State v. Keene

[Cite as State v. Keene, 2017-Ohio-7058.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY

STATE OF OHIO, :
: Case No. 16CA10
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
CODY J. KEENE, :
:
Defendant-Appellant. : Released: 07/25/17
_____________________________________________________________
APPEARANCES:

Angela Miller, Jupiter, Florida, for Appellant.

Kevin A. Rings, Washington County Prosecuting Attorney, and Nicole
Tipton Coil, Washington County Assistant Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

{¶1} This is an appeal from a Washington County Court of Common

Pleas judgment entry sentencing Appellant, Cody Keene, after he entered

pleas of guilt to three counts of rape, in violation of R.C. 2907.02(A)(1)(b)

and R.C. 2971.03, as well as one count of corrupting another with drugs, in

violation of R.C. 2925.02(A)(4)(a). On appeal, Appellant contends that: 1)

his sentence of life imprisonment with the possibility of parole after twenty-

five years is not authorized by statute and is contrary to law, and that the

sentence he received requires a conviction of a sexually violent predator
Washington App. No. 16CA10 2

specification, which does not exist in this case; 2) his guilty plea was

obtained in violation of the Fifth and Fourteenth Amendments to the United

States Constitution; 3) the trial court abused its discretion and committed

reversible error in overruling his motion to withdraw his guilty plea; 4) trial

counsel rendered ineffective assistance in violation of his rights; and 5) the

trial court violated due process and committed plain error when it imposed

post-release control for his conviction for rape without statutory authority to

do so.

{¶2} Because we have found no error or abuse of discretion on the

part of the trial court in accepting Appellant’s guilty pleas or in denying

Appellant's motion to withdraw his guilty pleas, and because we have failed

to find Appellant received ineffective assistance of counsel, Appellant's

second, third and fourth assignments of error are overruled and his

convictions on three counts of rape and one count of corrupting a minor with

drugs are affirmed. However, because we have concluded that the trial court

erroneously sentenced Appellant to three terms of twenty-five years to life in

prison on the rape charges, his first assignment of error is sustained and the

portion of the trial court's judgment imposing sentence is reversed and

remanded for further proceedings. Finally, we find no merit to Appellant's

fifth assignment of error, and it is, therefore, overruled. Accordingly, the
Washington App. No. 16CA10 3

judgment of the trial court is affirmed in part, reversed in part, and remanded

further proceedings consistent with this opinion.

FACTS

{¶3} On June 29, 2015, Appellant was indicted on three counts of

rape, in violation of R.C. 2907.02(A)(1)(b) and 2971.03. Although the

indictment stated these offenses were unscheduled felonies, they were

actually first degree felonies, which we will discuss in more detail below.

Appellant appeared at his arraignment, with counsel, and entered pleas of

not guilty to the charges. At his arraignment, Appellant was advised that the

rape charges were unscheduled felonies and was advised as follows with

regard to the penalties he was facing:

“THE COURT: * * * Now, Sir, if you have the misfortune of
being found guilty, each one of these carries a fine of up to
$20,000. Each carries a mandatory minimum of 75 years in
prison to life in prison. It’s an indefinite term.

MR. RINGS: How much?

THE BAILIFF: It’s 25 years.

MR. RINGS: 25.

THE COURT: 25 to life.

MR. RINGS: There you go.

THE COURT: Okay. I’m sorry. Twent – each one carries a
minimum of 25 to life. If you’re found guilty of all three, that’s
where I want to go to, the most you can receive is $60,000 in
Washington App. No. 16CA10 4

fines, life in prison. The most would be 75 years to life in
prison, Okay? * * * It would be five years mandatory post
release control, also, if you got out. So, do you understand the
nature of the charges, the elements, and the penalty provisions?

THE DEFENDANT: About, when you say five years
mandatory, what does that mean, Your Honor?

THE COURT: That means if you would get out at the end of
75 years and still be alive, you would be under the supervision
of the Ohio Department of Rehabilitation and Corrections for
five years following your release from prison. If you would
happen – can I ask how old you are?

THE DEFENDANT: 19.

THE COURT: Okay. So you would have to be 94 years old.
They would supervise you till you’re 99. Okay? Do you
understand?

THE DEFENDANT: Yes, Your Honor.”

{¶4} The matter proceeded to trial on December 17, 2015. However,

on the morning of the second day of trial the trial court was informed

Appellant wished to change his previous pleas of not guilty to guilty and that

Appellant further wished to resolve a separate pending case as part of the

plea arrangement, whereby he would also plead guilty to corrupting another

with drugs, a second degree felony in violation of R.C. 2925.02(A)(4)(a).

The record reflects that in exchange for entering pleas of guilt on these four

charges, Appellant would be sentenced to three concurrent terms of twenty-

five years to life in prison on the three rape charges, and the trial court
Washington App. No. 16CA10 5

would be free to sentence him as it deemed appropriate after obtaining a pre-

sentence investigation on the corrupting another with drugs charge.

{¶5} Again, throughout the change of plea hearing, Appellant was

informed that he was facing sentences of a minimum of twenty-five years to

life in prison on each rape charge. For instance, the following exchange

took place:

“THE COURT: * * * and in the three rape charges, the penalty,
there’s only one penalty, 25 years to life. Okay? That’s the
only – that is the only penalty. You understand that?

THE DEFENDANT: Yes.

***

THE COURT: Normally, at this time, I explain community
control or probation. Sir, in your case, you’re not eligible for
either. You understand that?

