure to include the manner of conviction.

{¶19} On June 2, 2010, as a result of this motion, the trial court issued

amended sentencing entries for 04-CR-207, 04-CR-267, and 04-CR-881 on June 2,

2010. The new sentencing entry indicated that Appellant's three years of post-

release control was mandatory. However, Appellant was never eligible for mandatory

post-release control as his third degree felony identity fraud did not involve harm or the

threat of harm.

{¶20} Appellant appealed the new sentencing entries to this Court raising

the argument the he was entitled to withdraw his guilty plea because he was not

properly informed of a mandatory term of post-release control. Pursuant to the

Supreme Court's ruling in State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893

N.E.2d 163, this Court found that Appellant's first sentencing entry was not a final

appealable order due to the lack of the manner of conviction and allowed him to directly

appeal his convictions and sentences. The parties made their arguments as though

Appellant had truly been sentenced to a mandatory term of post-release control and
Richland County, Case No. 12 CA 5 6

this Court found that the failure to notify Appellant of a mandatory term of post-release

control made his pleas involuntary. This Court overruled Appellant's conviction and

remanded the 2004 cases back to the trial court.

{¶21} Appellant did not appeal his sentence in the 2005 case.

{¶22} On May 16, 2011, Appellant once again changed his plea in the 2004 cases

and was sentenced to a term of community control. Appellant did not appeal his

conviction or sentence.

{¶23} Approximately a week after Appellant's release, he was arrested and sent

to Federal prison.

{¶24} A probation violation was filed on all of Appellant's cases.1

{¶25} At the probation violation hearing, held on December 21, 2011, it was put

on the record that Appellant was seen by his probation officer driving without a license.

Upon search of the vehicle, Appellant was found to be in possession of two cellular

telephones, several devices that could connect to the internet, and four credit/debit

cards in the names of other people, all in violation of his probation terms. Appellant told

his probation officer that he did not know anything about the cards, but that the people

named in the cards were his next door neighbors. It was determined through further

investigation that Appellant had used the empty apartment next to him as an address to

set up fake credit card accounts. Appellant was seen on video using the fake cards.

1
After Appellant's release from Federal prison, Appellant spent a short amount of time
either back on community control or out on bond prior to a probation violation hearing.
Richland County, Case No. 12 CA 5 7

Appellant was also found to have had contact with Yolanda Jones in violation of the

court's order. 2

{¶26} Appellant admitted to the remaining probation violations. During the

probation violation hearing, Appellant's counsel argued that the three charges in case

number 04-CR-267 were allied offenses, claiming that they all arose out of the same

transaction and were committed with the same intent, i.e., to steal a motor vehicle. The

State did not make a response. The trial court did not hear evidence regarding whether

the offenses were allied and did not make a ruling on the same at the probation

violation hearing.

{¶27} Appellant's probation was revoked and he was sentenced to one year in

prison each in case numbers 04-CR-207, 04-CR-881 and 05-CR-863. He was

sentenced to three years in prison on count three in case number 04-CR-267, and his

probation was tolled on the other two counts until his release from prison. The prison

terms were ordered to be served consecutively for a total prison sentence of six years,

with a term of probation remaining upon his release from prison.

{¶28} The trial court stated that Appellant was appropriate for post-release

control. The court also indicated that it did not believe it had the power to sentence

Appellant to post-release control. (Prob. V. T. at 30). The judgment entry reflects the

same.

{¶29} Appellant now appeals the sentencing entry issued from the December

22, 2011, probation violation hearing. He filed two separate appeals, which were

2
Appellant was also cited for receiving new felony charges; however, this was
dismissed as a probation violation due to the fact that these charges had not been
resolved at the time of the hearing.
Richland County, Case No. 12 CA 5 8

joined by this Court. This Court ordered Appellant to submit one brief that contained all

of his issues.

