State v. Ray

[Cite as State v. Ray, 2020-Ohio-5465.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 3-20-05

v.

CRISTINA M. RAY, OPINION

DEFENDANT-APPELLANT.

Appeal from Crawford County Common Pleas Court
Trial Court No. 16-CR-0001

Judgment Affirmed

Date of Decision: November 30, 2020

APPEARANCES:

Howard A. Elliott for Appellant

Ryan M. Hoovler for Appellee
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ZIMMERMAN, J.

{¶1} Defendant-appellant, Cristina M. Ray (“Ray”), appeals the February 20,

2020 judgment entry of sentence of the Crawford County Court of Common Pleas

reimposing the balance of Ray’s original prison sentence following the revocation

of her judicial release. We affirm.

{¶2} On January 4, 2016, Ray waived prosecution by indictment, and the

State filed a bill of information in the trial court, charging Ray with one count of

possession of drugs in violation of R.C.2925.11(A), (C)(1)(a), a fifth-degree felony.

(Doc. Nos. 1, 4). That same day, Ray pleaded guilty to the possession-of-drugs

charge, the trial court accepted Ray’s guilty plea, and found her guilty.1 (Doc. No.

5). On July 11, 2016, the trial court sentenced Ray, based on the joint-sentencing

recommendation of the parties, to five years of community control. (Doc. No. 7).

Importantly, Ray did not directly appeal her conviction or sentence.

{¶3} On May 1, 2019, the State filed a motion requesting that the trial court

revoke Ray’s community control after Ray was “arrested by the Ontario[, Ohio

Police Department] for a drug overdose.” (Doc. No. 11). The trial court proceeded

to a final-revocation hearing on May 15, 2019 during which it concluded that Ray

violated the terms and conditions of her community-control sanctions after she

“entered an admission to the violations of Community Control as filed in the

1
The trial court filed its judgment entry of guilt on January 6, 2016. (Doc. No. 5).

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motion.”2 (Doc. No. 18). The trial court revoked Ray’s community control and

imposed a 12-month prison term. (Doc. No. 18). Once again, Ray did not directly

appeal her community-control revocation or the trial court’s prison-sentence

imposition.

{¶4} On May 30, 2019, Ray filed a motion for judicial release in the trial

court. (Doc. No. 21). On June 19, 2019, the State filed its response to Ray’s motion

and recommended that Ray be judicially released from prison. (Doc. No. 22).

Thereafter, on July 11, 2019, the trial court granted Ray’s motion for judicial

release, suspended the balance of her prison sentence, and released Ray under

conditions of judicial release. (Doc. No. 24).

{¶5} On January 23, 2020, the State filed a motion requesting that the trial

court revoke Ray’s judicial release. (Doc. No. 27). After a probable-cause hearing

on January 23, 2020, the trial court proceeded to a final-revocation hearing on

February 12, 2020 during which it concluded that Ray violated the conditions of her

judicial release after she “entered an admission to the violations.”3 (Doc. No. 34).

On February 19, 2020, the trial court reimposed the balance of Ray’s original prison

sentence.4 (Doc. No. 36).

2
The trial court filed its judgment entry of revocation on May 17, 2019. (Doc. No. 18).
3
The trial court filed its judgment entry of revocation on February 13, 2020. (Doc. No. 24).
4
The trial court filed its judgment entry of sentence on February 20, 2020. (Doc. No. 36).

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{¶6} Ray filed her notice of appeal on March 16, 2020. (Doc. No. 40). She

raises three assignments of error for our review, which we will review together.

Assignment of Error No. I

When a trial court takes a guilty plea to offenses by the
Defendant-Appellant, and fails to advise the Defendant-Appellant
of any of the matters as set forth in Criminal Rule 11(C)(2)(c), a
proper plea of guilty has not taken place, and the Defendant-
Appellant may challenge the plea and conviction in an appeal
taken after a probation violation, despite the fact no appeal was
taken from the original imposition of sentence.

Assignment of Error No. II

When a trial court takes a guilty plea to offenses by the
Defendant-Appellant, and fails to advise the Defendant-Appellant
of any of the matters as set forth in Criminal Rule 11(C)(2)(b), a
proper plea of guilty has not taken place, and the Defendant-
Appellant may challenge the plea and conviction in an appeal
taken after a probation violation, despite the fact no appeal was
taken from the original imposition of sentence.

Assignment of Error No. III

Where the trial court takes a guilty plea to the offense by the
Defendant-Appellant and improperly informs the Defendant-
Appellant of the penalty for the offense, a proper plea of guilty
has not taken place, and the Defendant-Appellant may challenge
the plea and conviction in an appeal taken after a probation
violation, despite the fact that no appeal was taken from the
original imposition of sentence.

{¶7} In her assignments of error, Ray argues that her guilty plea was not

made knowingly, intelligently, and voluntarily. Specifically, Ray argues that her

January 4, 2016 guilty plea was not knowing, intelligent, or voluntary because the

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trial court did not comply with the notifications required by Crim.R. 11(C)(2).