THE DEFENDANT: Yes.

THE COURT: You – there’s no – it’s 25 to life, there’s no
community control or probation. Do you understand that?

THE DEFENDANT: Yes.”

Despite incorrectly advising Appellant regarding the maximum prison terms

he was facing on the rape charges, the trial court did engage in a thorough

Crim.R. 11 colloquy with Appellant on the record. The trial court thereafter

accepted Appellant’s guilty pleas, ordered a pre-sentence investigation on
Washington App. No. 16CA10 6

the corrupting another with drugs charge and scheduled the matter for

sentencing.

{¶6} However, prior to the scheduled sentencing hearing, it appears

Appellant sent two letters to the court, without the assistance of counsel,

seeking to withdraw his guilty pleas. As a result, the trial court held a

hearing on February 16, 2016, where Appellant was afforded the opportunity

to be heard on his motion. Appellant’s stated reasons for seeking to

withdraw his pleas were that his attorney pressured him by telling him he

was stupid if he didn’t take the plea offer and that he was in a “rough” spot.

Appellant’s trial counsel testified that he did not pressure Appellant to enter

the pleas and that it was Appellant’s decision to enter the pleas. The State

argued that Appellant simply had a change of heart and noted Appellant had

not made a proclamation of innocence. The State further argued that

Appellant entered the pleas to avoid the possibility of a “75 year prison

sentence.” The State ultimately denied Appellant’s motion.

{¶7} Thereafter, on March 16, 2016, a sentencing hearing was held.

At the hearing, Appellant questioned the length of the sentences for rape.

When he told the judge he believed he should be sentenced to a “flat

sentence of three, four, five, six, seven, eight, nine, ten” years because the

crimes did not involve coercion, the trial court informed him “that’s not the
Washington App. No. 16CA10 7

crime you were charged with, sir.” The trial court sentenced Appellant on

each of the three rape counts to a minimum of twenty-five years to a

maximum of life in prison, and ordered the three prison terms to be served

concurrently. The trial court also imposed a five-year concurrent term of

imprisonment on the corrupting another with drugs charge. The court

further imposed five years of mandatory post-release control. It is from this

final order that Appellant now brings his timely appeal, setting forth five

assignments of error for our review.

ASSIGNMENTS OF ERROR

“I. KEENE’S SENTENCE OF LIFE IMPRISONMENT WITH THE
POSSIBILITY OF PAROLE AFTER TWENTY-FIVE YEARS IS
NOT AUTHORIZED BY STATUTE AND CONTRARY TO LAW.
THAT SENTENCE REQUIRES A CONVICTION OF A
SEXUALLY VIOLENT PREDATOR SPECIFICATION, WHICH
DOES NOT EXIST IN KEENE’S CASE.

II. APPELLANT’S GUILTY PLEA WAS OBTAINED IN VIOLATION
OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION; ARTICLE I, SECTION 10 OF
THE OHIO CONSTITUTION AND CRIM.R. 11(C).

III. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR IN OVERRULING
KEENE’S MOTION TO WITHDRAW HIS GUILTY PLEA.

IV. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN
VIOLATION OF KEENE’S RIGHTS UNDER THE FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND OHIO CONSTITUTION ARTICLE I, §§ 5,
10 AND 16.
Washington App. No. 16CA10 8

V. THE TRIAL COURT VIOLATED DUE PROCESS AND
COMMITTED PLAIN ERROR WHEN IT IMPOSED POST
RELEASE CONTROL FOR APPELLANT’S CONVICTION FOR
RAPE (R.C. 2907.02(A)(1)(b)) WITHOUT STATUTORY
AUTHORITY TO DO SO.”

ASSIGNMENT OF ERROR I

{¶8} In his first assignment of error, Appellant contends that his

sentence of life imprisonment with the possibility of parole after twenty-five

years is not authorized by statute and is contrary to law, as that sentence

requires a conviction of a sexually violent predator specification, which does

not exist in this case. The State concedes the sentencing error and agrees

that Appellant’s sentences should be reversed and new sentences of life

imprisonment with the possibility of parole after serving ten years should be

imposed. Having independently reviewed this assignment of error, we agree

with both parties that the sentences imposed for the three counts of rape

were contrary to law.

{¶9} When reviewing felony sentences, we apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. Under R.C. 2953.08(G)(2), an

appellate court may increase, reduce, or modify a sentence or may vacate the

sentence and remand the matter to the sentencing court if it clearly and

convincingly finds either “[t]hat the record does not support the sentencing
Washington App. No. 16CA10 9

court's findings under division (B) or (D) of section 2929.13, division

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of

the Revised Code, whichever, if any, is relevant” or “[t]hat the sentence is

otherwise contrary to law.” See State v. Mullins, 4th Dist. Scioto No.

15CA3716, 2016-Ohio-5486, ¶ 25.

{¶10} Here, Appellant pleaded guilty to three counts of rape in

violation of R.C. 2907.02(A)(1)(b). Although the indictments and entire

record in this matter state that these charges were unscheduled felonies, R.C.

2907.02 clearly provides that rape is a first degree felony. R.C. 2907.02(A)

provides as follows:

"(A)(1) No person shall engage in sexual conduct with another
who is not the spouse of the offender or who is the spouse of
the offender but is living separate and apart from the offender,
when any of the following applies:

(a) For the purpose of preventing resistance, the offender
substantially impairs the other person's judgment or control by
administering any drug, intoxicant, or controlled substance to
the other person surreptitiously or by force, threat of force, or
deception.