{¶30} Appellant now appeals from the resentencing entries, assigning as error:

ASSIGNMENTS OF ERROR3

{¶31} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DID NOT INFORM APPELLANT AT ALL ALL [SIC] OF POST-RELEASE CONTROL

DURING THE PLEA HEARING PRIOR TO ACCEPTING HIS PLEAS THEREBY

FAILING TO SUBSTANTIALLY COMPLY WITH THE CAXIMUM [SIC] PENALTY-

COMPONENT [SIC] OF CRIM.R. 11(C)(2)(A).

{¶32} “II. THE SENTENCING COURT ERRED BY NOT FIRST CONSIDERING

THE CONDUCT OF THE DEFENDANT” [SIC] AS TO WHETHER THE THREE

OFFENSES SHOULD HAVE BEEN MERGED BY DETERMINING IF THE THREE

OFFENSES COMMITTED IN THE SINGLE OFFENSE WERE ALLIED OFFENSES OF

SIMILAR IMPORT COMMITTED TOGETHER IN THE SAME CONDUCT WITHIN A

SINGLE ANIMUS.”

I.

{¶33} In his First Assignment of Error, Appellant argues that his plea in the 05-

CR-863 case was not made knowingly, intelligently and/or voluntarily because the trial

court failed to inform him that he could be sentenced to a discretionary period of post-

release control. We disagree.

3
Appellant filed three separate briefs in this matter. The first, filed March 23, 2012,
appealed Case No. 05-CR-863, the second, filed April 23, 2012, appealed Case No. 04-
CR-267 and the third, filed June 14, 2012, appealed both 05-CR-863 and 04-CR-267.
We are therefore reviewing assignments of error and arguments contained in
Appellant’s last brief.
Richland County, Case No. 12 CA 5 9

{¶34} As stated above, Appellant previously appealed his sentencing entries in

his 2004 cases but not the 2005 case. Appellant now argues that his plea in the 2005

case should be vacated and remanded for the same reasons as the 2004 cases.

{¶35} Upon review, we find Appellant’s arguments to be unpersuasive.

{¶36} Appellant, in the 2005 case, failed to file a motion to withdraw his plea with

the trial court and further failed to file a direct appeal challenging the voluntary nature of

his plea based on the trial court’s failure to inform him of a term of mandatory post-

release control. See State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509.

{¶37} Further, the trial court never sentenced Appellant to a period of post-

release control.

{¶38} Additionally, since the time this Court vacated and remanded the 2004

cases as not having been final appealable orders for failing to include the manner of

conviction, the Ohio Supreme Court in State v. Lester, 130 Ohio St. 303, 2011–Ohio–

5204, clarified Baker, holding:

{¶39} “When the substantive provisions of [Criminal Rule 32(C) ] are contained

in the judgment of conviction, namely, the fact of conviction, the sentence, the judge's

signature, and the entry on the journal by the clerk, the trial court's omission of how the

defendant's conviction was effected, i.e., the ‘manner of conviction’ does not prevent the

judgment of conviction from being an order that is final and subject to appeal; language

as to manner of conviction is required only as a matter of form, provided the entry

includes all substantive provisions.”

{¶40} We therefore find that the sentencing entry of October 2, 2008, was final

and appealable at that time.
Richland County, Case No. 12 CA 5 10

{¶41} Appellant’s First Assignment of Error is overruled.

II.

{¶42} In the Second Assignment of Error, Appellant asserts that the trial court

erred in not finding that his offenses were allied offenses of similar import. We disagree.

{¶43} More specifically, Appellant argues that the charges of theft of a motor

vehicle, forgery and identity fraud in Case No. 04-CR-267 were allied offenses which

should have been merged.

{¶44} Upon review, we find that Appellant failed to raise this issue on direct

appeal of his original sentence and that such argument is barred by the doctrine of res

judicata.

{¶45} Appellant’s Second Assignment of Error is overruled.

{¶46} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.

___________________________________

___________________________________

___________________________________

JUDGES
JWW/d 0905
Richland County, Case No. 12 CA 5 11

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CHRISTOPHER MONTEZ JONES :
:
Defendant-Appellant : Case No. 12 CA 5

For the reason stated in our accompanying Opinion, the judgment of the

Richland County Court of Common Pleas is affirmed.

Costs assessed to Appellant.

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JUDGES