Notwithstanding Ray’s failure to file a direct appeal from her conviction and

sentence in this case, Ray contends that the defect in her plea colloquy is not barred

by the doctrine of res judicata. In other words, Ray contends that her original

conviction is “void.”

{¶8} In response, the State argues, in part, that Ray’s argument (that her

guilty plea was not knowing, intelligent, or voluntary) is not subject to appellate

review under R.C. 2953.08(D)(1) since Ray’s sentence was jointly recommended

and imposed by the trial court. Nevertheless, and contrary to the State’s contention,

appellate review of the propriety of a no-contest or guilty plea is not precluded by

R.C. 2953.08(D)(1). See State v. Tillman, 6th Dist. Huron No. H-02-004, 2004-

Ohio-1967, ¶ 12 (“Although R.C. 2953.08(D) forecloses review of the actual

sentences imposed by the judge pursuant to an agreed sentence upon a plea of guilty,

appellate review of the judge’s compliance with the dictates of Crim.R. 11(C),

which governs the taking of guilty pleas, is still proper.”), citing State v. Sattiewhite,

8th Dist. Cuyahoga No. 79365, 2002 WL 199900, *2 (Jan. 31, 2002). See also State

v. Spangler, 4th Dist. Lawrence No. 16CA1, 2016-Ohio-8583, ¶ 14.

{¶9} However, before we may review the merits of Ray’s arguments, we

must address whether this court has jurisdiction to consider that issue in this appeal.

Here, Ray’s assignments of error challenge whether her January 4, 2016 guilty plea

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was knowing, intelligent, and voluntary. Following her January 4, 2016 guilty plea,

the trial court filed its judgment entry of conviction and sentence on July 11, 2016.

{¶10} “App.R. 3(A) provides that ‘an appeal as of right shall be taken by

filing a notice of appeal with the clerk of the trial court within the time allowed by

Rule 4.’” State v. Moore, 3d Dist. Allen No. 1-08-27, 2008-Ohio-6751, ¶ 22,

quoting App.R. 3(A). App.R. 4 provides that “a party who wishes to appeal from

an order that is final upon its entry shall file the notice of appeal required by App.R.

3 within 30 days of that entry.” Under App.R. 5(A), “[a]fter the expiration of the

thirty day period provided by App. R. 4(A) * * * an appeal may be taken by a

defendant with leave of the court” in criminal proceedings. App.R. 5(A)(1)(a). “A

motion for leave to appeal shall be filed with the court of appeals and shall set forth

the reasons for the failure of the appellant to perfect an appeal as of right. * * * .”

App.R. 5(A)(2).

{¶11} Importantly, Ray did not directly appeal from her July 11, 2016

judgment entry of conviction and sentence or request a delayed appeal. Compare

State v. Hill, 3d Dist. Henry No. 7-18-24, 2018-Ohio-4647, ¶ 24 (noting that “[t]he

trial court filed its judgment entry of sentence for the prior-community-control

violation on November 1, 2017 and Hill did not directly appeal that order as he is

required to do under App.R. 4(A), or request a delayed appeal”). See State v. Seeley,

3d Dist. Union No. 14-06-38, 2007-Ohio-1538, ¶ 17 (“Any questions concerning

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the validity of [a prior] entry or matters pertaining [to that entry] should have been

raised by direct appeal.”), citing State v. Crutchfield, 3d Dist. Paulding Nos. 11-01-

09 and 11-01-10, 2002 WL 206008, *2 (Feb. 8, 2002). Accordingly, this court is

without jurisdiction to consider the merits of Ray’s arguments regarding whether

her guilty plea was knowing, intelligent, and voluntary in this appeal. See Hill at ¶

24 (concluding that this court was without jurisdiction to determine the merits of

Hill’s arguments regarding whether he effectively waived his probable-cause

hearing or whether his admission to the prior-community-control violation was

knowing, intelligent, and voluntary since Hill did not directly appeal the trial court’s

judgment entry of sentence or request a delayed appeal), citing Seeley at ¶ 18, citing

App.R. 3, State v. Pringle, 3d Dist. Auglaize No. 2-03-12, 2003-Ohio-4235, ¶ 11,

and State v. Gordon, 5th Dist. Fairfield No. 2-CA-92, 2003-Ohio-1900, ¶ 9.

{¶12} Furthermore, Ray’s contention that her conviction is void does not vest

this court with jurisdiction to consider her arguments in this appeal. Importantly,

Ray not only failed to directly appeal her conviction and sentence, but Ray failed to

provide the trial court with an opportunity to address her concerns.

{¶13} Notwithstanding Ray’s failure to raise her concerns in the proper

manner, the Supreme Court of Ohio recently “realigned [its] jurisprudence with the

traditional understanding of void and voidable sentences” to instill clarity on the

topic. State v. Harper, ___Ohio St.3d ___, 2020-Ohio-2913, ¶ 43. Specifically, the

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Supreme Court clarified that a “sentence is void when a sentencing court lacks

jurisdiction over the subject-matter of the case or personal jurisdiction over the

accused.” Id. at ¶ 42. “And when a specific action is within a court’s subject-matter

jurisdiction, any error in the exercise of that jurisdiction renders the court’s

judgment voidable, not void.” Id. at ¶ 26. “Generally, a voidable judgment may

only be set aside if successfully challenged on direct appeal.” Id. Voidable

judgments are “subject to the doctrine of res judicata.” State v. Hudson, ___ Ohio

St.3d ___, 2020-Ohio-3849, ¶ 2.

{¶14} Under the doctrine of res judicata,

a final judgment of conviction bars a convicted defendant who was
represented by counsel from raising and litigating in any proceeding
except an appeal from that judgment, any defense or any claimed
lack of due process that was raised or could have been raised by the
defendant at the trial, which resulted in that judgment of conviction,
or on an appeal from that judgment.

State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). See also Harper at ¶ 41, 43; State v.

Greene, 3d Dist. Crawford No. 3-20-06, 2020-Ohio-5133, ¶ 13. The doctrine of res

judicata generally bars a defendant from raising claims that his or her guilty plea

was not knowing, intelligent, or voluntary. See State v. Ketterer, 126 Ohio St.3d

448, 2010-Ohio-3831, ¶ 59; State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, ¶

23.

{¶15} Nevertheless, even though Ray’s arguments regarding the validity of

her guilty plea are not properly before this court, we still may review the trial court’s

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decision revoking Ray’s judicial release and reimposing the remainder of Ray’s

original prison sentence since she timely appealed that decision.

Standard of Review

{¶16} A trial court’s decision to revoke a defendant’s judicial release based

on a violation of the conditions of his or her judicial release will not be disturbed

absent an abuse of discretion. State v. Arm, 3d Dist. Union Nos. 14-14-03 and 14-

14-04, 2014-Ohio-3771, ¶ 22, citing State v. Jenkins, 4th Dist. Scioto No.

10CA3389, 2011-Ohio-6924, ¶ 9. An abuse of discretion implies that the trial court

acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d

151, 157-158 (1980).

Analysis

{¶17} Ohio’s judicial release statute, R.C. 2929.20, provides, in relevant

part:

If the court grants a motion for judicial release under this section, the
court shall order the release of the eligible offender, shall place the
eligible offender under an appropriate community control sanction,
under appropriate conditions, and under the supervision of the
department of probation serving the court and shall reserve the right
to reimpose the sentence that it reduced if the offender violates the
sanction. If the court reimposes the reduced sentence, it may do so
either concurrently with, or consecutive to, any new sentence imposed
upon the eligible offender as a result of the violation that is a new
offense.

R.C. 2929.20(K).

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{¶18} “Accordingly, if a defendant violates the conditions of judicial release,

the trial court is limited to reimposing the original term of incarceration with credit

for time already served.” State v. Jones, 3d Dist. Mercer Nos. 10-07-26 and 10-

0727, 2008-Ohio-2117, ¶ 15. “The trial court may not alter the defendant’s original

sentence except to reimpose the sentence consecutively to or concurrently with a

new sentence it imposes as a result of the judicial release violation that is a new

criminal offense.” Id.

{¶19} However, even though we may review the trial court’s decision

revoking Ray’s judicial release and reimposing the remainder of her original prison

sentence, Ray did not separately assign any error challenging the trial court’s

decision. “[A] defendant has the burden of affirmatively demonstrating the error of

the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174,

2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-

2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of

error, it is not this court’s duty to root it out.’” Id., quoting Cook at ¶ 27. “App.R.

12(A)(2) provides that an appellate court ‘may disregard an assignment of error

presented for review if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment separately in

the brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin

No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally,

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App.R. 16(A)(7) requires that an appellant’s brief include ‘[a]n argument containing

the contentions of the appellant with respect to each assignment of error presented

for review and the reasons in support of the contentions, with citations to the

authorities, statutes, and parts of the record on which appellant relies.’” Id., quoting

App.R. 16(A)(7).

{¶20} Because Ray makes no argument in relation to the trial court’s

revocation of her judicial release and the reimposition of the balance of her original

prison sentence, we will not supply one for her. See State v. Franks, 9th Dist.

Summit No. 28533, 2017-Ohio-7045, ¶ 16 (“Where an appellant fails to develop an

argument in support of his assignment of error, this Court will not create one for

him.”), citing State v. Harmon, 9th Dist. Summit No. 26426, 2013-Ohio-2319, ¶ 6,

citing App.R. 16(A)(7) and Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998

WL 224934, *8 (May 6, 1998).

{¶21} For these reasons, Ray’s assignments of error are overruled.

{¶22} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr

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