[Cite as State v. Hempfield, 2012-Ohio-2619.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 11-CA-103
BRITTANY A. HEMPFIELD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, 10 CR 150
JUDGMENT: Affirmed in part, Reversed in part, and
Remanded
DATE OF JUDGMENT ENTRY: June 11, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN T. WALTZ DAVID B. STOKES
Assistant Prosecuting Attorney 21 W. Church St, Suite 206
Licking County Prosecutor's Office Newark, Ohio 43055
20 S. Second St., 4th Floor
Newark, Ohio 43055
Licking County, Case No. 11-CA-103 2
Hoffman, J.
{¶1} Defendant-appellant Brittany A. Hempfield appeals the September 26,
2011 Judgment Entry entered by the Licking County Court of Common Pleas denying
her petition for post-conviction relief. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On March 26, 2010, the Licking County Grand Jury indicted Appellant
Brittany Hempfield on two counts of aggravated trafficking in drugs, in violation of R.C.
2925.03(A)(1) and/or (2) and (C)(1)(b) and/or (c); one count of aggravated possession
of drugs, in violation of R.C. 2925.11(A) and/or (C)(1)(a); and one count of possession
of drug paraphernalia, in violation of R.C. 2925.14.
{¶3} On July 23, 2010, Appellant pled guilty as charged save for the drug
paraphernalia count which was dismissed. By Judgment Entry filed the same date, the
trial court sentenced Appellant to an aggregate term of six years in prison.
{¶4} Appellant filed an appeal with this Court challenging her convictions and
sentence. Via Opinion and Judgment Entry of December 30, 2010, this Court affirmed
Appellant's convictions and sentence.
{¶5} On August 19, 2011, Appellant filed a petition for post-conviction relief.
Via Judgment Entry of September 26, 2011, the trial court denied Appellant's petition.
{¶6} It is from that Judgment Entry Appellant prosecutes this appeal, assigning
as error:
{¶7} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN FINDING
THAT APPELLANT’S POST-CONVICTION PETITION WAS UNTIMELY, PER R.C.
2953.21(A)(2).
Licking County, Case No. 11-CA-103 3
{¶8} “II. THE TRIAL COURT COMMITTED HARMFUL ERROR BY NOT
FINDING THAT THE JUDGMENT ENTRY FILED JULY 23, 2010 WAS VOID.
{¶9} “III. THE TRIAL COURT COMMITTED HARMFUL ERROR BY
ORDERING, IN ITS SENTENCING ENTRY, THAT APPELLANT SHALL NOT BE
CONSIDERED OR RELEASED ON TRANSITIONAL CONTROL.
{¶10} “IV. THE TRIAL COURT COMMITTED HARMFUL ERROR BY DENYING
APPELLANT’S MOTIONS(S) TO WITHDRAW HER GUILTY PLEAS.”
I.
{¶11} In the first assignment of error, Appellant asserts the trial court erred in
finding her petition for post-conviction relief untimely.
{¶12} Ohio Revised Code Section 2953.21 states, in pertinent part,
{¶13} "(2) Except as otherwise provided in section 2953.23 of the Revised Code,
a petition under division (A)(1) of this section shall be filed no later than one hundred
eighty days after the date on which the trial transcript is filed in the court of appeals in
the direct appeal of the judgment of conviction or adjudication or, if the direct appeal
involves a sentence of death, the date on which the trial transcript is filed in the
supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of
the Revised Code, the petition shall be filed no later than one hundred eighty days after
the expiration of the time for filing the appeal."
{¶14} The trial court's September 26, 2011 Judgment Entry finds Appellant's
petition for post-conviction relief untimely, pursuant to R.C. 2953.21. Appellant asserts
the petition is timely as the trial court had failed to rule on her Appellate Rule 9(C)
Licking County, Case No. 11-CA-103 4
statement filed on August 4, 2010, during her prior direct appeal. Neither did the trial
court rule on Appellant's July 23, 2010 motion to withdraw her guilty pleas.1
{¶15} Appellant has not set forth legal authority, whether case law, statutory or
legal rule recognizing the tolling of the time parameters for filing a petition for
postconviction relief where the trial court has not ruled on a request for an Appellate
Rule 9(c) statement but the appeal was concluded. Appellant failed to take the
necessary steps to perfect the Appellate Rule 9(c) statement prior to submission of the
record on her initial direct appeal. The proper remedy would have been to seek a ruling
from this Court directing the trial court to rule on the same, or, perhaps, file a writ of
mandamus.
{¶16} The first assignment of error is overruled.
II.
{¶17} In the second assignment of error, Appellant asserts the trial court erred in
not finding the July 23, 2010 sentencing entry void. Specifically, Appellant asserts the
trial court failed to impose a mandatory license suspension pursuant to R.C.
2925.03(D)(2) and R.C. 2935.03(G).
{¶18} The statute reads, in pertinent part:
{¶19} "(D) In addition to any prison term authorized or required by division (C) of
this section and sections 2929.13 and 2929.14 of the Revised Code, and in addition to
any other sanction imposed for the offense under this section or sections 2929.11 to
2929.18 of the Revised Code, the court that sentences an offender who is convicted of
1
In the prior appeal, this Court held the issues involving Appellant’s motion to withdraw
her guilty pleas were "premature".
Licking County, Case No. 11-CA-103 5
or pleads guilty to a violation of division (A) of this section shall do all of the following
that are applicable regarding the offender:
{¶20} "***
{¶21} (2) The court shall suspend the driver's or commercial driver's license or
permit of the offender in accordance with division (G) of this section.