(b) The other person is less than thirteen years of age, whether
or not the offender knows the age of the other person.

(c) The other person's ability to resist or consent is substantially
impaired because of a mental or physical condition or because
of advanced age, and the offender knows or has reasonable
cause to believe that the other person's ability to resist or
consent is substantially impaired because of a mental or
Washington App. No. 16CA10 10

physical condition or because of advanced age." (Emphasis
added).

As set forth above, Appellant was convicted of three counts of rape in

violation of R.C. 2907.02(A)(1)(b), as his victim was less than thirteen years

of age. However, there was no force, threat of force or deception involved.

Instead, the record indicates Appellant was in a relationship with the victim,

with the knowledge and consent of the victim's mother at the time the

offenses were committed.

{¶11} R.C. 2907.02 further provides, in pertinent part, as follows with

regard to the sentence that should be imposed for a violation of R.C.

2907.02(A)(1)(b):

"(B) Whoever violates this section is guilty of rape, a felony of
the first degree. * * * Except as otherwise provided in this
division, notwithstanding sections 2929.11 to 2929.14 of the
Revised Code, an offender under division (A)(1)(b) of this
section shall be sentenced to a prison term or term of life
imprisonment pursuant to section 2971.03 of the Revised Code.
* * *."

{¶12} Appellant appears to have been sentenced under R.C.

2971.03(A)(3)(d)(i) to three concurrent sentences of twenty-five years to life

in prison for the rape convictions. However, section (A) of R.C. 2971.03

applies to only one who commits the following:

"a violent sex offense and who also is convicted of or pleads
guilty to a sexually violent predator specification that was
included in the indictment, count in the indictment, or
Washington App. No. 16CA10 11

information charging that offense, and upon a person who is
convicted of or pleads guilty to a designated homicide, assault,
or kidnapping offense and also is convicted of or pleads guilty
to both a sexual motivation specification and a sexually violent
predator specification that were included in the indictment,
count in the indictment, or information charging that offense."

R.C. 2971.03(A) does not apply to Appellant because he was not charged

with and did not plead guilty to a sexually violent predator specification.

{¶13} Instead, Appellant should have been sentenced under R.C.

2971.03(B), which provides, as follows:

"(B)(1) Notwithstanding section 2929.13, division (A) or (D) of
section 2929.14, or another section of the Revised Code other
than division (B) of section 2907.02 or divisions (B) and (C) of
section 2929.14 of the Revised Code that authorizes or requires
a specified prison term or a mandatory prison term for a person
who is convicted of or pleads guilty to a felony or that specifies
the manner and place of service of a prison term or term of
imprisonment, if a person is convicted of or pleads guilty to a
violation of division (A)(1)(b) of section 2907.02 of the
Revised Code committed on or after January 2, 2007, if
division (A) of this section does not apply regarding the person,
and if the court does not impose a sentence of life without
parole when authorized pursuant to division (B) of section
2907.02 of the Revised Code, the court shall impose upon the
person an indefinite prison term consisting of one of the
following:

(a) Except as otherwise required in division (B)(1)(b) or (c) of
this section, a minimum term of ten years and a maximum term
of life imprisonment.

(b) If the victim was less than ten years of age, a minimum term
of fifteen years and a maximum of life imprisonment.
Washington App. No. 16CA10 12

(c) If the offender purposely compels the victim to submit by
force or threat of force, or if the offender previously has been
convicted of or pleaded guilty to violating division (A)(1)(b) of
section 2907.02 of the Revised Code or to violating an existing
or former law of this state, another state, or the United States
that is substantially similar to division (A)(1)(b) of that section,
or if the offender during or immediately after the commission
of the offense caused serious physical harm to the victim, a
minimum term of twenty-five years and a maximum of life
imprisonment." (Emphasis added).

{¶14} Based upon the foregoing, Appellant should have been

sentenced to prison under R.C. 2971.03(B)(1)(a) for three terms of a

minimum of ten years with maximum terms of life imprisonment.1 Thus,

the sentences imposed upon Appellant for the three rape convictions were

contrary to law. As set forth above, the State concedes this error. As such,

Appellant's first assignment of error is sustained.

ASSIGNMENT OF ERROR II

{¶15} Appellant contends in his second assignment of error that his

guilty plea was obtained in violation of the Fifth and Fourteenth

Amendments to the United States Constitution; Article I, Section 10 of the

Ohio Constitution and Crim.R. 11(C). Appellant contends that the issue

presented is whether he entered a knowing and intelligent plea, where his

plea was premised on inaccurate legal advice and where, in exchange for a

1
It appears Appellant may have alternatively been incorrectly sentenced to a minimum of twenty-five years
to life in prison under R.C. 2971.03(B)(1)(c), which has a force, threat of force or physical harm
component.
Washington App. No. 16CA10 13

plea of guilty, he was given a sentence that is contrary to law. While the

State concedes that Appellant “was inaccurately informed by the court and

his own attorney that the law required a sentence of twenty-five to life on

each rape count, it argues Appellant still knowingly and intelligently

accepted that guilty plea[,]” and the trial court substantially complied with

Crim.R. 11.

{¶16} “ ‘When a defendant enters a plea in a criminal case, the plea

must be made knowingly, intelligently, and voluntarily. Failure on any of

those points renders enforcement of the plea unconstitutional under both the

United States Constitution and the Ohio Constitution.’ ” State v. Veney, 120

Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7; quoting State v.

Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “ ‘An appellate

court determining whether a guilty plea was entered knowingly,

intelligently, and voluntarily conducts a de novo review of the record to

ensure that the trial court complied with the constitutional and procedural

safeguards.’ ” State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-

Ohio-5601, ¶ 36; quoting State v. Moore, 4th Dist. Adams No. 13CA965,

2014-Ohio-3024, ¶ 13.

{¶17} “Crim.R. 11(C) governs the process that a trial court must use

before accepting a felony plea of guilty or no contest.” Veney at ¶ 8. Before
Washington App. No. 16CA10 14

accepting a guilty plea in a felony case a trial court must address the

defendant personally and determine that “the defendant is making the plea

voluntarily, with understanding of the nature of the charges and of the

maximum penalty involved, and, if applicable, that the defendant is not

eligible for probation or for the imposition of community control sanctions

at the sentencing hearing.” Crim.R. 11(C)(2)(a). The court must also inform

the defendant of other matters under Crim.R. 11(C)(2)(b) and (c).

{¶18} This case involves the trial court's notification of

nonconstitutional rights under Crim.R. 11(C)(2)(a), for which substantial

compliance is sufficient; this means that under the totality of the

circumstances the defendant subjectively understands the implications of his

plea and the rights he is waiving. Veney at ¶ 15; citing State v. Nero, 56 Ohio

St.3d 106, 108, 564 N.E.2d 474 (1990).

{¶19} A defendant who challenges his guilty plea on the basis that it

was not knowingly, intelligently, and voluntarily made must generally prove

prejudice, which in this context means that the plea would otherwise have

not been entered. Veney at ¶ 15. An exception to the prejudice requirement

occurs when the trial court failed to comply with the rule:

“When the trial judge does not substantially comply with
Crim.R. 11 in regard to a nonconstitutional right, reviewing
courts must determine whether the trial court partially complied
or failed to comply with the rule. If the trial judge partially
Washington App. No. 16CA10 15

complied, e.g., by mentioning mandatory postrelease control
without explaining it, the plea may be vacated only if the
defendant demonstrates a prejudicial effect. See Nero, 56 Ohio
St.3d at 108, 564 N.E.2d 474, citing State v. Stewart (1977), 51
Ohio St.2d 86, 93, 5 O.O.3d 52, 364 N.E.2d 1163, and Crim.R.
52(A); see also Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509,
881 N.E.2d 1224, ¶ 23. The test for prejudice is ‘whether the
plea would have otherwise been made.’ Nero at 108, 564
N.E.2d 474, citing Stewart, id. If the trial judge completely
failed to comply with the rule, e.g., by not informing the
defendant of a mandatory period of postrelease control, the plea
must be vacated. See Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-
509, 881 N.E.2d, 1224, paragraph two of the syllabus. ‘A
complete failure to comply with the rule does not implicate an
analysis of prejudice.’ Id. at ¶ 22. State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32 (emphasis sic).”

{¶20} Here, Appellant contends that the trial court failed to comply

with Crim.R. 11(C)(2) because it incorrectly advised him that he was facing

three terms of a minimum of twenty-five years to life in prison on the three

rape charges, rather than three terms of a minimum of ten years to life in

prison. And, not only was Appellant incorrectly advised by the trial court,

there appears to have been a misunderstanding by the prosecutor and

Appellant’s counsel as to the correct penalty for the rape offenses Appellant

was charged with as well and as the State concedes, Appellant was

improperly advised of his maximum sentences. Nonetheless, the State does

not concede that Appellant’s guilty pleas were not knowingly, intelligently

and voluntarily made because of the trial court’s erroneous notification

regarding the maximum possible sentence.
Washington App. No. 16CA10 16

{¶21} Based upon the record before us, we agree with the State's

argument. Here, Appellant was incorrectly informed by the trial court, the

prosecutor and his own counsel that he was facing, worst case scenario, an

aggregate term of seventy-five years to life in prison if he should be found

guilty. Appellant entered into a negotiated plea whereby he would enter

pleas of guilt to all three rape counts, as well as a corrupting another with

drugs charge that was a separate pending case, in exchange for the trial

court’s promise that it would impose the three twenty-five years to life

sentences concurrently. The agreement also permitted the trial court to

sentence Appellant as it deemed appropriate on the remaining corrupting

charge.

{¶22} The State argues that if Appellant “knowingly and intelligently

accepted that sentence, there is no reason to think that he would not have

accepted a sentence which was less or for ten years to life.” Thus, the State

contends that Appellant has suffered no prejudice as a result of the error.

We agree. Despite the fact that Appellant was incorrectly advised as to the

maximum sentences he was facing, because the error in the notification was

to Appellant's advantage, we cannot conclude that Appellant was prejudiced.

As suggested by the State, it is reasonable to conclude that if Appellant was

willing to plead guilty to the charges in exchange for three concurrent prison
Washington App. No. 16CA10 17

terms of twenty-five years to life, then he would certainly have pleaded

guilty to three concurrent prison terms of ten years to life. Thus, Appellant

has not demonstrated that but for the misinformation, the pleas would have

not been entered. Therefore, we overrule Appellant’s second assignment of

error.

ASSIGNMENT OF ERROR III

{¶23} In his third assignment of error, Appellant contends that the

trial court abused its discretion and committed reversible error in overruling

his presentence motion to withdraw his guilty pleas. In particular, he argues

that 1) his pleas were based upon misinformation; 2) he essentially received

ineffective assistance of counsel prior to entering the plea in that he felt

pressured to plead guilty rather than take his case to trial and his counsel

actually argued against his motion; and 3) he was not receiving psychotropic

medications as recommended by a mental health professional. The State

contends that because the information provided to Appellant was to his

advantage he cannot show prejudice, that he has failed to prove he was

pressured by his counsel to plead guilty, and that he did not need

psychotropic drugs in order to knowingly and intelligently enter guilty pleas.

The State further contends that Appellant simply had a change of heart,

which is not enough to withdraw his guilty pleas.
Washington App. No. 16CA10 18

{¶24} Initially, we note that trial courts possess discretion when

deciding whether to grant or to deny a presentence motion to withdraw a

guilty plea. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992),

paragraph two of the syllabus. Thus, absent an abuse of discretion, appellate

courts will not disturb a trial court's ruling concerning a motion to withdraw

a guilty plea. Id. at 527. “ ‘A trial court abuses its discretion when it makes

a decision that is unreasonable, unconscionable, or arbitrary.’ ” State v.

Keenan, 143 Ohio St.3d 397, 38 N.E.3d 870, 2015–Ohio–2484, 38 N.E.3d

870, ¶ 7; quoting State v. Darmond, 135 Ohio St.3d 343, 2013–Ohio–966,

986 N.E.2d 971, ¶ 34. An abuse of discretion includes a situation in which a

trial court did not engage in a “ ‘sound reasoning process.’ ” State v. Morris,

132 Ohio St.3d 337, 2012–Ohio–2407, 972 N.E.2d 528, ¶ 14; quoting AAAA

Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio

St.3d 157, 161, 553 N.E.2d 597 (1990). Moreover, “[a]buse-of-discretion

review is deferential and does not permit an appellate court to simply

substitute its judgment for that of the trial court.” Darmond at ¶ 34.

{¶25} Crim.R. 32.1 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.” Thus,
Washington App. No. 16CA10 19

Crim.R. 32.1 permits a defendant to file a motion to withdraw a guilty plea

before sentence is imposed. “ ‘[A] presentence motion to withdraw a guilty

plea should be freely and liberally granted.’ ” State v. Ketterer, 126 Ohio

St.3d 448, 2010–Ohio–3831, 935 N.E.2d 9, ¶ 57; quoting State v. Xie at 527.

{¶26} While trial courts should “freely and liberally” grant a

presentence motion to withdraw a guilty plea, a defendant does not “have an

absolute right to withdraw a guilty plea prior to sentencing.” State v. Xie at

527; accord State v. Ketterer at ¶ 57; State v. Spivey, 81 Ohio St.3d 405,

415, 692 N.E.2d 151 (1998); State v. Wolfson, 4th Dist. Lawrence No.

02CA28, 2003–Ohio–4440, ¶ 14. Instead, “[a] trial court must conduct a

hearing to determine whether there is a reasonable and legitimate basis for

the withdrawal of the plea.” Xie at paragraph one of the syllabus; accord

State v. Boswell, 121 Ohio St.3d 575, 906 N.E.2d 422, 2009–Ohio–1577, ¶

10, superseded by statute on other grounds as stated in State v. Singleton,

124 Ohio St.3d 173, 2009–Ohio–6434, 920 N.E.2d 958. While a trial court

possesses discretion to determine whether to grant or to deny a presentence

motion to withdraw a guilty plea, it does not have discretion to determine if

a hearing is required. See Wolfson at ¶ 15. Here, the trial court held a

hearing and Appellant raises no argument with respect to the provision of

the hearing.
Washington App. No. 16CA10 20

{¶27} We have previously set forth a list of factors that we consider

when determining whether a trial court abused its discretion by denying a

presentence motion to withdraw a plea: “ ‘(1) whether the accused was

represented by highly competent counsel, (2) whether the accused was given

a full Crim.R. 11 hearing before entering the plea, (3) whether a full hearing

was held on the withdrawal motion, and (4) whether the trial court gave full

and fair consideration to the motion.’ ” State v. Campbell, 4th Dist. Athens

No. 08CA31, 2009–Ohio–4992, ¶ 7; quoting State v. McNeil, 146 Ohio

App.3d 173, 176, 765 N.E.2d 884 (1st Dist.2001). Other considerations

include: “ ‘(1) whether the motion was made within a reasonable time; (2)

whether the motion set out specific reasons for the withdrawal; (3) whether

the accused understood the nature of the charges and the possible penalties;

and (4) whether the accused was perhaps not guilty or had a complete

defense to the charges.’ ” Id.; quoting McNeil at 176. However, a change of

heart or mistaken belief about the plea is not a reasonable basis requiring a

trial court to permit the defendant to withdraw the plea. Id.; citing State v.

Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988).

{¶28} Further, with respect to Appellant's ineffective assistance of

counsel claim raised within this assignment of error, we note that criminal

defendants have a right to counsel, including a right to the effective
Washington App. No. 16CA10 21

assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90

S.Ct. 1441, (1970), fn.14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008–

Ohio–1366, ¶ 21. To establish constitutionally ineffective assistance of

counsel, a criminal defendant must show (1) that his counsel's performance

was deficient, and (2) that the deficient performance prejudiced the defense

and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998).

In addition, in Xie, the Ohio Supreme Court stated as follows at 524:

“The Strickland test was applied to guilty pleas in Hill v.
Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203.
‘First, the defendant must show that counsel's performance was
deficient.’ Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80
L.Ed.2d at 693; Hill, 474 U.S. at 57, 106 S.Ct. at 369, 88
L.Ed.2d at 209. Second, ‘the defendant must show that there is
a reasonable probability that, but for counsel's errors, he would
not have pleaded guilty * * *.’ Hill, 474 U.S. at 59, 106 S.Ct. at
370, 88 L.Ed.2d at 210; see Strickland, 466 U.S. at 687, 104
S.Ct. at 2064, 80 L.Ed.2d at 693.”

“When considering whether trial counsel's representation amounts to

deficient performance, ‘a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance.’ ” State v. Walters, 4th Dist. Washington Nos. 13CA33, 13CA36,

2014–Ohio–4966, ¶ 23; quoting Strickland at 689. “Thus, ‘the defendant

must overcome the presumption that, under the circumstances, the
Washington App. No. 16CA10 22

challenged action might be considered sound trial strategy.’ ” Id.; quoting

Strickland at 689. “ ‘A properly licensed attorney is presumed to execute his

duties in an ethical and competent manner.’ ” Id.; quoting State v. Taylor,

4th Dist. Washington No. 07CA1, 2008–Ohio–482, ¶ 10. “Therefore, a

defendant bears the burden to show ineffectiveness by demonstrating that

counsel's errors were so serious that he or she failed to function as the

counsel guaranteed by the Sixth Amendment.” Id.

{¶29} We first address Appellant's contention that but for the

ineffective assistance of his counsel, he would not have pled guilty to the

charges at issue. Appellant argues the trial court should have permitted him

to withdraw his guilty pleas because his trial counsel misadvised him

regarding the maximum sentences he was facing for the rape charges. As set

forth above, although counsel did misadvise Appellant as to the maximum

sentence he was facing on the rape charges, we have already determined the

error that occurred in the maximum sentence advisement did not result in

prejudice to Appellant because the maximum sentences for Appellant's

crimes are actually less than what he was advised when he entered his pleas

of guilt. Further, we have already reversed the sentences imposed by the

trial court for the rape charges and Appellant will be re-sentenced

accordingly.
Washington App. No. 16CA10 23

{¶30} Appellant further argues that but for pressure by counsel, he

would not have pleaded guilty to the charges at issue, and that counsel's

argument against his motion to withdraw his guilty pleas also constituted

deficient performance. A review of the record indicates the following

testimony by Appellant in support of his motion at the plea withdrawal

hearing:

"The Defendant: I want to try and go through with the motion
to withdraw the guilty plea.

The Court: Oh. Okay. Well, what do you want to say to say
about it?

The Defendant: Well, like, me and my lawyer have argued a
lot.

The Court: Mm-hum.

The Defendant: And like -- and like -- I -- I, like, I want to say,
he did kind of press me, but didn't press me to take the plea
deal. Like, we argued over it and he said I was stupid if I didn't
take it. We got into an argument and he said that he like -- he
didn't want to be my lawyer. He told me to tell you to -- that if
I want to fire him, he said he would have no objections to it. I
mean, like -- like, under the circumstances, I mean, it's kind of a
rough situation. I've been under a lot of pressure. I mean, like
(inaudible).

The Court: Anything else you want to say?

Mr. Keene: --"

The record also contains testimony by Appellant's trial counsel as to whether

Appellant was pressured to plead guilty, which is as follows:
Washington App. No. 16CA10 24

"Mr. Blakeslee: Yeah. This is 40 years that I've done this.
When I first started out practicing criminal defense law, I kind
of got on people to take plea agreements that I felt were in their
best interest, and I got kind of upset and kind of hard with --
with folks. Over the years, I've learned that it's really not my
decision, on whether or not to accept a plea agreement or decide
to go to trial. It's not my decision, and although I do urge
people to do -- to do what I feel is -- is the best thing to do, I do
make recommendations, and sometimes, it gets heated. But the
bottom line is, my philosophy is, it's not my decision. And --
and we -- Cody said he wanted a trial. I told him I didn't feel
that he should have one, but he wanted a trial, and we had it.
His -- I remember that after the first day of trial, the decision
was, Cory (sic) was asked, to you want to take the witness stand
and testify on your own behalf. He said, I'd like to have some
time to think about it, and the case was continued to the next
day. I came to court, prepared to continue to try this case, and
he made his own decision that he wanted to change his plea.
And we entered into an agreement, and he understood exactly
what the agreement was, and I did not make him do something
that he didn't want to do."

{¶31} We cannot conclude, based upon the foregoing testimony, that

Appellant's counsel unduly pressured him into pleading guilty or blatantly

argued against the granting of his motion to withdraw his guilty pleas. As

Appellant stated, in his own words, although his counsel pressed him, he did

not pressure him into taking the pleas. Thus, this testimony does not

demonstrate that but for pressure by counsel, Appellant would not have

entered the pleas. Further, trial counsel admitted through his testimony,

consistent with Appellant's testimony, that sometimes things can get heated

during plea negotiations, especially when a client refuses a deal counsel
Washington App. No. 16CA10 25

believes to be in his or her best interest. We do not believe that trial

counsel's testimony constitutes ineffective assistance of counsel. As

Appellant testified, he was in a "rough situation." That situation existed

separate and apart from the plea negotiations and was not brought on by the

actions or representation of his trial counsel.

{¶32} We next address Appellant's argument that he was not receiving

psychotropic medications as recommended by a mental health professional

when he entered his pleas of guilt. Initially, we note that the competency

evaluation upon which Appellant bases his argument is not contained in the

record on appeal. As such, we must presume the validity of the trial court's

determination. State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-

3024, ¶ 18; citing State v. Philon, 6th Dist. Erie No. E-93-15, 1994 WL

319058 (June 30, 1994), * 3 (absent the inclusion of a competency

evaluation in the record on appeal, an appellate court will presume the

validity of the trial court's proceedings); State v. Glenn, 4th Dist. Adams

Nos. 11CA931 and 11CA932, 2012-Ohio-3190, ¶ 6, fn. 4 ("under App.R.

9(B) it is the duty of the appellant to order, in writing, from the court

reporter, a complete transcript of the parts of the proceedings not already on

file as the appellant considers necessary for inclusion in the record[.]").
Washington App. No. 16CA10 26

Thus, we cannot evaluate any argument based upon the competency

evaluation.

{¶33} Further, the testimony in the record that is properly before us

indicates Appellant was not impaired in any way when he entered his guilty

pleas. For instance, the following exchange took place at the plea hearing:

"The Court: Do you now have or you -- and you can this yes or
no, sir -- do you now have or have you ever had any mental
illness, mental condition, or mental problems?

The Defendant: Yes.

The Court: Okay. Is there anything in your mental health
history or present mental health condition, that keeps you from
fully understanding -- excuse me -- what is being said and what
is happening in this courtroom today?

The Defendant: Not that I know of, no.

The Court: No. You're understanding everything perfectly?

The Defendant: Yes.

The Court: Okay. Do you have any physical health problems
that keep you from fully understanding what's being said and
what's happening in this courtroom today?

The Defendant: No.

The Court: Okay. Are you under the influence of -- of any
alcohol, medicine, or drugs today, legal or illegal?

The Defendant: No."
Washington App. No. 16CA10 27

Based upon the foregoing, we reject Appellant's argument that the failure to

provide him with psychotropic drugs as allegedly recommended by a mental

health professional rendered his plea unknowing and involuntary.

{¶34} We next consider the factors relevant to a determination as to

whether the trial court erred in denying Appellant's motion to withdraw his

guilty plea. First, we have already determined that Appellant's counsel was

not ineffective and there is nothing in the record to suggest his counsel was

not highly competent. Second, we consider whether Appellant was given a

full Crim.R. 11 hearing before entering his plea. We already determined that

he was, and that the trial court did not err in accepting his guilty pleas under

Appellant's second assignment of error. Third, the record reflects that

Appellant was given a full hearing on his withdrawal motion, where he was

afforded the opportunity to be heard on his reasons for seeking to withdraw

his pleas. Fourth, the record reflects the trial court gave full and fair

consideration of Appellant's motion, but ultimately issued a denial,

reasoning that:

"When I explained to the difference in the pleas, you fully
understood at the change of plea, the options. The test for
competency is, do you understand the charges against you and
can you assist in your defense. The one thing you proved that
last day of trial, is that you did understand the charges, because
you were questioning me about things, and that you were able
to assist in your defense. Now, this system can't allow people
to manipulate it, and that's what you're trying to do. * * * But I
Washington App. No. 16CA10 28

honestly believe that you are manipulating the system. I
honestly believe that you understood what you were doing
every step of the way. There's no doubt about it. And -- and
for a young man, you're in a -- you're in an awful bind. But I
can't change that. I just can't change the facts. Okay? Now,
the motion to withdraw your plea is denied. You had -- you
understood what was happening."

These factors weigh against granting Appellant's motion to withdraw his

pleas.

{¶35} With respect to the additional factors to be considered, we note

that Appellant's motion was made within a reasonable time and before

sentencing and did set out specific reasons for the withdrawal. These factors

weigh in Appellant's favor. As discussed at length herein, although

Appellant was misinformed regarding the maximum sentences on the rape

charges, the error did not prejudice Appellant. As such, this factor weighs in

favor of denying Appellant's motion. Finally, with respect to the final factor,

Appellant has made no claim of actual innocence, as was pointed out the

State during the plea withdrawal hearing as follows:

"I would also point out that, again, no claim of actual
innocence. There's a little bit of talk about a threat. You know,
Jack said, hey, we argued, or the Defendant said, we argued;
Mr. Blakeslee's made clear, the decision was ultimately the
Defendant's."

This claim went unrefuted at the plea withdrawal hearing. We further note

that Appellant has made no claim of actual innocence on appeal either.
Washington App. No. 16CA10 29

{¶36} Based upon the record before us and taking into consideration

the above factors, we cannot conclude that the trial court abused its

discretion in denying Appellant's motion to withdraw his guilty pleas.

Instead, a review of the record indicates Appellant merely had a change of

heart, which is not grounds to grant a motion to withdraw a plea.

Accordingly, Appellant's third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

{¶37} In his fourth assignment of error, Appellant contends that his

trial counsel rendered ineffective assistance. In particular, Appellant argues

that his counsel was ineffective when he advised him to plead guilty and

accept a sentence that is contrary to law, and when he argued against his

own client's motion to withdraw his guilty plea. We have already set forth

the standard of review for claims of ineffective assistance of counsel.

{¶38} In light of our disposition of Appellant's second and third

assignments of error, which acknowledged the sentencing error at issue but

found that the error was in Appellant's favor and did not result in prejudice,

we cannot conclude that counsel's erroneous advisement that Appellant

should enter pleas of guilt in exchange for a sentence that was, as has now

been determined, contrary to law, resulted in prejudice so as to constitute

ineffective assistance of counsel. Likewise, because we have already
Washington App. No. 16CA10 30

rejected Appellant's argument that his counsel unduly pressured him into

pleading guilty or argued against his motion to withdraw his guilty pleas as

part of our analysis of Appellant's third assignment of error, we also reject

the argument here. Accordingly, Appellant's fourth assignment of error is

overruled.

ASSIGNMENT OF ERROR V

{¶39} In his fifth assignment of error, Appellant contends that the trial

court violated his due process rights and committed plain error when it

imposed post-release control for Appellant’s rape convictions under R.C.

2907.02(A)(1)(b) without statutory authority to do so. In support of his

argument, Appellant states that rape of a victim under the age of thirteen is

an unclassified felony, and that post-release control does not apply to

defendants convicted of unclassified felonies. As set forth above, although

the indictments and entire record in this matter state that these charges were

unscheduled felonies, R.C. 2907.02 clearly provides that rape is a first

degree felony.

{¶40} We acknowledge that Appellant is correct is his argument that

post-release control does not apply to unscheduled, or unclassified, or

special felonies. As noted by the Ninth District Court of Appeals in State v.

Pope, 9th Dist. Summit No. 26928, 2014-Ohio-3212, ¶ 21, R.C. 2967.28,
Washington App. No. 16CA10 31

which governs post-release control, "does not permit the imposition of post

[] release control on unclassified felonies." Citing State v Reed, 9th Dist.

Wayne No. 12CA0051, 2013-Ohio-3970, ¶ 77; See also State v. Moore,

supra, at ¶ 27 ("Postrelease control is not required for persons convicted of

special felonies like aggravated murder or murder.") (internal citations

omitted). However, because the rape charges at issue here were first degree

felony sex offenses, post-release control does apply. State ex rel. Carnail v.

McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 14

("After applying the rules of grammar and common usage to R.C.

2967.28(B)(1), we find that the statute's plain, unambiguous language

expressly requires the inclusion of a mandatory postrelease-control term of

five years for each prison sentence for felonies of the first degree and felony

sex offenses."). Accordingly, we find no merit to the arguments raised

under Appellant's fifth assignment of error and it is overruled.

CONCLUSION

{¶41} Here, because we have found no error or abuse of discretion on

the part of the trial court in accepting Appellant’s guilty pleas or in denying

Appellant's motion to withdraw his guilty pleas, or find Appellant received

ineffective assistance of counsel, Appellant's second, third and fourth

assignments of error are overruled and his convictions on three counts of
Washington App. No. 16CA10 32

rape and one count of corrupting a minor with drugs are affirmed. Yet,

because we have concluded that the trial court erroneously sentenced

Appellant to three terms of twenty-five years to life in prison on the rape

charges, his first assignment of error is sustained and the portion of the trial

court's decision imposing sentence is reversed and remanded for further

proceedings. Finally, we find no merit to Appellant's fifth assignment of

error, and it is, therefore, overruled. Accordingly, the judgment of the trial

court is affirmed in part, reversed in part, and remanded further proceedings

consistent with this opinion.

JUDGMENT AFFIRMED IN PART,
REVERSED IN PART, AND
REMANDED FOR FURTHER
PROCEEDINGS.
Washington App. No. 16CA10 33

Harsha, J., concurring:

{¶42} Keene’s second assignment of error asserts that his guilty plea

was invalid because his maximum potential sentence was overstated, thus he

contends he was not properly advised of the “maximum penalty involved”

for the rape charges in contravention of Crim.R. 11(C)(2)(a). Keene’s claim

involves a nonconstitutional right, and the “failure to comply with

nonconstitutional rights will not invalidate a plea unless the defendant

thereby suffered prejudice.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-

4415, 814 N.E.2d 51, ¶ 12. To demonstrate prejudice “the defendant must

show that the plea would otherwise not have been entered.” State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15.

{¶43} In Keene’s appellate briefs he does not argue, much less

establish, that he would not have pleaded guilty had he been informed of the

appropriate maximum penalty, i.e., that each rape charge was subject to a

maximum sentence of 10 years to life instead of 25 years to life. In fact,

establishing such a fact would seem most difficult. See State v. Barner, 4th

Dist. Meigs No. 10CA9, 2012-Ohio-4584, ¶ 13 (“Furthermore, it is hard to

see how Barner could have been prejudiced by an overstatement of

penalities, i.e., that he would not have pled guilty if the penalty was

explained correctly.”); see also State v. Calvin, 8th Dist. Cuyahoga No.
Washington App. No. 16CA10 34

100296, 2015-Ohio-2759, Par. 24, citing Barner and a 2nd Dist. case for the

proposition that “[I]t is hard to demonstrate prejudice when an overstatement

of the maximum penalty was given, and [the defendant] still entered his

guilty pleas.”

{¶44} Therefore, I agree that Keene’s second assignment of error is

meritless and properly overruled.
Washington App. No. 16CA10 35

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED FOR FURTHER
PROCEEDINGS. Appellant and Appellee shall split costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Opinion.

For the Court,

BY: ____________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this
document constitutes a final judgment entry and the time period for
further appeal commences from the date of filing with the clerk.