{¶22} "***
{¶23} (G) When required under division (D)(2) of this section or any other
provision of this chapter, the court shall suspend for not less than six months or more
than five years the driver's or commercial driver's license or permit of any person who is
convicted of or pleads guilty to any violation of this section or any other specified
provision of this chapter. If an offender's driver's or commercial driver's license or permit
is suspended pursuant to this division, the offender, at any time after the expiration of
two years from the day on which the offender's sentence was imposed or from the day
on which the offender finally was released from a prison term under the sentence,
whichever is later, may file a motion with the sentencing court requesting termination of
the suspension; upon the filing of such a motion and the court's finding of good cause
for the termination, the court may terminate the suspension."
{¶24} Appellant entered a plea of guilty to, and was convicted of, aggravated
trafficking in drugs, methamphetamine, in violation of R.C. 2925.03(A)(1)(C)(1)(b), a
third degree felony; aggravated trafficking in drugs, methamphetamine, in violation of
R.C. 2925.03(A)(1) and/or (2)(C)(1)(c), a third degree felony. The trial court did not
suspend Appellant's license at sentencing. Accordingly, the matter is remanded to the
trial court for a limited resentencing hearing limited to the imposition of the mandatory
Licking County, Case No. 11-CA-103 6
license suspension. For an analogous situation involving post release control see,
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. We find the entire sentence is
not void.
{¶25} The second assignment of error is overruled.
III.
{¶26} In the third assignment of error, Appellant asserts the trial court erred in
ordering Appellant should not be considered or released to transitional control.
{¶27} R.C. 2967.26 allows for the creation of a transitional control program for
those nearing the end of their prison sentence. The statute reads, in pertinent part,
{¶28} “(2) At least three weeks prior to transferring to transitional control under
this section a prisoner who is serving a term of imprisonment or prison term for an
offense committed on or after July 1, 1996, the adult parole authority shall give notice of
the pendency of the transfer to transitional control to the court of common pleas of the
county in which the indictment against the prisoner was found and of the fact that the
court may disapprove the transfer of the prisoner to transitional control and shall include
a report prepared by the head of the state correctional institution in which the prisoner is
confined. The head of the state correctional institution in which the prisoner is confined,
upon the request of the adult parole authority, shall provide to the authority for inclusion
in the notice sent to the court under this division a report on the prisoner's conduct in the
institution and in any institution from which the prisoner may have been transferred. The
report shall cover the prisoner's participation in school, vocational training, work,
treatment, and other rehabilitative activities and any disciplinary action taken against the
prisoner. If the court disapproves of the transfer of the prisoner to transitional control,
Licking County, Case No. 11-CA-103 7
the court shall notify the authority of the disapproval within thirty days after receipt of the
notice. If the court timely disapproves the transfer of the prisoner to transitional control,
the authority shall not proceed with the transfer. If the court does not timely disapprove
the transfer of the prisoner to transitional control, the authority may transfer the prisoner
to transitional control.”
{¶29} While the statute does not specifically prohibit the court from denying the
transitional control prior to notice, we find to do so clearly thwarts the design and
purpose of the statute. The statute is designed to promote prisoner rehabilitation effort
and good behavior while incarcerated. To prematurely deny the possibility of transitional
control runs contra to those purposes. While the trial court retains discretion to
disapprove the transitional control, we find to do so in the sentencing entry prior to
notice from the adult parole authority is premature. See, State v. Spears, Licking App.
No. 10CA95, 2011-Ohio-1538.
{¶30} Appellant's third assignment of error is sustained.
IV.
{¶31} In the fourth assignment of error, Appellant argues the trial court erred in
denying her motion to withdraw pleas. Specifically, Appellant asserts at the change of
plea hearing, after the trial court pronounced the sentence orally but prior to the written
judgment entry, during a sidebar conference, Appellant's counsel orally moved the court
to withdraw the pleas of guilty. This sidebar conference was the subject of the disputed
Appellate Rule 9(c) statement. The trial court directed counsel to file a written motion to
withdraw the pleas.
Licking County, Case No. 11-CA-103 8
{¶32} At 10:24 a.m. on July 23, 2010, the docket indicates Appellant's counsel
filed a motion and notice of hearing to withdraw guilty pleas pursuant to Rule 32.1,
"following-up defendant's oral motion of July 23, 2010 A.M."
{¶33} The trial court's Judgment Entry accepting Appellant's pleas and entering
sentence was docketed at 4:02 p.m. on July 23, 2010.
{¶34} Ohio Criminal Rule 32.1 reads:
{¶35} "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."
{¶36} As a trial court speaks through its docket, Appellant's sentence was not
imposed until after Appellant had filed her motion to withdraw the pleas of guilty.
Therefore, the motion was a presentence motion to withdraw pleas, and the trial court
utilized the incorrect standard in addressing Appellant's motion to withdraw the pleas.
Accordingly, the judgment of the trial court is reversed, and the matter remanded to the
trial court for reconsideration.
{¶37} The fourth assignment of error is sustained.
Licking County, Case No. 11-CA-103 9
{¶38} For the reasons set forth above, Appellant's convictions and sentence in
the Licking County Court of Common Pleas are affirmed, in part, reversed, in part, and
this matter remanded for further proceedings in accordance with the law and this
opinion.
By: Hoffman, J.
Delaney, P.J. and
Edwards, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Licking County, Case No. 11-CA-103 10
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
BRITTANY A. HEMPFIELD :
:
Defendant-Appellant : Case No. 11-CA-103
For the reasons stated in our accompanying Opinion, Appellant's convictions
and sentence in the Licking County Court of Common Pleas are affirmed, in part,
reversed, in part, and the matter remanded for further proceedings in accordance with
the law and our Opinion. Costs to be divided equally.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS